The Power Imbalance at the Root of the H-2A Farmworker Visa Program

WOODBURN, OR – 1SEPTEMBER21 – Farmworkers brought to the U.S. in the H-2A visa program plant and weed ornamental shrubs early in the morning in a field near Woodburn, Oregon. They work for the nursery Advanced Ornamentals. Members of this crew include Alfonso Guevara. He works with a short-handled hoe, the “cortito,” that has been banned in California because repeated use causes damage to the spine. Copyright David Bacon

By Li Lovett

American Community Media, Nov. 26

https://americancommunitymedia.org/immigration/the-power-imbalance-at-the-root-of-the-h-2a-visa-program/

ACoM recently reported on an immigration raid in Santa Maria, California, involving a U.S. citizen believed to be at the center of a visa fraud ring. The scam involved the illegal sale of H-2A visas, which are given to foreign agricultural workers allowing them to work in the US for a limited period. The Trump Administration has recently imposed changes to the H-2A program, effectively lowering wages and further dis-empowering farmworkers, whether H-2A visa holders or undocumented laborers. David Bacon is a photojournalist who has spent decades covering labor and farmworker rights. He says the imbalance in power between growers and farmworkers is a feature, not a bug of the H-2A system. He spoke with ACoM’s Li Lovett. 

How many farmworkers are in California through the H-2A visa program?

There are about 45,000 H-2A farmworkers in California, or there were last year. That was out of about 380,000 H-2A farmworkers in the United States as a whole, the overwhelming majority from Mexico and Central America. Over 700,000, perhaps as many as 800,000 people work as farmworkers in California at some point during the year. So on the surface, it looks as though the number of H-2A workers in California is a small percentage. However, they play a very key role, especially in certain crops and industries.

How does an H-2A visa differ from other employment visas?

The H-2A visa is a temporary work visa specifically for agricultural workers. It allows growers to recruit workers in other countries and bring them to the United States where they are limited to a period of time-usually about 10 months-at which point they have to return to their countries of origin. An H-2A farmworker can only work for the person that recruits them and that brings them to the U.S. They’re not free, for instance, to find some other grower to work for if they don’t like the working conditions of their employer. They have to keep working or they have to go home. Also, generally speaking, there are no benefits. So no holidays, and no health care other than what the state provides.

The history of the H-2A program is rife with violations. What do farmworkers say about it?

Things are changing quite radically right now because of new regulations that the Trump administration has imposed. As the program existed up to this point, growers pay the transportation costs for people from Mexico to come to the US. They also pay for the transportation to and from work every day and they have to provide housing. In terms of wages, they have to pay what is called the Adverse Effect Wage Rate, which is pretty close to the minimum wage in every state (the idea being to prevent a race to the bottom in worker wages). In effect, this puts a ceiling on the wages of farmworkers, because even though it’s a little bit more than the state minimum, if other farmworkers ask for higher wages, growers can always threaten to replace them. That in theory is not supposed to happen. But in fact, it happens all the time.

Housing, specifically substandard housing, has been another issue for farmworkers.

The housing that growers are required to provide is probably the source of the most complaints that H-2A workers have. For instance, growers have taken over cheap motels all over California, especially in the San Joaquin Valley, and have turned them into barracks housing essentially for H-2A workers. So, in a given room in a motel, you’ll find bunk beds for anywhere from four to 10 people, depending on how much the grower wants to crowd people in and how big the room is. So the living conditions are often very crowded.

Who typically gets an H-2A visa?

The regulations governing this program allow growers to discriminate in hiring. Growers can hire only men, for instance, and only young men. If they were doing this in the United States, that would be a violation of civil rights laws. But because they are recruiting outside the country, essentially those rules are not applicable. The reason that’s important is because growers are also able to impose a high production quota on these workers, requiring them to work as fast as possible all the time. If people don’t work fast enough, they can lose their job, which means they have to leave the country. It puts enormous pressure on people to work hard and to work quickly.

A large percentage of farmworkers in this country are undocumented. How are they impacted by the H-2A program?

The Department of Labor used to do a farmworker survey every year, and that survey showed that about half of the people working as farmworkers in the U.S. don’t have papers. In California that percentage is higher. When you have a growing number of H-2A workers in the workforce under these conditions, workers who are already living here feel the pressure. If, for example, farmworkers ask for a higher wage, employers can threaten-in not so many words-to replace them. If people don’t work as hard or as fast, again, the threat of being replaced is always out there. In Georgia, for example, more than half of the farmworkers are H-2A workers, which means they are displacing longstanding workers in the state. Growers aren’t creating additional jobs. What they’re doing is they are replacing the existing workforce with H-2A workers.

The case in Santa Maria involved a labor recruiter. What does that process look like?

H-2A workers are typically recruited in Mexico. The recruiter then supplies those workers to a labor contractor, who then supplies them to the grower, who must apply for certification with the Department of Labor to bring workers in. Recruiters in Mexico range from very small ones, individual families, to very large ones. The recruiting relationship also varies in terms of its honesty. In some areas, for instance, in the San Quintin Valley in Baja, California, where a lot of workers are recruited, recruiters generally have a pretty good reputation. In other areas, we find a lot of abuses where workers pay a bribe to get the visa, which is worth a lot of money to them because of the difference in wages between Mexico and the U.S. This of course is illegal, both in Mexico and here in the US.

You mentioned changes to the H-2A program by the Trump Administration. What are those changes?

The administration has imposed a new wage regulation to take the place of the former Adverse Effect Wage rate. And it set up a new wage scale, again, that varies from state to state, but in California would be below the state’s minimum wage, which is set to go up to $16.92 next year. If implemented, the new Adverse Effect Wage rate would be $16.50, and that would be illegal in this state.

That’s just part of the problem. What the Trump Administration also ruled was that growers can now charge workers for the housing that formerly they had to provide for free. In California, growers are going to be allowed to charge $3 an hour to farmworkers for the housing. Taken together with the cut in wages, that would mean a wage rate for H-2A farmworkers in California of $13.50 an hour. This is part of the suit that the United Farm Workers has filed against the Trump Administration.

From the administration’s perspective, cutting the wage makes it more attractive for growers to replace their existing workforce with H-2A workers. In California, if $13.50 becomes a legal wage, the message to current workers would be, if you even ask for the legal minimum wage you’ll be replaced. Likewise for H-2A workers, it means instead of working for $19 plus an hour, the wage itself is going to be cut to $16 and then minus $3 for the housing. It’s very cynical.

The basic problem with this whole program and with this whole arrangement is the imbalance in power. The workers in this situation are very vulnerable and relatively powerless. On the other hand, the growers and the recruiters have an enormous power over the workers. And that imbalance is built into the program.