H-2A and the Local Job Market: Balancing Needs, Avoiding Traps

March 14, 2024

The H-2A guest worker program has become a staple of the agricultural industry in the face of domestic labor shortages. It’s estimated that H-2A workers represent 10% of all farmworker employment, and this figure rises to 17% when it comes to all crop employment on U.S. farms.

Despite the essential role that H-2A workers play in stocking America’s supermarkets, concerns remain regarding its impact on domestic workers. There are also concerns regarding compliance and the vulnerability of exploitation, including labor rights violations and wage theft.

In this blog, we’ll delve into concerns regarding the impact of the H-2A guest worker program on local job markets. We’ll also provide strategies for agricultural businesses to avoid inadvertent violations.

The Problem: America’s Domestic Farmworker Shortage

America’s farms are struggling to recruit domestic workers. According to the USDA, one of the clearest indicators of this challenge is the number of H-2A visa applications. In 2005, 48,000 applications and approvals were confirmed; in 2022, this number had risen to 371,000.

Farmers are also making the scale of this long-running problem clear. In 2020, the American Farm Bureau Federation (AFBF) reported that 56% of farms invested in agritech solutions. More than half of these farms reported labor shortages as their primary motivator.

But the problem isn’t just a lack of available American workers. Congress has repeatedly asked to simplify the H-2A guest worker program system and make it more attractive to immigrants. The New American Economy reported that the number of new immigrants arriving for agricultural work had fallen by 75% in recent years.

In short, America’s farmers are being squeezed by a lack of demand from prospective overseas and domestic workers. It’s fair to say that the H-2A visa program has become vital life support for the agricultural sector. 

Does the H-2A Visa Program Corrupt the Local Job Market? 

Critics of the H-2A visa program claim that increasing numbers of non-immigrant laborers hurt job prospects for Americans within the rural economy. The two primary concerns are that H-2A workers decrease salaries and degrade working conditions.

These claims represent a misunderstanding of the H-2A visa, its requirements, and how it works. We can dispel these ideas simply by looking at the relevant requirements of the H-2A visa program, which are:

The fact is, it’s actually more expensive to hire an H-2A worker than an American citizen because of the need to pay visa fees, cover travel, and provide housing. Likewise, H-2A workers are in no way considered second-class workers according to the letter of the law.

Of course, it’d be remiss not to mention businesses that take advantage of the program. For example, the U.S. Department of Labor recovered $54,935 in lost wages from a California grape grower after it was found they gave preferential hours and wages to their H-2A workers.

Bad eggs exist, and some may argue that it’s easier for businesses to take advantage of the visa program, but the cost of violations is high. Fines tend to start at $1,658 to $16,579 per violation. Single investigations can quickly result in six-figure non-compliance penalties.

Responsible Strategies for Avoiding H-2A Violations

 Not every violation of the H-2A visa program is malicious. Some farmers make honest mistakes that can cost them dearly. In this section, we’ll explore five of the most common violations. 

1. Non-Qualifying Work

The guest worker program mandates that all agricultural work be temporary or seasonal, not exceeding ten months.

The work must be clearly defined as part of the visa application, and H-2A workers aren’t permitted to take on other duties. For example, you cannot hire H-2A workers for harvesting and then ask them to help renovate your house. But some violations can be more subtle. For example, non-seasonal duties, such as milk and livestock production, may be agricultural but would still violate the visa terms. 

2. Earnings Records Mishaps

Employers are required to maintain accurate H-2A earnings records for three years. These are extensive and include hours worked each day, pay rates, and more. In short, there are far more bureaucratic headaches when navigating the visa program than when hiring domestic workers.

In these scenarios, solutions like Harvust and FieldClock step up to the plate. Streamlined software can make managing your paperwork and remaining in compliance simple.

3. Daily Sustenance Issues

Did you know H-2A workers must be provided with three daily meals or access to a free kitchen? Employers are entitled to charge their employees, but they must comply with the maximum daily meal charge, which currently stands at a measly $15.88. This charge must be recorded correctly and provided in the event of an audit. Because of that most ag employers furnish kitchens. You can read more about H-2A kitchens in this blog post.

4. Housing and Transportation Issues 

Unlike the H-2B visa program, H-2A workers must have free housing that meets DOL, OSHA, state, and local standards. Plus, employers cannot charge for this housing or require a deposit, regardless of whether they actually have housing facilities.

Additionally, transportation to and from this housing must be provided entirely free of charge. This must also meet the relevant standards. 

5. U.S. Worker Displacement

Strict regulations are designed to protect U.S. workers from H-2A visa exploitation. Employers must prove that no qualified and/or willing domestic worker can take the job. Before applying, you must contact every U.S. worker you employed the previous year to offer the job.

You must also promise to continue your local recruitment efforts for the first 50% of the work contract.

Streamline Your H-2A Pipeline with Harvust!

H-2A workers are considerably more expensive to hire than U.S. workers. Farmers turn to this guest worker program out of necessity, not desire. The rules are inflexible and put businesses under immense bureaucratic stress. In other words, sourcing and managing farm labor has never been tougher. Our premium platform, in partnership with wafla, simplifies the compliance needs of H-2A workers when it comes to bureaucratic compliance support, onboarding, management, and more.

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James Christopher Hall

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