H-2A and H-2B: Clarifying temporary guest worker programs

by Arnulfo Hinojosa, Federation of Employers & Workers of America

 

There are many misconceptions about the H-2A and H-2B programs that have circulated both in the media and within the business community. Here is some clarification:

Major misconception: 

The H-2A/H-2B workers are employed because they are a source of “cheap labor.” 

This could not be further from the truth. The U.S. Department of Labor (DOL) sets the wage that will not adversely affect the local labor market. On top of this fair wage, each employer participating in either program will encounter filing fees to the government and housing cost (H-2A only) for all temporary agriculture workers. There are also additional costs associated with hiring a legitimate agency to help navigate the lengthy government process to obtain approval. If the seasonal workers were available in the U.S., it would be much cheaper for employers to hire locally.

Common misconception: 

H-2A/H-2B workers take away potential American jobs. 

The DOL regulates the testing of the local labor market. Before obtaining certification to employ foreign labor, each employer must advertise the job details locally (including the set wage), giving equal opportunity to all local applicants first. All U.S. applicants applying for the positions must be reported to the DOL. 

Seasonal businesses have difficulty finding enough local workers, or even keeping them, due to the seasonal nature of their businesses. U.S. workers want full-time, permanent employment. 

Most importantly, employers cannot legally lay off U.S. workers to replace them with H-2A workers. The DOL and Department of Homeland Security (DHS) work together to ensure that both American workers and H-2A/H-2B workers are protected within the program. 

Another misconception:

The H-2A/H-2B program is an option to provide work authorization to undocumented workers currently residing in the U.S.

This is not the case; each worker applying for an H-2A/H-2B visa must do so at the U.S. Consulate or Embassy in their home country. When applying for a work visa, each applicant must submit digital fingerprints and photos and go through a personal interview with a U.S. Consular official. Any illegal presence in the United States could result in a denial of their visa application. 

Mistaken perception:

It is perceived that all H-2A/H-2B workers intend to permanently reside in the United States. 

During an interview at the U.S. Consulate, is it up to the visa applicant to prove they do not have intentions on staying in the U.S. permanently. These workers leave their wives, children, and immediate family at home with an opportunity of making ten times what they could make in their home country in just a part of the year. One of the most significant benefits for the visa worker is that they can legally travel across the border. Many H-2A/H-2B workers have been returning year after year with the knowledge that participating in the guest worker programs is seasonal and that they must return home to participate in the program.