H-2A Visas for Agriculture: The Complex Process for Farmers to Hire Agricultural Guest Workers
Congress created the H-2A program in 1986 to allow legal foreign workers to temporarily work for U.S. farmers who were unable to hire qualified Americans. However, illegal immigrant workers came to dominate the industry in the 1990s, and the H-2A program was rarely used. While it still supplies only about 10 percent of farm labor, H-2A employment has increased fivefold since 2005.
The H-2A program needs reforms, but productive reform is only possible if policymakers understand how the system currently operates. This brief explains how the H-2A visa program works. Its main findings include the following:
- The H-2A program has more than 200 rules and is bureaucratically complex.
- H-2A minimum wages are higher than every state’s minimum wage by, on average, 57 percent.
- Americans accept only 1 in 20 H-2A job offers, and most later quit.
- H-2A expansion is likely responsible for much of the large decline in illegal immigration from Mexico.
- Violations of H-2A regulations are generally minor. An average of only 0.27 percent of farmers per year have been barred from the program because of serious H-2A violations.
H-2A Program Rules
The H-2A program is an employer-sponsored temporary worker program, meaning that farmers initiate the process, not the workers. The H-2A visa program has no numerical cap but is restricted to temporary or seasonal jobs lasting less than a year.1 This requirement significantly limits participation and effectively bars dairies and most animal farms that demand labor year-round.2 H-2A’s most widely used predecessor—colloquially known as the Mexican Bracero Program (canceled in 1964)—had no such limitation.3 The H-2A program also narrowly defines “agriculture,” excluding most meat packers and processors.4
Figure 1 broadly outlines the H-2A process. The Government Accountability Office has found that the “complexity of the H-2A program poses a challenge for some employers” because it “involves multiple agencies and numerous detailed program rules that sometimes conflict with other laws.”5 In 2014, the U.S. Citizenship and Immigration Services (USCIS) ombudsman characterized the H-2A program simply as “highly regulated.”6 Appendix Table C details a noncomprehensive list of 209 H-2A rules that apply to workers and farmers, and Text Box 1 is a short summary of those rules.
To start, when farmers have jobs that they want to fill with H-2A workers, they must first receive a labor certification from the Department of Labor (DOL).7 They must anticipate a worker shortfall and initiate the labor certification process 60 days before the job’s start date by submitting job orders to State Workforce Agencies (SWAs), which are state‐run entities that help unemployed U.S. workers.8 The SWAs guarantee that job offers comply with H-2A regulations and inform unemployed Americans about the job opportunities.9 Farmers meanwhile must contact former U.S. employees and advertise the jobs.10
If too few U.S. workers apply, DOL will again review the jobs and certify the farmer to hire foreign workers for the remaining positions. The law requires DOL to make certifications at least 30 days before the job starts.11 Delays have cost farmers millions of dollars in lost crops.12 But the internet has improved DOL processing: it deployed online applications in 2012, and by 2019, about 94 percent of applicants used it.13 As a result, the department moved from completing just 63 percent of labor certifications within 30 days in 2011 to completing 97 percent in 2015 (Figure 2).14 In 2019, however, delays reemerged as DOL had the lowest rate of timely approvals (86 percent) of any year since 2013.15
If DOL grants the labor certification, the farmer pays fees of $100 plus $10 per worker, up to $1,000 total.16 Even after H-2A workers start, however, farms must continue to accept U.S. workers until half the job period has expired.17 While farmers continue recruiting U.S. workers, they petition USCIS to admit foreign workers and pay a $460 fee per petition.18 USCIS will conduct yet a third duplicative review (after the State Workforce Agencies and DOL) of the jobs.19 This can also delay workers’ arrivals, and while USCIS has a 15-day deadline, it may surpass the deadline if it requests additional information from the farmer, which it did 11 percent of the time in 2019.20 Farmers may generally request workers from only 84 eligible countries.21 Since 2015, USCIS has removed four countries from the eligibility list: Belize, Ethiopia, Haiti, and the Philippines.22
If USCIS approves a petition, workers may apply for visas. They pay a $190 visa fee, which employers later reimburse if the worker finishes at least half of the contract.23 The Mexican Bracero Program streamlined entries by not requiring visas.24 Until 2016, USCIS also permitted visa-less H-2A entries from several Caribbean countries.25
To receive visas, H-2A workers must demonstrate that they do not intend to live in the United States permanently, either illegally or legally.26 Based on the available evidence, less than 1 percent of the illegal immigrants who overstayed visas were H-2A workers, indicating that they value their legal status.27 Farmers petitioned for legal permanent residence on behalf of only 77 H-2A workers in 2018 because workers cannot receive H-2A status with a permanent residence petition pending; the process is too lengthy and expensive for farmers, and employers cannot request permanent residence for workers in temporary jobs.28 Visas authorize travel to the U.S. border, where Customs and Border Protection (CBP) screens workers, grants them admission, and authorizes their H-2A status for the job’s duration.29 CBP charges an entry fee of $6 per worker, and workers often wait in line several hours to enter the country.30
