H-2A Temporary Agricultural Worker Visas – A “Big Beautiful Door” in President Trump’s Wall?

By:  Bernard Wolfsdorf, Josune Aguirre  and Joseph Barnett

President Trump’s desired immigration policies, articulated during his campaign and the beginning of his presidency, have focused on stopping “low-skilled” or “illegal” immigration that, in his opinion, has negatively impacted U.S. citizens. However, one visa program that may benefit under President Trump is the H-2A Temporary Agricultural Worker (“H-2A”) visa program, which allows U.S. employers to bring foreign nationals from certain countries to the U.S. to fill temporary or seasonal agricultural jobs that most U.S. workers are unlikely to fill. During the Republican debates, candidate Trump emphasized that while he still wants to build a wall, he supports “a big, fat beautiful door right in the middle of the wall” for legal immigration to the U.S.

Tom Nassif, president and chief executive of the Western Growers Assn. and a member of Trump’s agricultural advisory committee said it most succinctly:

“I think he [President Trump] has the same philosophy that we’ve had for years, and that is: If you let them in the front door, they won’t have to sneak around and go through the back door.” Nassif believes that the president is ready to swing open the “big beautiful door” he promised in his border wall, even before he builds it.

Here are 8 things to know about the H-2A visa.

  1. Temporary or Seasonal Employment. Employment is of a temporary nature when the employer’s need to fill the position with a temporary worker will, except in extraordinary circumstances, last no longer than 1 year.  Employment is of a seasonal nature where it is tied to a certain time of year by an event or pattern, such as a short annual growing cycle, and requires labor levels above what is necessary for on-going operations.
  2. H-2A Petition Process. The process to obtain an H-2A petition involves the U.S. Department of Labor (“DOL”), the U.S. Citizenship and Immigration Services (“USCIS”), the U.S. Department of State (“DOS”), and the State Workforce Agency (“SWA”) in the area of intended employment. U.S. employers must strictly following the rules of the H-2A petition process in order to fill these temporary agricultural jobs.
  3. Effect on U.S. Workers. DOL must determine that there are not sufficient able, willing, qualified, and available U.S. workers and that the employment of H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. The wage paid to foreign nationals on a H-2A visa must either be the state’s prevailing wage rate, or the Adverse Effect Wage rated determined by DOL each year.  Failure to abide by these rules could result in federal actions against employers by DOL, who have prioritized visa program fraud and abuse.  The U.S. employer is also required to engage in specific recruitment efforts in a newspaper of general circulation serving the area of intended employment and is appropriate to the occupation and the workers likely to apply for the job opportunity.
  4. Other Employer Requirements. S. employers must also comply with a number of regulations that relate to wages, working conditions, and other employee protections. This includes housing that meets Occupational Safety and Health Admiration (“OSHA”) standards, three meals a day or a free convenient cooking facility, guaranteeing work for 3/4ths of the total work days, and transportation between living quarters and worksite for each H-2A employee.  U.S. employers are also required to notify USCIS within two workdays if an H-2A employees fails to report to work for certain amount of time or if the H-2A employee is terminated from employment or finishes the labor or services for which he/she was hired.
  5. Maximum Period of Stay. USCIS usually grants a period of stay authorized by the temporary labor certification. H-2A status may be extended in increments of 1 year each provided a new, valid temporary labor certification accompanies each extension.  However, the maximum period of stay is 3 years.  Once a worker meets the 3 years, he or she must depart and remain outside of the U.S. for an uninterrupted period of 3 months before an employer may seek to readmit the worker in H-2A nonimmigrant status.
  6. Family Members of H-2A Employees. Qualifying family members (spouse and children) may seek H-4 nonimmigrant classification which is valid for the H-2A validity period.  However, family members are ineligible for employment authorization in the U.S. while in H-4 status.
  7. Overstays. Critics of the H-2A visa suggest that because these “low-skilled” temporary agricultural workers are less likely to want to return to home country at the end of their visa validity period due to lack of jobs and are more likely to overstay the visas. Although wages have been rising faster than the state average, farmers are unable to hire U.S. workers.  Therefore, the federal government must reconcile its competing goal of allowing workers to fill necessary jobs in the U.S. while at the same time stopping visa overstays.
  8. H-2A Filings on the Rise. H-2A petitions are on the rise due to the increase of consumer needs for produce such as strawberries and leaf lettuce.  In California alone, H-2A visa went from 1,774 in to 2011 to 11,131 in 2016.  However, farmers across the U.S. hope President Trump will make a hole in his wall to ensure H-2A petitions are continuously approved as foreign workers have largely kept crops from rotting in the field.  Specifically, many U.S. dairy farmers have stated that they would have to stop milking cows without the help of foreign nationals.  Trump Vineyard Estates and Winery had to submit H-2A petitions this year as the business stated it was difficult to find U.S. workers.

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