H-2A Visa

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The H-2A nonimmigrant visa program allows employers to hire foreign workers for temporary agricultural jobs when they cannot find enough U.S. workers.

I. H-2A VISA
The H-2A nonimmigrant visa program allows agricultural employers to hire foreign workers for temporary agricultural jobs.1 An H-2A visa only permits temporary agricultural work for a specific employer for a fixed period of time, which initially is less than one year.  After the visa period ends the H-2A worker must return home.  There is no path to citizenship or permanent legal status associated with the H-2A visa. Participation in the H-2A program is contingent on the employer’s showing that it tried to locate and hire U.S. workers but was unable to do so.  Multiple state and federal government agencies are involved in the process, including State Workforce Agencies, the U.S. Department of Labor, the U.S. Department of Homeland Security, and the U.S. Department of State.
 
 
A. Policy: A Balancing Act
The H-2A visa allows temporary agricultural employment in the U.S. when U.S. workers are not available for the job. Some argue that by using the H-2A visa program to bring in foreign workers, agricultural employers are allowed to bypass supply and demand market principles that are generally applicable to other U.S. employers.  Agricultural employers say there is a labor shortage and that they need a reliable workforce to effectively tend to agricultural commodities on a temporary and seasonal basis. Indeed, reports of a labor shortage in the agricultural sector persist despite rampant unemployment among the general U.S. workforce.  There are at least two sides to this story. One version: not enough U.S. workers want jobs in agriculture.  Another version: U.S. workers are not willing to accept the wages and working conditions offered in agriculture, and farmers are either unwilling or unable to offer U.S. workers employment on better terms. In any case, the H-2A program ensures a supply of labor so that wages and working conditions do not need to change to attract workers.
 
It is accepted that if foreign workers accept employment on terms that U.S. workers will not accept, U.S. workers may suffer as a result. Therefore, the H-2A program is designed so that foreign workers are only hired when employers certify that no qualified U.S. workers are available, even after the employers search for U.S. workers and the same benefits are offered to everyone. Petitions for H-2A workers are granted when the U.S. Department of Labor determines that hiring foreign workers will not adversely affect the wages and working conditions of U.S. workers.2
 
The H-2A program is thus built on a series of protections for both U.S. and foreign workers.  The U.S. Department of Labor is in charge of requiring employers to adhere to these principles, in conjunction with state workforce agencies.  The Department of Homeland Security handles the employer’s petition for the visas, and the Department of State issues the visas to individual workers. Each agency has its respective procedural and substantive rules governing the admission of foreign workers through the H-2A program.
 
B. History of Agricultural Guestworkers in the U.S.
The H-2A nonimmigrant visa is rooted in earlier agricultural guestworker importation schemes.  Previously, both the Bracero and the early H-2 programs allowed U.S. agricultural employers to import foreign workers. Understanding the background is important in placing the current H-2A program in its proper context.  As the leading historian on the issue, Cindy Hahamovitch, has noted:
 
Since the Second World War, whenever concern about the number of “illegal aliens” in the United States reached a fever pitch, guestworkers gained legitimacy.  In fact, within a few years of the wars’ end, the INS began dealing with the unauthorized Mexican immigrants it apprehended by transforming them into Braceros, a process the agency unfortunately called “Drying Out the Wetbacks.” Since the termination of the Bracero Program, whenever the U.S. public has fixated on “illegal immigration,” the H2 Program has grown in importance as a purportedly managed alternative to a seemingly unmanageable issue.  The same is true today.  In recent debates about immigration reform, both parties have considered proposals that would legalize millions of unauthorized immigrants by transforming them into legal but temporary guestworkers. . . . the story of . . . the thousands of other H2 workers who exited bots and airplanes to work in American fields and orchards is not a story of carefully managed migration.  The history of the H-2 Program is a tale of exploitation, protest, litigation, and mass deportation.3
 
1. 19th and early 20th Century labor
The U.S. agricultural industry has utilized foreign labor since the Civil War. Until the late nineteenth century, hundreds of thousands of Chinese immigrants worked in U.S. agricultural fields “to supplant newly freed slaves.”4 Chinese migrant workers came either indebted to or under contract with employers who paid for their travel to the U.S.5 The program was unpopular. Specifically, the public was not happy about the Chinese “willingness to accept substandard wages and conditions” even if they had little choice but to do so because of their debt or contract bondage.6 Lawmakers at the time suggested that the way to “protect domestic workers from unfair competition . . . was to ensure that immigrant workers entered the United States freely or not at all.”7 This was the backdrop to the first laws limiting foreign workers including the Chinese Exclusion Act in 1882 that banned all Chinese laborers from entering the United States.8 A few years later, the Foran Act “extended the contract labor ban to immigrants of all nationalities.”9
 
During World War I, Mexican migrant workers freely crossed the border into the U.S. to work in the fields.  While they were free to cross the border, they did not receive any permanent immigrant status.10 After the war and in the years leading up to and during the Great Depression, competition for agricultural jobs increased.  Mexican workers were deported in large numbers and in 1924, the U.S. Border Patrol was established.11 This ended the ability to freely cross the U.S./Mexico border.  
 
Historian Cindy Hahamovitch concludes that worldwide, more modern guestworker programs were conceived in part by exclusionary sentiment: “Temporary immigration schemes – guestworker programs – were state-brokered compromises designed to placate employers’ demands for labor and nativists’ demands for restriction.”12
 
2. World War II guestworker programs
Foreign worker programs began in earnest during World War II.13 Agricultural lobbyists claimed a massive labor shortage due to the military, manufacturing, and migration.14  However, in the South, what happened has been described “as a seismic shift in the balance of power between growers and farm laborers.  Farm laborers hadn’t vanished, but their reduced numbers gave them the courage to demand more for their services.  And farmworkers’ – especially black farmworkers’ – ability to make demands infuriated employers, who refused to admit that the ground beneath them had shifted.”15 Thus began two separate agricultural guestworker programs: the Bracero program, operating initially in the Southwest U.S. with migrant labor from Mexico, and the importation of temporary laborers from the Caribbean who primarily worked in Florida and along the eastern seaboard.
 
a) Bracero Program - Mexico
During WWII, the U.S. Secretary of Agriculture negotiated with the Mexican government to fill the U.S.’s apparent farm labor need with Mexican nationals.16  Between 1942 and 1964, under what was known as the “bracero program,” hundreds of thousands of Mexican farmworkers were admitted to the U.S. and worked mostly in California and other Southwestern U.S. states.17  Initially, the U.S Farm Security Administration guaranteed various employment benefits for the workers, covering wages, housing, and a work guarantee.18
 
After World War II, each employer was supposed to contract directly with the workers, continuing the earlier benefits, including fair wages, clean and safe housing, and at least a month of work.19   As it has been documented, however, abuse and exploitation of workers was widespread.20   Most Braceros simply did not know they were entitled to contracts or that they had any right to fair wages and benefits.  No one told them.  The lack of government oversight and enforcement presented a situation primed for exploitation.21
 
