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The ABCs Of Immigration - H-2A Visas For Temporary Agricultural Workers and H-2B Visas For Temporary Nonagricultural Workers
by Gregory Siskind and Amy Ballentine

The H-2A visa for temporary agricultural workers is one of the most controversial, with growers claiming its restrictions make it impractical and farmworker advocates claiming that it does not provide sufficient protections for US workers and leaves foreign workers open to abuse and mistreatment. The last time any substantial revisions were made to the program was in the Immigration Reform and Control Act of 1986.

Requirements

There are two general requirements to obtain workers on H-2A visas. First, the employer must demonstrate that there are not sufficient able, willing and qualified US workers available at the time and place needed. Second, the employer must show the use of foreign workers will not create an adverse effect on the wages or working conditions of similarly employed US workers. Farmworkers generally receive either an hourly wage or are paid by the piece. However, under the H-2A program H-2A workers must be offered the same wage as US workers. This has been interpreted to mean the higher of the following:

· The industry’s prevailing wage in the relevant labor market,

· The state or federal minimum wage, or

· The “adverse effect wage rate”

The adverse effect wage rate, or AEWR, is currently set at the prior year’s average hourly wage for agricultural and livestock workers determined by the Department of Agriculture. For workers who are paid by the piece, if their wages are not equal to the AEWR, the employer must make up the difference. On or before each day when the H-2A worker is paid, the employer must provide the worker with an earnings statement detailing the alien’s total earnings, whether the alien is paid hourly or by the piece, the hours of work offered, and the hours actually worked.

Employers are required to provide H-2A workers with a number of benefits.

· The employee must be provided with transportation to and from the worker’s temporary home to the workplace.

· When the contract period is up, the employer must provide the worker with transportation home or to their next workplace.

· Employers must provide housing to all H-2A workers who do not commute. The housing must be inspected by the Department of Labor and must meet minimum federal standards for temporary labor camps.

· The employer must either provide three meals a day or facilities in which the worker can prepare food.

· The employer must also provide any tools and supplies necessary to perform the work.

· The employer must also provide workers’ compensation insurance to H-2A workers.

Procedures

An application for an H-2A worker begins with the Department of Labor. Two copies of form ETA-750 are filed, one of which is sent to the appropriate DOL region, the other to the state employment service agency for the state in which work is sought. The application must be submitted at least 60 days before the temporary workers are needed. The DOL must approve it 20 days before the starting work date. If approved, the employer pays a base fee of $100 plus $10 for each position certified, up to a maximum of $1000.

The DOL directs recruitment efforts for H-2A positions. There are three types of possible recruitment: the state employment service agency can refer candidates to the employer, the employer can conduct independent recruitment, and recruitment can be conducted after the DOL certifies the applications. Most referrals come from the state agencies. While the statute requires growers to recruit US workers, DOL regulations do not strictly enforce this requirement. For this reason, employers heavily recruit for more H-2A workers while virtually ignoring available US workers.

After the recruitment period, the DOL makes a decision on certification. It will subtract the number of US workers who were successfully referred from the number of H-2A workers requested and certify the remaining job openings.

Certification will not be issued if the DOL determines that US workers have filled all the job openings, or if it finds that the potential H-2A workers have been offered better working conditions that those offered to US workers. Certification will also not be granted if there is a strike or lockout, if the employer has committed a substantial violation of the H-2A program within the previous two years, if the employer fails to demonstrate that H-2A workers will be covered by workers’ compensation, or if the employer fails to comply with recruitment requirements.

If the certification is granted, an application is then filed with the INS. The application may be filed for multiple workers, and the workers may be unnamed on the application. The employer must provide the INS with their names as they become available. If the INS approved the petition, notification is forwarded to the appropriate consulate where the workers apply for visas.

An H-2A visa is generally valid for a maximum of one year. Extensions of up to one year are possible, with a maximum of three years. Once an alien has spent three years in the US in H-2A status, they must leave for six months before being able to resume H-2A employment. During this time the alien can reenter the US in any status that is not based on the performance of agricultural work.

Every two years a report on the H-2A program must be provided to Congress. This report must include the number of H-2A workers admitted each year, information on employer compliance, the impact of the H-2A program on labor needs, wages and working conditions, as well as recommendations on how to improve the program. So far, however, despite much debate, there have been no significant changes in the program since 1986.

The H-2B nonimmigrant work visa provides a method for US employers and agents to obtain the services of foreign nationals to fill temporary needs for additional workers. The annual cap on this type of visa is 66,000. Until recently, the limits and requirements of the category caused usage of the visa to be marginal. For example, in 1995, only 2,398 H-2B visas were issued. However, the visa has become very popular in recent years, particularly in the hospitality industry. The limit has been much closer to being reached recently.

The length of the stay on an H-2B visa is limited by the duration of the employer’s temporary need for additional workers. The maximum authorized period of stay is one year, and the visa may be extended for a total of three years. However, extension applications are closely scrutinized. Either skilled or unskilled workers may be employed on an H-2B visa. The only workers who are specifically excluded are 1) foreign medical graduates seeking to perform work in medical fields and 2) agricultural workers. The visa is also often used for entertainers and athletes who do not meet the requirements of the O and P visa categories.

US employers and agents are allowed to petition for temporary H-2B workers. US agents are allowed to file petitions for self-employed aliens, cases where there will be multiple employers, and cases involving foreign employers. When the H-2B worker is self-employed, there must be a contract between the agent and the worker specifying the wages and terms of employment. The agent must also provide a complete itinerary of the planned employment. When numerous employers are involved, the agent must provide the dates of the proposed employment, the name and address of the employers, and the locations where the work will be performed. When a foreign employer is petitioning for the services of an H-2B worker, the agent must submit the employment contract between the worker and the employer, as well as evidence of the agent’s authority to act on behalf of the employer. In this situation the agent is the person who is authorized to accept service of process should the foreign employer be subject to sanctions under US immigration law.

One of the most significant restrictions on the H-2B category is the requirement that the need for the foreign worker is temporary. The Department of Labor recognizes four situations in which there is a temporary need for workers: recurring seasonal need, intermittent need, peak-load need, and need based on a one-time occurrence. It is this requirement that makes this visa category so rarely used, not only must the employer promise to employ the worker for a limited period of time, the employer must verify that its need for the worker is temporary.

A labor certification by the Department of Labor (DOL) is required for the INS to issue an H-2B visa. The DOL must determine that there are no unemployed, qualified US workers available for the position in the geographical location of the proposed employment, and that employment of the foreign national will not adversely affect the wages or working conditions of US workers. To satisfy the DOL, the employer must conduct a recruitment campaign. Before beginning this campaign, the employer should contact the state employment office to discover what type of recruiting efforts will be required in that area. It is also important to note that a US worker who is otherwise employed, but expresses willingness to take the position recruited for is not considered unemployed.

The H-2B category could provide a much-needed way of working through some of the nation’s labor shortages, but so long as it carries its current stringent requirements, it will likely continue to be underused.


About The Author

Gregory Siskind is a partner in Siskind, Susser, Haas & Devine's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at gsiskind@visalaw.com.

Amy Ballentine is an associate in Siskind, Susser & Haas's Memphis, Tennessee office. She graduated Cum Laude with a Bachelor of Arts degree in English Literature from Rhodes College in 1994. While in law school at the University of Memphis she was a member of the law review staff as well as a published author. She also worked with the local public defender’s office in death penalty cases. In May 1999, she graduated Cum Laude from the University of Memphis Law School. She is a member of the American Immigration Lawyers Association. She can be reached by email at aballentine@visalaw.com


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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