When workers arrive, farmers must pay wages and benefits at rates set by DOL to both H-2A and U.S. workers in “corresponding employment.”31 This parity requirement—which the Bracero Program lacked—applies even if U.S. workers are the vast majority of employees, which discourages new farmers from joining.32 Farmers must usually pay a minimum wage called the Adverse Effect Wage Rate (AEWR), which is the costliest and most contested rule.33
The AEWR is a regional average wage based on annual government surveys.34 The AEWR ignores differences between localities, detailed job types, skills, and experience. Both the H-2B nonagricultural and H-1B skilled worker programs determine wages for local areas for specific occupations and permit some private surveys.35 The H-1B program also provides four skill levels.36 The 2020 hourly AEWR (Figure 3) was between $11.71 (Alabama, Florida, Georgia, and South Carolina) and $15.83 (Oregon and Washington).37 The 2020 AEWR was higher than every state’s minimum wage by an average of 57 percent.38
DOL adjusts the AEWR annually based on a survey and uniquely classifies overtime, hazard pay, bonuses, performance incentives, and all other payments as wages.39 This inflates the base hourly rate before adding these types of extra compensation for the following year.40 This inflated average rate then applies to all workers, pricing out H-2A and U.S. workers who had below-average wages. When these workers drop out, the surveyed wage is artificially inflated even further. Many farmers feel these procedures put the AEWR on an upward escalator that becomes more disconnected from reality each year. The average AEWR has grown about twice the rate of inflation since 2001.41 In some states, the AEWR increased 23 percent in 2019.42
Farmers must guarantee AEWR wages equal to at least 75 percent of the projected job period even if it finishes early.43 H-2A farmers must also finance transit to and from jobsites and offer workers either kitchens or three daily meals.44 H-2A workers and out-of-the-area U.S. workers must receive housing at no cost. Excluding the AEWR, housing is the costliest rule for farmers: it accounts for nearly a quarter of H-2A requirements (see Appendix Table C) and inflates total compensation far above the non–H-2A rate.45 In comparison, the H-2B program for nonagricultural jobs generally has no housing mandate.46
When H-2A workers complete 50 percent of the job, farmers must reimburse their expenses for travel to the United States and, if workers complete the job, pay for the trip back to their home country, unless workers find other H-2A jobs.47 Regulations require H-2A workers to find another employer within 30 days and mandate absences of at least three continuous months every three years.48 DOL’s Wage and Hour Division conducts audits of H-2A farmers and fines those who fail to comply with regulations.49 Figure 4 illustrates a simplified version of H-2A filing procedures.
Given the high costs and regulatory complexities of the H-2A program, farmers use it as a last resort. For this reason, it served few farms until around 2005 but has grown rapidly since then (Figure 5). In 2019, DOL certified about five times as many jobs for H-2A employment as in 2005—an increase from 48,336 to 257,667.50 These certified jobs led to 204,366 visas for new foreign workers to travel from abroad, and H-2A workers were admitted to the United States about 397,000 times.51 Nonetheless, H-2A jobs were just 10 percent of the roughly 1.4 million full-time equivalent agricultural jobs in 2019.52
U.S. Workers and the H-2A Program
The first sections of Figure 4 cover DOL’s labor certification.53 The Government Accountability Office has called this process a “time consuming, complex, and challenging” exercise that “imposes a burden on H-2A employers that is not borne by employers who break the law and hire undocumented workers.”54 The labor certification is intended to demonstrate that H-2A workers will not “adversely affect” U.S. workers.55 Numerous government and academic reports have found that this expensive effort is largely futile, producing few, if any, hires that would not otherwise occur.56
DOL has continuously raised H-2A minimum wages to induce U.S. workers to apply, but Department of Agriculture economists have concluded that “farm labor supply in the United States is not very responsive to wage changes.”57 When Congress canceled the Bracero Program—which had admitted at its peak nearly a half a million Mexican workers—farmers in areas that lost braceros hired no more U.S. workers nor did they raise wages compared to other farms.58 Instead, they mechanized, shifted to less labor-intensive crops, and downsized.
With more hospitable and consistent jobs available elsewhere, U.S. workers pass on seasonal farm jobs. For example, the North Carolina Growers Association sought to fill 7,008 jobs through the H-2A program in 2012 and just 143 U.S. workers—2 percent of those demanded—applied for and showed up for the jobs, and only 10 completed the growing season. From 2007 to 2010, only about 50 out of the 290,000 net increase in unemployed North Carolinians chose agricultural jobs (Figure 6).59
DOL found that from 2014 to 2016, 87 percent of H-2A employers requesting U.S. workers received none.60 Just 6 percent of H-2A jobs ultimately went to U.S. workers, and a majority of those showed up after the harvest began and H-2A workers had started.61 This means that H-2A recruitment—including higher wages and state and federal oversight—provided farmers with U.S. workers in time for harvests just 2.9 percent of the time. Even then—as the North Carolina growers found—many U.S. workers “either did not report to work or voluntarily resigned.”62
Of course, even the few U.S. workers in H-2A jobs would likely have found jobs without the extensive regulatory structure. The H-2A employment surge has even coincided with a dramatic drop in unemployment for domestic farmworkers (Figure 7).63 In other words, farms have hired domestic workers alongside H-2A workers.
