Hello, welcome to the Farm Commons Podcast, where we make farm law accessible and actionable for sustainable farmers and ranchers, as well as their networks of support. I'm Eva. And I'm Kate. In each episode, we explore real legal issues based on farms every day, providing key knowledge and tangible solutions to help you grow a thriving agricultural business.
For managing liability to navigating tough conversations with landlords and neighbors, we've got your back. Let's get started. Hello, and welcome listeners. Welcome to another episode of the Farm Commons Podcast.
This is Kate, and it's just me today, no Eva. But that's okay. Without her, I'm excited to talk about our topic today. And just to dive in, let's acknowledge that it has been hard to find farm workers.
That's been true for a number of years. Any farmer or rancher listening to this right now has probably struggled with labor shortages. And farmers and ranchers are looking for solutions. The H2AVs program is one of those solutions.
And today, we're going to talk about what it is and how you can use it on your farm or ranch. And of course, we're going to have some expert advice, helping us through this podcast. We've got Rachel, staff attorney and founder of Farm Commons, as going to talk to us about the H2AV program. Hi, Rachel.
Hi, Kate. And welcome listeners. This is a good topic. And I am really glad that we're having a chance to explore it.
Farm Commons hasn't done a lot with the H2AV program. It's complicated. And we're going to talk through that today. Some of those complications, not just legally complicated.
It's morally and ethically complicated and kind of a proverbial minefield. So we will point out a few of those along the way. And I'm looking forward to sharing more with folks about the issues. Awesome.
So let's just get some grounding. Rachel, what is the H2AV program? Sure. The H2A VISA program, well, its purpose is to allow US employers, United States employers, to bring foreign nationals into the United States, to fill temporary agricultural jobs for which the employer can't find sufficient willing and qualified US workers to meet their needs.
So, you know, the H2A is just the title of a certain kind of visa. And H2A lines up with all of the other types of visas that the United States administers to allow foreign citizens to work in the United States. Even if you start going down that path, you find H2B and student visas. Well, that's not allowed you to work.
But you know, you get the idea, visas. It allows foreign nationals to come to the United States under certain standards. So that's really what we are talking about in terms of bringing in workers. Great.
Yeah, that's a very succinct summary. And I know that we're going to unpack that and that it's involves a lot more than just the visa. So, can you give us a little bit of background on the program? How long has it been around and why does it exist?
Absolutely. So the H2AVISA itself has been around since 1986. But the idea of bringing in foreign nationals to assist with agricultural labor needs, that has been around a lot longer. This is the latest iteration of what we have.
Now, H2A wasn't, it wasn't unpopular when it was created. But the important point I think right now is that it's exploding in popularity among US farm businesses in the last several years. So for example, between 2010 and 2019, use of the H2AVISA program increased more than 220%. Wow.
Yeah. So there's a lot of expanding use. And then between 2021 and forecast for 2022, looking at another 15 to 20% increase year over year. And we're feeling it through H2A.
Wow. Yeah. That is some huge expansion and definitely aligns with what we've heard from farmers and ranchers that it is just so hard to fully staff their farms and ranch businesses. So I have lots more questions about that.
But I do want to just acknowledge before we go on any further that the H2AVISA program is rife with misuse and abuse. There's a lot of concern about human trafficking and worker safety that we definitely are going to address and talk about a little bit later. So farmers and ranchers should definitely stay tuned for tips and resources about how to participate in the program ethically. But for now, Rachel, can you tell us a little bit more about who is using the H2AVISA program?
Sure, sure. So the expanding usage is national in scope. Farmers and ranchers in all parts of the country are increasing their usage. But at the same time, the expansion here is most pronounced when we're talking about agricultural businesses that have a high labor requirement and that have seasonal employment.
So for example, the percentage of H2A certifications, which is another word for the numbers of VISA's issued. The number going to vegetables and melons went from 20% to 20% to 34% in 2019. So we're seeing a lot of those folks that produce vegetables and melons, which can be hand-intensive, hand-labor-intensive, turning to H2A. There's been a similar increase for fruit and tree nuts, again, that have that hand-labor requirement.
Other areas of expansion are things like detasling corn and tobacco production. So in terms of geography around the United States, the top states are those that produce these kinds of labor-intensive products. So states that are on that list are Florida, Georgia, Washington, California, and North Carolina. So not terribly surprising considering that emphasis on fruit vegetables and tobacco.
Now looking at this increase and knowing that the program is here to provide opportunities when businesses cannot find sufficient qualified and willing domestic workers, what this seems to say is that farm employers are having a hard and harder time finding that capable willing workforce here in the United States. Probably not as a surprise to our listeners, right? And if anyone is tuning into the podcast because we're talking about H2A, well, that's probably why you're here. We also serve a lot of farm comments, serves an audience that does have a lot of hand-intensive operations.