U.S. workers did not fare well during the time of the Bracero program either.  Employers were supposed to hire Mexican workers only when faced with a labor shortage.  In reality, employers favored the Mexican workers even when U.S. workers were available, and overall wages in agriculture decreased as a result.22
 
Abuses suffered by Braceros were well-publicized. There were organized strikes against employers, media spotlight, and lengthy legal battles.  In 1964, after 22 years and 4.5 million workers, the U.S. terminated the Bracero program.23
 
b) Caribbean workers and H-2 program legislative history
Also during World War II, the agriculture industry in Florida extensively lobbied the U.S. government for Caribbean workers.24   U.S. State Department officials negotiated terms of a labor importation program with the British Secretary for the Colonies, despite the British initial concern that “the scheme sounded a bit too much like indentured servitude.”25   The U.S. eventually persuaded them. The Caribbean guestworker scheme was modeled after the Bracero program, requiring a certain wage, free transportation, housing, and a work guarantee. 26 In 1943, employers obtained permission to import workers specifically from Barbados and the Bahamas.27   Around the same time, Jamaican workers were also being imported to labor in the Northeast, and within a few years were hired to work cutting sugarcane in Florida.28    
 
The Caribbean labor importation scheme was the actual precursor to the H-2 temporary foreign worker program, eventually codified in the Immigration and Nationality Act (INA) of 1952.29   Agricultural and non-agricultural temporary workers were included in the initial H-2 program.30   In 1986, the Immigration Reform and Control Act (IRCA) separated them into the current H-2A(agriculture) and H-2B(non-agriculture) sub-categories.31   
 
C. Duration of an H-2A Visa
H-2A visas are valid for the time period in the approved work contract, which must be less than one year, but can be extended for up to 12 additional months.32  The maximum time period any H-2A worker may be continuously present in the U.S. is 3 years.33  After that time, he must leave for an uninterrupted period of 3 months before seeking readmission to the U.S. on another H-2A visa.34
 
D. H-2A Jobs
H-2A workers perform a wide range of agricultural work. Examples include tending to tobacco and cotton, pruning and picking fruit such as cherries, oranges, apples and peaches, planting and harvesting onions and other vegetable row crops, de-tasseling corn, harvesting sugarcane, working in nurseries, greenhouses and on cattle ranches, and herding sheep.35
 
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  • 1. 8 U.S.C. § 1101(a)(15)(H)(ii)(a); and 20 C.F.R. § 655.90(a)(1).
  • 2. 8 U.S.C. §§ 1188(a)(1)(A) & (B); 8 C.F.R. § 214.2(h)(5)(ii) and 20 C.F.R. § 655.10.
  • 3. Cindy Hahamovitch, No Man’s Land: Jamaican Guestworkers in America and the Global History of Deportable Labor, Introduction at 7 (Princeton University Press 2012).
  • 4. Hahamovitch, No Man’s Land, at 13.
  • 5. Id.
  • 6. Id.
  • 7. Id.
  • 8. Id.; Public Broadcasting Service, The Border: History: 1942 Mexican Immigrant Labor History, available at http://www.pbs.org/kpbs/theborder/history/index.html.
  • 9. Hahamovitch, No Man’s Land, at 13.
  • 10. Public Broadcasting Service, The Border, supra note 5.
  • 11. Kristi L. Morgan, Evaluating Guest Worker Programs in the U.S.: A Comparison of the Bracero Program and President Bush's Proposed Immigration Reform Plan, 15 Berkeley La Raza L.J. 125, 127 (2004).
  • 12. Hahamovitch, No Man’s Land, at 14.
  • 13. Hahamovitch, No Man’s Land, Chapter Two: Everything But a Gun to Their Head, 22-49.
  • 14. Id. at 23.
  • 15. Id. (“Employers’ complaints of labor scarcity reveal that workers were present but increasingly demanding” at 27); see also Isabel Wilkerson, The Warmth of Other Suns (Vintage, 2010), 150-157 (describing a black farmworker crew seeking to improve their wages in a Florida orange grove during WWII).
  • 16. Id. at 42; 7 U.S.C. §§1461, et seq. (repealed); Ruben J. Garcia, Labor As Property: Guestworkers, International Trade, and the Democracy Deficit, 10 J. Gender Race & Just. 27, 46 (2006).
  • 17. Mary Bauer, Southern Poverty Law Center, A Brief History of Guestworkers in America, Close to Slavery: Guestworker Programs in the United States, (February 2013) http://www.splcenter.org/publications/close-to-slavery-guestworker-progr....
  • 18. Kristi L. Morgan, Evaluating Guest Worker Programs in the U.S.: A Comparison of the Bracero Program and President Bush's Proposed Immigration Reform Plan, 15 Berkeley La Raza L.J. 125, 129 (2004).
  • 19. Id., Bracero History Archive, About Page, (2012), http://braceroarchive.org/about
  • 20. Lorenzo A. Alvarado (FNa1), A Lesson from My Grandfather, the Bracero, 22 Chicano-Latino L. Rev. 55, 63 (2001).
  • 21. Ronald L. Mize, Jr., Reparations for Mexican Braceros? Lessons Learned from Japanese and African American Attempts at Redress, 52 Clev. St. L. Rev. 273, 286 (2005).
  • 22. Bracero History Archive, About Page, (2012), http://braceroarchive.org/about
  • 23. Fred Koestler, Bracero Program, Handbook of Texas Online, Texas State Historical Association, (22 February 2010), available at http://www.tshaonline.org/handbook/online/articles/BB/omb1_print.html.
  • 24. Hahamovitch, No Man’s Land, at 22-49.
  • 25. Id. at 42. Hahamovitch notes that the “most remarkable thing about all this is the fact that the INS never agreed to it, as U.S. immigration law required.” at 48.
  • 26. Id.at 44-45.
  • 27. Alec Wilkinson, Big Sugar: Seasons in the Cane Fields of Florida, 144-47 (Alfred A. Knopf 1989).
  • 28. Id. For a detailed discussion of the genesis and onset of Jamaicans working in U.S. agriculture, see Hahamovitch, No Man’s Land, at 50-66.
  • 29. Act of June 27, 1952, ch. 477, codified at 8 U.S.C.§1101 et seq.
  • 30. Andorra Bruno, Immigration: Policy Considerations Related to Guest Worker Programs, Congressional Research Service Report for Congress, 1 (2006), http://fpc.state.gov/documents/organization/62664.pdf.
  • 31. Immigration Reform and Control Act of 1986, Pub.L. No. 99–603, 100 Stat. 3359, 8 U.S.C. §1101; Mike Holley, Disadvantaged by Design: How the Law Inhibits Agricultural Guestworkers From Enforcing Their Rights, 18 Hofstra Labor & Employment Law Journal 2001, 581-583 (detailing history of guestworkers leading up to the modern H-2A program).
  • 32. 8 C.F.R. §§ 214.2(h)(5)(viii)(C), (15)(ii)(C); see also 20 C.F.R. § 655.103(d).
  • 33. 8 C.F.R. § 214.2(h)(15)(ii)(C).
  • 34. United States Citizenship and Immigration Service, H-2A Temporary Agricultural Workers available at www.uscis.gov (Jan. 2013).
  • 35. Office of Foreign Labor Certification, Employment and Training Administration, H-2A Temporary Agricultural Visa Program, U.S. Department of Labor, available at http://www.foreignlaborcert.doleta.gov/ pdf/h_2a_selected_statistics.pdf.
II. H-2A HIRING PROCESS
Employers must apply to the U.S. government for permission to import H-2A workers.  When doing so, they pass through three government agencies: the Department of Labor, Department of Homeland Security, and the State Department.  Simultaneously, the employer must locate and hire foreign workers to fill those jobs.  Workers are usually recruited in their home countries by a hired foreign recruiter.  Less frequently, employers find foreign workers through their own travels abroad or current employees in the U.S. Once the U.S. government grants permission to the employer to hire H-2A workers, the workers who are offered the job personally appear at the designated U.S. consulate abroad to apply for the H-2A visa, if one is required.
 