Farmers and the H-2A Program
American farms produced about $133 billion—a bit below 1 percent—of the U.S. gross domestic product in 2017. Related downstream industries that depend on U.S. agricultural production contributed more than $1 trillion to GDP.64 This important industry spends about $40 billion on hired help and depends on reliable sources of workers because harvests must occur during brief time windows.65
Farmers hire foreign workers because very few U.S. workers want farm jobs despite rising wages. The illegal immigrant share of domestic farmworkers grew from 7 percent to 56 percent from 1989 to 2000, but dropped to 48 percent by 2016 (Figure 8). Since 1989, the share of U.S.-born farmworkers fell from about 40 percent to roughly 25 percent (Figure 8).66
In addition to faster H-2A processing times (Figure 2), farm labor markets have changed since the late 1990s to encourage hiring more H-2A workers. Most important, the share of domestic farmworkers who are new (non–H-2A) entrants to U.S. farm work began cratering, falling from 27 to 4 percent from 1997 to 2016.67 With fewer workers coming down the road, more farmers sought new workers through the H-2A program.
Fewer new entrants partly explains why labor demand has outstripped the supply of H-2A workers, causing farm wages to rise (Figure 9).68 Farm laborers in crop production—the primary H-2A activity—saw especially outsized wage growth. In 2001, such laborers made 53 percent as much as all workers weekly, compared to 60 percent in 2019.69
Farms where labor expenses are the highest hire the most H-2A workers. Fruits, vegetables, horticulture, and tobacco farming constituted nearly three‐quarters of H-2A jobs in 2018, and these industries spend double or triple the share on labor as other agricultural industries (Table 1).70 While dairies and other animal farms use the H-2A program less, they also face a major legal obstacle to participating because most of their jobs are permanent rather than, as H-2A law requires, temporary.71
The H-2A increase has likely lowered illegal border crossings, reducing the supply of illegal farmworkers and prompting still more farmers to hire H-2A workers. From 2000 to 2018, a 1 percent increase in H-2 visas for Mexicans—including some under the H-2B program for nonagricultural jobs—was associated with a 1 percent decline in the absolute number of Mexicans apprehended for crossing illegally.72 Figure 10 shows that when H-2A admissions are high, Border Patrol apprehensions (per agent) have remained low.73 As one H-2A worker told the Washington Post in April 2019, “Most of my friends go with visas or they don’t go at all.”74
Foreign Workers and the H-2A Program
Almost all H-2A workers are Mexicans. Figure 11 shows the number of H-2A visas issued by nationality from 1997 to 2019.75 Mexicans dominate the flow every year, and from 2005 to 2019, the Mexican share further increased from 82 to 91 percent. The next most common nationality is South African (2 percent), followed by Jamaican (2 percent), and Guatemalan (1 percent). All other nationalities amounted to just over 3 percent.
Farmers must petition the government to request foreign workers before workers can receive visas, meaning that farmers control which countries the workers come from. As H-2A employer requests grew, U.S. recruiters expanded their existing recruitment in Mexico.76 For this reason among others, it is unlikely that farmers will hire many non‐Mexican workers in the foreseeable future.77 If Congress wants to encourage the hiring of other nationalities that are prone to making illegal border crossings, it needs to expand the program, such as allowing year‐round industries to use H-2A visas but only to hire from those specific countries—thus forcing employers to recruit there.78
Higher U.S. wages motivate Mexicans to accept U.S. farm jobs (see Text box 2).79 The annualized wage for H-2A workers was almost $25,000 in 2019.80 Mexico’s minimum wage for farmworkers was just $4.64 per day, less than $1,200 per year.81 Even the highest paid agricultural workers in Mexico only earn $15 per day.82 Even if H-2A minimum wages fell, Mexicans would still greatly benefit from H-2A jobs.83 Indeed, a larger number would benefit because a lower wage would allow farmers to hire more workers.