We serve a lot of farmers that grow organically, and a lot of times, a substitute for chemicals is hands. So that's a lot of what our audience is feeling. They're feeling those pain points of trying to figure out how to build a sustainable workforce strategy. Thank you for that background and context.
And now that we have that, I'm feeling pretty primed to just dive in to the legal know-how of the program. So that people listening can actually learn a little bit about how this could actually benefit them. So first question, just to get straight to the point, can anybody use the H2A visa program? Technically speaking, yes, anyone can use it.
It is possible to explore this and take advantage of this opportunity. But I think it's really helpful to think about who this is a good fit for. Using H2A isn't going to work for all kinds of farms, even if they're technically eligible to use it. To reinforce that, I want to make sure we understand one point.
H2A does not supply workers. H2A program is the name of a visa and the process by which that visa is administered. It is not the name of a program that recruits or supplies workers to a farm operation. So separately and at the same time as the business owner is working through the process of that visa, that piece of paper that allows someone to be in the United States and working, the operator, the farm operator needs a separate and additional strategy to find those individuals in that foreign country who are qualified, willing, and able to travel to the United States for work on their farm.
I also want to point out right away that farms need to have financial and other resources to use the H2A program successfully. H2A does not lower labor costs. To the contrary, labor costs for a farm are higher under H2A. And so this is if a farm's central challenge is that they don't have the profitability or the cash flow to pay workers, this is not a solution.
And it's not meant to be a solution for that. It is a solution for an insufficient supply. And the reason it costs more to work through this program is because there are additional regulatory obligations for using workers through H2A, which include a higher minimum wage, paying for transportation to and from the workers home country, providing housing. So, you know, but at the same time, those higher labor costs, that's no problem for a lot of farms.
They are happy to pay for labor. They just need to find it at all so that they can get crops out of the field and livestock to market. Yeah, those are some pretty huge things to flag. So participating in the program does not actually bring you workers and it won't save farmers and ranchers money.
So I definitely want to get to that first point about farmers and ranchers needing to recruit the workers. But first, let's help folks figure out if the program is even financially feasible for them. I like it. I think that's a great place to start.
So let's talk about payroll and the payments side of things. So employers must provide the following things to their H2A workers. They have to provide the cost of travel from their home country to the place of employment, so the farm, along with a costly return trip. Farms need to pay all the visa fees for an H2A employee to work in the United States.
So there's a threshold rate, think somewhere between $4 and $600 and then a per visa rate on top of that. The pay per hour. H2A employees must be paid either the state minimum wage, the prevailing wage, which is called the AEWR or whichever is greater. So honestly, it's the AEWR that is higher in almost all cases.
And the AEWR varies depending on your region, but think somewhere between $12 and $18 an hour. So for example, let's take New Hampshire as, for instance, the AEWR is $15.66. So every H2A worker in New Hampshire must be paid at least that amount. That's the minimum.
And it doesn't just apply to two H2A workers. Any farm that utilizes H2A workers must also pay domestic workers at least as much as the H2A workers. So they got to be paid the same. We also have to provide workers compensation insurance if we aren't already doing that.
So those are some of the key previews, those costs of travel, the visa fees and adjusting the minimum wage and providing workers compensation as some of those initial costs. Okay. And imagine those costs associated with those legal obligations can feel pretty abstract right now for some people listening in, for example, what does workers compensation even cost. So I want to point people to the episode notes for the podcast where we list some resources that are in the Farm Commons Library.
And farmers and ranchers can look through those resources to actually make these costs more concrete. Okay, Rachel, what other legal obligations are involved for farmers or ranchers who are participating in the H2A visa program? Sure. So if we transition away from more like, you know, costs we see as payroll costs and towards the other expenses, let's go there.
We have a number of obligations that help ensure an adequate living standard for workers. The farm employer needs to provide free, inspected and certified housing for all H2A employees. It needs to be inspected and certified by all the relevant authorities. And that includes federal and usually also state and local bodies that are concerned with housing.
Now, we do have, we do have more information, but I'll let you cover that later. Daily transportation from housing to worksites if those are different and that generally needs to be provided for free as well. The employer needs to provide safe, insured transportation at least once per week to a shopping destination. So say, you know, a Walmart or another big box store where folks can buy what they need for the week.
The employer needs to provide free and convenient access to kitchen and cooking facilities or they can provide free, three meals a day. And yes, employees can be charged for those meals but at no more than $14 a day for those three meals. This can feel a little disrupting to expectations because these kinds of obligations, free housing, and transportation, that's not traditionally part of farm worker wages or expectations when it comes to domestic workers. And you know, the reasons for this difference is because they see as a fundamentally different situation.
