H-2A Farm Worker Protections: Why This Matters and What’s Happening
I’m blessed to be a part of a small group of women (#AgQueens) who meet every month or two to talk about agriculture and food industry issues (yes, for fun). We’ve been doing this virtually since the start of the pandemic and have covered topics ranging from the impacts of lobbying to progress in cultivated meat to Farm Bill updates. We regularly host guests so if you’re reading this and interested in speaking with us, please let me know via LinkedIn! Last month we chose “farm labor,” intentionally broad, and spent most of the time discussing a new rule proposed by the Biden administration (Morning AgClips coverage here) which creates new protections for workers on H-2A visas. We learned a lot about this visa and the opportunities currently on the table to tackle something that looks like immigration policy and has massive ramifications for the American agriculture sector.
Here’s an overview of what I’ve learned. I’ve broken this post into sections: “the H-2A visa;” “talk to me about cows;” “what’s happening?;” and “isn’t this a Farm Bill issue?”
*Note: labor policy is not my wheelhouse. I’m here to learn, so if I’ve missed an important element of this conversation, please shoot me a message with your thoughts.
The H-2A visa
According to the Department of Labor:
“The H-2A program allows employers to address temporary labor needs by employing foreign agricultural workers when there are not sufficient workers who are able, willing, qualified, and available, and when doing so will not adversely affect the wages and working conditions of workers similarly employed in the U.S.”
The H-2A is a visa designed for temporary agricultural workers. Workers on this visa are not considered immigrants to the United States and may only hold the visa for one year increments, up to three years, before the worker must leave the country for at least 3 months. Employers in the United States petition for temporary worker certification, then workers from outside the United States apply for commensurate visas and admission. A relationship often exists between the worker and the employer from the outset, and many seasonal workers return to the same farms year after year.
The Congressional Research Service (CRS, May 2023) provides that:
There is no cap on the number of H-2A visas awarded each year.
H-2A issuances quadrupled from less than 70,000 in 2012 to more than 290,000 in 2022. H-2A visa holders are estimated to comprise 11% of the total domestic agricultural workforce. Note that hired farm labor still comprises only 1% of total, overall domestic labor.
H-2B visas cover temporary non-agricultural labor and are subject to a cap. The H-2B program includes additional protections and policies.
H-2A Visas Issued, FY1992-FY2022
And some more great background from Farm Credit East (January 2024):
Employers must pay an Adverse Effect Wage Rate, or AEWR. This varies by state.
The work must be full-time and temporary or seasonal (up to 10 months). Although a year-round need for a single position is not permissible, there may be ways to achieve year-round coverage between two separate positions with opposite seasons of need. For example, a farm worker could be needed during the growing/harvest season (March through November), but the farm may need Winter Maintenance Workers for the months of December through February.
On top of the AEWR pay rate, employers must provide housing free of charge, as well as transportation to and from their home country.
Talk to me about cows
H-2A visas are available for temporary or seasonal work only, excluding industries that demand year round labor support, like dairy. Access to guest worker programs like H-2A is the #1 national legislative priority of groups like the Northeast Dairy Producers Association (NEDPA), an industry group for dairy industry.
What’s happening?
H-2A is being tackled from many angles:
Executive Agencies
The Biden administration’s Department of Labor announced a new, proposed rule last September which the DOL recently finalized as an update to its 2022 rule. This rule is intended to combat abusive worker conditions cited by the DOL. The rule allows workers to interface with union representatives, to host service providers (including those offering legal support) at employer-provided housing, has provisions to combat human trafficking, and introduces seat belt requirements for worker transportation (transportation-related deaths are a leading cause of death among migrant agricultural workers in the US). The rule becomes effective this June.
The Department of Homeland Security also proposed a rule last fall, though I cannot find any information about the publication of a final rule. The rule would generally provide clarification and standardization between the H-1B, H-2A, and H-2B programs. The rule also updates policy to allow H-2A applicants to participate in H-2A even if they are actively completing immigration paperwork and processes to reside in the United State permanently through other programs.
Congress
Concurrently, a bipartisan Agriculture Labor Working Group in the House of Representatives has been meeting to discuss broader farm worker issues. The working group published a report last month outlining a list of policies to address these issues. 15 of these policies were adopted unanimously by the group. The report focuses on the H-2A visa. The Agriculture Labor Working Group cites labor reliability, dependability, and shortages of domestic agricultural labor supply as the key drivers of the group’s efforts to revise H-2A visa policy.
Unanimous policy proposals include those that would streamline and speed up the H-2A petitioning and application processes; provide more research on farm worker conditions that inform labor policy; create a federal heat protection standard for laborers working in high-temperature conditions; introduce some wage reforms to reduce the burden of increasing cost requirements on farm operators; and, importantly, allow year-round industries like dairy to access the H-2A program.
The only unanimously-passed policy recommendation I am wary of is the “USDA Consultation Requirement.” The aim of this policy is to introduce more agriculture industry expertise to the Department of Labor in order to generate more relevant labor policies. However, the USDA historically favors industry, not labor, and I worry that requirements for USDA consultation would only stymie well-intentioned labor policies if they increase financial costs or burdens to industry. Increasing agriculture industry training or representation at the DOL could achieve the best intended outcomes for future agricultural labor policies.
The Adverse Effect Wage Rate (AEWR) is mentioned throughout the report. The AEWR and state-level overtime laws (like our overtime law here in New York) are sources of heartburn for farm owners, farm workers, and agriculture policy wonks alike. I’ll save the overtime conversation for a later post, but mention it here in relation to the AEWR. The Federal Registrar explains:
AEWRs are the minimum wage rates the DOL has determined must be offered, advertised in recruitment, and paid by employers to H–2A workers and workers in corresponding employment so that the wages and working conditions of workers in the United States (U.S.) similarly employed will not be adversely affected.
Active legislation includes:
H.R. 4319, the Farm Workforce Modernization Act
H.R. 4708, the H-2 Improvements to Relieve Employers (HIRE) Act
H.R. 2915, the Farm Workforce Support Act of 2023
Isn’t this a Farm Bill issue?
Farm worker and labor policy is not a Farm Bill issue because the Farm Bill sits only within the jurisdiction of the Congressional Agriculture Committees. Farm labor concerns fall under the House Education and Labor Committee and Senate Health, Education, Labor and Pensions Committee. Here’s a piece from Mother Jones advocating for more of a focus on farm labor in the Farm Bill.
Immigration is a hot (BURNING HOT) issue in DC that neither party seems willing to tackle holistically. While temporary worker status is not the same thing as immigration, these two issues seem to be related because they involve non-domestic workers. In our two-party system, the historic pro-industry Republican Party position stands in direct contrast to the historic pro-labor Democrat Party position. This political landscape around immigration, non-domestic labor, and historic labor policy positioning makes agricultural labor a fraught topic that might create additional hurdles and roadblocks to Farm Bill negotiations - negotiations that are already stalled for the current Farm Bill re-authorization. I am curious to see how farm labor policy, especially H-2A policy, continues to be modernized through executive and Congressional action this year.
As usual, all images taken from USDA’s Flickr account.