Guidelines to assist growers with the H-2A program and immigration preparedness on the farm: Part 2
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EmailInformation to help community members and growers understand the H-2A Temporary Agricultural Workers program and steps for worker safety.
This article is Part 2 of Michigan State University Extension’s set of immigration articles. With the growing season beginning and farm labor needs increasing, Michigan State University (MSU) Extension recommends all agricultural employers and employees be proactive and prepared for interactions with immigration enforcement. As Immigration and Customs Enforcement (ICE) continues to carry out immigration actions in response to recent executive orders, this article provides information and resources for Michigan growers, agricultural workers and community members.
Part 1 of this series had general information for farms to prepare. Part 2 provides information specifically for employers using the H-2A Temporary Agricultural Worker Program. As with Part 1, this article is intended to provide guidance to growers and farm workers on how to safely and effectively navigate a changing immigration climate.
This article is not designed to provide legal advice. Growers should talk to an immigration lawyer for advice about a specific case, if needed.
What is the H-2A Temporary Agricultural Worker program?
The H-2A program is a federal program through the United States government that allows U.S. employers to hire foreign nationals to the Unites States for seasonal agricultural jobs. United States employers must meet specific regulatory requirements to use this program, and they must submit a temporary labor certification application and a Form I-129, Petition for a Nonimmigrant Worker, to the U.S. Department of Labor to petition for workers to legally be employed at their place of business.
The H-2A program is different than the H-2B program. The H-2B program allows U.S. employers to hire foreign nationals for seasonal non-agricultural jobs, such as hotels or restaurants, e.g., Mackinac Island.
For U.S. employers to use the H-2A program, the United States Citizenship and Immigration Services (USCIS) requires that they must:
- Offer a job that is of a temporary or seasonal nature.
- Prove there are not enough U.S. workers who are able, willing and qualified to complete the temporary work.
- Show that employing H-2A workers will not adversely affect wages and working conditions of similarly employed U.S. workers.
- Submit a certified temporary labor certification from the U.S. Department of Labor with the I-129 application.
What is the process to bring workers into the U.S. through the H-2A program?
- Step 1: Employer submits temporary labor certification application to the U.S. Department of Labor (DOL). Before requesting H-2A classification from USCIS, the employer must apply for and receive a temporary labor certification for H-2A workers from DOL.
- Step 2: Employer submits Form I-129 to USCIS. After receiving a temporary labor certification for H-2A employment from DOL, the employer must file Form I-129 with USCIS.
- Step 3: Prospective workers from outside of the U.S. apply for the work visa and admission. After USCIS approves the Form I-129, prospective H-2A workers must:
- Apply for an H-2A visa with the U.S. Department of State at a U.S. Embassy or Consulate abroad.
- Seek admission to the United States with U.S. Customs and Border Protection at a U.S. port of entry.
What do H-2A workers do once they arrive on-farm?
U.S. employers request H-2A workers for a specific period of time in their temporary labor certification. Due to the temporary status of H-2A workers and the seasonal work requirements for Michigan specialty crops, H-2A workers typically arrive sometime in March or April to begin skilled agricultural work. Early in the season, H-2A workers on specialty crop farms may prune and plant fruit trees, vines and bushes, construct trellis systems, drive and operate farm equipment, and work on various other tasks around the farm.
As the season progresses, workers transition to harvest mode where they provide majority of the labor force to hand harvest Michigan specialty crops. For example, growers may need labor to prune trees, plant trees, pick asparagus, hand-thin peaches, machine- or hand-harvest tart and sweet cherries, hand-thin apples, hand-harvest peaches, pears or apples from August through October. Workers may go to another state or back to their home country once a task is completed (e.g., pruning or planting), but growers strive to keep their workers through the growing season for the many activities that require hand labor.
H-2A workers can also help operate spray equipment, drive trucks, haul equipment and complete other farm tasks to protect crops and enhance produce quality. Tasks and farm needs will differ by operation size, location and crops grown. Once labor-intensive farm work is completed, H-2A workers return home during the off-season months.
In Michigan, when H-2A workers arrive at the place of employment, employers are responsible for:
- Offering each covered worker employment for a total number of hours equal to at least 75% of the workdays in the contract period.
- An hourly wage set by the Adverse Effect Wage Rate (AEWR) through the U.S. Department of Agriculture. AEWR has the highest prevailing wage rate for similar work in the area; this wage must comply with the Fair Labor Standards Act.
- Transportation between the workers' living quarters and the worksite at no cost to the workers. Transportation must be safe, properly insured and operated by licensed drivers.
- Weekly transportation for picking up food supplies, laundry services, banking needs or other trips to purchase necessary personal items.
- Reimbursing workers for reasonable costs incurred for inbound transportation and subsistence costs once the worker completes 50% of the work contract period. Upon completion of the work contract, the employer must either provide or pay for the covered worker’s return transportation and daily subsistence.
- No-cost housing that meets the Michigan Department of Agriculture and Rural Development’s standards.