Workers who come to the United States through H2AVs that generally have never been to this country before unless they were here previously on an H2AVs. They're generally not able to be licensed drivers in the United States. They're not familiar with our cities and towns, our shopping stores, and they generally need support in being able to connect to those resources. You know, if we imagine being dropped in a foreign country and expected to try to get to workshop and need our needs, we would need support as well.
And so that's why the program provides for this. Yeah. Yeah, this is feeling like a good place to pause and sort of do a check-in. So far we've learned that the H2AV program involves a lot more complexity and obligations than hiring domestic workers and for good reason.
Like you said, we want the people that we employ from other countries to be able to meet there basically easily and farmers and ranchers have a responsibility to provide that. But I want to offer listeners two questions right now that could be helpful to reflect on as you think about if this program is right for you. Next question. Are you experiencing difficulty securing domestic workers?
And second question, can you provide each of the legal obligations we just outlined to any H2A employees that you find? So if you answered no to either of those questions, then H2A might not be the program for you. And if you answered yes or you're not sure, then you should stick with us and finish out this podcast. I want to turn to how farmers and ranchers can actually find workers through H2A since we already covered that the program itself does not provide support for that.
So Rachel, you said that employers need a strategy for finding workers, recruiting workers from other countries who are qualified, willing, and able to travel to the United States for work on farms and ranches. So how can farmers and ranchers find those people? Great question. Great question.
Exactly. As you say, folks need to recruit, evaluate, and find the candidates that they want to hire. The visa is just what makes it legal for them to be hired. So over the years, farmers have traditionally turned to industry associations such as associations of tree fruit growers and the like for assistance in recruiting.
In order to serve their members, these associations have developed the networks to be able to connect their members to resources that assist them with H2A programs. So they may have recruiters in the target countries where folks come from to do this. There are other opportunities, but I would say industry associations are probably the top source for recruitment. Folks are also able to turn to what are called H2ALC or labor contractors or farm labor contractors or FLCs.
Please forgive all of the acronyms. Just think labor contractor or FLC. But farm labor contractors are small business owners themselves who provide for a fee recruitment services. Many of these FLCs will also provide assistance with paperwork or help understanding regulatory obligations and communications with these candidates who as a general rule do not speak English and also may not even speak Spanish or other commonly known languages in the United States.
Yeah. And I think I could hear a little bit of the hesitation in your voice when you introduce the FLC option. And I think this is where it's a good moment for us to talk about the abuse and worker mistreatment that I mentioned at the beginning of this podcast. So FLCs, since they are communicating with workers and providing services like assistance with paperwork and regulatory obligations, they often end up controlling a lot of the workers' experience, such that even a well-intentioned farmer, such as somebody listening to this podcast, may not even realize that their workers are being coerced or experiencing wage theft or being trafficked against their will.
Exactly. Exactly. Folks listening to this podcast may say, I've never seen that happen. I know farmers who use H2A and I don't think anyone's being trafficked or experiencing thievery.
Well, it does and we don't often see it. Let me outline this for you a little bit. So if a contractor is distributing pay, deciding where workers live, what they eat, where they work, then the workers who work with that contractor are very vulnerable. The recruiters have significant influence over workers because without the recruiter, they don't have a job.
So here's a story to help make this come more alive. This of course is an alias and it's pulled from a real story, but details have been changed. So let's say we have a fellow named Santana. Santana works on a local apple orchard and this is a job that he secured with the help of Carlos, who is an FLC farm labor contractor.
Carlos is from Santana's hometown and is well known there. Everything was going fine for Santana in his job at the orchard until one day. Carlos came and demanded a cut of Santana's wages. Or else Carlos would refuse to connect Santana to future work.
He would go home and be out of a job. Naturally Santana resists, wants to be extorted, you know? Well, because he resisted, Carlos then threatened to have a couple of his henchmen back home set fire to Santana's grandmother's house. He's losing that prospect, Santana Relents, and he begins paying 20% of his wages back to Carlos to avoid that threat of potentially death to his grandmother.
Then when the apple job ends, Carlos lies and sends Santana to work in a different state away from his peers to further isolate Santana. Then, if that isn't enough, Carlos steals Santana's visa paperwork. So that Santana cannot just go back home. And now it appears that Santana is in the United States illegally, is subject to indefinite detention and deportation.
All of this can happen while Santana is showing up to work every day and appearing to do normal things and be perfectly fine. And the farmer never has any idea that Santana is working under threats of violence, being extorted and trafficked into jobs in the United States. So you know, nobody wants to be responsible for that. No farmer wants to have that on their hands.