Nearly all H-2A workers willingly attempt to return year after year. While the State Department fails to disclose the frequency at which H-2A workers return, one indication is that the similar H-2B program for nonagricultural workers—most of whom are also Mexicans—doubled in size when Congress allowed H-2B returning workers to be exempt from the cap in 2007.84 The H-2A program is uncapped, so no similar experiment can occur, but H-2A workers also report repeatedly participating.85
The frequency of returning workers indicates that whatever the downsides, foreign workers prefer H-2A jobs to jobs in their home countries or illegal status. Unfortunately, abuses can happen. Polaris, a group dedicated to combating human trafficking, received 327 complaints to its human trafficking hotline from H-2A visa holders from 2015 to 2017—about 0.08 percent of visas issued.86 These are tragic cases, but as David Medina of Polaris told the Guardian, most H-2A workers’ “biggest fear is to lose that visa.”87
The Wage and Hour Division of DOL investigates abuses and enforces H-2A rules. Figure 12 compares the number of H-2A wage and hour violators fined by the division to the number of unique H-2A employers each year since 2008.88 Even with H-2A’s immense regulatory complexity, DOL fined just 2 percent of H-2A employers, on average, annually from 2008 to 2018. Most fines were for minor infractions, worth on average just $237.89 The maximum available fine per violation in 2019 was $115,624.90 Fewer than 20 employers from 2008 to 2018 had serious enough violations to have been suspended or debarred from the program—an annual rate of 0.27 percent of the employers.
While farmers, unions, and migrant advocates disagree over the necessity of more intrusive auditing of all employers to deal with such limited abuses, they generally agree that H-2A workers should be better able protect their own rights by leaving to find new jobs.91 This would require lengthening the period that workers have to find another job and allowing existing H-2A workers to be recruited on the same terms as U.S. workers so that subsequent employers need not have already initiated the complex recruitment process before the worker applies. These changes would be a rare win‐win reform for both farmers and foreign workers.
Conclusion
The H-2A program has more than 200 complex rules that reduce farmer participation. Farmworker wages have increased continuously since 2001, but H-2A recruitment of American workers still attracts less than 3 percent of the needed workers by the job’s start date. Higher wages, low unemployment rates, and fewer U.S. workers entering agriculture have encouraged more farmers to use the program, which has likely resulted in fewer illegal border crossings. H-2A abuses of foreign workers are rare, and H-2A workers choose to return year after year because program conditions improve their lives. Congress could expand on this successful program by making H-2A visas available to year‐round industries and streamlining its rules and regulations.
Appendix
Notes
1 8 U.S.C. § 1101(a)(15)(H)(ii)(a) (2018); 20 C.F.R. § 655.103(d) (2019).
2 The program had a de facto practice of approving year-round sheep and goat herders. USCIS will terminate its practice in June 2020, and the Department of Labor will rescind its policy in 20 C.F.R. § 655.215(b)(2) (2019) by regulation. See Citizenship and Immigration Services, “Policy Memorandum—Subject: Temporary or Seasonal Need for H-2A Petitions Seeking Workers for Range Sheep and/or Goat Herding or Production,” PM-602-0176, November 14, 2019.
3 Glenn E. Garrett, Mexican Farm Labor Program Consultants Report: October 1959 (Washington: DOL, 1959), p. 5.
4 8 U.S.C. § 1101(a)(15)(H)(ii)(a) (2018).
5 “For example, because of confusion regarding the H-2A regulations, one employer expressed uncertainty about the appropriate time to reimburse workers for their in-bound travel costs, payment of which must be included in the job offer. The H-2A regulations specify that workers must be reimbursed upon the completion of 50 percent of their work contract but also that H-2A employers may be subject to the Fair Labor Standards Act, under which employers are to make such reimbursements during the first week of employment.” Cited in: Government Accountability Office, H-2A Visa Program: Modernization and Improved Guidance Could Reduce Employer Application Burden, GAO-12-706 (Washington: GAO, September 2012), p. 25.
6 Office of the Citizenship and Immigration Services Ombudsman, Annual Report 2014 (Washington: DHS, June 27, 2014).
7 8 U.S.C. § 1188 (2018); 20 C.F.R. § 655.100. (2019).
8 “About NASWA,” National Association of State Workforce Agencies.
9 20 C.F.R. § 655.121 (2019).
10 20 C.F.R. Subpart B—“Labor Certification Process for Temporary Agricultural Employment in the United States (H-2A Workers),” April 1, 2018.
11 8 U.S.C. 1188(c)(3)(A) (2018).
12 Government Accountability Office, Improved Guidance Could Reduce Employer Application Burden, p. 17.
13 Department of Labor, “Temporary Agricultural Employment of H–2A Nonimmigrants in the United States,” 84 Fed. Reg. 36,170 (July 26, 2019).
14 For 2006–2007, see Sen. Mike Crapo, “Letter to Hilda Solis,” March 14, 2012; for 2011 data, see Government Accountability Office, Improved Guidance Could Reduce Employer Application Burden, p. 12; for 2012–2019, see “Selected Statistics by Program,” OFLC Performance Data, Department of Labor, Employment and Training Administration.
15 No agency tracks whether workers show up on time. Government Accountability Office, Improved Guidance Could Reduce Employer Application Burden, p. 17.
16 20 C.F.R. § 655.163 (2019).
17 20 C.F.R. § 655.135(d) (2019).
