Five Myths About the H-2A Program By Jason Resnick, Senior Vice President and General Counsel

Labor shortages in agriculture are nothing new. For decades, farmers, ranchers and farm labor contractors have struggled to consistently access all the labor needed to get the job done. There is little doubt that agricultural employers are struggling, more than ever, to find the workers. But there is one sector not experiencing labor scarcity: H-2A users.

2. H-2A is Only Used by Large, Sophisticated Employers Large, sophisticated employers have certainly gravitated to the H-2A program, but smaller producers have also taken advantage of the program’s benefits. Last year, Western Growers H-2A Services secured as few as one H-2A certified worker to as many as 132 H-2A certified workers on behalf of small farms and producers. While we have brought in more than 1,000 H-2A certified workers for a single large employer, our small producer members brought in an average of 29 H-2A workers. Many member clients brought in fewer than 10 workers. These small farmers have successfully utilized the program, and typically retain and bring in the same crew of H-2A workers, year after year. 3. You Need an Agent or Attorney to Use the H-2A Program The H-2A temporary agricultural program allows agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature. Associations, agents, attorneys and H-2A labor contractors can file on behalf of agricultural employers. But ag employers don’t have to use these third parties to file their H-2A application. It’s fairly straightforward to complete and submit the Form ETA 790A (H-2A job order) and Form ETA 9142A (H-2A application) to the U.S. Department of Labor (DOL), as well as the Form I-129 Petition for Nonimmigrant Visa with United States Immigration & Customs Services (USCIS). The advantage of using an agent or attorney who specializes in filing H-2 applications is that they are typically aware of program changes and new interpretations of DOL that help ensure the H-2A process goes smoothly, and can react promptly to deficiencies or issues that may arise. Mistakes in your H-2A job order, application or petition can potentially cause significant delays in obtaining workers or may result in compliance lapses with potential substantial penalties. So, while it is true that you don’t need an agent or attorney to file an H-2A application, most H-2A users find value in using an experienced H-2A agent or attorney for the application piece, so they can focus on harvesting product or providing labor.

With persistent domestic worker shortages, producers are finding it increasingly difficult to source the labor needed to harvest labor intensive, highly perishable crops. H-2A users have concluded that not having labor is much more costly and vexing than using H-2A workers, with all its attendant costs and compliance burdens. Many who are reluctant to dip their toes into the H-2A waters are hanging onto outdated facts or just plain misinformation. Here are five common myths about the H-2A program. 1. H-2A Represents a Tiny Fraction of Agricultural Labor That was true, but no longer. Fifteen years ago, only a miniscule fraction of U.S. employers used the H-2A program. In FY 2006, fewer than 1 percent of U.S. farm employers used the program, and just over 50,000 jobs, representing fewer than 2 percent of U.S. hired farm worker job opportunities, were H-2A certified. In policy discussions, industry often argued that this was because of the high costs and administrative difficulty of using the program. And this was true when compared to the relatively lower cost and ease of sourcing domestic labor when George W. Bush was President. But in the intervening years, as the domestic labor pool has dried up, there has been an explosive growth in program usage, particularly in California and the west. By FY 2012, about 85,000 seasonal farm jobs were certified with H-2A workers. Of those, 2,862 positions were in California, 2,375 were in Arizona and Colorado had fewer than 2,000 certified positions. Since 2000, the H-2A program has quadrupled in size, and California has become one of the top three H-2A states. In FY 2021, the U.S. Department of Labor certified 317,000 seasonal farm jobs with H-2A workers. California has been one of the fastest growing H-2A states, with more than 32,000 certified H-2A jobs in FY 2021, while Arizona had just under 11,000 certified H-2A jobs. Of the 1.1 million crop cultivation jobs in agriculture nationwide, California accounts for 390,000 of these jobs. H-2A workers represent a growing portion of those jobs in the U.S. and California.



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