And I know that the folks listening to this are saying, well, you know, not me. How do I avoid that? The best solution that we can offer is to do your own recruitment. If you let someone come in and be in charge of the fundamentals of someone's work life, you are making them vulnerable.
So doing recruitment and managing those aspects yourself is the best way to ensure that, you know, your individual, the worker who is putting forth their blood sweat and tears to work for your farm isn't being extorted, threatened, or suffering wage theft. But you know, I know that's hard. I know that recruiting. I mean, who do I know in these target countries?
No one. Probably the same for many folks. So what else can you do? Some key things folks can do is develop relationships with the people who work for you.
You might not speak their language, but in these modern times, try an app, try Google Translate or other resources to help bridge that language gap and build an authentic relationship. I also suggest helping workers set up bank accounts and getting connected to resources. I necessarily just leave that for other people to do who could use that opportunity for ill, help folks get their money in place and use it to their advantage. I also can't stress enough to research and get references on every person you work with within the H2A program.
You're dependent on their integrity and so research it to see that they have it. These are the least things we can do to honor the dignity of folks who are using their bodies to help our farms survive and thrive into the future. And I know folks want to follow their own moral compass and these are ways we can do that. Yeah, thank you for those tips for participating in the H2A visa program ethically.
Yeah, I know that the US does not have a great track record with a fair worker treatment, generally and especially for people who are employed from other countries. So yeah, it's really important that we were able to just stress how the potential for abuse is alive and real. So listeners who made it this far probably feel like the H2A could be a good fit for them. And before we wrap up, let's touch on what does it actually look like to enroll in the H2A visa program?
Great question. We can definitely run through that. And I think it is really timely because considering the expansion of this program, it is clearly meeting a need and many of our listeners might be wanting to learn more. Being successful with moving through the H2A visa process requires a lot of preparation.
There are many things that a farmer needs to comply with in order to complete the paperwork, like getting one's housing OSHA certified, for example, or certified for the regulatory authorities, and which would include OSHA getting involved. So these applications, you can go look at them, download them, they're fairly easy to find. But what we need to remember is that completing these is like a quiz. A person has to have studied up and prepared answers and then answer the questions in a way that shows that you know the rules.
If you answer all the questions correctly in your application, you pass. You pass the test. And that is also a test to show that you passed other tests, like getting your housing approved and things like that. So what I want folks to keep in mind is just as many farmers and ranchers hire someone to help them with their taxes, many will hire someone to fill out the necessary forms for the H2A program.
Attorneys do it, some other non-attorneys also provide that service. Others can complete the paperwork themselves and some do it, but is definitely not for the faint of heart. It requires a real investment in your own knowledge and how to figure out these forms and comply with the obligations. Consider working with a professional for folks who are new to the process.
Just like we consider that when we're preparing our taxes and doing our accounting. The same goes for folks that are in the situation of requesting an extension of the end date, of an existing contract with H2A workers. It's good to mention right here that folks can request a two week or longer extension past the original due date of their visas. You can get an extension for up to a year, but it helps to have a professional make sure that that request is going to be approved.
So I know that that is not the steps of one, two, three process and naming forms that people might want, but I want to be really realistic about what it takes to move through the H2A program and how to be successful. So I strongly recommend reaching out to those professionals that assist in this area. Great. Thank you so much, Rachel, for that background information and key insights into how to apply to the program and actually utilize it.
So folks who have listened so far, we're going to wrap up now. Some action steps for you, like I mentioned, we have some resources on our website to help you dive a little bit deeper into how to utilize the H2A visa program. So there is actually a full webinar recording that dives into more of the legal obligations and the nitty-gritty of making this work for your farm. So you can find that in our library.
Now there's a link to that in the show notes. We also have a resource called the Guide to Hiring Applications and the Farmers Guide to Encined Ages, which are both applicable to the H2A visa program. So check those out in the show notes. And Rachel just wanted to thank you for your time, as always, and sending my best wishes to our farmer and Richard listeners.
Absolutely. And thanks for listening, folks. And I do think that those resources are a wonderful next place to go. You might not be ready to talk with that professional yet.
Go watch the full webinar recording for more details. And definitely the Guide to Hiring Applications and our Farmers Guide to Encined Ages will really help folks understand, okay, what am I looking at here in terms of what it takes to provide for a legally resilient workforce program? Awesome. Thank you all.
Bye. Bye. We're so glad you joined us for this episode of the Farm Commons Podcast. If you're looking for more resources on your burning farm law questions, visit our website at farmcommons.org for a variety of workshops, guides, checklists, tutorials, and more.
You can also email your questions and comments to info at farmcommons.org. Stay tuned for our next episode. And until then, keep growing.