Recently in H2A Visas Category

One of our most accessed webpages is our comments about the H-2A work visa program.  Not sure why it is so popular, but it is.  So given that the Department of Labor Employment and Training Administration division focused on the H-2A work visa program is seeking public comments again, I plan to submit some comments before October 5. 

The published "Notice of Proposed Rulemaking (NPRM)" can be found at the http://www.foreignlaborcert.doleta.gov/pdf/H2A_NPRM_090409_Elissa_090409.pdf.

The number of U.S. workers from Mexico is six times larger than any other country. 

From the election year 2000 presidential campaigns of Vincente Fox and George Bush, one would have thought the United States-Mexico relationship would have been better and closer 4 years later.  After repeated attempts, the relationship started and stopped, and eventually went silent.

President Obama heads to Mexico this week to seek resolution on a multitude of topics.  Most visible is to find an immigration resolution between the two countries.  However, it shouldn't be an immigration debate or calls for more reform. 

The United States has spent the last 3 years building fences and/or barriers on the border, staffing up on Border Patrol agents, building several high capacity H2A/H2B processing centers (the Backlog Elimination Centers were closed at the end of Dec. 2007), boosting staff levels at USCIS (with new IT resources and applications), processing citizenship applications faster than ever, and implementing e-verify for employers.

These were the key components that many of the Congressional opponents requested to have in place before any further discussion on immigration matters; they have now almost all been accomplished. 

We now have the appropriate infrastructure in place to resolve a lot of unfinished business between the two countries, and both countries are seeking resolution to these matters in the very near future.

For the first time in years, Mexico is now back on the map for the United States and even the White House website says so.

As requested, we have submitted comments to the United States Department of Labor about the upcoming changes to improve the H-2A work visa program.  You may view the comments in this 2-page letter.

tlc2007, your comments are definitely insightful.  While the government is reforming the H-2A program, there has been little visibility on how the H-2B/R program will be reformed.  At the moment, it is at a standstill, which doesn't seem fair because out of all the work visa programs, the H-2B participants are well known for following the law, yet they are now prohibited from returning.  So much for following the law?  I hope to see many more articles about how H-2B workers actually created positive economic benefit and how employing U.S. citizens isn't always the best solution.

It looks like a major difference between AgJobs and the H-2A program enhancements is AgJobs allows workers to apply for citizenship after several years while the H-2A work visa does not allow workers to apply for citizenship.  Read this article.

 

 

This article leaves out one critical point:  many want AgJobs passed in Congress and there was no reference to this pending bill.  The major obstacle is AgJobs requires Congressional approval, while these H-2A enhancements are immediate and can be implemented this year.  The H-2A program has been operating for 20 years without any major review.  No wonder why illegal immigration shot back up...this dysfunctional work visa program was abandoned in favor of hiring readily available undocumented immigrants.

From what I have read, DOL ETA is offering a workable solution.  Page 8549 from the Federal Register:

 

Over the last 20 years, it has become clear that perhaps the biggest threat to the wages and working conditions of U.S. workers is direct competition from a large undocumented workforce that is often underpaid and taken advantage of yet is afraid to assert its rights. Senators from both political parties remarked upon this phenomenon during the recent immigration debates in Congress, and the U.S. Supreme Court has also noted the threat that undocumented workers pose to the wages and working conditions of U.S. workers.

 

Thus, based on data collected during more than 20 years of experience in administering the H-2A program, the Department has concluded that one of the most significant actions it can take to protect the wages and working conditions of U.S. workers is to render the H-2A program sufficiently functional such that, rather than resorting to the employment of workers illegally present in the U.S. to make up for shortages in the number of U.S. workers who are willing and available to perform agricultural work, agricultural employers will instead use the H-2A program, with all of its accompanying legal requirements and protections.

With Mexico's President Felipe Calderon's comments about the Bracero program, I commented that the H-2A work visa program is the new Bracero program. The government is currently proposing new procedures to the H-2A program, and there is no cap on the number of participants. With this in mind, I wouldn't wait for a new program. Instead, recommend helpful solutions to improve the current H-2A work visa program.  The Bracero program was closed down for a multitude of reasons, most commonly was slave-like conditions that some Braceros endured.  Others stories indicate, the Bracero program provided opportunity to many more.  In the near future, I plan to write my suggestions to improve the H-2A work visa program.

Last week, the U.S. Department of Labor introduced enhancing the current H-2A work visa program.  For the next 45 days, there will be public comment on the proposed changes.  However, from what I have read over the last few months, some of these proposed changes are already happening.  For example, the Dallas Morning News reports,

Under old provisions of the law, labor officials required employers seeking H-2A workers to actively seek out migrants outside the local job area. That provision was waived in the administrative change.