 
A. Steps for Employers
 
1. Department of Labor
Employers must seek a temporary labor certification from the Department of Labor, Employment and Training Administration, Office of Foreign Labor Certification. Agents or attorneys may petition on behalf of any type of employer.44 The petitioner just has to identify as either an individual employer, or labor contractor, or association.  If a labor contractor is filing, it must state the name and location of each employer where H-2A workers will be provided.45 The petitioner must specify and explain the number of H-2A workers that are needed and demonstrate that (1) there are not enough U.S. workers qualified and available to fill the positions needed, and (2) the employment of foreign temporary workers will not have an adverse effect on the wages and working conditions of U.S. workers holding similar jobs.46 The place of employment and location of each actual worksite should be described with as much geographical specificity as possible.  
 
a) Clearance order submitted to state workforce agencies
The first step is to submit an agricultural and food processing clearance order (ETA Form 790, commonly referred to as the “clearance order”) to the appropriate State Workforce Agency (SWA) about three to four months before an H-2A employee begins work.47  The SWA is usually the state department of labor or employment service.  The SWA reviews the clearance order for compliance with the regulations for all interstate clearance orders as well as regulations governing H-2A job orders.48 Within a short time period, the SWA will notify the employer of any problems, and the employer will have a short window to correct them.49
 
b) Temporary labor certification filed with USDOL
Next, after submitting the clearance order to the SWA and no less than 45 days before the date of need, the temporary labor certification application is filed with the National Processing Center in Chicago, ETA Form 9142.50   The application must include a copy of the clearance order.51  The DOL will notify the employer of any problems with the application within a week and will provide an opportunity to correct any deficiencies and file an amended application.52  A decision is made usually within a week and employers can appeal denials or partial certifications.53
 
c) U.S. worker recruitment required
Upon receiving approval from USDOL, the employer must begin actively recruiting U.S. workers for the positions they apply to fill with H-2A workers.54 H-2A program regulations require employers to actively recruit U.S workers in a manner similar to how non-H-2A employers in the region recruit their workers.55 Program regulations include examples such as newspaper and/or radio advertising, contacting local unions and hiring halls, and posting notice for available positions in customary locations.56 Employers are required to look for U.S. workers in a “multistate region of traditional or expected labor supply,” not to exceed three states for each area of employment.57 Employers are required to report their positive recruitment activities.58
 
d) Interstate system and electronic job registry
Upon finding the clearance order to be acceptable, the SWA enters it into circulation with the interstate employment service system and begins recruiting U.S. workers in the geographic area of intended employment.59 After the Application for Temporary Employment Certification and the clearance order have been deemed complete, the clearance order will be sent to the SWAs that serve the areas of intended employment.60 The SWA will then circulate the job information to states with potential U.S. workers for the positions.61 The Department of Labor has created an electronic job registry through which the information from the Form ETA-790 will be published and available to match U.S. workers with employers.62Each clearance order is maintained in the electronic job registry through the first 50% of the period of employment.63
 
 
 
 
 
2. Department of Homeland Security
The employer must submit two documents to the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) for permission to import foreign workers with H-2A visas: (1) the temporary labor certification approved by the Department of Labor; and (2) the Petition for Nonimmigrant Worker, Form I-129 with the $325 basic filing fee.66  Petitioners may file for more than one worker on a single Form I-129 if all of the beneficiaries will perform the same services for the same period of time and in the same location.67 The total number of unnamed worker beneficiaries requested must be on the petition and may not exceed the number of positions certified by DOL on the ETA Form 9142. Prospective H-2A workers do not need to be named individually on the Form I-129 but their nationality must also be specified, even if they are from more than one country.68
 
3. Department of State
Once the H-2A visa application is approved by USCIS, the employer will then communicate with the workers that they should apply for the visas at the consulate and attend in-person interviews.69 Usually an agent of the employer or recruiter will assist the workers with this process. The Department of State requires a $190 basic filing fee, $85 fingerprinting, and $26 consulate interview fees.70  H-2A program regulations mandate that employers pay for all fees.71 Nevertheless, the individual worker applying for the visa may still pay these fees out of pocket before or at the interview; if so, the employer must reimburse the worker for these expenses in the worker’s first paycheck.72
 
B. Steps for Workers
An H-2A visa is only available for an individual worker once an employer has authorization to hire a certain number of H-2A workers. Individuals who want to come to the U.S. on an H-2A visa, therefore, have to find an employer who either has already obtained permission to hire H-2A workers, or is willing to do so. Usually the employer engages a foreign recruiter to locate workers. Once a worker is offered and accepts the job, he must apply for the visa from the Department of State at a U.S. embassy or consulate in their home country, unless the worker is from a Caribbean nation that does not need a visa. At the U.S. post abroad, an individual must demonstrate non-immigrant intent.73 In other words, that he will return home when the job is done. The visa itself does not guarantee entry to the U.S.74 Once the worker has the H-2A visa in-hand, he must pass immigration inspection at the port of entry (or border).  The Department of Homeland Security's U.S. Customs and Border Patrol oversees admissions at the U.S. border.75
 
 
 
