DOS issued 204,800 H-2A visas in FY19, up from
196,400 in FY18, when DOS issued 180,400 H-2A visas to Mexicans (88 percent),
5,300 to Jamaicans (2.5 percent), 3,900 to Guatemalans (2 percent), and 3,600
to South Africans. H-2A workers can be recruited in 84 countries.
DOS in March 2020 waived interviews for
returning Mexican workers seeking H-2A and H-2B visas, provided they had a visa
within the last four years and no grounds for ineligibility. First-time
workers can also skip in-person interviews under some circumstances.
President Trump in March 2020 said: ?We want them to come in. We're not
closing the border so that we can?t get any of those people to come in?They're
going to continue to come. Or we're not going to have any farmers.?
USCIS in November 2019 announced that it would
no longer consider sheepherding to be temporary or seasonal work, ending the
practice of admitting H-2A sheepherders for 364 days and renewing their visas
twice for a three-year stay. After three months at home, many H-2A
sheepherders returned to the US for another three-year stay. USCIS
normally defers to DOL to define temporary and seasonal, which DOL normally
limits to 10 months, with an exception for sheepherders that dates to the 1950s.
DOL in spring 2020 continued to work on the
83,000 comments received in response to its July 2019 Notice of Proposed
Rulemaking (NPRM) that would, for instance, change the way that the Adverse
Effect Wage Rate (AEWR) is determined.
HR 5038, the Farm Workforce Modernization Act,
was approved by the House in December 2019, but has not been acted on by the
Senate. Some hope that an expected US Supreme Court decision on the fate
of DACA by June 2020 will spur Congress to act on unauthorized foreigners
bought to the US before the age of 16 and farm workers.
Representative Ted Yoho (R-FL) introduced HR 6083
in March 2020, the Labor Certainty for Food Security Act. HR 6083 would
transfer the H-2A program from DOL to USDA and replace the AEWR with a
requirement to pay the higher of the state?s minimum wage of 15 percent more
than the federal minimum wage of $7.25 or $8.34 an hour. Guest workers
could work in any farm job, that is, the current requirement that the need for
workers be seasonal would be eliminated.
Under HR 6083, unauthorized workers in the US
could pay a $2,500 fine for three-year renewable work permits that would allow
them to work only in agriculture; permit holders would have to report their
farm employer quarterly at US post offices. The family members of HR 6083
visa holders would be protected from deportation as long as the visa holder
continued to do farm work. HR 6083 visa holders and their families would
be barred from federal means-tested welfare programs.
HR 6083 requires USDA to study the demand for
and supply of farm workers and determine whether there are farm-labor
shortages. USDA would also analyze guest-worker employment, including
determining the number of guest workers who failed to check in at post offices
as required. USDA would also have to develop surveys of farmers to
estimate their labor needs, and create an internet employment service through
which employers could offer and workers could seek farm jobs.
CDM released the results of a Fall 2019 survey
of 100 Mexican workers in Mexico who had been employed with H-2A visas in the
US, and reported that all of the workers interviewed had experienced at least
one ?serious? violation of labor rights, and 94 percent experienced three or
more violations.
The report did not tabulate violations in the
various stages of the process, recruitment, transportation to the US workplace,
employment, housing, and wages in the US, and return to Mexico, but emphasize
that many workers paid fees in Mexico to obtain H-2A job offers. The
report distinguished between speakers of Spanish and indigenous languages, but
not between first-time and repeat H-2A workers; repeat H-2A workers may have
reported fewer violations.
Some of the worker-reported violations are
objective, such as wages paid in the US, while others are more subjective, such
as workers feeling that they were not free to quit their jobs.
H-2B. There are 66,000 H-2B visas available for
employers seeking foreign workers to fill seasonal nonfarm jobs, such as those
in landscaping and gardening. Employers typically request over 100,000
H-2B visas, prompting Congress to authorize DHS to increase the number of visas
available.
In March 2020, DHS announced that it would make
up to 35,000 additional H-2B visas available to foreigners who previously held
H-2B visas and who are coming to the US to fill jobs that an employer considers
critical. At least 10,000 of the additional visas are for citizens of
Guatemala, Honduras and El Salvador. After the coronavirus lockdown, DHS
paused the H-2B visa increase.
Centro de los Derechos del Migrante. 2020. Ripe
for Reform: Abuse of Agricultural Workers in the H-2A Visa Program. https://cdmigrante.org/wp-content/uploads/2020/04/Ripe-for-Reform.pdf