[Farm Law editor’s note: the following piece is in draft pending academic peer review, and written as part of the series Farm Law: Owning, Managing and Transferring Farm Interests, sponsored by the North Carolina Tobacco Trust Fund Project # #583400-10363. Comments to rabrana2@ncsu.edu are welcome.]

Introduction
Employers who employ non-US citizens on farms are subject to several federal laws regarding use of such labor. First, any foreign national (non-U.S. citizen) must obtain a visa to legally work in the United States. Though commonly referred to as “migrant labor,” foreign nationals working in the U.S. on a guest visa are not “immigrants,” for their time here is limited as a requirement of entry; nor do they “migrate” between employers within the U.S. The Immigration Reform and Control Act of 1986 (“IRCA”),[i] generally limits unauthorized immigration into the United States and holds employers accountable for employing unauthorized foreign nationals. The statute also creates the paradigm by which US employers can legally hire foreign nationals as farm labor:  the H-2A program.[ii].  (PowerPoint presentation on the H-2A program).

Under strict guidelines for employers, the Citizenship and Immigration Services (USCIS) issues 10-month (maximum) visas to foreign nationals for farm work in the U.S. The program requires farm employers to provide workers with housing, meals or facilities for meal preparation, and reimbursement for travel costs to and from their country of origin. To qualify for the program, farm employers must first meet solicitation requirements for non-immigrant needs.[iii]

The H-2A program has grown from 48,000 thousand approved positions in 2005 to 258,000 approved positions in 2019, with an average duration of stay in the U.S. of 5.3 months.[iv].  It is important, from a policy perspective, that the H-2A program generally serves to mitigate the risk of insufficient labor during critical farm operation periods, particularly at harvest of perishable crops. On larger farms, recruitment and retention of a sufficient workforce of workers eligible to work in the U.S. can be a challenge when looking to a local labor pool.

Steps in Recruitment and Hiring
Recruitment of labor through the program involves a number of steps. First, the farm employer must apply for a labor certificate from USDOL, attesting that there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and at place needed. To meet certification requirements, employer (farm) must advertise available employment for coming season (the contract period) in an interstate recruitment system. The farm employer must also attest that the employment of non-domestic (foreign national) worker in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed.[v] For local workers that answer the required recruitment call, the farm employer must hire them if they apply for work during the first half of the contract period. The USDOL cannot by statute require the farm employer to submit a certification application more than 45 days prior to the farmers “date of need” and must issue the certificate no later than 30 days after the date of need.[vi]

After receipt of certificate the employer files an application with the Department of Homeland Security for admission of foreign workers. After the petition to admit the non-native worker is approved, the employee applies for a non-immigrant visa at a United States Consulate in their home country. Once the visa is approved, the guest worker may enter the U.S. for travel to the farm of employment.

The Adverse Effect Wage Rate
One of two key features of the program – when placed against the minimum wage requirements of FLSA – is that employers must pay H-2A labor an “adverse effect wage rate” (AEWR) nearly double the federal minimum wage. The AEWR is set annually Department of Labor Employment and Training Administration.[vii]  The other feature – when placed against the backdrop of farm workers’ compensation exemptions (discussed below) – is the requirement that farm employers provide workers’ compensation insurance, regardless of number of H-2A employees on the farm.[viii]  Lastly, the Department of Labor has taken action in recent years to correct reported abuses of immigrant labor under the H-2A program, including elimination of charging a recruitment fee to workers, collecting and holding passports, and retaliation against employees for reports of employer infractions, such as substandard housing.[ix]  Lastly, the labor performed by employees with H-2A visas does not qualify as a class exemption under FLSA, and hours worked collectively contribute to the overall 500 man-day threshold for FLSA application discussed above.

Resources
North Carolina Growers Association

Endnotes
[i] Pub. L. No. 99-603, 100 Stat. 3359 (1986) (amending 8 U.S.C.)

[ii] 8 U.S.C § 1188

[iii] The particulars of this sprawling program are outside the scope of this brief summary, and deserve full treatment in a separate publication.

[iv] USDA Economic Research Service

[v] 8 U.S.C. §1188(b)(4).

[vi] Id. at (c)1 and (c)4(A)

[vii] 20 CFR § 655.120. The North Carolina AEWR for 2020 is 12.67/hour. (See 84 FR 69774)

[viii] See generally Fact Sheet #26: Section H-2A of the Immigration and Nationality Act (INA)

[ix] See 29 CFR § 501.4

Acknowledgments

Content loaded to Agricultural and Natural Resource Law portal, including narratives, workbooks, and presentations, is supported by various sources including The North Carolina Tobacco Trust Fund Commission (TTFC) (Grant award 2019-001-16).