The H-2A Temporary Agricultural Worker Program A Basic Overview for Healthcare Providers

Adrienne DerVartanian Virginia Ruiz Farmworker Justice th St NW, Suite 270 Washington, DC

What is a guestworker program?   A guestworker program is a program that allows employers to bring in foreign workers when there is a shortage of US workers.   Guestworkers are not immigrants because they are only allowed to be in the country temporarily for a limited purpose.

What is the H-2A program?   The H-2A program is a guestworker program for agricultural work.   Employers can only bring in “H-2A” workers if they can prove that there are no U.S. workers available for the job.   “The elimination process was getting rid of local workers basically so we could get the H-2A approval…” Former supervisor, Global Horizons.   Employers must also show that bringing in the foreign workers will not harm the wages and working conditions of U.S. workers.

How many H-2A workers are there?   H-2A workers only make up about 2-5% of the farm labor workforce.   Last year, there were roughly 86,000 H-2A workers.

Many H-2A workers are concentrated heavily in a few states in the southeast, including North Carolina, Georgia, and Florida.

Who are H-2A workers?   Most H-2A workers are poor rural workers from developing countries.   Almost all H-2A workers are young men from Mexico.   H-2A workers are not allowed to bring their families. “The [migrants] we have now, they come and work. They do not have kids to pick up from school or take to the doctor. They do not have child support issues. They do not ask to leave early for this and that. They do not call in sick. If you say to them, today we need to work ten hours, they do not say anything. The problems with American workers are endless.” Georgia Vidalia onion grower.

How are H-2A workers recruited?   Middlemen play a critical role   Recruitment often involves high payments and debt   “Workers in Mexico can expect to pay between 6,000- 7,000 pesos ($ ) to get to the U.S. on a guestworker visa.” Roman Ramos, TRLA paralegal   “We were told to leave our deeds to get a job.”   Many recruiters misrepresent the reality and limitations of the visa.   The law now requires employers to contractually forbid any foreign labor contractor or recruiter to receive payment from prospective employees; however, this provision is very difficult to enforce.

How do H-2A workers get to their place of employment?   After they pay recruiter fees, potential H-2A workers travel to the U.S. consulate.   Under the new regulations, workers must be provided a written copy of the work contract no later than the time they apply for the visa.   Undocumented workers are not eligible to receive a visa.

If the worker receives a visa, the employer typically arranges for the workers to come to the employer’s farm by bus. Many workers must also pay the transportation and other travel costs up front and have to borrow that money as well. Under the law, employers are responsible for those costs, and must reimburse the workers.

Once in the US, what laws apply to H-2A workers?   H-2A workers are not covered by the major federal law that provides employment-related protections to farmworkers (the Migrant and Seasonal Agricultural Worker Protection Act)   However, employers must comply with all other applicable federal, state, and local employment-related laws and regulations. This includes health and safety laws, such as field sanitation and pesticide safety laws.   Employers must ensure that the wages and working conditions of H-2A workers are not less than those among similarly-employed farmworkers in the area.

How much are H-2A workers paid?   If paid by the hour, they must earn at least the Adverse Effect Wage Rate (AEWR), the prevailing wage, the collectively bargained wage rate or the federal or state minimum (whichever is higher).   If paid on a piece-rate, the worker’s pay must be at least equal to what the worker would have made if paid by the hour under the AEWR.

Can H-2A workers stay in the United States permanently?   H-2A workers can only remain in the United States temporarily.   Sheepherders may remain for up to three years.   H-2A workers do not pay into Social Security or Medicare and are not eligible for any public benefits (with a few exceptions, such as emergency treatment for a life threatening illness or injury).   There is no opportunity to become a lawful permanent resident or U.S. citizen through the H-2A program.   If AgJOBS passes, some workers may be eligible if they meet work and other requirements.

Can H-2A workers look for new work if they are not happy in their jobs? No. H-2A visas are not portable.   Once a worker stops working for the employer, they lose their H-2A status and their right to be in the U.S.   Sometimes an employer association brings in workers and the workers may be transferred from one member employer to another.

Where do H-2A workers live?   H-2A employers are required to provide free housing to H-2A workers and to any US workers performing the same tasks that cannot commute back and forth in a day.   Many times the housing is located on the employer’s property in an isolated rural area far from public transportation or stores.

Housing must be inspected and certified to meet local or state standards.

How do H-2A workers get around once in the U.S.? Most workers are dependent on their employer to provide them transportation. For example, employers may bring workers to the store once a week.

What happens if an H-2A worker gets sick?   All H-2A workers have workers’ compensation coverage. If an illness or injury is work-related, the workers’ compensation should cover needed medical care and some wage reimbursement.

  Under the H-2A program, employers are not required to provide health insurance, but workers are eligible for services at migrant health clinics.   Jamaican H-2A workers receive health insurance from the Jamaican government.

  Many injured workers return to their home countries, either by choice or involuntarily.   Once home, workers may face challenges accessing needed care   It can be very challenging for a worker to return to the U.S. for medical care or to attend legal proceedings.

What are the implications for healthcare providers treating H-2A workers?   Workers have limited access to health clinics   Outreach is needed to reach workers   Workers may be reluctant to reveal the cause of their injury as work-related   Workers are isolated and very far from home   Follow-up treatment may be difficult

Where can I go for more information?   Farmworker Justice     (202)       Farmworker Legal Services programs   Foreign Consulates

Acknowledgements and References   Migrant Clinicians Network   Photos by Earl Dotter   Southern Poverty Law Center, “Close to Slavery: Guestworker Programs in the United States,” 2007