The demand for H-2A guest worker visas continues to grow, and it will likely continue to grow, says Richard Keeth, chief operating officer for H-2A provider másLabor. While now is a time when many growers have begun the process of applying for workers, there are a few things he thinks are important to keep in mind.
First, for growers who anticipate there will be a need for workers but think they need to wait to apply for H-2A workers for the 2027 growing season, that’s not the case, he says; the H-2A program has an emergency provision built into it for employers who have not used the program in the last calendar year.
“For anybody who’s thinking, ‘I really need workers this season. My hiring didn’t pan out. I got some new contracts,’ whatever the case may be, they probably assume back to the point on timing that it’s too late for me. It isn’t,” he explains.
Keeth says this emergency provision allows growers to concurrently file with the Department of Labor as late as 45 days before the need.
“That’s not a conversation that needs to wait until November of next year,” Keeth says. “We could talk about it now, and quite literally, at least in H-2A you have that emergency flexibility to actually secure workers within about a month and a half to two months. For anybody who finds themselves maybe in an unforeseen place here in anticipation of spring, it’s not yet too late to talk about getting some of those workers.”
Decoding the Interim Final Rule
As the industry awaits the Labor Department’s final rule that changes how it calculates the Adverse Effect Wage Rate, or AEWR, all H-2A applications filed use the interim final rule — which itself has left a few questions.
First, the timing of the interim final rule announcement happened when many growers were still in harvest and not in a place to use the updates. Then the government shutdown delayed some clarification, but as more growers begin to apply for the upcoming growing season, some bugs have started to percolate.
“As we get to a place where more people are learning [the interim final rule], ... we’re also seeing the challenge of the technological improvements that they’ve made to the process and working through those bugs,” says John Hollay, president and CEO of National Council of Agricultural Employers. “One of the things that we continue to hear — and you see this as members of the Trump administration are going out talking about the [interim final rule], not just DOL, USDA, other agencies as well — they’re talking about the relief that the president delivered. And if it’s not being realized because of bureaucratic snafus and technological hitches, that’s not going to go over well in the ag world.”
The changes from the interim final rule are part of a broader push by the current administration to reform agricultural labor. Hollay says he remains hopeful that those kinks will get ironed out as the volume of applications begins to grow.
“That’s something that all eyes are on,” he says.
Keeth says there’s some concern in how wage rates will be set moving forward. With the USDA ending the Farm Labor Survey, from which the AEWR was calculated, state-level data from the Bureau of Labor Statistics’ Occupational Employment and Wage Statistics will now be used to set wages for both an entry-level Skill Level 1 and an experienced Skill Level 2 Standard Occupational Classification.
“The thought process being, you may have stopped the bleeding, but if I now revisit those wages to do a new survey, they’re still tainted in some way by the old wage methodology,” he says. “There is this question of are those new wages even reflective of market realities, even though they’re a little lower.”
Keeth says there is also concern that wages could continue to rise even without AEWR. For example, a driver on a farm would have much different job from a driver that works in a city or that of a supervisor or a pesticide applicator.
“A chief concern of ours is what occupations are actually being aggregated for those wage averages,” he says. “There are all these other factors that still leave that methodology open, I think, to that echo chamber of increasing wages without some modifications.”
Hollay says while the Department of Labor has taken a proactive approach to explaining how job descriptions might fall, there’s still a disconnect.
“People are thinking through it, but I don’t think, No. 1, it’s resonating with the H-2A applicant, the farmer, the [farm labor contractor], whoever it is,” he says. “I think that there is a breakdown in how [the Standard Occupational Classification codes are] being interpreted by the people who are actually doing the filing.”
Hollay says one agent processing applications might see a job as a Tier 1 position, but another could see it as a Tier 2 job, and that could dramatically affect wages.
Danger of ‘Mixed’ Job Descriptions
Keeth says while it’s a benefit that the interim final rule offers growers flexibility with staggered crossings and start dates within one job order, it’s still critical that growers pay close attention to the structuring of the job order.
“There are both cost-effective and cost-prohibitive reasons why you may want to aggregate or maybe not,” he says. “It all depends on how many workers you have that are similarly employed and the nature of the job.”
Given the way the interim final rule sets up job orders, it’s important that the grower works with someone who understands those nuances and [has] the ability to designate primary and secondary duties, Keeth explains.
“What employers need to think about is, how does that affect your job descriptions?” he says. “What flexibility this year do you have to expand the work the employees are doing under that new wage? We now have that flexibility to say he or she may or may not be doing this, but they do it 2% of the time; 98% of their job is the standard farm work.”
