• Becca Niburg

Agricultural workers have specific visas ... and specific Covid-19 related provisions

H2A Visas

An estimated 73% of the US agriculture workforce hails from another country supporting the ten states that produce over half of what is grown in the United States. One program that supports the immigrant needs of the agriculture industry is the H-2A visa program, which is specifically geared for agricultural workers to come to the United States on a seasonal or temporary basis. Many farmers rely on the program to supply the workers necessary for their harvests – over the past decade, the number of H-2A workers has increased fivefold to over a quarter of a million workers. The exceedingly complex program is expensive and has not always run smoothly, providing only a fraction of the workers needed, and delays in getting workers to farms has impacted harvests.

As with all employment based visa options, a potential employer must demonstrate that the wage offered meets certain minimum standards. This "prevailing minimum wage" is specific to industry and often to geographic area as well and protects both the US work force as well as the immigrants traveling to take the job by providing a baseline to avoid exploitation. Also like many visas and programs, the H-2A program isn't perfect. Employers complain that it is expensive and keeps lawful immigrant labor out of reach (more than 50% of the agricultural workforce is estimated to be working without authorization) and delays in processing have led to workers arriving after peak harvest times for the particular crop. Although the program has been fraught with issues for farmers (not to mention workers, though the way immigrant labor is often treated in the US is the subject of a blog post on another day), it still supplies about 10% of the overall farm labor in the United States. When Covid-19 hit, many farmers and their workers worried that farm labor opportunities would be further curtailed by travel and other Covid related restrictions.

H2A Visa Provisions under Covid-19

In April, the Mexican consulate stopped taking appointments for visa applicants, however, the Department of State quickly decided to continue processing the visa applications and waive the in-person interview requirement. The relaxed standards have allowed for agriculture workers to continue to come in to serve farmers’ needs.

The Department of Homeland Security also named the agricultural industry as “critical infrastructure.” US Citizenship and Immigration Services (USCIS)put out a temporary rule specifically addressing the H-2A program and workers needed on farms. Specifically, the rule allows for workers on an H-2A visa to extend their stay and work with a new employer, regardless of their participation with e-Verify, while the request for extension is pending, meeting urgent and seasonal agricultural needs. In addition, the rule allowed for H-2A workers to continue working beyond the normal 3-year time limit. On August 20, 2020, USCIS extended the period of time that these temporary provisions regarding extending the status to December 17, 2020. It is important to note that the August extension does not include the provision allowing workers to remain past the 3-year time limit. The USDA also makes publicly available a list of H-2A employers whose contracts are ending and may have workers available to transfer to another farm.

In related news, just last month, the Department of Labor announced that agricultural pay rates would remain at current levels until 2023. Farmers accepted this announcement as a statement of the government's attempt to further stabilize the agricultural labor market and make it easier for farms to plan and access its employment needs even in a Covid riddled world. Farm workers and their advocates, however, worry that such a measure will depress wages for individuals already subject to harsh conditions, doing jobs that no US born worker will take. As with all things Covid-19 related, no good or easy answer has appeared and we will all have to stay tuned to what comes next.

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