"Essentially, DOL has very quietly changed the law and made it easier for employers to bring in more foreign workers without competition for those jobs by American workers," said Bruce Goldstein, executive director of Farmworker Justice. "It is little more than a raw political gift to the president's political contributors."

Under the old H-2A provisions, employers also were required to provide workers with housing that meets state or federal housing standards.

The November memo now allows employers to switch the housing if they can support a claim that approved housing is unavailable and put workers in uninspected housing.

Then a law student in Iowa details how she "found the Department of Labor is approving H-2A applications for guest farm workers that do not comply with federal law. Specifically, she said the applications do not meet the federal requirement that employers must demonstrate a shortage of farm labor in a community, making foreign-born guest workers necessary.  The applications also fail to demonstrate that the addition of the guest workers to the local labor force will not hurt local workers, as required by law."  Her report is here.  In other words, even with the proposed changes and seeking public comment over the next 45 days, the Department of Labor hasn't even being following the current law when issuing visas under the H-2A program. Perhaps the new changes are already in effect.

Meanwhile, in Monterrey, Mexico, the U.S. mission is issuing about 9,000 work visas a month, up from 6,000 in January 2007.  Without other options, many more employers are using a legal path and requesting workers to enter and work in the United States legally. 

The other competing proposal to modernizing the H-2A program is Agjobs, but this requires Congressional approval.  The current revamping of the H-2A work visa program by the Dept. of Labor does not require Congressional approval and can be done this year before President Bush leaves office. 

It struck me as coincidental that former Mexican President Fox, a major proponent of a work visa program between the United States and Mexico, was actually in Washington this week when these updates to the H-2A work visa program were announced.  He was also in New York giving a talk at the Foreign Policy Association.

As I have indicated here, the H-2A program will likely benefit aspiring workers from the nearby regions, such as Mexico, Central American and Caribbean countries.  Beyond a simple bus ride, the H-2A program is very risky for workers traveling from afar.  Recouping the travel and livings costs would take months to repay and no job is certain.

Because I think the H-2A program is likely to expand, it would be wise to recommend a few improvements.  The most obvious is to ensure there is enough staff available at the Department of Labor Employment and Training Administration to operate a work visa program for 1-2 million people.  At the moment, the agency is processing less than 100,000 applications a year, so this program may soon be 10-20 times the current size. 

Also, it is worth noting the USCIS has long been plagued by backlogged applications preventing many the chances to cross back and forth legally.  I would hate to see the H-2A program in the same predicament.

Another recommendation would be to ensure there is proper oversight of the program.  At the moment, there are only two processing centers, one is Atlanta and the other in Chicago.  Because the majority of farmworkers are in western United States, it would seem wise to open a new processing center in the western region.

The other part of this recommendation is to have representative local or local offices where contract disputes can be mitigated between employer and worker.  All in all, this size of work visa program will require a lot of staff to operate. 

When millions of Americans applied for passports, the Department of State operated seven days a week, opened a new processing center, brought back staff from overseas, and gave the option of some retirees to return to work. 

I suspect this time next year there will be a huge bottleneck of H-2A applications awaiting DOL approval.  With proper planning, a backlog of applications should be preventable.  We already know there is going to be major demand for this work visa program.

It has taken more than six months to launch www.myworkvisa.us.

 

Eight years ago, Vicente Fox and George W. Bush campaigned on a work visa program between the United States and Mexico.  And now...Americans are wondering how 12 million people entered the United States and now reside illegally in the United States.

 

Four years ago, President Bush announced days before the Summit of the Americas, his plan of introducing a guest worker program.

 

Three years ago, Minutemen formed to protect the border and draw attention to illegal crossers

 

Two years ago, students from around the nation, take to the streets to protest a 2005 house bill that was passed to crackdown on illegal immigrants.

 

Last year, a hastily assembled comprehensive immigration bill, looked like a bipartisan bill, yet it was defeated based on irrational amnesty concerns.  Furthermore, a move to encourage a work visa program was abandoned, hoping they could pass this bill.  It didn't work

 

Today, America finds itself again discussing immigration plans, but we must wait for a President to be elected before a comprehensive immigration plan can be initiated and implemented. 

In the meantime, successful work visa programs, like the H-2B, are being scaled back, and this is even affecting the people who followed the rules. 

Nevertheless, we must be mindful that the U.S. economy should be permit those who apply legally to work in the United States the opportunity to work here. 

Therefore, I invite all interested parties to participate in the Myworkvisa.us Job Board.