It's hard to believe, but it is already time to start planning for your labor needs for Spring 2023. As we know, finding, hiring, developing, and retaining adequate labor resources are some of the most vexing challenges for seasonal and agricultural employers – even more so this year. Local workers are often not available in sufficient numbers to meet the needs of seasonal employers, or are uninterested in seasonal or temporary jobs, or farm work in general. Employing undocumented workers is of course, illegal and risky, with Immigration and Customs Enforcement (ICE) raids and I-9 audits increasing each year. Moreover, immigration violations cannot be resolved within the United States. Persons who entered illegally, or overstayed visas must return to their home countries to fix their status.
However, there are a number of immigrant and non-immigrant visa categories that can be a lifeline to seasonal and agricultural employers. Presented here is an overview of three key options: H-2B, H-2A, and Permanent Residency (EB-3). Note that this is only a brief summary of these programs. For more information, see our blog posts, webinars and website information on these topics. Harris Beach attorneys are also ready to answer any questions about your specific needs and qualification under any of these visa programs.
H-2B – Temporary or Seasonal Non-agricultural Worker Program
The H-2B temporary non-agricultural worker visa program has traditionally been the "go to" visa option for employers seeking to hire foreign nationals coming to the United States to fill non-professional or non-degreed occupations. H-2B visas require considerable investment as the procedure to obtaining these visas can involve as many as five different state and federal governmental agencies and are the only nonimmigrant work visas which requires an employer to first obtain a temporary foreign labor certification after the employer conducts a test of the labor market. As a result, the H-2B visa program has slowly entered the menu of work visa options when sponsoring foreign national employees. Over the years, this has changed as the H-2B visa program has become increasingly necessary to fill employers' temporary labor demands. H-2B visas are usually for lower-skilled temporary or seasonal workers (as opposed to H-1B visas, which are generally used for higher-skilled positions). H-2A visas are for agricultural workers and will be addressed later, while H-2B is for nonagricultural workers.
The most significant challenge with H-2B is that there is an annual cap for the number of visas that can be issued: 66,000 – split between 2 seasons – October 1 (1st half of FY), and April 1 (2nd half of FY) – the 2nd half is most competitive, with only 33,000 visas for the entire country. The U.S. Department of Labor will usually receive more than 200,000 requests for these visas each season.
H-2B workers must fill a temporary or seasonal job. The job cannot be year-round, and has a 10-month limit (effectively 9-months under current DOL regulations). The work must be full-time (35 or more hours per week).
There is a specific process for obtaining H-2B workers, with multiple steps and multiple government agencies. Employers are advised to begin the process about six months in advance of their anticipated need for workers. Employers must pay a "prevailing wage" for the category of employment as determined by DOL, which is essentially an average of what businesses in your area are paying for comparable workers. Employers must also pay in- and out-bound transportation costs, and all consular and agent fees. As with most domestic employees, employers must also have worker's compensation, pay overtime for hours worked over 40 hours, and withhold applicable state and federal payroll taxes. Employers must also pay at least the H-2B prevailing wage to all U.S. workers performing the same duties as the H-2B workers ("corresponding employment rule").
Notably, with H-2B, employers are not required to provide or pay for housing, but they should make arrangements for workers' housing in advance of their arrival, as their ability to quickly find suitable accommodations will be limited.
Note that H-2B workers cannot be used for "agricultural work." However, there is some overlap between H-2B and H-2A – some farms do use H-2B workers for work on the farm that does not qualify as "agricultural work," such as shipping, retail, or other positions. Conversely, many landscape companies can qualify for both H-2B and H-2A programs through separate nursery operations. The most common sectors for H-2B are hospitality and resort businesses, landscaping, and construction. However, given the chronic labor shortage, we are now seeing many diverse industries now dipping their toes into the H-2B waters, including manufacturing, door-to-door sales, and staffing companies.
Regarding the visa cap – because the H-2B program is so oversubscribed, DOL enters all applications received during the initial three calendar days of the filing period (Jan 1-3 for April 1 start) into a lottery. Applications are then randomly assigned to groups. Group A usually exhausts the visas, although sometimes available visas spill over to group B. Group C and higher are unlikely to receive workers without a supplemental increase in the cap. However, even if you are in a group that does not get in under the cap, you will still complete the process through the DOL and receive a final certification that could be used for H-2B transfers or cap exempt workers. H-2B workers can be transferred from one employer to another without being subject to the cap. So if you are a landscape copany for example, it may make sense for you to partner with say, a ski resort, who has H-2B workers in the winter. You could transfer them to your business for the growing season, and then they could return to the ski area again next winter. Workers can transfer in that fashion for up to three years, before they are required to leave the country for a full 90-day period, which is required to "reset" the three year H-2B term. "Transfers" can be an effective strategy to maximize your chances to get workers and mitigate losses under the visa cap.