18 8 C.F.R. § 103.7(b)(1)(i)(A) (2019); “I-129, Petition for a Nonimmigrant Worker,” Citizenship and Immigration Services, updated October 18, 2019. USCIS is proposing to change the fee structure to $425 per petition for unnamed beneficiaries and $860 for named beneficiaries. Department of Homeland Security, “U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements,” 84 Fed. Reg. 62,308 (November 14, 2019).
19 “California Service Center Processing Time Report,” American Immigration Lawyers Association, March 19, 2018.
20 “I-129, Petition for a Nonimmigrant Worker,” Citizenship Immigration Services.
21 C.F.R. 214.2(h)(2)(iii) (2019); 8 C.F.R. 214.2(h)(5)(i)(F)(1)(ii) (2019). For the 2019 country list, see “H-2A Temporary Agricultural Workers: H-2A Eligible Countries List,” Citizenship and Immigration Services, updated January 24, 2019. The country list is based on four criteria: The country’s cooperation with respect to issuance of travel documents for citizens, subjects, nationals, and residents of that country who are subject to a final order of removal; the number of final and unexecuted orders of removal against citizens, subjects, nationals, and residents of that country; the number of orders of removal executed against citizens, subjects, nationals, and residents of that country; and such other factors as may serve the U.S. interests.
22 Ineligible countries in the Americas include Antigua and Barbuda, the Bahamas, Belize, Bolivia, Cuba, Dominica, Guyana, Haiti, Saint Kitts and Nevis, Saint Lucia, Suriname, Trinidad and Tobago, and Venezuela. “H-2A Temporary Agricultural Workers,” Citizenship and Immigration Services, 2015, https://web.archive.org/web/20160219155925/https:/www.uscis.gov/working-united-states/temporary-workers/h-2a-temporary-agricultural-workers.
23 “H-2 Visas,” U.S. Embassy and Consulates in Mexico.
24 Barbara Driscoll, The Tracks North: The Railroad Bracero Program of World War II (Austin: University of Texas, 1999), p. 58.
25 “The visa exemption for agricultural workers from the specified Caribbean countries dates back more than 70 years and was created primarily to address U.S. labor shortages during World War II by expeditiously providing a source of agricultural workers from the British Caribbean to meet the needs of agricultural employers in the southeastern United States.” Department of Homeland Security, “Elimination of Nonimmigrant Visa Exemption for Certain Caribbean Residents Coming to the United States as H–2A Agricultural Workers,” 81 Fed. Reg. 6430 (February 8, 2016).
26 8 U.S.C. § 1101(a)(15)(H) (2018).
27 Estimates are only recorded for air arrivals and departures, which comprise a small portion of the H-2A program. Government Accountability Office, Overstay Enforcement: Additional Actions Needed to Assess DHS’s Data and Improve Planning for a Biometric Air Exit Program, GAO-13-683 (Washington: GAO, July 2013), p. 17. More recent government reports only estimate the annual flow of people, ignore those who overstay, and don’t break these numbers down by detailed status. Department of Homeland Security, Fiscal Year 2018 Entry/Exit Overstay Report (Washington: DHS, April 2019). Outside analysis of the above report indicates that the estimates are too high and that the overstay population in the United States did not grow. Robert Warren, “DHS Overestimates Visa Overstays for 2016; Overstay Population Growth Near Zero during the Year,” Journal on Migration and Human Security 5, no. 4 (2017): 768–79.
28 “Disclosure Data, PERM Program,” OFLC Performance Data, Department of Labor, Employment and Training Administration.
29 8 C.F.R. 214.2(h)(5)(vii) (2019).
30 Customs and Border Protection, “CBP Reminds Travelers to Obtain the I-94 Permit Early,” news release, March 11, 2013; and Peter Samore, “Arizona’s Immigration Crisis: How Border Towns Are Impacted,” KTAR News, April 16, 2019.
31 20 C.F.R. § 655.122(i)(1) (2019).
32 United Fresh Produce Association, “In re: DOL Docket no. ETA–2019–0007, RIN 1205–AB89 Temporary Agricultural Employment of H–2A Nonimmigrants in the United States” 84 Fed. Reg. 36,168 (September 24, 2019).
33 “The higher of the AEWR, the prevailing hourly wage or piece rate, the agreed-upon collective bargaining wage, or the Federal or State minimum wage” under 20 C.F.R. § 655.120(a) (2019).
34 “Surveys—Farm Labor,” National Agricultural Statistics Service, Department of Agriculture, November 9, 2018.
35 20 C.F.R. § 655.10; 20 (2019); and C.F.R. § 655.731 (2019).
36 20 C.F.R. § 655.731 (2019).
37 “Adverse Effect Wage Rate Trends,” Office of Foreign Labor Certification.
38 David Bier, “H-2A Guest Worker Minimum Wages Up in 2020, 57% above New State Minimums,” Cato at Liberty (blog), January 3, 2020.
39 Benjamin Reist, Tyler Wilson, and Heather Ridolfo, Findings for the 2018 Agricultural Labor Base Wage Question Experiments (Washington: USDA, March 2019).
