Cato Institute: H‑2A Visas for Agriculture – The Complex Process for Farmers to Hire Agricultural Guest Workers

The Cato Institute has a lengthy article explaining the H-2A agricultural worker program – H‑2A Visas for Agriculture: The Complex Process for Farmers to Hire Agricultural Guest Workers

Congress created the H‑2A program in 1986 to allow legal foreign workers to temporarily work for U.S. farmers who were unable to hire qualified Americans. However, illegal immigrant workers came to dominate the industry in the 1990s, and the H‑2A program was rarely used. While it still supplies only about 10 percent of farm labor, H‑2A employment has increased fivefold since 2005.

The H-2A program needs reforms, but productive reform is only possible if policymakers understand how the system currently operates. This brief explains how the H-2A visa program works. Its main findings include the following:

  • The H-2A program has more than 200 rules and is bureaucratically complex.
  • H-2A minimum wages are higher than every state’s minimum wage by, on average, 57 percent.
  • Americans accept only 1 in 20 H-2A job offers, and most later quit.
  • H-2A expansion is likely responsible for much of the large decline in illegal immigration from Mexico.
  • Violations of H-2A regulations are generally minor. An average of only 0.27 percent of farmers per year have been barred from the program because of serious H-2A violations.

H‑2A Program Rules

The H-2A program is an employer-sponsored temporary worker program, meaning that farmers initiate the process, not the workers. The H-2A visa program has no numerical cap but is restricted to temporary or seasonal jobs lasting less than a year.1 This requirement significantly limits participation and effectively bars dairies and most animal farms that demand labor year-round.2 H-2A’s most widely used predecessor—colloquially known as the Mexican Bracero Program (canceled in 1964)—had no such limitation.3 The H-2A program also narrowly defines “agriculture,” excluding most meat packers and processors.4

Figure 1 broadly outlines the H-2A process. The Government Accountability Office has found that the “complexity of the H-2A program poses a challenge for some employers” because it “involves multiple agencies and numerous detailed program rules that sometimes conflict with other laws.”5 In 2014, the U.S. Citizenship and Immigration Services (USCIS) ombudsman characterized the H-2A program simply as “highly regulated.”6 Appendix Table C details a noncomprehensive list of 209 H-2A rules that apply to workers and farmers, and Text Box 1 is a short summary of those rules.

IRBP Text Box 1

To start, when farmers have jobs that they want to fill with H‑2A workers, they must first receive a labor certification from the Department of Labor (DOL).7 They must antic­ipate a worker shortfall and initiate the labor certification process 60 days before the job’s start date by submitting job orders to State Workforce Agencies (SWAs), which are state‐​run entities that help unemployed U.S. workers.8 The SWAs guarantee that job offers comply with H‑2A regulations and inform unemployed Americans about the job opportunities.9 Farmers meanwhile must contact former U.S. employees and advertise the jobs.10

If too few U.S. workers apply, DOL will again review the jobs and certify the farmer to hire foreign workers for the remaining positions. The law requires DOL to make certifications at least 30 days before the job starts.11 Delays have cost farmers millions of dollars in lost crops.12 But the internet has improved DOL processing: it deployed online applications in 2012, and by 2019, about 94 percent of applicants used it.13 As a result, the department moved from completing just 63 percent of labor certifications within 30 days in 2011 to completing 97 percent in 2015 (Figure 2).14 In 2019, however, delays reemerged as DOL had the lowest rate of timely approvals (86 percent) of any year since 2013.15

If DOL grants the labor certification, the farmer pays fees of $100 plus $10 per worker, up to $1,000 total.16 Even after H-2A workers start, however, farms must continue to accept U.S. workers until half the job period has expired.17 … (continues)

Joel Salatin: The Rise of Rogue Food

Peak Prosperity interviewed farmer and author/activist Joel Salatin. Joel refers to himself as a ‘lunatic farmer’ because many of the changes he thinks our food system needs are either illegal under the current law or strongly resisted by the corporations controlling production and distribution.

I’m not optimistic at all about where the government and all its bureaucracy is headed. It is getting more and more stifling. The Food Safety Modernization Act (FSMA) that Obama put through, it’s absolutely stifling. It’s size prejudicial. It’s putting an inordinate price pressure on smaller producers. That’s a fact all the way across the board. And the cost of compliance is escalating — the amount of paperwork, the amount of licensing, the amount of testing and procedural stuff that’s happening on farms — is through the roof.

So on the federal level, I think it’s getting worse. Now, I think what’s happening on the local level, the other thing that’s a pushback that’s happened, is what’s now known as the food sovereignty movement. And that started in 2015 maybe, two or three years ago in Sedgewick, Maine. And that was a township that passed a half page food sovereignty law that said, in our township if a neighbor wants to do food commerce with another neighbor it’s none of the governments business and no bureaucrat has to be involved. So if you want to come to my house, look around, smell around, and operate as freedom of choice, as voluntary adults, as consenting adults – and I’m using very strong language here – to practice your freedom of choice, then two consenting adults should be able to engage in food commerce without a bureaucrat being involved. Well, very quickly six other townships in Maine took up the mantra and passed the regulation, the law, as well.

Then, of course, Maine pushed back and said, no, you can’t do that. And it continued to build in Maine until finally the legislature and the governor passed it and said, okay, if a township wants to do that it’s okay with us. Well, then, the USDA quickly responded and said we’re going to pull all of your federally inspected slaughter houses and food processing plants. Maine, you won’t be able to sell to anybody because the federal government is pulling out if you do this. Then the governor called an emergency session. They went back in, and it’s still being negotiated. It’s a big hoo-ha. Believe me, there are a lot of us around the country that are watching what’s going on in Maine, and we’re very interested in it.

And if that were duplicated around the country it would almost be like local food secession. There’s a place to say, at some level, we should be able to engage in food commerce at our own risk and our own freewill. And that is definitely gaining momentum.

See the entire interview below.