The Unnecessary Constraints of the H-2A Filing Process: No Good Deed Goes Unpunished
From richard keeth, sr. vp, business management at mÁsLaborOnce a niche topic known only in agricultural circles, the H-2A foreign guestworker program has recently entered mainstream discourse. Exacerbated by labor shortages due to COVID-19 and other economic factors, demand for H-2A visas has surged, quadrupling in the last decade. H-2A workers currently comprise an estimated 10-15% of America's agricultural workforce, with well over a quarter of a million visas issued annually.
Despite this program growth, the program remains governed by a Byzantine regulatory structure. In this landscape, where capable, reliable, and legal labor is scarce, American growers have few alternatives but to bite the bullet and navigate the complexities. This includes not only a tedious, multi-stage government approval process, but exhaustive audits and intense government scrutiny – And despite recent regulatory reform efforts designed to “modernize” and “streamline,” the program shows no signs of easing the burden on America’s farmers. In fact, all objective evidence points to the contrary.
In this complex and challenging landscape, másLabor stands out as the nation's largest provider of H-2A services, differentiating ourselves through sheer volume and unparalleled experience. We pride ourselves on having successfully navigated the H-2A process tens of thousands of times, a testament to our expertise and commitment to ensuring that our clients can focus on what they do best – running their business.
Background:
We do not doubt the nobility of the Department of Labor's statutory mission to protect U.S. workers' wages and working conditions. Yet, the intricacies of government regulation often diverge from these high-minded goals. Bureaucratic rulemaking, detached from business realities, often creates new problems and complexities even under the best of circumstances. Rulemaking that involves agriculture, when most bureaucrats have likely never even set foot on a farm, is virtually certain to be painful.
This disconnect is readily apparent in the requirement for growers, who have historically struggled to find domestic help, to 'prove' their willingness to hire domestically before turning to the expensive and heavily regulated H-2A program. It begs the question: why would growers choose H-2A, with its spiraling wage rates, housing and travel provisions, and behemoth of a governing regulatory structure, if domestic help were readily available? The government apparently does not understand that, for most growers, the program is a last resort.
The H-2A Filing Process:
State Workforce Agency (SWA)
The journey to employ foreign H-2A workers begins with the State Workforce Agency (SWA), commonly known as the state 'unemployment office.' This process begins no earlier than 75 days from the requested date of need. The SWA’s role is to assess local labor conditions and facilitate job placement for domestic applicants. While this sounds reasonable on the surface, you might be surprised at how much can go wrong.
The process of filing the SWA is often fraught with challenges. Rather than further their federally funded grant directive to promote employment of U.S. workers, many activist SWAs have undertaken a gatekeeper role far beyond its intended scope. They often barrage employers with nitpicky, misguided requests (often in conflict with existing law), subjecting growers to many arbitrary requirements.
Much of this authority stems from the SWA’s ability to conduct surveys on “prevailing practices” and “prevailing wages” among non-H-2A employers, and then to impose the survey findings onto H-2A program users. Pay on a bi-weekly basis? Well, not anymore – your SWA’s survey results say most employers pay weekly. Do you insist that workers possess modest work experience before operating equipment and handling pesticides? That is unfortunate, because a SWA analyst has other ideas. Would you like to disclose basic work rules and reasonable employment parameters to protect employer and workers alike? Not on their watch.
Requirements can range wildly from impractical payment schedules and out-of-market piece rate earnings to unreasonable work experience expectations, all dictated by the SWA's capricious interpretation. And on the matter of referring qualified applicants interested in this kind of work, you need only ask any H-2A program user as to the efficacy of those efforts.
At másLabor, we understand the intricacies of state-specific nuances. Our expertise in navigating these complexities helps prevent undue delays and arbitrary omissions of critical business requirements.
For growers fortunate enough to navigate the SWA's erratic scrutiny or encounter more reasonable and understanding staff, the next step awaits in the complex H-2A process...
Department of Labor (DOL)
True to form, the Department of Labor's (DOL) level of scrutiny makes the State Workforce Agency's oversight appear almost simplistic. We are now roughly 65 days, give or take, from the requested start date. DOL exhibits a rigidity that could perhaps only be rivaled by the IRS, frequently entangling employers in exhaustive and often pointless inquisitions on trivial issues and minutiae. These inquisitions follow an inconsistent standard of review, often conducted by ill-trained seasonal analysts, leading to exorbitant processing delays and, at times, unwarranted denials.
The options for recourse? Limited at best – challenging an adverse DOL decision is an uphill battle, often requiring significant time, investment, and legal expertise. Stand your ground? Be prepared for your workers to arrive late. The unfortunate, nefarious nature of this back and forth is such that growers are often forced to choose between optimal program usage and the financial viability of their crop.
másLabor, is renowned for staying at the forefront of the DOL's evolving standards of review. Our expertise allows us to anticipate potential challenges well before they become detrimental to an employer's filings. In the event DOL issues an adverse determination, our approach distinguishes us from our competitors. Unlike others, másLabor’s expert compliance team is prepared to take decisive action, appealing the decision to the Board of Alien Labor Certification Appeals (BALCA). This vital service, aimed at safeguarding our clients' interests, is seamlessly integrated into our filing fees, ensuring that our clients receive comprehensive support without any hidden costs or surprises.
