H-2A Visa

An H-2A visa allows a foreign national entry into the U.S. for temporary or seasonal agricultural work. There are several requirements of the employer in regards to this visa. The H-2A temporary agricultural program establishes a means for 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. Currently in the United States there are about 30,000 temporary agricultural workers. And all of these workers are covered by wage laws, workers' compensation and other standards. [Violations Undercut U.S. Position on Labor Rights and Trade. 31 Aug. 2000. Human Rights Watch, New York, New York. 4 Dec. 2007 [] ]

Process of Employment

Employers anticipating a shortage of agricultural workers and in need must apply at least 45 days before certification is necessary. This means an active effort, including newspaper and radio advertising in areas of expected labor supply. Such recruitment must be at least equivalent to that conducted by non-H-2A agricultural employers in the same or similar crops and area to secure U.S. The employer must agree to give preference and engage in active recruitment of US workers. The H-2A certification is valid for up to 364 days. As temporary or seasonal agricultural employment, the work is performed at certain seasons of the year or for a limited time period of less than one year when the employer can show that the need for the foreign worker is truly temporary. [(2005). H2A Program (Agricultural). Retrieved Dec. 1, 2007, from Federation of Employers and Workers of America, Washington DC. Web site: [www.h2b-fewa.org] ]

Before the U.S. Citizenship and Immigration Services (USCIS) can approve an employer's petition for such workers, the employer must file an application with the U.S. Department of Labor stating that there are not sufficient workers who are able, willing, qualified, and available, and that the employment of aliens will not adversely affect the wages and working conditions of similarly employed U.S. workers. The statute and Departmental regulations provide for numerous worker protections and employer requirements with respect to wages and working conditions that do not apply to nonagricultural programs. The Department's Employment and Training Administration (ETA) administers the labor certification program, while the Wage and Hour Division, Employment Standards Administration (ESA) has responsibility for enforcing provisions of worker contracts. [Employment & Training Administration: H-2A Certification for Temporary or Seasonal Agricultural Work. 28 Nov. 2007. U.S. Department of Labor, Washington D.C.. 2 Dec. 2007 [http://www.foreignlaborcert.doleta.gov/h-2a.cfm] ]

In employing a worker, the employer must guarantee to offer each worker employment for at least three-fourths of the workdays in the term of the contract period. If the employer affords less employment, then the employer is obligated to pay the amount of which they would have earned if they had worked the contracted period.

Employing H-2A Workers

Wages

The wage or rate of pay must be the same for U.S. workers and H-2A workers. The hourly rate must also be at least as high as the applicable Adverse Effect Wage Rate [http://www.foreignlaborcert.doleta.gov/h-2a.cfm (AEWR)] , federal or state minimum wage, or the applicable prevailing hourly wage rate, whichever is higher. The AEWR is established every year by the Department of Labor for every state except Alaska. Employers should consult with the SWA or the Department of Labor National Processing Center to determine what the rate is for their state.

If a worker will be paid on a piece rate basis, the worker must be paid the prevailing piece as determined by the State Workers Agency, or SWA. If the piece rate does not result in average hourly piece rate earnings during the pay period at least equal to the amount the worker would have earned had the worker been paid at the hourly rate, then the worker’s pay must be supplemented to the equivalent hourly level. The piece rate offered must be no less than what is prevailing in the area for the same crop and/or activity. [Employment & Training Administration: H-2A Certification for Temporary or Seasonal Agricultural Work. 28 Nov. 2007. U.S. Department of Labor, Washington D.C.. 2 Dec. 2007 [http://www.foreignlaborcert.doleta.gov/h-2a.cfm] ]

Hiring

This means an active effort, including newspaper and radio advertising in areas of expected labor supply. Such recruitment must be at least equivalent to that conducted by non-H-2A agricultural employers in the same or similar crops and area to secure U.S. workers. This must be an effort independent of and in addition to the efforts of the SWA for at least 15 days. In establishing worker qualifications and/or job specifications, the employer must designate only those qualifications and specifications which are essential to carrying out the job and which are normally required by other employers who do not hire foreign workers.

Livelihood of Workers

Housing and Meals

The employer must provide free housing to all workers who are not reasonably able to return to their homes or residences the same day. Such housing must be inspected and approved according to appropriate standards. The housing provided by the employer must meet all of the Department of Labor Occupational Safety and Health Administrations (OSHA) standards that were set forth at CFR 1910.142 or the full set of standards at 654.404-645.417. [Employment & Training Administration: H-2A Certification for Temporary or Seasonal Agricultural Work. 28 Nov. 2007. U.S. Department of Labor, Washington D.C.. 2 Dec. 2007 [http://www.foreignlaborcert.doleta.gov/h-2a.cfm] ] An alternative form of housing is rental housing however, which has to meet local or state health and safety standards. However these standards are often inhumane and disturbing. In North Carolina the current standards include no provision for locks on doors and windows, 75 ft³ per person or 27 people per refrigerator, one wash tub per 30 people with hot and cold water, facilities for drying clothes, there are no sanitary requirements for mattresses provided, 1 toilet/15 people or 1 urnial/25 men, and 1 shower per 10 people with no privacy stalls. [Farmworker Housing in North Carolina. Lori F. Khamala & Melinda Wiggins. Sep. 2004. Farmworker Advocacy Network, North Carolina. 4 Dec. 2007 [http://cds.aas.duke.edu/saf/migranthousing/migranthousingrevised_files/frame.htm] ] The employer must either provide three meals a day to each of the workers or furnish free and convenient cooking and kitchen for workers to prepare and cook their own meals. If the employer provides the meals, then the employer has the right to charge each worker a certain amount per day for the three meals. [Employment & Training Administration: H-2A Certification for Temporary or Seasonal Agricultural Work. 28 Nov. 2007. U.S. Department of Labor, Washington D.C.. 3 Dec. 2007 [http://www.foreignlaborcert.doleta.gov/h-2a.cfm] ]

Transportation and Tools

There are several provisions on the transportation of workers. The amount of transportation payment shall be no less (and shall not be required to be more) than the most economical and reasonably similar to the transportation charges for the distances involved. [http://www.foreignlaborcert.doleta.gov/h-2a.cfm] The employer is responsible for several forms of transportation depending on the situation. After the worker completes at least half of the work contract period, the employer must reimburse the worker for the costs of transportation and subsistence from the place of recruitment to the place of work if these expenses were charged to the worker. The employer must provide free transportation to the worker between the employers housing and the area of work. And upon completion of the work contract, the employer must pay the costs of a worker's subsistence and transportation back to the place of recruitment. Some special conditions apply when the worker does not return to the area of recruitment because they are moving to another job. If the employer compensates foreign workers for transportation costs then they must do so for US workers as well. If the employer provides transportation for foreign workers, they must provide transportation to US workers as well.

The employer must cover the cost of tools and supplies necessary to carry out the work at no cost to the worker, unless this is uncommon and the occupation calls for the worker to provide certain items.

References