40 United Fresh Produce Association, “In re: DOL Docket No. ETA–2019–0007, RIN 1205–AB89 Temporary Agricultural Employment of H–2A Nonimmigrants in the United States,” 84 Fed. Reg. 36,168 (September 24, 2019).
41 David Bier, “H-2A Farmers Will Benefit from House Reform Bill,” Cato at Liberty (blog), November 5, 2019.
42 Bier, “H-2A Farmers Will Benefit From House Reform Bill.” Data are from: William G. Whittaker, Farm Labor: The Adverse Effect Wage Rate (Washington: Congressional Research Service, March 26, 2008), pp. 7–8; and “Adverse Effect Wage Rate Trends,” Office of Foreign Labor Certification, years 2009 through 2019.
43 20 C.F.R. § 655.122(i) (2019).
44 20 C.F.R. § 655.122(i) (2019); 20 C.F.R. § 655.122(d)(1) (2019); and C.F.R. § 655.122(g) (2019).
45 “‘I wish I could do [H-2A], but I need to build homes for them and that’s not cheap,’ said Marquez. ‘It’s too expensive for us to get that kinda help because the building that we have to have before we can put H-2A workers, their requirement is too high,’ said farmer Jose Rouna.” Quoted in Tristan Balagtas, “Local Farmers Struggling to Find Workers,” CBS News KIMA TV, August 1, 2019; “The hourly rate isn’t bad, but the housing and travel costs really increase the overall expense.” Quoted in Des Keller, “Seasonal Farm Workers Help,” Progressive Farmer, September 4, 2018; “The only ‘headache’ that comes with hiring H-2A workers, Davison said, is finding housing.” Quoted in Nicole Roy, “Temporary Workers Visa Program Grows in Western Idaho,” Idaho Press-Tribune, March 25, 2018.
46 Department of Labor, “Temporary Agricultural Employment of H–2A Nonimmigrants in the United States,” 84 Fed. Reg. 36,235 (July 26, 2019).
47 20 CFR § 655.122(h)(1).
48 8 CFR 214.2(h)(15)(ii)(C); (5)(viii)(B); (xii).
49 20 C.F.R. § 655.180 (2019).
50 These numbers exclude “sub-employer” certified jobs (secondary jobs for joint employers). For labor certification statistics 1989–1997, see Joyce Vialet, Immigration: The “H-2A” Temporary Agricultural Worker Program (Washington: Congressional Research Service, April 9, 1998); for 1998–1999, see Ruth Ellen Wasem and Geoffrey Collver, Immigration of Agricultural Guest Workers: Policy, Trends, and Legislative Issues (Washington: Congressional Research Service, January 24, 2003); for 2000–2004, see Philip Martin, Evaluation of the H-2A Alien Labor Certification Process and the U.S. Farm Labor Market (Silver Spring, MD: KRA Corporation, September 18, 2008), p. 42; for 2005–2015, see “Annual Performance Reports,” OFLC Performance Data, Department of Labor, Employment and Training Administration; for 2007, see p.25; for 2008 through 2011, see p. 35; for 2012 through 2015, see p. 4; for 2016–2019, see “Selected Statistics by Program,” OFLC Performance Data, Department of Labor, Employment and Training Administration.
51 For H-2A visa statistics for 1987–2018, see “Nonimmigrant Visa Statistics,” Department of State; for 2019 aggregated data, see “Monthly Nonimmigrant Visa Issuance Statistics,” Department of State, Bureau of Consular Affairs; for H-2A admissions from 1988 through 1992, see the links in the “General Collection” in Immigration and Naturalization Service, Yearbook of Immigration Statistics (Washington: DOJ, 1992); for years 1993 through 2017, see Department of Homeland Security, Yearbook of Immigration Statistics (Washington, DHS, 2019), Table 25; for 2018, see “Legal Immigration and Adjustment of Status Report Quarterly Data,” Department of Homeland Security.
52 Estimates are based on Bureau of Economic Analysis, SA27N Full-Time and Part-Time Wage and Salary Employment by NAICS Industry (Washington: BEA, 2018).
53 Office of Foreign Labor Certification, Employer Guide to Participation in the H-2A Temporary Agricultural Program (Washington: DOL, January 2012).
54 General Accounting Office, Improved Guidance Could Reduce Employer Application Burden, p. 33.
55 8 U.S.C. § 1188 (2018); and 20 C.F.R. § 655.100 (2019).
