Immigration: The "H-2A" Temporary Agricultural Worker Program

Immigration: The "H-2A" Temporary Agricultural Worker Program

97-714 EPW
Updated April 9, 1998
CRS Report for Congress
Received through the CRS Web
Immigration: The “H-2A” Temporary
Agricultural Worker Program
Joyce Vialet
Specialist in Immigration Policy
Education and Public Welfare Division
Summary
In recent years, there have been various legislative efforts to modify or supplement
the existing H-2A temporary agricultural program authorized by the Immigration and
Nationality Act (INA). Concern has centered on making the program easier for growers
to use while still maintaining protections for domestic labor. Growers have made limited
use of the program in the past and a few years ago program usage was in decline.
Current trends, however, show an increase due in part to increased demand from tobacco
growers. This report provides information on the H-2A program, illustrates current
trends, discusses issues raised by the proposed changes, and tracks pending legislation.
Background
Throughout the 20th century, U.S. agricultural producers have depended on foreign
workers as a significant part of their seasonal workforce. Between 1942 and 1964,
Mexican farm workers generally worked legally in the United States under the auspices
of the Mexican Bracero program, a temporary foreign agricultural worker program
established initially to meet World War II labor shortages. U.S. agricultural producers
employed more than 400,000 workers a year under the program at its peak in the last half
of the 1950s. Since the end of the Bracero program, Mexican farm workers increasingly
have worked here illegally. In what is believed by some to be a conservative figure, the
U.S. General Accounting Office (GAO) recently estimated that approximately 600,000
farm workers were working in the United States without legal authorization.1

Since 1964, the only legal temporary foreign agricultural worker program in the U.S.
has been the permanent but much smaller H-2/H-2A program. It was first authorized as
the H-2 program in 1952 and amended as the H-2A program in 1986.
1 H-2A Agricultural Guestworker Program: Changes Could Improve Services to
Employers and Better Protect Workers (GAO/HEHS-98-20), December 1997, p. 7.
Congressional Research Service ˜ The Library of Congress

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The H-2A Temporary Agricultural Worker Program
The “H-2A” program is authorized by the Immigration and Nationality Act (Section
101(a)(15)(H)(ii)(A) — hence its name). It provides for the temporary admission of
foreign agricultural workers to
perform work which is itself
Figure 1. Number of H-2A Jobs Certified
temporary in nature, provided U.S.
(1989-1997)
workers are not available. The
program is administered by the
2 5 , 0 0 0
Employment and Training
2 0 , 0 0 0
Administration in the Department of
Labor (DOL/ETA) and the Justice
1 5 , 0 0 0
Department’s Immigration and
1 0 , 0 0 0
Naturalization Service (INS).

5 , 0 0 0
Numbers and Use. The H-2A
0
program has always been very small
in relation to the total number of
1989
1990
1991
1992
1993
1994
1995
1996
1997
U.S. farm workers. In its 1992
S o u r c e : C R S p r e s e n t a t io n o f U . S . D O L / E T A d a t a .
report, the U.S. Commission on
Agricultural Workers estimated that
there were 2.5 million hired farm workers in the United States.2 Some experts believe
the 1996 figure is approximately the same. In comparison, the Department of Labor
approved only 23,352 H-2A job certifications in 1997.
The program’s numbers have also varied over the years (see Figure 1). The increase
in job certifications beginning in 1996 reversed the declining trend of previous years. The
average annual number of approvals over the 3-year period 1989-1991 was about 26,000.
The average for 1992-1994 declined to about 17,500. In 1995, there were 15,117
approvals. The decline in H-2A job certifications during these years was due mainly to
reduced demand by Florida sugarcane producers because of mechanization. Between
1988 and 1992, H-2A certifications in Florida declined by 61%, from about 11,000 to
4,300 approvals.
Various factors accounted for the increase in approvals in 1996 and 1997. According
to DOL/ETA, significant factors were applications from new participating states; and
returning participants requesting certifications for new crops and services. Increased
demand from tobacco growers accounted for the largest number of new job certifications.
Of the 23,352 H-2A job certifications approved by DOL/ETA in 1997, 62% were in
tobacco. North Carolina alone accounted for 26% of all H-2A job certifications awarded,
most of which were in the tobacco industry (see Table 1). Led by North Carolina, 9 states
accounted for 80% of H-2A activity. The other 8 states were Virginia (16%), Kentucky
(10%), New York (9%), Connecticut (6%), Massachusetts (4%), Tennessee (3%), Idaho
(2%), and Texas (2%).
2 Report of the Commission on Agricultural Workers, November 1992, p. 1.

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Table 1. FY 1997 H-2A Workers Approved-by State and Crop
No. workers
No. workers
State
Crop/Agricultural Work
approved
State
Crop/agricultural work
approved
Alabama
Sheepherder
4
North Carolina Tobacco, vegetables
6,444
Alaska
Animal slaughter
2
North Dakota
Sheepherder, custom combine
4
Arkansas
Vegetable harvest
14
Nebraska
Nebraska
17
Arizona
Sheepherder, farmwork, fruit harvest
197
New Hampshire Apples, diversified crop, vegetables
334
California
Sheepherder, sheep shearer
441
New Jersey
None
Colorado
Sheepherder, sheep shearer
212
New Mexico
Sheep shearer
1
Connecticut
Apples, Christmas trees, dairy/poultry
1,290
Nevada
Sheepherder, onions, garlic, farmwork, livestock
427

diversified crop, nursery, sod
New York
Apples, horticulture, livestock
2,122
tobacco, vegetables
Ohio
Vegetables, tobacco, nursery
113
Delaware
None
Oklahoma
Custom combine, vegetables, farm machinery
451
Dist. of Columb. None
Oregon
Sheepherder, sheep shearer
74
Florida
Sugarcane
4
Pennsylvania
Diversified crops
8
Georgia
Greens/vegetables
170
Rhode Island
Apples, diversified crops
11
Hawaii
None
South Carolina None
Idaho
Sheepherder, sheep shearer, irrigators
557
South Dakota
Sheep shearer, custom combine
20
Illinois
Vegetables
185
Tennessee
Tobacco, tomatoes, nursery
755
Indiana
None
Texas
Farmworker, field crops, beekeeper, livestock,
521
Iowa
Dairy farm
6
custom combine, pecans, horticulture, vineyard,
Kansas
Custom combine
92
horse trainer, sod, vineyard, farm machinery
Kentucky
Tobacco, hay, straw, nursery
2,402
Utah
Sheepherder, sheep shearer
179
Louisiana
Sugar cane
173
Virginia
Tobacco, hay, cabbage, vegetables,
3,706
Maine
Apples, blueberries, diversified crop,
451
produce, berries, apples
Maryland
None
Vermont
Apples, diversified crops
449
Massachusetts
Apples, farmworker, diversified crop,
969
Washington
Sheepherder
16
nursery, sod, tobacco, vegetables
West Virginia
None
Michigan
None
Wisconsin
None
Minnesota
None
Wyoming
Sheep herder, sheep shearer
261
Mississippi
Nursery, watermelons
45

Missouri
Sheep shearer
6
Montana
Sheepherder, custom combine, irrigators
164
Source: CRS presentation of U.S. DOL/ETA data. In most cases, the data in this chart are from hand counts of regional files. DOL does not guarantee the accuracy
of this data but feels that it is a reasonable indicator of key H-2A activity in each state.

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Procedures. The H-2A program requires an affirmative search for available U.S.
workers and a determination that admitting alien workers will not adversely affect the
wages and working conditions of similarly employed U.S. workers. Employers must apply
to the Labor Department for certification that unemployed domestic workers are not
available and that there will not be an adverse effect from the aliens’ entry. The Labor
Department’s certification is advisory only; the final decision to admit H-2A workers is
made by INS.
Employers seeking alien workers are required to apply for certification at least 60
days in advance of the estimated date of need.3 (Prior to the 1986 amendments,
applications were required 80 days in advance of the estimated need.) The Labor
Department is required to approve or deny certification not later than 20 days before the
date of need. Expedited procedures are provided for administrative review of denial of
certification, as well as for a new determination if an application is rejected on the grounds
that U.S. workers are available and this proves not to be true. Protections for alien
workers include free housing and workers’ compensation provided by the employer.
Issues and Debate
The small temporary agricultural worker program operating under the authority of
the INA has been controversial since the Bracero program ended in 1964. The “H-2"
program originated as the East Coast supplement to the much larger Mexican program.
Western growers have long complained that the H-2/H-2A program is overly cumbersome,
while farm labor advocates have argued that it provides too few protections for U.S.
workers. In part, the ongoing debate reflects the inherent conflict in the program goals of
expeditiously providing employers with foreign workers while protecting U.S. workers.
In a recent audit the Labor Department’s Office of the Inspector General concluded
that “the H-2A certification process is ineffective. It is characterized by extensive
administrative requirements, paperwork and regulations that often seem dissociated with
DOL’s mandate of providing assurance that American workers’ jobs are protected.”4
There is general agreement between advocates for U.S. farm workers (e.g., the
Farmworker Justice Fund, Inc.) and representatives of agricultural interests (e.g., National
Council of Agricultural Employers) that the H-2A program is marked by excessive
administrative requirement and paperwork. However, this is one of the few points of
agreement between growers and U.S. farm workers regarding the H-2A program.
Summarizing the current debate, agricultural employers have argued that the H-2A
program in its current form is insufficiently flexible and entails burdensome regulations and
potential litigation expenses for employers. Proponents of this view have supported
extensive changes that they believe would increase the speed with which employers could
hire foreign workers, and reduce the government’s ability to delay or block such
employment. More recently, proponents of an expanded program have argued that, in
3 This time period may be waived in emergency situations for employers who did not use the
H-2A program the preceding year, provided that there is an opportunity to obtain sufficient labor
market information on an expedited basis. See 20 C.F.R. § 655.101(f)(2) (1997).
4 Consolidation of Labor’s Enforcement Responsibilities for the H-2A Program Could
Better Protect U.S. Agricultural Workers, Report 04-98-004-03-321, March 31, 1998, p. iv.

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light of recent reforms restricting immigration, there is a threat of an agricultural labor
shortage. As a result, they believe that there is a need to further simplify the H-2A
program. However, opponents of expansion contend that there is already a surplus of
U.S. farm workers and that a sufficient number of seasonal agricultural workers would
continue to be available in the unlikely event that illegal immigration is significantly
reduced. Opponents also argue that further streamlining efforts such as reducing advanced
filing deadlines and relaxing employment certification procedures would weaken
protections for domestic workers.
A legislative measure to replace the labor certification requirement with a labor
condition attestation was proposed but not adopted in the 104 Congress. As note
th
d
above, labor certifications require that employers attempt to recruit U.S. workers or
demonstrate a worker shortage as conditions for Labor Department certification. The
labor condition attestation, however, would have required only that employers state the
specified wage rate and that the employment of the farm workers would not adversely
affect U.S. workers. DOL would have been authorized to enforce the attestations in
response to complaints that they were not being met or that they misrepresented the facts.

