The H-2A Temporary Agricultural Worker Program

A Basic Overview for Healthcare Providers

Farmworker Justice 1126 16 th St NW, Suite 270 Washington, DC 20036 202-293-5420 www.farmworkerjustice.org

Adrienne DerVartanian Virginia Ruiz

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 temporary 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. – 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 68,000 H-2A workers certified by DOL.

Many H-2A workers are concentrated heavily in a few states, mostly in the southeast.

Number of H-2A Workers Certified by State (FY 2010)

Analysis by Farmworker Justice based on data from H-2A Disclosure Database at http://www.flcdatacenter.com/CaseH2a.aspx

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Top States of Employment, by Positions Certified (more than 2,000 positions) State

North Carolina Florida Georgia Louisiana Kentucky Arizona New York Washington Virginia South Carolina Arkansas Texas California

FY 2010 (Rank)

9,387 (1) 4,510 (5) 5,561 (4) 6,967 (2) 5,455 (3) 4,309 (6) 3,858 (7) 3,014 (8) 2,455 (12) 2,247 (14) 3,006 (9) 2,299 (13) 2,629 (10)

FY 2011

9,154 8,839 7,523 7,409 4,684 4,032 3,951 3,197 2,647 2,643 2,472 2,204 2,141

Who are H-2A workers?

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Most H-2A workers are poor rural workers from developing countries.

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The majority of H-2A workers are young men from Mexico.

Countries of Origin

Top Ten Sending Countries - 2010

1. Mexico 2. South Africa 3. Peru 4. Guatemala 5. Romania 6. Nicaragua 7. New Zealand 52,317 1,123 830 660 206 194 143 8. Costa Rica 9. El Salvador 70 42 10. Uruguay 37

*Does not include totals for all other countries, which together account for the remaining H-2A visas issued in FY 2010

Source: Global Workers Justice Alliance

Gender in the H-2A Program

Although women make up roughly 20% of the farmworker population, there are very few women in the H-2A program.

Source: Global Workers Justice Alliance. Data from Department of State

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 ($445-520) 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. 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 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?

The H-2A program regulations detail specific wage requirements and other employment conditions 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. 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).

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.

2012 Adverse Effect Wage Rates (AEWRs)

Alabama Arizona Arkansas California Colorado Connecticut Delaware Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana $9.39 $9.94 $9.30 $10.24 $10.43 $10.56 $10.34 $9.54 $9.39 $12.26 $10.19 $11.10 $11.10 $11.50 $11.61 $9.38 $9.30 $10.56 $10.34 $10.56 $10.78 $10.78 $9.30 $11.50 $10.19 Nebraska Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Carolina South Dakota Tennessee Texas Utah Vermont Virginia Washington West Virginia Wisconsin Wyoming $11.61 $10.43 $10.56 $10.34 $9.94 $10.56 $9.70 $11.61 $11.10 $9.88 $10.92 $10.34 $10.56 $9.39 $11.61 $9.38 $9.88 $10.43 $10.56 $9.70 $10.92 $9.38 $10.78 $10.19

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.

No matter how long H-2A workers work in the US, they can never become a lawful permanent resident or U.S. citizen through the H-2A program.

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 may 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.

How will healthcare reform impact H 2A workers?

H-2A workers will be eligible to enroll in the state exchanges  H-2A workers would meet the immigration eligibility requirements and state residency requirements  Workers would also qualify for the Advanced Premium Tax Credit to help purchase insurance on the exchange BUT…

… there are unanswered questions that require further clarification and research: • • Will enrollment in the exchange impact their ability to apply for future visas?

Even with the tax credit, will H-2A workers be able to afford to enroll in the exchange?

They are still not eligible for Medicaid

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 – www.farmworkerjustice.org

– (202) 293-5420 – [email protected]

– [email protected]

Farmworker Legal Services programs Foreign Consulates

Acknowledgements and References

• • • • Photos by Earl Dotter Farmworker Justice, “No Way to Treat a Guest: Why the H-2A Agricultural Visa Program Fails U.S. and Foreign Workers,” 2011.

Global Workers Justice Alliance Southern Poverty Law Center, “Close to Slavery: Guestworker Programs in the United States,” 2007