Under the H-2 programs, employers must demonstrate that no U.S. workers are available. This is demonstrated through a process of recruitment, as specified by DOL. U.S. workers must be preferentially hired before the arrival of H-2 workers, and for a period of time after their arrival.
H-2A – Temporary or Seasonal Agricultural Worker Program
In a similar fashion to H-2B, H-2A is for temporary or seasonal workers, but for agricultural positions. This is the big one – the program serves about 15,000 agricultural employers nationwide, for more than 268,000 positions. Unlike the H-2B visa, the key benefit of H-2A, is that it has no annual cap.
What is agricultural work? Agricultural work includes: The cultivation of soil; raising, feeding, caring for, training, or management of livestock, bees, poultry, fur-bearing animals, or wildlife; or the raising or harvesting of any other agricultural or horticultural commodity; notably, services performed in connection with production or harvesting of maple sap, in connection with the raising or harvesting of mushrooms, or in connection with the hatching of poultry constitute ag labor only if such services are performed on a farm.
Similar to the H-2B, employers must pay prevailing wage, which for H-2A is referred to as the Adverse Effect Wage Rate, or AEWR. This varies by state. For New York, that rate was $15.66 per hour in 2022. The work must be full-time and temporary or seasonal (up to 10 months). Although a year-round need for a single position is not permissible, there may be ways to achieve year-round coverage between two separate positions with opposite seasons of need. For example, a Farmworker could be needed during the growing/harvest season (March through November), but the farm may need Winter Maintenance Workers for the months of December through February. On top of the AEWR pay rate, employers must provide housing free of charge, as well as transportation to and from their home country.
Employers must also recruit and preferentially hire U.S. workers over H-2A workers. This means contacting any U.S. employees laid off from the prior season to see if they are willing to return, as well as conducting domestic recruitment. Employers must submit a recruitment report, and must give name of each U.S. worker who applied for the job and whether they were hired or why not. These records must be retained for a period of three years. Employers must continue to cooperate with the SWA in recruiting and hire any U.S. workers until 50% of the work period is completed. Employers must complete and retain a final recruitment report at the 50% mark of the work period.
Employers must report any termination or abandonment of workers within 2 working days. It is also worth noting that the terms and conditions of the H-2A contract applies to all – including domestic workers – they must receive the AEWR rate as well if performing similar duties to H-2A workers.
Permanent Foreign Labor Options for U.S. Employers – the "EB-3"
Although seasonal and temporary businesses generally require additional labor during certain times of the year based on a seasonal or peakload need, these same businesses may also have a year-round need for permanent workers. Therefore, another longer-term option for U.S. employers to retain foreign workers, is by sponsoring them for permanent residency – a "green card." These programs can also work well in parallel with an H-2A or H-2B program, often times allowing the H-2 workers to remain in the U.S. while the green card process is underway.
Green Card sponsorship through employment is a 3-step process: (1) first the employer must get a prevailing wage determination, then file a PERM Labor Certification with the U.S. Department of Labor, after which the employer files Form I-140, Immigrant Petition for Alien Worker with U.S. Citizenship and Immigration Services (USCIS). The final phase is either filing an adjustment of status via Form I-485 with USCIS (if in the US) or consular processing (if outside the US), resulting in the issuance of a green card. The total process can take 2-3 years, however, if coupled with an H-2 program, the workers can remain in the U.S. after the filing of the final phase of the green card process with USCIS.
Once a worker receives their green card, they can live and work without restriction in the U.S. as their status is not tied to their employment. However, many employers enter into a reimbursement arrangement or minimum tenure period with the employee. It is possible to have an agreement requiring workers to stay with you for a certain period after receiving their green card (or else reimburse the employer for certain allowable expenses under the law.
There are limits on number of green cards issued each year – approx. 140,000 employment-based, and 226,000 family-based green cards are issued annually. Each country also has a ceiling number of visas. When either preference group or country quota are met, waiting lists build. We have recently seen a backlog for Mexico in this category, however, this is expected to return to "current" as of October 2022.
As with the H-2 visas categories, employers must conduct a test of the labor market through advertising to determine whether U.S. workers are available for the position.
It is clear that one of the most pressing issues facing the seasonal and agricultural business community is labor. How do we secure reliable labor to fill seasonal needs? Advertising doesn't seem to work and if you are lucky enough to hire a U.S. worker, they may not stay more than a few days. It is a myth that the only reason why any employer would hire foreign workers it because it's "cheap labor." There is no perfect visa program to alleviate the burdens of labor shortages, but the H-2B and H-2A visa programs are still a viable and workable solution.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.