By Jason Resnick, Senior Vice President and General Counsel
Labor shortages in agriculture are nothing new. For decades, farmers, ranchers and farm labor contractors have struggled to consistently access all the labor needed to get the job done. There is little doubt that agricultural employers are struggling, more than ever, to find the workers. But there is one sector not experiencing labor scarcity: H-2A users.
With persistent domestic worker shortages, producers are finding it increasingly difficult to source the labor needed to harvest labor intensive, highly perishable crops. H-2A users have concluded that not having labor is much more costly and vexing than using H-2A workers, with all its attendant costs and compliance burdens. Many who are reluctant to dip their toes into the H-2A waters are hanging onto outdated facts or just plain misinformation. Here are five common myths about the H-2A program.
1. H-2A Represents a Tiny Fraction of Agricultural Labor
That was true, but no longer. Fifteen years ago, only a miniscule fraction of U.S. employers used the H-2A program. In FY 2006, fewer than 1 percent of U.S. farm employers used the program, and just over 50,000 jobs, representing fewer than 2 percent of U.S. hired farm worker job opportunities, were H-2A certified. In policy discussions, industry often argued that this was because of the high costs and administrative difficulty of using the program. And this was true when compared to the relatively lower cost and ease of sourcing domestic labor when George W. Bush was President.
But in the intervening years, as the domestic labor pool has dried up, there has been an explosive growth in program usage, particularly in California and the west. By FY 2012, about 85,000 seasonal farm jobs were certified with H-2A workers. Of those, 2,862 positions were in California, 2,375 were in Arizona and Colorado had fewer than 2,000 certified positions.
Since 2000, the H-2A program has quadrupled in size, and California has become one of the top three H-2A states. In FY 2021, the U.S. Department of Labor certified 317,000 seasonal farm jobs with H-2A workers. California has been one of the fastest growing H-2A states, with more than 32,000 certified H-2A jobs in FY 2021, while Arizona had just under 11,000 certified H-2A jobs. Of the 1.1 million crop cultivation jobs in agriculture nationwide, California accounts for 390,000 of these jobs. H-2A workers represent a growing portion of those jobs in the U.S. and California.
2. H-2A is Only Used by Large, Sophisticated Employers
Large, sophisticated employers have certainly gravitated to the H-2A program, but smaller producers have also taken advantage of the program’s benefits. Last year, Western Growers H-2A Services secured as few as one H-2A certified worker to as many as 132 H-2A certified workers on behalf of small farms and producers. While we have brought in more than 1,000 H-2A certified workers for a single large employer, our small producer members brought in an average of 29 H-2A workers. Many member clients brought in fewer than 10 workers. These small farmers have successfully utilized the program, and typically retain and bring in the same crew of H-2A workers, year after year.
3. You Need an Agent or Attorney to Use the H-2A Program
The H-2A temporary agricultural program allows agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature. Associations, agents, attorneys and H-2A labor contractors can file on behalf of agricultural employers. But ag employers don’t have to use these third parties to file their H-2A application.
It’s fairly straightforward to complete and submit the Form ETA 790A (H-2A job order) and Form ETA 9142A (H-2A application) to the U.S. Department of Labor (DOL), as well as the Form I-129 Petition for Nonimmigrant Visa with United States Immigration & Customs Services (USCIS). The advantage of using an agent or attorney who specializes in filing H-2 applications is that they are typically aware of program changes and new interpretations of DOL that help ensure the H-2A process goes smoothly, and can react promptly to deficiencies or issues that may arise. Mistakes in your H-2A job order, application or petition can potentially cause significant delays in obtaining workers or may result in compliance lapses with potential substantial penalties. So, while it is true that you don’t need an agent or attorney to file an H-2A application, most H-2A users find value in using an experienced H-2A agent or attorney for the application piece, so they can focus on harvesting product or providing labor.
4. The H-2A Program is Unduly Burdensome, Unreliable, Costly and Prone to Delay
There is no question that the H-2A program imposes compliance obligations that are more burdensome than at-will employment. Most employers who use the program do find it to be burdensome, but not necessarily unduly burdensome. And it does get easier to manage with each season.
For many years, H-2A applications were submitted by paper and overnighted to DOL. Communications between the agency and the employer were by snail mail. Employers had to post advertisements of H-2A job openings in several newspapers. DOL lacked sufficient staff to timely process applications or resolve issues. Petitions filed with USCIS took weeks to be approved.
That all changed several years ago. Now applications are submitted electronically. Communication with DOL is conducted via email and it is typically fast and responsive. There is no longer a requirement to post newspaper ads. DOL generally has the staff to process H-2A applications quickly and USCIS typically approves H-2A petitions within a few days. To ensure that applications get approved quickly and workers arrive timely, it is a best practice to file at the earliest time available—generally 75 days before the requested start date.
Now, the only sure way to get a reliable source of labor is through the H-2A program. With H-2A, you are sure to get agricultural workers who will arrive at the start of the season, work each day offered throughout the season, and work until the end of the contract period. By bringing in the same workers year after year, employers report ever-increasing efficiencies and greater productivity.
Does the H-2A program cost more than using domestic workers? Yes, if you can get domestic workers. H-2A workers must be paid a minimum wage—typically the adverse effect wage rate—which is $17.51/hour in California, $14.79/hour in Arizona and $15.58/hour in Colorado, all higher than the state minimum wage in those states. If you pay on a piece rate and workers earn at least the AEWR anyway, then you’re paying no more in H-2A wages than you would pay otherwise. The biggest expense is housing, which must be provided at no charge to the worker. In addition, H-2A employers must pay the cost of inbound and outbound transportation and subsistence for inbound/outbound travel, visa costs, certification and petition fees, among other costs. Using H-2A definitely costs more than using only domestic labor. But the cost of not having reliable labor and not being able to harvest the crop may be greater.
5. Western Growers Does Not Provide H-2A Services
False! Western Growers has offered H-2A Services exclusively to Western Growers members for the past 16 years! During that time the number of H-2A applications and petitions Western Growers H-2A Services has filed on behalf of members has grown each year. In FY 2021, Western Growers H-2A Services successfully filed over 100 H-2A applications and certified nearly 6,000 workers. That number is trending considerably higher in 2022.
Western Growers H-2A Services is managed by me. I oversee every application and the professional staff that work on H-2A applications 52 weeks a year. We file applications for Western Growers members in California, Arizona, Colorado, Nevada and New Mexico.
We work with a certified ethical recruiter and facilitator in Mexico to ensure that our members do not encounter illegal recruiting issues.
Why should Western Growers members use Western Growers H-2A Services?
1. We are subject matter experts who work exclusively on H-2A every day. We file early and often to ensure our applications are promptly approved so our members get their H-2A workers when they need them.
2. Compliance training and resources are included in our services so that members understand their obligations under the H-2A program and don’t run into surprises.
3. We are member owned. Just like all WG services, the profits that come from H-2A Services are invested back into Western Growers Association to pay for the legislative, legal and regulatory advocacy work and other free services that the Association provides its members. When you use Western Growers H-2A Services, you are helping to make the Association stronger and more effective on behalf of the industry.
To learn more about the H-2A program and Western Growers H-2A Services, please contact Jason Resnick ([email protected]) at 949-885-2253.