- Providing each worker with three meals per day or furnishing free and convenient cooking and kitchen facilities where workers can prepare their own meals.
How long can H-2A workers stay in the U.S.?
The USCIS may grant H-2A classification for up to the period of time authorized on the temporary labor certification. H-2A classification may be extended for qualifying employment in increments of up to one year each. A new, valid temporary labor certification covering the requested time must accompany each extension request. The maximum period of stay in H-2A classification is three years.
A person who has held H-2A nonimmigrant status for a total of three years must depart and remain outside the United States for an uninterrupted period of at least 60 days before seeking readmission as an H-2A nonimmigrant.
What documents should employers keep on-farm for H-2A workers?
The following documents need to be kept on file:
- I-9 Forms (more information on 1-9 forms here): Employers must complete and retain I-9 forms for all employees, including H-2A workers, to verify employment eligibility and demonstrate compliance with immigration laws.
- Work hour records: Employers must maintain accurate records of the number of hours offered and the number of hours actually worked each day by the H-2A worker.
- Other relevant documents: Employers may also need to keep copies of documents like H-2A visa approvals, work authorizations and other relevant documents to demonstrate compliance.
The above documents must be kept on file for at least three years after hiring or one year after the worker's last day of work, whichever is later. Additionally, employers must keep accurate records of work hours offered and actually worked by the H-2A worker. MSU Extension also recommends employers have a communications plan for dealing with law enforcement, including ICE, and understanding workers' rights.
What happens if ICE comes to the farm or workplace where there are H-2A workers present?
ICE can visit a farm employer for one of three reasons: for a form I-9 audit, for a raid, or to detain specific people. The following information describing these three different scenarios has been provided by Immigration Law and Justice, Michigan, “The understanding is that the goal of such an audit would be to ensure that the employer has documentation that shows that their employees are authorized to work. If the documentation is lacking, the employer may face liability.
“A ‘raid’ versus ‘ICE visit to detain certain people’ is semantics. Every raid is a visit to detain specific people (e.g., employees); however, ICE cannot show up and enter a private/non-public space without a valid judicial warrant and ask for people's status. That said, once ICE officers show that they have a valid warrant and thus are able to lawfully initiate the search for an individual employee, they may detain other undocumented workers that are present in the workplace. The key for the employer is to determine (and if needed, label) areas of the business that are public vs. private. Employers should also learn to identify a valid warrant. If an employer does not know a valid warrant, the employer or one of its agents can authorize ICE officers to enter/search without a valid warrant.”
There are certain considerations that are important for an employer to understand if ICE visits the farm operation:
- Understand worker rights: H-2A workers have the right to remain silent, consult with an attorney, and not be forced to answer questions or provide documents that could put them at risk.
- Comply with ICE requests: Employers should cooperate with ICE, but they are not obligated to provide information that could compromise their workers' rights.
- Have a communications plan: Develop a plan for communicating with employees about ICE visits and procedures for handling inquiries from law enforcement.
- Follow standard procedures: Establish clear procedures for how to handle ICE interactions, including who to involve, what to say and what not to do.
- Be aware of the limitations of ICE authority: ICE agents may not search private areas without a warrant. Growers should be sure to clearly mark self-identified, designated areas of the farming operation as private as they see fit. However, these areas must be properly marked and designated prior to a visit by enforcement.
- Inventory receipt: If records are seized, ICE must provide a receipt upon removal from the operation.
What documents should H-2A workers have with them?
Employers should educate H-2A workers on the necessary documents they need to have to verify they are legally allowed to work in the U.S. The following documents are the ones all workers need to have on file:
- H-2A Visa and Passport: These are the primary documents proving their legal status to work in the U.S. under the H-2A program.
- Copy of I-94: Workers can look up and print a copy of their I-94.
- Copy of work contract: This document outlines the terms and conditions of their employment, including wage rates, hours and housing arrangements.
- Copy of job order: This document, approved by the Department of Labor, details the job requirements and is provided by the employer.
- Social Security Number (SSN): H-2A workers need an SSN to be able to work and report wages.
- Driver's license (if applicable): If they will be driving on public roads, H-2A workers must have a valid driver’s license. If the driver’s license is in a language other than English, they must provide a written translation into English to law enforcement.
According to lawyers at Immigration Law and Justice, Michigan, workers should always keep their passport with their valid H-2A visa on their person (including when working in the field/orchard, transportation to work sites, and while conducting personal business). If the visa is expired, but the worker was granted an extension, then they should carry a copy of that extension letter. They need to be able to prove valid immigration status, and a valid visa/extension should be sufficient. The lawyer also recommends workers carry a printed copy of their I-94, not to show status, but rather as proof of alien registration.
Again, this article is NOT legal advice, but a reminder for growers to be prepared for immigration actions. If farm employers or farm workers need legal advice, contact the Immigration Law and Justice, Michigan firm. They have offices in Grand Rapids, Kalamazoo, Metro Detroit and Traverse City.
