by Sally Colby

Many farms wouldn’t have an adequate labor force without the presence of H-2A workers. L.G. D’Arrigo, co-leader of the immigration practice at Harris Beach in Albany, NY, said there isn’t a reliable supply of labor in the U.S., and part of that is because the American government is concerned about whether U.S. workers are available to fill positions.

“It’s estimated than more than half of the 1.2 million farming positions are actually filled by illegal workers,” said D’Arrigo. “This is a big problem, and having a workable visa program is what we need to solve the illegal immigration issue.” Hiring workers without documentation is risky, and there has been increased ICE enforcement on farms and seasonal businesses.

D’Arrigo explained the three- and 10-year bar, which means if someone has overstayed a visa or been here illegally for six months, they can’t return to the U.S. for three years. Anyone here illegally for a year or more cannot return for 10 years after leaving the U.S. D’Arrigo said this creates an artificial incentive for workers to not leave – they know they’re here illegally and would rather live in the shadows than be banned for re-entry.

The H-2A program allows agricultural employers who anticipate a shortage of domestic workers to bring non-immigrant foreign workers to the U.S. for temporary or seasonal ag labor. Seasonal employment is tied to a certain time of the year by a specific event or pattern, such as an annual growing cycle.

“You as the employer must demonstrate that there are no sufficient, able and qualified U.S. workers to fill the positions, and a lot of that is done through recruitment,” said D’Arrigo. “You also have to show that the employment of H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.”

The federal definition of ag labor has changed over the years, but the H-2A program is currently using the IRS regulations: “It includes services performed on a farm, by an employee of any person in connection with any of the following activities: cultivation of soil; raising, shearing, feeding, caring for, training, management of livestock, bees, poultry, fur-bearing animals or wildlife; or raising or harvesting of any agricultural or horticultural commodity.”

There are some overlaps, such as landscape and nursery work. D’Arrigo said planting trees and bushes is within the scope of agriculture where it constitutes a step in the production, cultivation, growing and harvesting of agricultural commodities. Employees in a nursery who raised the nursery stock are doing ag work when they plant the stock on private or public property, or trim, spray, brace or treat the planted stock or perform other duties incidental to care and preservation.

The process for obtaining H-2A workers is complex (and outlined in detail on the USCIS website). D’Arrigo discusses obligations for employers participating in the H-2A program, including required benefits offered to workers (and any U.S. workers in corresponding employment) that include free housing, reimbursement for inbound transportation and subsistence expenses (meals during travel) in addition to any lodging required. The employer is also responsible for travel costs such as bus travel within the H-2A worker’s home country and to the U.S.

D’Arrigo urges employers to maintain evidence all expenses have been covered – an audit will require proof that all fees have been paid. “I’ll have my clients sign an acknowledgment form confirming they received payment,” he said. “You should also have receipts and any travel tickets and credit card statements. Don’t reimburse in cash – there won’t be evidence you complied with that requirement.”

The employer must guarantee work for three-quarters of the contract period, must provide three meals a day or kitchen facilities and show proof of workers’ compensation coverage through the entire period of need. The employer must also provide the worker with a copy of the contract – a separate farmworker agreement – or a copy of the ETA790. “My recommendation is that you do this before they enter the U.S.,” said D’Arrigo. “If you’re working with an agent, we can work with the agent to make sure they provide them with the ETA790, and it should be in the language they understand.”

Employers must pay the appropriate wage rate, which in many cases will be the adverse effect wage rate, to H-2A workers and U.S. workers performing the same duty. H-2A workers are exempt from Social Security and Medicare, so that should be factored in. D’Arrigo noted that the IRS webpage maintains up-to-date information on tax issues for H-2A workers.

Ongoing recruitment is a critical aspect of the H-2A program. D’Arrigo said employers should make sure they are accepting applications up to 50% of the contract period and continue to update the recruitment report. “You have to notify all workers of the requirement that they depart the U.S. after the contract period,” said D’Arrigo. “I’ve seen this come up a lot in connection with audits. It’s hard to prove – the only way it makes sense is to have something in writing.”

D’Arrigo suggests employees arriving in the U.S. receive a welcome letter that lists all the benefits they will receive, the obligations of the employer and a statement that the worker is required to return to their home country at the end of the program. Remind employees that no one can ask them for money in connection with participating in the H-2A program. D’Ariggo suggested providing a form so if someone does ask about money, violations can be reported. In some cases, an employer designates a farm manager to handle the H-2 program and they may try to request money in the form of requiring a deposit for tools used for the job, and that is not allowed.

“I recommend having a separate agreement with your farm manager if you’re delegating authority to them, listing out what they’re allowed to do and not allowed to do,” he said. “Have them sign it so you have evidence that you’ve done due diligence in educating them they aren’t supposed to charge workers for anything.”

The Department of Labor (DOL) requires specific information be included on payroll records. “You’re required to provide workers with weekly pay statements or earnings records that include the following: employer name, address, FDIN, worker’s name, worker’s home address (not their U.S. address), list the number of hours offered each day, number of hours actually worked, rate of pay, total earnings per pay, amount and reason for any deductions, any bonuses paid to the worker,” said D’Arrigo. He admitted that’s a lot of information to include on a pay stub, and recommended using a supplemental form such as the U.S. DOL form FL446, which is a wage statement template that lists all required information.

Compliance procedures are to protect the employer and make sure everything is signed, dated and in line with the law. “There are a lot of enforcement actions and you want to make sure you’re doing everything,” said D’Arrigo. “Perfect compliance is impossible because things change so often, but you need to be able to show good faith and that you are constantly educating yourself on H-2A rules and obligations. That goes a long way if you’re defending against an enforcement action.”