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Employment of H-2A Workers: The Basics

written by: ciel s cantoria•edited by: Linda Richter•updated: 5/27/2011

The enactment of the Immigration & Nationality Act became controversial because it stipulates certain requirements for US employers in their employment of H-2A workers. The controversy is that the INA admission of H-2A workers has overturned faulty migrant-labor laws under the Bush administration.

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    A Brief Background about the H-2A Hiring Program

    800px-Migrant Worker by David Shankbone 

    Establishing the basic regulations about the employment of H-2A workers has become an important issue, since the hiring of migrant guest workers was said to be regulated by a faulty worker’s program under the Bush administration. They are known as H-2A workers, by virtue of their approved visas as eligible Temporary Agricultural Workers.

    Their employment conditions and plights as seasonal migrant employees have been the most recent causes of conflicts between labor and management. Under the old rules, there were no laws that protected these workers rights; hence, as H-2A visa holders, they were basically underpaid, overworked, and over-recruited. Such employment conditions adversely affected local US farm workers who were forced to choose between being unemployed and being underpaid.

    However, the Bush administration’s faulty regulations over wage rates and employment protection were overturned by the Immigration and Nationality Act (INA) enacted and implemented under the Obama administration when it took effect last March 15, 2010.

    The INA admission of H-2A workers created a furor which prompted two of the major associations of agricultural employers to file a court petition to stop the enforcement of INA. The petition, however, was junked by the District Court of North Carolina. The INA laws under the Obama administration were therefore upheld, which fully satisfied the advocates of the local agricultural labor sector.

    Here we find the basic regulatory guidelines for the employment of H-2A workers or migrant seasonal employees under the INA:

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    The Basic Provisions of the H-2A Hiring Program

    Migratory agricultural workers Jack Delano 1940 

    The US Dept. of Labor (DOL) works in close coordination with the Office of Foreign Labor Certification (OFLC) in implementing the regulations for employment of H-2A workers in accordance with the INA provisions:

    Qualifying Requirements for Employers under the H-2A Hiring Program

    (1) Under the INA, all US agricultural employers who intend to bring in migrant workers for local employment should first seek a certification from the OFLC that the following conditions have been met:

    • The nature of the work for which the migrant worker will be hired is only temporary in nature. As such, the work involved will only be for a season related to agricultural production or harvesting.
    • The term of employment should be for a limited time of less than one year.
    • The agricultural employer has shown enough proof that there is a valid need to bring in the H-2A workers, which includes ascertaining that there are no qualified US domestic farm workers or that the numbers of those qualified are not enough to meet the needs of the farm.
    • There must be an approved application submitted by the agricultural employer to the DOL, which contains the employer’s justification regarding the insufficiency of able, willing, and qualified domestic farm workers in the area. This should come with an attestation that the employment of H-2A workers will not adversely affect the wages and conditions of US farm workers who are under current employment.
    • Proof that the petitioning agricultural employer has initially attempted to recruit or look for able, qualified, and willing domestic farm workers before filing his application.
    • The applicant employer’s approval is likewise subject to evaluation if he or she meets all the other required conditions that pertain to wages, age, housing, meals, transportation, workers’ compensation insurance, labor disputes, tools and supplies, certification fees, and such other conditions that may be required in order to qualify the employer under the H-2A hiring program.

    (2) The agricultural employer’s certification will be for a specific number of H-2A jobs only. 

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    Requirements and Regulations for the Employment of H-2A Workers

    Employee Rights Poster 

    (1) Regardless if the employer has been issued with an H-2A certification by the OFLC, as US employers, they are still required to seek out the services of domestic US workers first and foremost before recruiting and bringing in migrant workers during any given season.

    (2) Employers of migrant workers are required to post the Employee Rights poster of the US DOL / Wage and Hours Division. The posters should be conspicuously displayed in the work place where they can be readily read by the employees; in addition, they should also be available in a Spanish version.

    (3) The qualified employer and his agents hiring under this program are prohibited from receiving recruitment fees as a condition for hiring a migrant worker.

    (4) Employers who have been qualified to hire migrant workers are not allowed to lay off any currently employed US domestic worker within 60 days after hiring an H-2A.

    (5) During every payday, the H-2A employees will be furnished with a complete statement detailing the following:

    • The number of hours worked, including information about the number of hours offered to them and the number of hours which the H-2As refused.
    • The pay rate for each type of crop and the base unit for each rate; i.e. per hour, per piece, per task, etc.
    • The total amount earned for the period.
    • The details and explanations of any deductions made against the H-2A employee’s wages for a particular period.

    (6) Termination of H-2A workers should be properly documented, which includes the reason for the termination.

    (7) In cases where H-2A workers are terminated, the employer hiring under this program should notify the NPC, particularly those terminations that involve abandonment or abscondment. In addition, the notification should also indicate if the agricultural employer will be seeking a replacement.

    (8) Workers under the H-2A hiring program are not covered by the Migrant and Seasonal Agricultural Worker Protection Act.

    (9) Other related US labor and employment laws will apply to both H-2A workers and employers, which may include unemployment insurance, Fair Labor Standards Act, and the Family and Medical Leave Act as well as other applicable state and local statutes and edicts.

    (10) Readers are encouraged to view the downloadable copy of the H-2A Employee Rights poster available at Bright Hub's Media Gallery. The said poster contains a complete list of rights and privileges extended not only to those classified as H-2A for agriculture, but for all other types of employment as H-2A workers.

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    Reference Materials and Image Credit Section:

    References:

    • US DOL: Work Authorization for Non-U.S. Citizens: Temporary Agricultural Workers (H-2A Visas) --http://www.dol.gov/compliance/guide/taw.htm
    • US DOL: Foreign Labor Certification: http://www.foreignlaborcert.doleta.gov/

    Image Credits: