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H2-A can be made to work

In this age of increasingly fewer workers to fill farm jobs, there are ways to obtain a legal workforce.

May 16, 2018

3 Min Read
H2-A can be made to work
Cornell’s Teaching Dairy Barn.Lindsay France/University Photography.

By Sarah Loud

Farmers typically shy away from utilizing the H2-A program as only 10% of those eligible actually file for labor under the program, but in the age of increasingly fewer workers to fill farm jobs, there are ways to obtain a legal workforce.

Usually, it is one of three reasons that have deterred farmers from utilizing the government’s current option for obtaining labor in the agricultural industry. For one, employers believe that their farm operation is too small or has too few employees. Secondly, employers are intimidated by the lengthy filing process and bureaucratic regulations. Or employers are concerned with onerous government intervention or oversight in the event they do successfully file for and receive immigrant labor.

The good news is that none of the three reasons is accurate, according to Youngblood & Associates, PLLC, a law firm based out of McMinnville, Tenn., specializing in immigration law and related labor and employment relations support 100 workers.

Unlike most immigration firms, Youngblood & Associates represents agricultural employers and landscape employers in securing reliable, legal and seasonal foreign labor through these government programs, in addition to practicing traditional individual and family based immigration law.  Simply speaking, the H2-A program is specific to agriculture (as opposed to the H2-B program, which is much more difficult to secure labor under owing to an arbitrary cap on the number of workers allowed per year as set by Congress, and specific to landscaping and hardscaping employers).

Under the H2-A program, employers may file paperwork with the government and utilize foreign seasonal labor.  A common misconception in the current, politically-charged national debate over immigration reform is that such workers take opportunity away from American workers and thus hurt the economy.  But the truth is that both programs legislatively require that employers seeking to use immigrant labor prove that there is a shortage of American workers willing to take the jobs and such jobs must first be advertised and offered to United States citizens through targeted advertising. 

In fact, and as most farmers know, it is exceedingly difficult to hire and retain American labor for farmhand positions because it is seasonal in nature, there are fewer labor pools in rural areas where farms typically operate, and because American workers tend to prefer less physically demanding jobs that have opportunity for promotional growth. 

As it turns out, utilization of the H2-A and H2-B programs actually helps local economies. From a public policy standpoint, these programs exist in part because using immigrant labor actually helps local economies and farm productivity while ensuring that the immigrant labor is protected from labor abuses which occur more frequently with undocumented workers.  It is actually more expensive for farmers to hire legal immigrant labor, despite common misconceptions, because they have to pay the prevailing wage set by the Department of Labor (which is always higher than the minimum wage) in addition to covering filing fees, housing and transportation and recruiting costs.  However, at the end of the day it is worthwhile to ensure that labor demand needs are met by qualified, hard-working applicants, and that those workers are not exploited.  For those employers who wish to retain or permanently hire workers, there is an additional process called “PERM” which is effectively a visa designed for individual workers to be able to permanently and legally live and work for the same employer. 

But how do you ensure that you are on the right track to securing a legal workforce?  Quality legal representation – as opposed to agents who simply fill out the initial paperwork with the government and provide no further assistance – is critical.  Even among law firms, it is imperative that the attorneys and staff are well versed and experienced enough not just with traditional immigration law, but with labor and employment law as well. 

At the end of the day, every eligible agricultural or farming employer should be able to use these government programs without concern or fear of the process.

Youngblood & Associates practices federal immigration and labor law and can be hired by agricultural employers in all 50 states. Loud is the staff director for Youngblood & Associates.

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