  • 44. 20 C.F.R. § 655.130.
  • 45. 20 C.F.R. § 655.132.
  • 46. 8 U.S.C. § 1188(a)(1); 20 C.F.R. § 655.103(a).
  • 47. 20 C.F.R. § 655.121(a)(1).
  • 48. 20 C.F.R. § 655.121(a)(3), see also 20 C.F.R. § 653.501, et seq. (regulations pertaining to interstate clearance system) and 20 C.F.R. § 655.122 (contents of job offers).
  • 49. 20 C.F.R. § 655.121(b)(1).
  • 50. 20 C.F.R. § 655.130(b).
  • 51. 20 C.F.R. § 655.130(a).
  • 52. 8 U.S.C. § 1188(c)(2)(A); 20 C.F.R. § 655.141(a); and 20 C.F.R. § 655.141(b)(3).
  • 53. 20 C.F.R. § 655.141(b)(3), (4) and § 655.171.
  • 54. 20 C.F.R. § 655.154(b).
  • 55. 20 C.F.R. § 655.154(b).
  • 56. 75 Fed. Reg. 6884, 6912 (Feb. 12, 2010); 20 C.F.R. §§ 655.150-158.
  • 57. 20 C.F.R. § 655.154(a), (c); 8 U.S.C. § 1188(b)(4).
  • 58. 20 C.F.R. § 655.143(3).
  • 59. 20 C.F.R. § 655.121(c). 8 U.S.C.A. § 1188(b)(4). The SWA must maintain the clearance order in the system for the first 50 percent of the period of employment. 20 C.F.R. § 655.121(d).
  • 60. 20 C.F.R. § 655.143(a).
  • 61. 20 C.F.R. § 655.143(b)(1).
  • 62. 75 Fed. Reg. 6884, 6927 (Feb. 12, 2010); 20 C.F.R. § 655.144.
  • 63. 20 C.F.R. § 655.144.
  • 66. U.S. Citizenship and Immigration Services, H-2A Agricultural Workers, available at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7... - H-2A Program Process
  • 67. 8 C.F.R. § 214.2(h)(2)(ii).
  • 68. 8 C.F.R. § 214.2(h)(2)(iii). However, there are exceptions. H-2A petitions must include the name of each beneficiary who is currently in the United States and USCIS may still require the worker’s name if it is needed to establish eligibility. For example, if an employer files Form I-129 to extend the stay or become the new employer of an H-2A worker who is already in the U.S., that worker must be named.
  • 69. See generally, 9 FAM 41.53.
  • 70. U.S. Department of State, Fees for Visa Services, available at http://travel.state.gov/visa/temp/types/types_1263.html.
  • 71. 20 C.F.R. § 655.135(j).
  • 72. 75 Fed. Reg. 6884, 6925 (Feb. 12, 2010).
  • 73. 8 U.S.C. § 1101(a)(15)(H) (H-2A and H-2B workers are defined as “having a residence in a foreign country which [s/]he has no intention of abandoning who is coming temporarily to the United States to perform” agriculture or other temporary services for which there are no available U.S. workers).
  • 74. 8 C.F.R. § 235.1(f)(1).
  • 75. See Austin T. Fragomen, Jr., Alfred J. Del Rey, Jr., and Sam Bernsen, Immigration Law and Business § 2:11 (2010) (“The issuance of a nonimmigrant visa gives the alien permission to apply for admission to the United States at a port of entry…The visa does not assure an alien that he or she will be admitted to the United States, however; it merely indicates that a consular officer has found the alien eligible for temporary admission to the United States and not inadmissible under § 212(a) of the INA, 8 U.S.C.A. § 1182(a).”).
III. H-2A WORKERS IN THE U.S. – DATA
The three federal agencies that share responsibility for the H-2A program each publish a variety of data.  The Department of Labor (DOL) makes available the number of applications for temporary labor certification and the number of H-2A job positions requested and certified.  In addition, DOL publishes information on petitioners, employers, job location, and job type.  The Department of State (DOS) annually presents data on the number of visas actually issued and the nationality of the workers that receive them.  The Department of Homeland Security (DHS) publishes the number of petitions for nonimmigrant H-2A worker status that were submitted and approved, as well as the number of border entries for individuals with H-2A visas, and the countries they came from. In 2012, the Department of Labor certified close to 100,000 H-2A jobs, and the State Department issued close to 65,000 H-2A visas. As of May 2013, DHS has not yet published data from 2012. Several U.S. states in the South have the largest number of H-2A workers, with Washington and California following close behind. Every year, over 90% of H-2A workers are Mexican nationals.  Anecdotal evidence suggests that the great majority are men under the age of 40, but age and gender statistics are not published by any federal agency.
 
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A. The Number of H-2A Workers in the U.S.
The exact number of H-2A workers in the U.S. at any given time is not publicly available.  The Department of Labor (DOL), the Department of Homeland Security (DHS) and the Department of State (DOS) each maintain data in line with their respective roles in the H-2A process and publish that data at regular intervals, whether quarterly or annually. The Department of Labor tracks the number of workers that employers are certified to bring to the U.S.  The Department of State tracks how many visas were actually issued to foreign workers applying at U.S. consulates abroad. The Department of Homeland Security tracks the petitions for nonimmigrant H-2A status and the number of admissions to the U.S. of individuals with H-2A visas. While no agency presents a complete picture or even an accurate count of the number of individuals present in the U.S. with an H-2A visa, the data is helpful to understand the general scope of the H-2A workforce.
 
1. Department of Labor data
The Department of Labor (DOL) certified 85,248 H-2A positions in 2012.79  This number comes from ETA Form 9142, on which the employer requests a certain number of workers. If DOL is satisfied that requirements are met, it will certify the number of workers requested. Thus the H-2A case disclosure data published by the DOL’s Foreign Labor Certification reflects only the number of H-2A positions were certified through the temporary labor certification process. The fact that a job position was certified for an H-2A worker does not necessarily mean that it was actually filled by an H-2A worker.
 
2. Department of State data
The Department of State (DOS) tracks the numbers of H-2A visas that are actually issued to individual foreign workers in any given year. In 2012, DOS issued 65,345 H-2A visas.80  This number gives perhaps the best idea of how many foreign H-2A workers may enter the U.S. in any given year. However, this number does not indicate how many H-2A workers are actually present and working in the U.S. in any given year.  It does not count the number of workers who entered with H-2A visas in previous years and extended their stay in the present year.  Furthermore, even if a worker is issued a visa it does not necessarily mean that the worker actually entered the U.S.  Finally, H-2A agricultural workers from the Caribbean are not counted in the DOS H-2A statistics at all because they are exempt from the visa requirements and enter the U.S. without an actual visa being issued by DOS. 
 
3. Department of Homeland Security data
Department of Homeland Security (DHS) has two subagencies involved in the H-2A program and thus two data sets pertaining to the number of H-2A workers.  The U.S. Citizenship and Immigration Services receives the petitioner’s Form I-129, which requests that a certain number of visas be made available.  The Customs and Border Patrol interviews the workers who have received H-2A visas from their local U.S. Consulates at the border or port of entry, and issues each worker an entry document, or I-94.
 
a) U.S. Citizenship and Immigration Services
U.S. Citizenship and Immigration Services (USCIS) reports 6,865 approvals of H-2A nonimmigrant worker petitions in 2012.81 Because multiple beneficiaries (workers) may be included on one single Form I-129, this represents the number of petitions, not the number of workers.  USCIS does not publish data on the number of workers that are requested on each petition when the petition is for multiple workers.  Moreover, the same Form I-129 used for petitioning for new workers as well as to make changes to an existing H-2A workers' status. Therefore, the number of approvals includes petitions for new unnamed H-2A workers, petitions to extend the stay of individual H-2A workers, and petitions to become the new employer of H-2A workers already in the United States.82 USCIS does not break down the approval number into applications for new and existing H-2A workers. 
 
b) Customs and Border Patrol
U.S. Customs and Border Patrol (CBP) counted 188,411 H-2A visa admissions in 2011.83 This number counts the number of admissions with I-94s entries. CBP gives an I-94 to all non-immigrants upon arrival in the U.S. and usually takes them back upon their departure.84 The Department of Homeland Security’s Office of Immigration Statistics publishes these I-94 statistics in their annual Yearbook of Immigration Statistics.  The number of nonimmigrant admissions refers to the number of admissions rather than the number of individuals.85 The way the data is collected does not distinguish between the first and return entries. Rather, all entries are counted as separate admissions.86 In other words, there were 188,411 H-2A admissions to the U.S. in 2011, not 188,411 workers. 
 