Of course, the H-2A journey does not end with the Notice of Acceptance (NOA). Employers that survive the scrutiny must still complete the “labor market test” to determine the availability of U.S. workers. Further, employers must also obtain SWA approval of their worker housing – a process laden with peculiarities, permit requirements, and other hoop-jumping.
Only after running this gauntlet are employers awarded their labor certification, allowing them to move to the next milestone in the process.
Citizenship and Immigration Services (CIS)
The visa petition represents the final major government filing and arguably the least complicated. The problem with CIS, unlike its DOL and SWA counterparts, is less about activism and more about being a bureaucratic 'black hole.' Still done on paper, the process is archaic, inefficient, and notorious for its lack of communication and recourse. On its worst days, CIS can make your average DMV experience seem as efficient as Chick-fil-A. Fortunately, being proactive, complete, and methodical in your documentation can avoid delays in most cases.
The petition is typically submitted same-day or next-day after receiving the labor certification, which (by law, and assuming there are no speed bumps) occurs 30 days from your approved start date. For H-2A petitions, the average processing times hover between 14-18 days, although additional scrutiny from CIS can further delay the process. This is especially the case given that CIS inexplicably does not allow responses to Requests for Evidence (RFE) via email or fax as it does with other visa programs like H-2B. Anecdotally, we raised this issue at a CIS “Open House” a few years ago only to be told that “the fax machines can’t handle H-2A correspondence.” It remains unclear how the CIS fax machines discern between visa types.
Instead, should CIS issue an RFE, it will arrive via the U.S. Postal Service – another institution known for its promptness and efficiency – even if your petition included a pre-paid overnight envelope for that purpose. You must then pay a premium to respond via overnight courier service, assuming the correspondence wasn’t lost in the mail to begin with, to mitigate the delay. This paper-based approach may prolong worker arrival by days or even weeks. The labyrinthine process only further highlights the advantages of partnering with másLabor. Our team’s expertise lies in preempting and efficiently managing any undue scrutiny from CIS, ensuring a smooth and expedient process for our clients.
Department of State (DOS)
Assuming all goes according to plan, you will receive CIS approval, typically only about two weeks prior to your requested start date. This is your greenlight to schedule workers’ consular appointments in their home country, a process that hopefully ends with visa issuance and U.S. entry. Given the limited consular availability and high program demand, CIS approval is typically a stop, drop, and roll affair, with employers scrambling to book the first available appointment. Simultaneously, employers and their agents or facilitators abroad must notify workers and arrange the logistics, with the goal of getting the workers’ ducks in a row in advance of their appointment.
All of this can be an overwhelming and frantic process, with many moving parts and logistical considerations (and I haven’t even mentioned the inbound transportation arrangements). Given the challenges, and the need for significant in-person support, most employers (for good reason) choose to rely on a professional facilitator to coordinate this process. MásLabor connects our clients with an extensive network of trusted worker facilitation resources in Mexico and Central America, all chosen for their operational excellence and integrity.
Why Use H-2A?
One might wonder why such procedural complexity and game of bureaucratic "hot potato” is necessary. Is there no way to safeguard U.S. workers' interests while providing flexibility for farmers to staff their operations without this bureaucratic maze? The crux of the issue lies with the government's role in streamlining this outdated and rigid process. Recent attempts at 'streamlining' have, paradoxically and predictably, complicated matters further, as highlighted in my colleague Tom Bortnyk’s analysis of the new proposed rulemaking.
Despite these frustrations, I remain an ardent supporter of the H-2A program. Its benefits for both employers and workers are undeniable, facilitating the expansion of agricultural operations, securing the American food supply, and creating employment opportunities. The program fosters a legal and mutually beneficial arrangement between workers and employers, often lasting for years. The issue isn’t the program's intent but rather its execution, ripe with opportunities for improvement, particularly where this filing timeline and the discretionary nature of its arbiters are concerned.
My Advice:
Consider hiring a skilled agent or attorney experienced in navigating the H-2A process – someone who can effectively deal with the scrutiny and procedural hurdles. But more than that, someone who advocates for your business needs in the face of undue, unnecessary government overreach, and who ensures your H-2A program participation is as cost-effective as possible within the existing procedural parameters. Experience matters.
Finally, and perhaps most importantly, we desperately need employer-friendly program reform that comports with economic realities and modernizes this valuable but archaic regulatory framework. Such measures should recognize the good faith efforts of all parties involved, moving away from a one-size-fits-all approach that only adds restrictions, costs, and red tape. Reform that doesn’t use the lowest common denominator to justify unnecessary enforcement measures and cost-prohibitive wage methodology. Taxpayers deserve better, our government cohorts deserve better, our farmers deserve better.
Richard Keeth is Sr. Vice President, Business Management at másLabor, the nation’s leading provider of comprehensive H-2A services. Through its subsidiaries másH2A and AgWorks, the company represents thousands of H-2A employers across the country in nearly every crop/commodity group. For more information, visit maslabor.com.