H-2A basics

Lucio Machado picks Golden Delicious in a Wenatchee, Washington, orchard.

Fear of a repeat of last fall’s labor shortage in the Pacific Northwest has many growers thinking about the H-2A program, the only legal means of bringing temporary agricultural foreign workers into the United States. While many agricultural employers across the country have found the program a worthwhile way to fill seasonal jobs, it’s not for everybody, says farm labor expert Mike Gempler.

In a nutshell, Gempler, executive director of the Washington Growers League, said the program allows agricultural employers to recruit workers from a foreign country if recruiting efforts for domestic workers fall short. The Growers League, located in Yakima, is a trade association representing agricultural employers in labor-related issues.

The H-2A temporary agricultural program, administered by the U.S. Department of Labor, is filled with technical requirements and restrictions involving multiple government agencies, Gempler explained, and the approval and permitting process seems to change each year. “The basic premise of the H-2A program is to assure a legal and adequate work force and protect the jobs and wages of U.S. workers,” he said.

“The mentality of the Department of Labor is that H-2A workers are allowed only if Americans don’t want the job,” Gempler said. “You have to perform a valid test of the labor market before your application is ­certified.”

The plus side for an H-2A employer is stabilization of the work force, he said during the Growers League’s annual meeting in February. “It brings new people into the labor pool and keeps them on contract,” he said. Foreign workers may only work for ten months and at least 35 hours per week. By allowing legal entry into the United States, it gives those without immigrant visas or green cards the means of legal employment.

Fine print

What employers often misunderstand is that when an H-2A application is approved, the contract terms and conditions now apply to all workers—domestic and H-2A.

“Everybody who works in the occupation that was recruited for is now just like an H-2A worker,” Gempler said, adding that wages must be the same, and housing must also be provided if needed for any domestic workers. “It’s a myth that you have foreign workers and everyone else. All workers must be under the same ­contract.”

Though rare, occasionally a domestic worker will use the free housing, he said. “That’s why extra beds for domestic workers should be considered if housing is being constructed on site by the grower for H-2A workers. Housing is the limiting factor, and the number of beds is really what determines the maximum number of H-2A workers in your application.”

He also pointed out that the foreign worker program is meant for residents of a foreign country who intend to go home—not for someone who is already here illegally. “The worker must prove that he or she has significant ties and every reason to return home. It is not legal for an undocumented worker that has been working here to become an H-2A worker. They will be disqualified.”

Because a key concept of the program is the valid test of the labor market, Gempler reminds employers that they must hire any U.S. worker who applies—until half of the specified contract has lapsed. “If your crews are full, you have to still hire. Your choice is to overstaff or to send the foreign workers home. That’s why detailed job ­descriptions in your application are very important.”

Who can apply?

Growers can submit applications on their own as a single employer; use an agent, association, or lawyer to file on their behalf; or join an employer group or association with several employers on the same application. Some associations serve as the employer, others are set up as joint employers with the grower.  A concern he has with the association model is that joint liability might be held among all members of the group.

He recalled a Washington cherry grower and asparagus grower who joined forces to share H-2A workers. The growers knew each other and coordinated the job descriptions and workflow in their application.

“Growers don’t necessarily need to have an agent or attorney. However, time is usually of the essence, and the application is time consuming to fill out, respond correctly to denials, and stay up on the changing regulations,” Gempler said. “It’s a really good idea to have assistance.”

Any size employer can use the H-2A program. Several farmers in Idaho’s Snake River region annually apply for only one or two H-2A irrigators, and do so successfully, he said. Numerous East Coast growers that use the ­program contract for only 10 to 20 employees.

Several years ago, the Growers League operated the Northwest Growers Association, created to assist agricultural employers with the H-2A program. However, for ­various reasons, the services were dropped. A new relationship is under development between the Growers League and MASLabor of Virginia to provide H-2A ­services in Washington State.

Demand curve

Gempler advised growers to first create a labor demand curve to identify the number of employees needed each week and the duration of labor needs.

Cherries are more challenging than other tree fruit because peak labor demand during harvest can be very short if the grower is not diversified with ­different ­varieties, locations, or other crops.

“Hopefully, you can find a way to keep your workers employed for a long period,” he said, noting that he has assisted with three-week H-2A contracts, but such short periods make it difficult to recoup the costs involved. “You’re in a better situation to cover all of your fixed costs if you have diverse crops, ­different varieties, and can flatten your labor demand curve.”

Housing

Housing must be provided, but growers can use apartments or other housing if it is licensed by the state health department. Transportation to and from the worksite is required, as is transportation once a week to town for workers to purchase their own groceries and use services.

H-2A applications must be submitted to the Department of Labor at least 60 days before workers are needed. However, Gempler recommends that growers submit applications 75 days in advance when workers are needed. Growers who have never filed before should allow ample time (6 months before the application should be filed) to become familiar with the requirements and application needs.

The employer must pay for transportation from the foreign workers’ home and food during the travel, inbound and outbound. Because it is difficult to schedule flights, he notes that growers often charter buses if they are transporting large numbers of foreign workers.