B. H-2A Employer Demographics 
DOL regularly publishes selected statistics. In 2012, the five states with the most H-2A jobs certified by the Department of Labor are North Carolina, Georgia, Washington, Louisiana, and Florida.87 Employer associations apply to bring in more workers than individual employers.  The biggest employer associations are North Carolina Growers Association, Washington Farm Labor Association, Western Range Association, and the Virginia Agricultural Growers Association.88 The top single employers in 2012 include Peri & Sons Farm for onions in California, Sierra Cascade Nurseries for strawberry plants in California, Zirkle Fruit Company, Inc. for yellow cherries in Washington, and Bland Farms for onions in Georgia.89 The crop using H-2A worker labor is listed as general farm worker, which includes farms that grow and harvest a variety of fruits and vegetables.  The named agricultural commodities where most workers are used are tobacco, oranges, cotton and onions. 
 
 
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C. H-2A Worker Demographics 
The U.S. Citizenship and Immigration Services (USCIS) may approve petitions for H-2A nonimmigrant status only for individuals from certain countries designated annually by the Department of Homeland Security (DHS) and the Department of State (DOS).90 Individuals from other countries are allowed only if determined to be in the U.S. interest.91 For the year 2013, DHS has identified 59 countries eligible to participate in the H-2A program. Even though dozens of potential source countries are on the authorized list, more than 90% of H-2A workers are from Mexico.92
 
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1. Age and gender
Information about the gender and age of H-2A workers is not published but it is routinely maintained.  When the information was requested, DOS employees revealed that in 2010, 96% of H-2A workers were male, the largest number of workers was between the ages of 18 and 30, and the average worker is 32 years old.93 Men account for 53,836 of the visas issued while women had a mere 2,074 (or 3.7% of all H-2A visas issued in FY 2010).94 Anecdotal evidence further suggests that employers prefer to hire young men as workers.95 Indeed, coupled with the data, a legitimate question is whether there is systemic gender and age discrimination against women and older workers.
 
  • 79. U.S. Dep’t of Labor, Foreign Labor Certification Data Center, Case Disclosure Data, http://www.flcdatacenter.com.
  • 80. U.S. Dep’t of State, Nonimmigrant Visa Issuance by Visa Class and Nationality FY 1997-2012 (2013) Detail Table at http://travel.state.gov/content/visas/english/law-and-policy/statistics/....
  • 81. U.S. Dep’t of Homeland Security, USCIS, I-129 H2A Performance Data FY 2012 Qtr4, available at http://www.uscis.gov/USCIS/Resources/Reports%20and%20Studies/Immigration....
  • 82. 8 C.F.R. § 214.1(c)(1) (2009); 8 C.F.R. § 214.2(h)(2)(i)(D)(2011).
  • 83. Randall Monger, Office of Immigration Statistics, Dep’t of Homeland Security, Annual Flow Report, Nonimmigrant Admissions to the United States: 2011 (2012).
  • 84. Id.
  • 85. Id.; see U.S. Dep’t of Homeland Security, Office of Immigration Statistics, 2011 Yearbook of Immigration Statistics (2012).
  • 86. Interview with Office of Immigration Statistics employee (Oct. 17, 2011).
  • 87. U.S. Dep’t of Labor, Office of Foreign Labor Certification, Selected H-2A Statistics FY 2012.
  • 88. Id.
  • 89. Id.; see http://www.youtube.com/watch?v=s5R2rKcpuos for background summarizing the farm operations of one large H-2A employer, Sierra Cascade Nursery.
  • 90. 8 C.F.R. § 214.2(h)(5)(i)(F)(1)(i).
  • 91. 8 C.F.R. § 214.2 (h)(5)(i)(F)(1)(ii).
  • 92. U.S. Dep’t of State, Nonimmigrant Visa Issuance by Visa Class and Nationality FY 1997-2012 (2013).
  • 93. Nonimmigrant visa statistics for age and gender of H-2A workers was provided to Global Workers Justice Alliance from the Department of State, Visa Office, Immigrant Visa Control and Reporting Division (2011).
  • 94. Id.
  • 95. See, e.g., Reyes-Gaona v. N.C. Growers Ass’n, 250 F. 3d 861, 863-67 (4th Cir. 2001) (Mexican plaintiff not hired for H-2A job in the U.S. because he was over 40 years old, lost age discrimination case because plain language of the ADEA does not regulate age discrimination against a foreign national that occurs in another country, even if the employment sought is with a U.S. company at a job located in the U.S.); and Olvera-Morales v. Sterling Onions, Inc., 322 F. Supp. 2d 211, 214 (N.D.N.Y. 2004) (Mexican women brought a Title VII gender discrimination case claiming that although they were qualified for H-2A jobs, those positions were reserved for men, and the women were instead hired for H-2B jobs, which were less favorable with lower wages and fewer benefits).
IV. RECRUITMENT OF FOREIGN WORKERS FOR H-2A JOBS
Employers usually hire foreign recruiters to locate suitable workers to fill their labor needs. Foreign recruiters may have an office or residence abroad and will advertise by word of mouth or through local media outlets. Oftentimes, a recruiter will find a group of workers from the same hometown who will all travel together to work for the same employer.  Problems come up when foreign recruiters make false promises or charge the workers exorbitant fees in order to obtain the job. Even though the regulations state employers may not use recruiters who charge fees, it is hard to enforce this prohibition. Whether the employer knew or should have known about the behavior of the foreign recruiter with respect to any of their workers is a hotly contested issue when complaints about foreign recruitment come to light. There is no registration system in place for foreign recruiters. Federal agencies in charge of administering the H-2A program either do not keep information about them or do not make it publicly available. 
 
 
A. Recruiter Registration Not Required
There is no registration system in place for foreign recruiters.  Any information about foreign recruiters that is collected by any of the federal agencies involved with the H-2 programs is not publicly available. This lack of transparency is problematic because prospective workers need to know the nature of the recruiter’s connection to the U.S. employers to determine if the job offer is reliable. When workers have only informal sources to rely on, such as the recruiter’s local reputation, the situation is ripe for abuse. 
 
