Updated: Dec 15, 2021
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As it becomes increasingly difficult to find domestic farm labor, many farm employers are considering whether foreign workers, able to temporarily work in the United States via an H-2A visa, are the solution. Although popular, the H-2A visa program can be difficult for employers to navigate. Given the need for foreign farm labor and the problems with the H-2A visa program, reforming the program is a hotly debated political topic. The one part of the H-2A visa system that all folks, regardless of political affiliation, typically agree upon is that employers who need H-2A workers have to start the process months in advance of the workers’ anticipated start date. This article will outline the major steps that Maryland employers need to take to get H-2A visa workers on the farm this spring.
Employers who are new to the H-2A visa program are highly encouraged to seek assistance from their State’s Workforce Agency. In Maryland, the Department of Labor provides assistance to farmers with the H-2A visa program by and through the Rural Services Coordinator Norton Pereira at (301) 326-6006 or at firstname.lastname@example.org.
The first step in the process is either create or confirm that you have an active Maryland Workforce Exchange account set up with the State. The second step in the process is an application with the U.S. Department of Labor (DOL) for a temporary labor certification. Employers will need to submit a job order to DOL no fewer than sixty (60) days and no more than seventy-five (75) days before the day the worker is first needed. To be approved for such a certification, agricultural employers must demonstrate that the job is of a temporary or seasonal nature, that there are not enough U.S. workers who are “able, willing, qualified and available to perform work at the place and time needed,” and that the wages and working conditions of workers in the United States will not be “adversely affected” by the importation of guest workers.
The third step is the creation of a state clearance job order and a mandatory housing inspection. The Maryland Foreign Labor Certification office will help with these steps. In Maryland, Norton Pereira (see contact information above) can assist employers with this part of the process.
After receiving a temporary labor certification from DOL, an employer will file a Form I-129 with the U.S. Citizenship and Immigration Services (USCIS). According to Pereira, this is a part of the process where employers can have problems if they don’t strictly follow the submission instructions. Once the petition is approved by USCIS, prospective foreign workers can apply for H-2A nonimmigrant visas at the U.S. embassy or consulate in their home countries.
Once hired, H-2A visa workers must be paid the higher of: (a) the local “prevailing wage” as determined by State Workforce Agency and the DOL; (b) the State or Federal minimum wage, or (c) the “adverse effect wage rate” (AEWR) which is the average wage of nonsupervisory field and livestock workers as determined by a USDA survey. The highest of those wages in 2021 was the AEWR at $14.05/hour in Delaware, Maryland, and Pennsylvania. However, the DOL recently announced that it plans to revise the calculation of the AEWR. The DOL performs regular audits of agricultural employers to ensure that H-2A visa workers are being properly treated and compensated.
In addition to wages, employers must provide H-2A visa workers housing at no cost and either provide three meals a day (workers can be charged an amount per meal published by DOL) or adequate kitchen facilities so the workers can cook their own meals. The housing provided to H-2A workers must meet all applicable Federal and State health and safety standards.
The transportation costs to get H-2A visa workers from their home countries to the farm as well as a daily fee for meals during the travel period are required to be paid by the employer when the worker has completed at least 50% of the work contract period. Upon expiration of the contract, the agricultural employer must also pay for the workers’ transportation costs to return home.
Given the extensive recordkeeping burdens related to H-2A visa worker employment, the Agriculture Law Education Initiative has numerous tools including a recordkeeping self-audit checklist and recorded webinars to help employers stay in compliance. Any employers with questions can contact one of the ALEI legal specialists at 410-706-7377.