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Some ways to fix H-2A

Workers harvest artichokes at Ocean Mist Farms, Castroville, CA.

It’s a widespread complaint: The H-2A program doesn’t work well, and it should be fixed.

There the points of agreement diverge.

The H-2A program was introduced in 1986 to enable foreign farm workers to enter the United States legally but temporarily for up to 10 months a year.

Workers apply at a U.S. consulate in their own country. (About two thirds are processed at the consulate in Monterrey, Mexico, which issues up to 2,000 visas per day.) When approved, the workers are transported to their work sites in the United States; the employer is responsible for the costs incurred.

Up to 2014, the number of H-2A visas granted remained under 100,000. Since then, the number has doubled, to 209,000 visas in 2019.

In March, the federal government eased some program requirements. For example, workers were formerly required to have in-person interviews at the consulate; they no longer are (although they must be available for interview). In practice, many returning H-2A workers are not interviewed, according to Philip L. Martin, professor of agricultural and resource economics at the University of California, Davis, a longtime expert in farm labor.

Other changes relate to the coronavirus pandemic. Jason Resnick, vice president and general counsel for Western Growers Association, observes that the Department of Labor (DOL) “is permitting H-2A workers and domestic worker performing under an H-2A contract to perform incidental duties that are not specifically listed in the job order if that becomes necessary due to the pandemic.”

Certain other regulations have been made more flexible, for example, permitting H-2A workers to work at sites not specifically mentioned in the work order. In addition, Richard Owen, vice president of global membership and engagement for the Produce Marketing Association, notes, “employees can move between employers,” although there “has to be agreement on both sides,” and they “have to stay within agriculture itself.”

As for improving the program, Resnick recommends that “the definition of seasonal and temporary should be expanded from ‘up to 10 months’ to ‘less than one year’ so that dairy and livestock operations can participate. Another is the methodology for calculating the H-2A wage rate should be updated to prevent wild swings, and employers should be given a credit against wages against the value of housing.”

Martin recommends an “ABC program,” which would classify employers into three categories. The A category would include employers who have been in the H-2A program for several years with no violations. They would be allowed to self-certify, although, he adds, “a lot of self-certification is already going on” because of the rise in applications and coronavirus restrictions at consulates.

A B category might include employers who are new to the program. “Many of the violations occur in the first year or two,” Martin explains. Because of the large number of regulations, it can take some time “to work out the kinks.” The C category would include employers with violations who would face more stringent monitoring and regulation. Thus, they would be incentivized to keep their records clean.

The same rules should apply not only to on-site employers (like growers) but to farm labor contractors, since, Martin says, “labor contractors have always had higher violation rates.”

This is all the more important because certain parts of the produce industry (for example, Florida citrus) are moving more and more toward using labor contractors.

Although Resnick stresses that “the H-2A program is incredibly fair and humane to workers, foreign and domestic,” the situation may look different from the workers’ perspective.

A 2020 study from the Centro de los Derechos del Migrante, an advocacy group for migrant workers, dismayingly concluded that “100 percent of workers suffer at least one serious violation of their rights” in such categories as “coercion,” “discrimination and verbal abuse,” and inadequate health and safety provisions.

Is it true that 100 percent of H-2A workers suffer abuses of their rights? No doubt the answer depends on how you ask the question. Probably the report’s most important recommendation is that “federal agencies should ensure workers have access to meaningful complaint processes.”

In short, although the system already has many provisions in place to ensure fairness and safety for farm workers, a worker in a foreign country, with little knowledge of the legal system and little ability to change employers, is an easy target, and more than one employer has taken advantage of this fact.

It would be nice if all employers realized that treating workers fairly and in accordance with the law is simply the right thing to do. But this is not the world we live in.

Richard Smoley, editor for Blue Book Services, Inc., has more than 40 years of experience in magazine writing and editing, and is the former managing editor of California Farmer magazine. A graduate of Harvard and Oxford universities, he has published 11 books.