B. Information About Foreign Recruitment Not Maintained
 
1. Department of Labor 
Under the current H-2A regulations, the DOL does not request any information about foreign recruitment.  While DOL certifies the number of H-2A jobs available, and, thus, the number of foreign workers the employer may seek to hire abroad, DOL never asks where the workers will be recruited, or who will recruit them.96 The only DOL regulation pertaining to recruitment is that employers must contractually forbid their recruiters from charging recruitment-related fees to prospective H-2A workers.97
 
2. Department of Homeland Security
The petition for non-immigrant workers requires the employer to specify the nationality of the workers it plans to hire. During the 2008 regulatory changes, DHS enacted an anti-fraud and worker protection measure requiring employers to state the names of the “staffing, recruiting, or similar placement service or agent” and the countries in which they will be recruiting.98 Employers do not need to disclose whether their recruiters will use subcontractors to actually recruit the workers, even though the use of subcontractors is common. 
 
3. Department of State
The Department of State has no official policy about collecting information on foreign recruiters.99 However, if consular officials suspect that workers have paid recruitment fees and have specific evidence of a petitioner's misconduct, they are directed to return petitions to DHS for reconsideration.100
 
C. Fraud 
No federal agency oversees or regulates foreign recruiters or their actions.  Foreign recruitment is only regulated insofar as recruitment fees are banned.  Even though employers and labor contractors must instruct recruiters to refrain from charging fees, recruiter fees are difficult to eradicate as a practical matter. Indeed, “the Department’s power to enforce regulations across international borders is constrained.”101
 
Impoverished foreign workers in dire need of jobs may take out loans in order to pay for recruitment fees and other costs that they are told are necessary to work in the U.S.  Even though the total amount of money the workers have to pay is great, the workers often believe that it is worth it because of recruiters’ promises about the amount of money the workers will earn.  Recruiters may charge a prospective H-2 worker without the employer’s knowledge and tell the worker to keep the fee agreement secret.  For example, after H-2A regulations banned recruitment fees, “recruiters adjusted their practices by charging fees after the workers had obtained their visas and levying charges under the guise of ‘service fees.’”102
 
When workers are indebted before they even arrive in the U.S. they are vulnerable being compelled to work against their will.”103 The effects of this reach beyond the H-2A workers themselves. According to the Department of Labor, 
 
Workers who have heavily indebted themselves to secure a place in the H–2A program may be subject to exploitation in ways that would adversely affect the wages and working conditions of U.S. workers by creating conditions akin to indentured servitude, driving down wages and working conditions for all workers, foreign and domestic.104
 
The current structure of the H-2A system may even facilitate outright fraud.  There is no official mechanism to discern the legitimacy of a recruiter who sets up shop in a small rural village and offers jobs in the U.S.  Recent studies suggest that defrauding of potential H-2 workers is rampant in large migrant sending countries, such as Mexico.
  • 96. 20 C.F.R. § 655, Subpart B.
  • 97. 20 C.F.R. § 655.135(j); Temporary Agricultural Employment of H-2A Aliens in the United States, 75 Fed. Reg. 6884, 6924 (February 12, 2010) (Final rule explaining why recruiter fees charged to potential employees are banned).
  • 98. 73 Fed. Reg. 78104 (Dec. 19, 2008); Form I-129 was amended as follows: The H-Classification Supplement, Section 3 Question 7. “Did you or do you plan to use a staffing, recruiting, or similar placement service or agent to locate the H-2A/H-2B workers that you intend to hire by filing this petition? If yes, list the name and address of the service used.”
  • 99. See 9 FAM 41.53; Interviews with Department of State officials (2010 and 2011).
  • 100. 9 FAM 41.53 N2.3 c. and N2.2.
  • 101. 75 Fed. Reg. 6884, at 6926 (Feb. 12, 2010).
  • 102. U.S. Dept. of State, Trafficking in Persons Report, June 2011, at 377, available at http://www.state.gov/documents/organization/164458.pdf.
  • 103. Id.
  • 104. 75 Fed. Reg. 6884, at 6925 (Feb. 12, 2010).
V. H-2A WORKER RIGHTS AND EMPLOYER OBLIGATIONS
The purpose of H-2A program regulations is to ensure that U.S. workers will not be adversely affected by the importation of foreign workers.  Because H-2Aworkers may come from countries with depressed economies and are often deeply indebted, they often suffer working conditions unacceptable to U.S. workers. Worker rights and employer obligations under the H-2A regulations apply equally to H-2A workers and their U.S. counterparts and serve to protect them both.  Rights include a written employment contract, free housing, prompt reimbursement of all transportation costs, free tools and supplies, a promised wage and work guarantee, and workers’ compensation insurance.  Employers must offer the same terms and conditions to all workers, whether foreign or domestic, and maintain accurate payroll records.  Retaliation is prohibited.  In addition to the H-2A program regulations, workers are protected by any number of other federal or state employment statutes or common law rights that apply to them, including but not limited to the Fair Labor Standards Act, the Age Discrimination Employment Act, Title VII of the Civil Rights Act, the Trafficking Victims Protection Act, the Racketeer Influenced Corrupt Organizations Act, and state minimum wage and hour and discrimination laws.  Whether specific statutes or common law rights apply to any given worker will depend on the facts of each particular situation.
 
 
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A. Contract
Employers must provide H-2A workers with a written copy of their work contract – in a language understood by the worker -- when an offer is made and no later than when the worker applies for his visa.105 The work contract is usually the same thing as the clearance order (ETA Form 790).  The work contract incorporates all of the H-2A program regulations, including specific worker protections and assurances that the employer will comply with applicable federal, state and local laws.  Thus, the H-2A work contract serves as a legally binding employment contract enforceable in court.
 
B. Housing
Employers must provide housing at no cost to H-2A workers and to U.S. workers “who are not reasonably able to return to their residence within the same day.”106 The employer can either provide its own housing or rental accommodations.  Housing must meet applicable health and safety standards. 
 
C. Meals
Employers must either provide free and convenient cooking and kitchen facilities where workers can prepare their own meals or they must serve three meals a day.107 Any cost must be stated in the work contract. In 2013, the maximum meal charge per day is $11.13.108
 
D. Transportation 
Upon completion of 50% of the contract period, the employer must reimburse the workers for their out-of-pocket inbound transportation costs, including daily subsistence and travel from where the worker came to the place of employment.109 If the worker completes the entire contract period, or is displaced by a U.S. worker under the 50% rule, the employer must pay for the workers’ outbound transportation back home, including subsistence costs.110
 
1. Federal wage law may require earlier partial reimbursement 
While H-2A program regulations themselves require employers to reimburse workers for the full amount of their travel costs after they complete 50% of the work contract, the Fair Labor Standards Act may require earlier reimbursement with the first week’s wages.111
 
 
2. Subsistence costs during travel
In 2013, the minimum amount an employer must pay each worker for daily subsistence when traveling to and from the worker’s home country and the place of employment is $11.13/day. The maximum amount a worker may receive is $46/day, if there is actual documentation.115 Employers are also responsible for en route lodging costs, if any.116
 
E. Daily Transportation Between Living Quarters and Worksite
If workers are living in employer-provided housing, employers must provide free transportation to and from the worksite each day.117 All transportation must meet safety and insurance regulations, and all drivers must be licensed.118
 
F. Tools & Supplies
Employers must supply H-2A workers with all necessary equipment needed for the job without charging them for it.119
 
G. Wages
H-2A workers must be paid at least the highest of the following: (a) the local “prevailing wage” determined by Department of Labor and state workforce agencies; (b) the state or federal minimum wage; (c) the “adverse effect wage rate” (AEWR) which is the per-state average hourly wage of farmworkers determined by a U.S. Department of Agriculture survey; or (d) agreed-upon collective bargaining wage.120 The highest rate is usually the AEWR
 
1. Adverse effect wage rate (AEWR)
One way for the Department of Labor to protect wages for U.S. workers is by establishing an hourly minimum wage paid to H-2A workers.   DOL sets and annually publishes an adverse effect wage rate (AEWR) for each state. 
 