This measure would have supplemented the H-2A program with a large-scale, pilot
“H-2B” temporary agricultural worker program. Opponents of the proposed new
program, such as organized labor, argued that it would result in temporary foreign workers
taking jobs from U.S. workers and remaining in the country as illegal immigrants. The
measure was approved by the House Agriculture Committee but defeated when offered
as a House floor amendment to H.R. 2202, an omnibus immigration bill. Instead,
Congress mandated a review of the program by GAO to determine if it provides an
adequate supply of agricultural labor in the event of shortages of domestic workers.
In its report issued in December 1997, GAO found that no national agricultural labor
shortage then existed or was likely in the near future. However, they stated that “localized
labor shortages may exist for specific crops or geographical areas.” In keeping with the
subtitle of the report, “Changes Could Improve Services to Employers and Better Protect
Workers,” GAO suggested improvements in the H-2A program. These included shortening
the notice required of employers petitioning for foreign workers from 60 to 45 days in
advance of anticipated need, and adopting specific wage guarantees for workers.
Legislation in the 105 Congress
th
On March 12, 1998, the House Judiciary Subcommittee on Immigration and Claims
approved H.R. 3410, the “Temporary Agricultural Worker Act of 1998,” for full
committee consideration. The bill was introduced on March 10 by by Representative
Robert Smith, the Chairman of the Agriculture Committee, and closely resembled H.R.
2377, a bill he had introduced the previous August. The major changes were reportedly
made at the request of House Immigration Subcommittee Chairman Lamar Smith.5 These
were the reduction in the number of workers who could be admitted annually from 25,000
to 20,000, and the 10,000 offset from permanent legal immigration numbers during the
second year of the program.
5 William Branigan, “Republicans Back Measure to Import More Farm Workers,”
Washington Post, March 11, 1998, p. A5.

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H.R. 3410 resembles the measure reported by the Agriculture Committee in the 104th
Congress, discussed above. The major difference is that H.R. 3410 would establish the
“alternative agricultural worker program” as a 2-year pilot program with a 20,000 cap on
admissions or adjustments of “pilot program aliens” in a fiscal year. The program would
cover a 24-month period beginning 6 months after enactment. The earlier bill also
established a pilot program, but a much larger one. Admissions during the first year would
have been capped at 250,000 and decreased each year by 25,000.

Major differences between the existing H-2A program and the “H-2C” program
which would be established by H.R. 3410 include the following:
! H-2A employers must attempt to recruit U.S. workers before they can hire foreign
workers. There is no comparable recruitment requirement under the H-2C program.
! Under the H-2A program, employers must apply for labor certification 60 days in
advance of the estimated date of need for workers. Under the H-2C program, there is
no advance filing requirement for the labor condition attestation, except that it must
occur before the employer may petition for foreign workers.
! H-2A employers are required to provide free and approved housing for all workers who
are not able to return to their residences within the same day. H-2C employers would
be required to offer either housing or a housing allowance to H-2C workers recruited
from beyond normal commuting distance, if this is the prevailing practice.
H.R. 3410 is strongly opposed by the Administration. In a letter to Representative
Lamar Smith dated March 12, 1998, Secretary of Labor Alexis Herman indicated she
would recommend that the bill be vetoed. Quoting from the letter:
Consistent with the findings and recommendations of two bi-partisan commissions--the
Commission on Agricultural Workers and the Commission on Immigration Reform--the
President opposes a new guestworker program. He has, however, directed that, if efforts
to halt illegal immigration contribute to agricultural labor shortages, the Departments
of Agriculture and Labor should work cooperatively to improve and enhance existing
programs to meet the labor requirement of our vital agricultural industry consistent with
our obligations to American workers. In response to concerns regarding localized
shortages, the Departments of Agriculture and Labor will work cooperatively to
determine means of streamlining the current H-2A program to make it more responsive
to the needs of agricultural producers, and more effective in protecting U.S. workers.
Secretary Herman also acknowledged that “there have been difficulties administering the
H-2A program,” but stated that “none of these difficulties require legislation; all can
effectively be addressed administratively.”
Other pending legislation related to H.R. 3410 includes S. 1563, introduced by
Senator Gordon Smith on November 13, 1997. It is similar to H.R. 2377, the bill first
introduced by Representative Robert Smith. H.R. 2595, introduced by Representative
Chambliss on October 1, 1997 with Representative Pombo as a co-sponsor, is similar to
the so-called Pombo-Chambliss amendment before it was marked up and reported by the
House Agriculture Committee in the 104 Congress. For example,
th
it does not include a
250,000 annual cap. S. 169, introduced by Senator Larry Craig on January 21, 1997,
attempts to modify the current H-2A program to facilitate its use by agricultural
employers.