The Crush - March 2020 - 4

[ STATE FOCUS ]

H-2A Employers Under Attack

CAWG, AG GROUPS AND AG WORKERS ARE ASKING FOR CHANGES TO THE OT LAW
By Michael Miiller
As California growers continue to struggle with a declining
workforce, many are turning to the H-2A guest worker program
for help. The H-2A visa is a nonimmigrant visa program that
allows employers to bring foreign nationals to the U.S. to fill lowskill, temporary or seasonal ag jobs for which U.S. workers are
not available.
Generally, H-2A visas are for 10 months or less, at which time
the worker returns to his or her home country. If the employer
would like the worker to return for work the following year, the
employer can request that the visa be renewed.
An H-2A worker's family members may join the H-2A worker
and seek admission in H-4 nonimmigrant classification.
However, in practice, most families of H-2A workers prefer to
stay home, as they do not intend to immigrate to the U.S. Instead,
H-2A workers send money home to provide housing and care for
their families.
The H-2A process is cumbersome and expensive for employers.
Employers must utilize costly consultants, legal counsel and
human resources professionals to work through the federal
process. The H-2A program is overseen by the following federal
agencies: Citizenship and Immigration Services, Department
of Homeland Security, Customs and Border Protection,
Immigration and Customs Enforcement, Department of Labor
and Department of State.
HOW ARE H-2A EMPLOYERS UNDER ATTACK?
For the last two years, the California Legislature has pursued
legislation intended to treat H-2A employers differently from any
other ag employer and to make things even more costly for H-2A
employers. For example, last year, AB 1783 (R. Rivas, D-Gilroy)
provided a means to expedite building ag worker housing,
but prohibited H-2A workers from living in that housing. This
year, SB 1102 (Monning, D-Carmel) seeks to require additional
paperwork requirements for H-2A employers.
The basis for these attacks is lawmakers' belief that H-2A
employers are in danger. Relative to SB 1102, Sen. Monning
states, "H-2A workers in California and around the country
are historically some of the most exploited workers in the
agricultural industry."
With that backdrop, the Legislature is pushing to make things
more difficult for California growers to hire H-2A workers.

4 / MARCH 2020

WHAT IS THE TRUTH ABOUT
H-2A EMPLOYERS?
They are required to provide
guaranteed hours of employment
in a specific job function, free
housing, free daily transportation
to and from work, and
reimbursement for reasonable
costs incurred for inbound and
outbound transportation and
subsistence costs.
Employers are prohibited from holding or confiscating passports
or restricting non-work travel of the worker. Detailed records
must be maintained by employers and made available for
inspection by federal agencies. As a real-life example, below are
some Sonoma County-based details to consider:
* Growers have built housing, which is provided free of charge.
* This housing complies with strict state and federal safety law
and is inspected annually by the state.
* As that housing is near the worksite, workers don't have long
commutes. Their transportation costs to work are also covered.
* H-2A workers can earn between $20 to $25 per hour or more
when working piece rate during harvest.
* At a minimum, workers receive $14.80 per hour. No taxes are
deducted from the hourly rate, making it the equivalent of
almost $18 per hour for a U.S. worker in California (significantly
higher than the average for a farmworker in California).
* Workers receive full benefits, including health care.
This is a very different picture than that being painted in the
Legislature.
SO, WHY THE ATTACK ON H-2A EMPLOYERS?
Those opposed to H-2A visas argue that we need a national
immigration system that welcomes immigrants and new citizens.
They see guest workers as a threat to immigration reform.
Additionally, they seek a cap on the number of H-2A workers
allowed annually in the U.S.
From 2017 to 2018, several states saw significant increases in
H-2A visas issued, including a 24 percent increase in California.
Given that increase, those opposed to the H-2A program are
aggressively pursuing legislation in Sacramento intended to
make participation in the program more difficult.
The reality is that we need immigration reform AND a guest
worker program. These are not mutually exclusive; we need both.

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB1783 http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200SB1102

The Crush - March 2020

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