Essential Workers

H-2A visa holders work under precarious circumstances, and they have been hit hard by the COVID-19 pandemic despite being deemed essential, said Daniel Costa, the director of Immigration Law and Policy Research at the Economic Policy Institute.

“Despite the fact that wages are going up a little bit, there’s still a labor market where almost half of farmworkers are undocumented,” Costa told the Daily Poster. “Ten percent of them are on [H-2A] work visas that don’t allow them to switch employers, so they are very exploitable. And there are lots of cases of wage trafficking.”

In FY2019, the Labor Department documented five thousand cases of wage theft among H-2A workers. The H-2A wage freeze is projected to cut the wages of more than a quarter million foreign farm workers by a total of $178 million per year over the next decade –– a number that doesn’t account for the adverse effect the wage freeze will likely have on US workers’ wages.

In April, the Department of Homeland Security announced it was temporarily amending the H-2A visa program to make it easier for workers with those visas to renew or extend their stays. The purpose was to “provide agricultural employers with an orderly and timely flow of legal foreign workers, thereby protecting the integrity of the nation’s food supply chain and decreasing possible reliance on unauthorized aliens, while encouraging agricultural employers’ use of the H-2A program, which protects the rights of U.S. and foreign workers,” according to the published rule.

Even before the pandemic, farmworkers toiling in the United States on H-2A visas faced poor working conditions. Workers typically pay recruiters to help them find placements with employers, which can cost a couple thousand dollars, according to Costa.

“They’re already in this position where they are in danger of being in debt bondage, to recruiters, because employers work with recruiters to find the workers,” Costa told the Daily Poster.

While the Trump administration has restricted other visa programs as part of its anti-immigrant agenda, the H-2A program has grown under his presidency, with nearly 225,000 people being approved for these visas in the first three quarters of 2020.

In order to employ H-2A workers, employers must first attempt to recruit US workers who are US citizens and fail, and they must provide housing to their H-2A workers and pay them what is known as an Adverse Effect Wage Rate (AEWR), a wage that varies by state and is set based on USDA data about how much farmworkers are paid.

Since the visa is tied to a specific employer, workers are vulnerable to abuses.

“Because their work is tied to their visa status,” Costa said, “they become instantly deportable. They have a lot of incentive not to complain when things go wrong.”

Farmers have exploited this vulnerability during the pandemic, despite collecting record amounts of government agricultural subsidies. COVID-19 outbreaks among H-2A workers have been reported across the country, in California, Washington, and other states. An NBC News investigation from August reported that, in addition to rising documented labor violations of H-2A workers, “Workers are often reluctant to speak out against employers who are responsible for their housing, transportation and paychecks — and who control their ability to stay in the U.S. — workers and labor advocates say.”

“Many Workers Will Suffer Increased Debt, Lower Wages, Worse Housing Conditions”

And yet, even as the Department of Homeland Security was relaxing visa requirements to ensure that enough agricultural workers were working through the pandemic, the Department of Labor was attempting to undercut their wages.

The wage freeze is the Trump administration’s second attempt this fall to cut wages for H-2A visa holders. On September 30, Secretary of Agriculture Perdue published a one-page notice announcing that the USDA was suspending the Farm Labor Survey, a data collection tool that has been used for over a century to calculate wages for migrant workers, known as Adverse Effect Wage Rates (AEWRs). AEWRs are supposed to protect US farmworkers, by requiring that employers pay foreign farm workers the prevailing wage in each state so that their employment doesn’t drive down wages for US workers.

Without the survey, wages for H-2A recipients and other farm workers would fall by a projected 5 percent in California and up to 46 percent in Idaho, according to a lawsuit that the United Farm Workers filed against Perdue and the USDA to block the suspension of the survey. A federal judge granted a restraining order halting the suspension of the survey, finding compelling evidence that farmworkers would suffer irreparable economic harm as a result.

Less than a month later, the Trump administration came back with a second attempt to cut the wages of H-2A workers, enacting a rule to freeze their wages. The DOL rule had first been proposed on July 26, 2019 and had received widespread opposition from farmworker advocacy organizations. A coalition, led by worker advocacy group Farmworker Justice and including forty-two other organizations, wrote in a lengthy public comment on the rule, “If the proposed rule is adopted as drafted, many workers will suffer increased debt, lower wages, worse housing conditions, and more uncertainty regarding job terms.”

The rule that was published last week only included the wage aspects of the rule that was initially proposed. The new rule will raise the AEWRs for a small number of H-2A workers in more specialized or supervisory roles, but it will lower the rate for the vast majority of H-2A workers.

According to Costa, the Economic Policy Institute director, it might be hard for a Biden administration to reverse the rule change, even if it has the will. “Maybe it can get fixed right away when Biden comes in, but maybe it gets stuck in the courts and takes a long time to fix,” Costa said.

He added that “since it has already gone to notice and public comment, it’s not that easy to just get it enjoined as a procedural violation,” the way other Trump administration immigration rules have been blocked.

“The fact that they’re issuing it now is absolutely tied to the fact that [Trump was not] reelected and they want to get it out,” Costa said.