56 “Few U.S. workers were referred. . .” quoted in General Accounting Office, The H-2A Program: Protections for U.S. Farmworkers, GAO/PEMD-89-3 (Washington: GAO, October 1988); “The positive recruitment requirement appears to result in few domestic workers being placed in these jobs.” Quoted in Government Accountability Office, H-2A Agricultural Guestworker Program: Changes Could Improve Services to Employers and Better Protect Workers, GAO/HEHS-98-20 (Washington: GAO, December 1997), p. 58; “The H-2A certification process is ineffective,” quoted in Office of Inspector General, Consolidation of Labor’s Enforcement Responsibilities for the H-2A Program Could Better Protect U.S. Agricultural Workers (Washington: DOL, March 31, 1998); “Current recruitment procedures . . . produce few U.S. workers but lead to controversy and litigation,” quoted in Martin, Evaluation of the H-2A Alien Labor Certification Process, p. iv; Michael Clemens, “The Effect of Occupational Visas on Native Employment: Evidence from Labor Supply to Farm Jobs in the Great Recession,” IZA DP no. 10492 (Bonn: IZA Institute of Labor Economics, January 2017); Department of Labor, “Temporary Agricultural Employment of H–2A Nonimmigrants in the United States,” 84 Fed. Reg. 36,168 (July 26, 2019); “One agent for H-2A employers reported that its employer-clients had spent about $75,000 to advertise roughly 5,000 positions, and the employers did not receive a single applicant in response to the advertisements. An association representing agricultural employers similarly reported that its members spent millions of dollars on newspaper advertisements for H-2A positions each year and received no U.S. applicants in response.” Quoted in in Department of Labor, “Modernizing Recruitment Requirements for the Temporary Employment of H–2A Foreign Workers in the United States,” 84 Fed. Reg. 49,441 (September 20, 2019).
57 Steven Zahniser, J. Edward Taylor, Thomas Hertz, and Diane Charlton, Farm Labor Markets in the United States and Mexico Pose Challenges for U.S. Agriculture, Economic Information Bulletin no. 201 (Washington: USDA, November 2018), p. 2.
58 Michael A. Clemens, Ethan G. Lewis, and Hannah M. Postel, “Immigration Restrictions as Active Labor Market Policy: Evidence from the Mexican Bracero Exclusion,” American Economic Review 108, no. 6 (2018): 1468–87.
59 Clemens, “The Effect of Occupational Visas on Native Employment.”
60 Department of Labor, “Temporary Agricultural Employment of H–2A Nonimmigrants in the United States,” 84 Fed. Reg. 36,168 (July 26, 2019).
61 Author’s analysis of data in Department of Labor, “Temporary Agricultural Employment of H–2A Nonimmigrants.”
62 Department of Labor, “Temporary Agricultural Employment of H–2A Nonimmigrants.”
63 “Table A-14. Unemployed Persons by Industry and Class of Worker, Not Seasonally Adjusted,” Bureau of Labor Statistics, 2019.
64 “What Is Agriculture’s Share of the Overall U.S. Economy?,” Department of Agriculture.
65 “Census of Agriculture,” Department of Agriculture, National Agricultural Statistics Service.
66 “The National Agricultural Workers Survey,” Department of Labor, Employment and Training Administration.
67 “The National Agricultural Workers Survey.”
68 “Nonimmigrant Visa Statistics,” Department of State; and “Quarterly Census of Employment and Wages,” Bureau of Labor Statistics. (Inflation-adjusted using the Personal Consumption Expenditures Index.)
69 “Quarterly Census of Employment and Wages.”
70 “Census of Agriculture”; and “Selected Statistics by Program,” OFLC Performance Data, Department of Labor, Employment and Training Administration.
71 8 U.S.C. § 1101(a)(15)(H)(ii)(a) (2018).
72 Alex Nowrasteh and Andrew C. Forrester, “H-2 Visas Reduced Mexican Illegal Immigration,” Cato at Liberty (blog), July 11, 2019.
73 It is important to control for the amount of enforcement because more agents can cause more apprehensions without more total border crossings. Comparing apprehensions to admissions is more methodologically sound than comparing apprehensions to H-2A visas or H-2A jobs because the same worker can be admitted multiple times or apprehended multiple times. Immigration and Naturalization Service, Yearbook of Immigration Statistics (Washington: DOJ, 1992); Department of Homeland Security, Yearbook of Immigration Statistics (Washington, DHS, 2019); “Total CBP Enforcement Actions,” Customs and Border Protection, 2019, https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics-fy2019; Border Patrol, Nationwide Illegal Alien Apprehensions Fiscal Years 1925–2018 (Washington: DHS, 2019); Border Patrol, Border Patrol Agent Nationwide Staffing by Fiscal Year (Washington: DHS, 2018); and “Border Patrol Agents: Southern Versus Northern Border,” Transactional Records Access Clearinghouse, 2006.
74 Kevin Sieff, “Why Is Mexican Migration Slowing While Guatemalan and Honduran Migration Is Surging?,” Washington Post, April 29, 2019.
75 “Nonimmigrant Visa Statistics,” Department of State. The 2019 aggregated data are from “Monthly Nonimmigrant Visa Issuance Statistics,” Department of State, Bureau of Consular Affairs. For 1997–2017, see Department of Homeland Security, Yearbook of Immigration Statistics (Washington, DHS, 2019) (note that Jamaicans did not require visas until 2016 so the data on admissions were used for Jamaica only for 1997–2015).