 
 
2. Piece rate work
Many agricultural workers are paid on a piece rate basis. This is when workers receive a fixed rate for each unit of production, whether it is per bushel of apples harvested or row of onions planted. Workers who earn wages on a piece rate basis may end up earning more than what they would earn if they were paid hourly.  However, there are circumstances when piece rate earnings fall short of the hourly rate, for example if the crop yield is low. When this happens, the employer must supplement earnings so that the pay period’s wage average is at least the required hourly wage.124 If an employer pays by the piece rate and requires a minimum productivity standard, that fact must be clearly specified in the clearance order and be no more than customarily required in the area.125
 
H. Taxes
H-2A workers are exempt from Social Security, Medicare, and unemployment compensation.126 Therefore, employers are not required to pay employment payroll taxes for H-2A workers. However, H-2A workers are not exempt from the U.S. federal income tax. Whether H-2A workers have state income tax liability depends on state tax law. 
 
1. Federal income tax and H-2A workers
Even though compensation paid to H-2A workers is not considered to be “wages” for purposes of federal income tax withholding requirements, it is “wages” for purposes of an employer’s W-2 reporting.  Since 2011, employers are required to issue W-2s to H-2A workers who earn more than $600 per year. Many H-2A workers do have to file a federal income tax return and will owe U.S. federal income tax. Tax liability depends on personal income and how much time the individual has spent working in the U.S. in the last three years. If it is known in advance that a worker will have to pay income tax, the worker and employer may agree to voluntary federal income tax withholding (and taxes will be withheld from the H-2A worker’s wages). The U.S. Internal Revenue Service publishes guidance annually because this is a complicated and evolving area of law. Taxes may quickly turn into a troublesome issue for H-2A workers. Advocates have developed community education materials for workers to avoid such problems.  
 
I. Three-fourths Guarantee
Employers must guarantee to offer the H-2A worker a total number of work equal to at least 75% of the total contract period.127 The contract period begins the first day after the H-2A worker arrives on the job and ends on the final date listed on the clearance order work contract. If employers offer less than 75% of the promised work, they must pay the full amount of the contract. In other words, the amount the worker would have received had he worked the guaranteed number of days.128 The three-fourths guarantee does not apply to H-2A workers who are displaced by U.S. workers during the first half of the contract period. 129
 
J. Workers’ Compensation
H-2A workers are entitled to workers’ compensation insurance coverage consistent with state law, at no cost to the worker.130 This is true even in states that have laws which exempt agricultural workers from coverage. Proof of workers’ compensation insurance, including the name of the carrier, must be included with the clearance order so the worker has that information.
 
K. Recordkeeping 
Employers must keep accurate work records including earnings, the nature and amount of work performed, the number of hours of work, the rate of pay, and any field tally records.131 Each worker must receive an itemized earnings statement or paystub with his or her wages for each pay period.132
 
L. Retaliation Prohibited
Retaliation against H-2A workers is prohibited. Indeed, employers “may not retaliate, threaten, coerce, blacklist, discharge, or in any manner discriminate against anyone” who has filed a complaint, instituted any proceeding, testified or is about to testify in any proceeding, consulted with an attorney or legal services program related to the H-2A program, or has exercised or asserted on behalf of himself or others rights offered by the H-2A program.133 Workers may not waive any of their rights under the H-2A regulations, except through private litigation or administrative enforcement actions.134
  • 105. 20 C.F.R. § 655.122(q).
  • 106. 20 C.F.R. § 655.122(d)(1).
  • 107. 20 C.F.R. § 655.122(g).
  • 108. U.S. Dep’t of Labor, Employment and Training Administration, Meal Charge and Travel Subsistence, http://www.foreignlaborcert.doleta.gov/meal_travel_subsistence.cfm.
  • 109. 20 C.F.R. § 655.122(h)(1).
  • 110. 20 C.F.R. § 655.122(h)(2).
  • 111. 20 C.F.R. § 655.122(h)(1), (p)(1).
  • 115. U.S. Dep’t of Labor, Employment and Training Administration, Meal Charge and Travel Subsistence, http://www.foreignlaborcert.doleta.gov/meal_travel_subsistence.cfm.
  • 116. Id.
  • 117. 20 C.F.R. § 655.122(h)(3).
  • 118. 20 C.F.R. § 655.122(h)(4).
  • 119. 20 C.F.R. § 655.122(f).
  • 120. 20 C.F.R. § 655.122(l).
  • 124. 20 C.F.R. § 655.122(l)(2)(i).
  • 125. 20 C.F.R. § 655.122(l)(2)(iii).
  • 126. 26 U.S.C. § 3121(b)(1), (b)(19) (Federal Insurance Contributions Act exemption); 26 U.S.C. § 3306(c)(1)(B), (c)(19) (Federal Unemployment Tax Act exemption).
  • 127. 20 C.F.R. § 655.122 (i)(1).
  • 128. 20 C.F.R. § 655.122(i)(1)(iv).
  • 129. 20 C.F.R. § 655.122(i)(4).
  • 130. 20 C.F.R. § 655.122(e).
  • 131. 20 C.F.R. § 655.122(j).
  • 132. 20 C.F.R. § 655.122(k).
  • 133. 20 C.F.R. § 655.135(h)(1)-(5) and 29 C.F.R. § 501.4(a)(1)-(5).
  • 134. 29 C.F.R. § 501.5.
VI. ENFORCEMENT
H-2A program worker protections and the Fair Labor Standards Act are enforced by the U.S. Department of Labor.  If an H-2A worker claims any sort of discrimination and Title VII is implicated, then the Equal Employment Opportunity Commission may enforce those rights.  State agencies customarily will have the authority to enforce any state laws that apply to H-2A workers.  Workers themselves may enforce their own employment and civil rights by filing a lawsuit in federal or state court as allowed by law.  However, as is the case with all temporary foreign workers, it is a challenge to find a lawyer willing to represent clients who are bound to return home once their work visas expire.     
 