But this also means how the primary and secondary roles play a bigger factor, Keeth says. While primary duties must be performed on at least half of the workdays of the contract, what does that do to a crew member who drives workers to the farm every day?
“All he does is just drive the workers to the farm in the morning. Maybe it’s 10 minutes of his day, but without a time-based threshold, without further clarity around that, is he a chauffeur now?”
And in such a case, Keeth ponders if that changes the aggregation of jobs, because a driver or a pesticide applicator might push up the wages of the entire crew in that job order. This is where a key understanding of the applications of the rules is necessary prior to filing.
“With this new primary, secondary method, as you can imagine, there are unlimited permutations of how you might go about it,” he says. “I think [it’s necessary to have] an understanding of the application of these skills, the duties, sort of a balancing test that goes into which skill level is associated with that application.
“There’s flexibility in terms of the jobs; there are lower wages, but if you don’t work with somebody who has an intimate understanding, not just of the plain text of the rule but [also] the current standard of review that’s actually being used, you might find yourself not able to take full advantage of this,” he adds.
Keeth says he’s seen some growers who want to group multiple duties into one work order only to have the Department of Labor classify the job at a much higher rate. So, the grower is faced with either striking those tasks from the order and being unable to utilize those workers for that task or paying all the workers in that order the same higher rate.
“Really be thoughtful, understand this makeup and this new wage methodology and how they’re analyzing it, because it can be a blessing and a curse, right, depending on how you structure it,” he says.
Bridging the Gap Between Office and Field
Along with ensuring a consistent job order, it’s also important that those practices in the job order are consistent with what goes on in the field, says Rebecca Hause-Schultz, a partner with Fisher Phillips, a law firm that specializes in labor and employment law.
“So, if the DOL does come out and talk to your workers, what they’re seeing written down in your job order is going to be consistent with what folks are experiencing and folks are actually doing out in the field,” she explains.
“I always tell employers when you head into the next year, audit your program to ensure what you think is happening in the office is actually happening out in the field,” she says. “Sometimes you get a rogue supervisor, a rogue foreman not complying with what you think is your policy and practice, so employees are not receiving exactly what you think they are or being told exactly what you think you are.”
Hause-Schultz says training and further audits help ensure practices are in place before the Department of Labor sets foot on the farm.
To that extent, Hause-Schultz says it’s important that employers communicate with employees how an audit or an investigation could play out. Open communication is key to help ease any concerns, she says.
“Make sure that employees understand what your policies and practices are and what you’re going to do in the event of something like that in California, [where] there are a whole bunch of worker protections that employers are obligated to comply with that gives people some relief,” she says.
Processing Bottlenecks and Policy Shifts
Keeth says another question left hanging at the start of this year is the direct impact that staffing levels will have on application processing. Staffing cuts through the Department of Government Efficiency and changes in administration perspectives on agencies can impact the overall processing speed of H-2A visa applications.
While the staff administering these programs are public servants and remain with the agencies throughout different administrations, Keeth says, the administration can influence procedures and protocols that have broad impacts on the H-2A program.
“Have all of this stuff buttoned up; make sure you’re working with someone reputable, be it an agent or attorney,” he says. “It’s a highly litigious program. It’s a program that varies across every state. Each state has its own laws and interpretations that must be navigated before you can get to DOL.”
He adds that staffing-level changes and consular process changes, coupled with increased demand, have the potential to impact the timing of visa processing. Keeth says while the infrastructure at some of the consulates are sophisticated, it’s still thousands of workers who go through the visa application process.
“I had a call with an employer just two days ago whose application has been sitting with a federal agency since Dec. 5, and it’s a grower who needed workers on the 10th of January,” Keeth says. “He’s had congressional representatives reach out, and this agency has just sat on a perfectly routine application for a month and a half. [There’s also] timing, getting your stuff in early, just so we don’t have to have that really unfortunate call of, even though you did everything right and I did everything right, the government’s just behind.”
Looking Ahead
Hollay says encouraging growers to use the H-2A program to obtain workers has created a need for the program to operate above and beyond where it is today.
It’s still critical that there’s a legislative element to cement the program moving forward, he says, but what he calls the elephant in the room is expanding the opportunity for the H-2A program for nonseasonal agriculture, such as controlled environment agriculture.
“If you are going to continue to force all of agriculture into a legal space, you’ve got to have solutions for them,” he says. “I think the focus is going to be on what that looks like and how do you craft a meaningful program that meets people’s needs.”
And this includes how far the need for H-2A workers goes up the agricultural supply chain, Hollay says.
“We can’t take the buy-off of how the program is working for current users,” he says. “We’ve got to make sure that those who are on the outside looking in have some opportunity to help shape what a program might look like that they get a chance to be part of.”