76 Government Accountability Office, H-2A and H-2B Visa Programs: Increased Protections Needed for Foreign Workers, GAO-15-154 (Washington: GAO, March 2015).
77 Other reasons include Mexico’s relatively larger labor market, its more expedited consular visa processing, and its proximity to the United States, which can make it more affordable for employers to bus workers to the jobsites rather than fly them. Some border farms can also avoid paying for H-2A housing by allowing Mexicans to commute from their Mexican homes.
78 David Bier, “Trump Is Promising Visas for Guatemalans — Here’s How He Can Deliver,” Cato at Liberty (blog), August 2, 2019.
79 Rodolfo Benito Coy Garcia, quoted in Alana Semuels, “For U.S. Farmers and Mexican Workers, It’s Tough Being Legal,” Los Angeles Times, March 30, 2013; José Vásquez Cabrera, quoted in Ginger Thompson and Steven Greenhouse, “Mexican ‘Guest Workers’: A Project Worth a Try?” New York Times, April 3, 2001; Jacque Myburgh quoted in Jack Dura, “South African Workers Fill Mandan-area Farm, Ranch Labor Gap,” Associated Press, June 29, 2019; Joel, quoted in Brian Todd, “Who Harvests Your Food? Immigrant Labor a Growing Piece of Ag Workforce,” Forum News Service, August 8, 2019; Carlos Montano, quoted in Aaron Cerbone, “Migrant Labor in Gabriels,” Adirondack Daily Enterprise, August 17, 2019; and Jessie Higgin, “Farmers’ Struggle to Legally Import Workers Threatens U.S. Crops,” UPI, September 19, 2018.
80 “Selected Statistics by Program,” OFLC Performance Data, Department of Labor, Employment and Training Administration; and “Mexico Average Daily Wages,” Trading Economics, 2019.
81 The equivalent U.S. dollar amount for 88.36 pesos was $4.64 in 2019. See Secretaria de Gobernacion de Mexico, “Resolution,” December 2018.
82 University of California, Davis, “Farmworkers in Mexico’s Export Agriculture Conference Report,” Migration Dialogue, October 15, 2018.
83 “Orlando . . . supported his entire family, he said, and even if the wages in the U.S. dropped, he would still re-apply for a job as an H-2A worker. The money was too good to pass up. His roommate, Cesar, who would only his first name for the same reason, agreed with Orlando. ‘It’s the reason why we come,’ he added.” Quoted in Kate Cimini, “Could a Federal H-2A Visa Proposal Mean Lower Wages for Farmworkers? Advocates Worry,” The Californian, October 15, 2019.
84 Department of State, Nonimmigrant Visas Issued by Classification, Fiscal Years 2003–2007 (Washington: DOS, 2007).
85 Des Keller, “Seasonal Farm Workers Help,” Progressive Farmer, September 4, 2018; and Thompson and Greenhouse, “Mexican ‘Guest Workers.’”
86 “Human Trafficking on Temporary Work Visas: A Data Analysis 2015–2017,” Polaris, June 2018. From 2015 to 2017, 395,607 H-2A visas were issued: see “Nonimmigrant Visa Statistics,” Department of State. The Department of Homeland Security granted T status (for human trafficking victims) to 39 H-2A workers from 2009 to 2013, which represents 0.01 percent of H-2A visas issued. Government Accountability Office, Increased Protections Needed for Foreign Workers.
87 Milli Legrain, “‘Be Very Careful’: The Dangers for Mexicans Working Legally on US Farms,” The Guardian, May 16, 2019.
88 Unique employers were identified by eliminating duplicates in each year. Duplicates were identified after cleaning the data of punctuation and corporate structure identifiers that are commonly inconsistent. “Selected Statistics by Program,” OFLC Performance Data, Department of Labor, Employment and Training Administration; “Wage and Hour Division Compliance Action Data,” Department of Labor, July 26, 2019; and “Program Debarments,” Department of Labor, https://www.foreignlaborcert.doleta.gov/pdf/Debarment_List_Revisions.pdf.
89 The $2,836,551.51 in fines and 11,984 violations equals an average of $237 per violation. See “Fiscal Year Data for WHD,” Wage and Hour Division, Department of Labor, https://www.dol.gov/agencies/whd/data/charts.
90 “H-2A: Temporary Agricultural Employment of Foreign Workers,” Wage and Hour Division, Department of Labor, https://www.dol.gov/agencies/whd/agriculture/h2a.
91 Current regulations permit just 30 days for workers to find a new job under the H-2A visa (8 C.F.R. § 214.2(h)(5)(viii)(B)) (2019). See the comments of Giev Kashkooli of the United Farmworkers: Agricultural Labor: From H-2A to a Workable Agricultural Guestworker Program, Before the Subcommittee on Immigration and Border Security of the Committee on the Judiciary, House of Representatives, 113th Cong., 1st Sess. (February 26, 2013) (statement of Giev Kashkooli).
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