 
A. U.S. Department of Labor
The U.S. Department of Labor’s Wage and Hour Division (WHD) has enforcement authority over the H-2A program regulations.135 An enforcement action may result from a routine inspections or an informal complaint from any person.136 If a worker complains, efforts are made to protect the confidentiality of the complainant.137 In certain cases, WHD may recommend revocation of existing temporary labor certifications or even ban the employer from future participation in the H-2A program, seek injunctive relief and recover unpaid wages and other money owed to workers, or assess civil monetary penalties.  The amount of civil money penalties imposed depends on the violation and its severity.  Workers do not receive any portion of civil money penalties.  Rather, the penalties are paid to the U.S. Treasury.
 

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B. Private Litigation
H-2A workers may enforce their rights in court, as long as the court has jurisdiction to hear the case. A worker may have jurisdiction by virtue of a federal statute, such as the Fair Labor Standards Act, or may bring a common law contract claim.  Filing a breach of contract claim is how an H-2A worker directly enforces the worker protection terms of the clearance order, which include H-2A program regulations.  The clearance order is an enforceable contract: by its entry into the system it becomes an offer for employment on specific terms, which is accepted when the worker travels to the jobsite.138 A federal court may exercise supplemental jurisdiction over state law contract claims if there is an applicable federal statutory claim and the same facts, occurrences, witnesses and evidence are at issue.139 H-2A workers do not need to seek redress through the DOL before filing a breach of contract case in federal or state court.140 In other words, the fact that DOL has enforcement authority over the H-2A program does not preclude individual H-2A workers from filing their own lawsuits to enforce the terms of their work contracts.
 
 
 
  • 135. 29 C.F.R. §§ 501.0, et seq.
  • 136. 29 C.F.R. § 501.6(c).
  • 137. 29 C.F.R. § 501.6(b).
  • 138. Frederick County Fruit Growers Association, Inc. v. McLaughlin, 703 F. Supp. 1021 (D.D.C. 1989), affm’d, 968 F. 2d. 1265 (D.C. Cir. 1992).
  • 139. Arriaga-Zacarias v. Lewis Taylor Farms, Inc. 2008 WL 5115005 (M.D. Ga. 2008).
  • 140. Lopez v. Fish, 2012 WL 2126856 (E.D. Tenn. 2012).
VII. H-2A WORKERS – ISSUES
There are several special issues that present problems for H-2A workers in the U.S. As with other temporary nonimmigrant visa programs that tie workers to a specific employer, there is a lack of job portability.  This sets up a situation where the employee is dependent on the employer for immigration status.  When there are problems on the job, the worker may be unwilling to come forward for fear of being deported. Furthermore, there have been many documented cases of employer non-compliance with basic H-2A program protections.  Moreover, the fear of retaliation for complaining persists despite the long-standing ban on retaliation. It may take the form of an employer simply choosing not to hire the worker for future contracts or the foreign recruiter not allowing the worker to apply for jobs with any H-2A employers. Regardless, claims of retaliation are very difficult to investigate and prove because of the complexity involved with hiring decisions.  Some have argued that problems inherent to the design of the H-2A program render it a modern day system of indentured servitude.
 
 
A. Lack of Job Transferability 
As is the case with many other guestworker visas, H-2A workers only hold their visas courtesy of a single employer. The validity of the visa is parallel to the time period of the work contract; the H-2A worker is only legal to work in the U.S. during that specific period. Thus, if a visa holder quits his job prematurely or is fired, the visa is no longer valid.143 If an H-2A worker absconds, the employer must report it to both Department of Labor and Department of Homeland Security within two working days after abandonment – or perhaps be subject to monetary penalties.144
 
H-2A workers may be willing to put up with unfavorable working conditions rather than risk the immediate loss of their lawful immigration status.  
 
B. Wage and H-2A Contract Violations
The Department of Labor has assessed hundreds of H-2A employers for penalties and/or back wages.145 For example, in 2012, the Department of Labor reached an agreement with Peri & Sons to pay a record total of $2,338,700 in back wages to 1,365 workers, along with a civil money penalty of $500,000.146 Violations of the H-2A program, included wages that fell below the federal minimum hourly wage of $7.25 per hour, not paying the workers for time spent in mandatory work-training, and not reimbursing the workers for subsistence expenses during inbound travel or return transportation costs at the end of the contract period. In 2010, USDOL fined J&R Baker Farms $136,500 and ordered them to pay $1.3 million in back wages owed to about 100 H-2A workers as well as 150 U.S. workers in 2010.147
 
Private lawsuits on behalf of H-2A workers have also highlighted wage and contract violations that are all too common.148 In 2012, Arkansas company Candy Brand, was ordered to pay $1.5 million in back wages to more than 1,500 H-2A guest workers as a result of a class action lawsuit because Candy Brand did not pay overtime wages, reimburse travel, or cover visa and other expenses in the first week of work.149 Workers in the case had also paid as much as $500 in recruiter fees. 
 
C. Retaliation 
H-2A regulations protect workers from retaliation if they assert their rights or participate in an administrative or legal proceeding.150 Even so, reports consistently emerge about employers retaliating against workers who speak out about workplace conditions and rights.  Although there are regulations protecting H-2A visa holders who speak out about workplace conditions and rights, there have been numerous reports about employers retaliating or threatening to retaliate against these workers. According to the Department of State’s 2011 Trafficking in Persons Report:
 
“Recruiters discouraged former workers from reporting labor violations, claiming that U.S. embassies or consulates would not grant future visas for those who complain –assertions that are false and contrary to U.S. law. Workers also feared seeking assistance because of blacklisting and other retaliation against workers who complain about their conditions.”151
 
Lack of portability and indebtedness are two of the significant reasons repeatedly linked to H-2A workers’ unwillingness to raise concerns about exploitation on the job. In 1997 and again in 2000, the Government Accountability Office concluded that H-2A workers are “unlikely to complain about work protection violations” because of “fear they will lose their jobs or will not be hired in the future.”152 More than a decade later, the Department of Labor’s Employment and Training Administration Assistant Secretary drew the same conclusion when she told Congress that Wage and Hour Division “often finds it difficult to get people to testify because they are afraid of the next year. . . . these workers are very afraid to bring some of their concerns forward and do so many times through their advocacy groups so that they can keep their anonymity rather than putting their name on the line.”153
 
 
 
D. Lack of Portable Justice
As with other nonimmigrant visa programs, the H-2A scheme does not set up a way for workers to enforce their rights or denounce abuses when they return to their home countries after their visa expires.   Lawyers who represent H-2A workers routinely advocate for their clients even after they go home and remain abroad.  However, transnational litigation is wrought with challenges.  For example, H-2A workers who are injured on the job and require continuing medical treatment in the U.S. must apply for a separate visa or humanitarian parole.  The same is true for workers who are plaintiffs in lawsuits regarding problems with their job and need to return to the U.S. to give testimony at trial. The process of seeking this sort of immigration relief is complicated and costly, oftentimes itself preventing access to justice.
 

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