Essential Growth: A Brief Look into the H-2A Visa Program that Will Carry U.S. Agriculture Through the Pandemic
By: Jessica Griswold | Vermont Law School, JD Candidate 2021
August 27, 2020
On August 20, 2020, the U.S. Department of Homeland Security (DHS) issued a temporary final Rule, Temporary Changes to Requirements Affecting H-2A Nonimmigrants Due To the COVID-19 National Emergency: Partial Extension of Certain Flexibilities (the “August 20 TFR”), announcing a further extension of H-2A guest-worker visas.
The DHS first issued Temporary Changes to Requirements Affecting H-2A Nonimmigrants Due to the COVID-19 National Emergency (the “April 20 TFR”), which initially allowed temporary H-2A workers to extend their employment in response to COVID-19 disruptions to the U.S. food and agriculture sector during the summer growing season. As the “continued disruptions and uncertainty” of the pandemic bleed into the fall agricultural season, the DHS has exercised its authority—under section 102 of the Homeland Security Act of 2002 (HSA) and section 103(a) of the Immigration and Nationality Act (INA)—to amend the April 20 TFR as a matter of national security.
Here, the August 20 TFR provides that the DHS will continue allowing H-2A workers who have valid temporary labor certifications from the Department of Labor (DOL) to begin working for a new employer after the U.S. Citizen and Immigration Service (USCIS) receives an extension of stay petition on their behalf. 
Generally, the H-2A Visa Program allows U.S. employers to hire nonimmigrant foreign nationals seeking agricultural work on a “temporary or seasonal” basis when U.S. workers are not available to fill the jobs. In the absence of a national emergency, H-2A visas are valid for a maximum limit of three years, though most are typically valid for no longer than one. To apply for an H-2A visa, nonimmigrant workers seeking temporary agricultural work must have a job offer from a U.S. employer.
Further, U.S. employers who wish to recruit and hire temporary agricultural workers from other countries must petition for a Temporary Labor Certification (TLC) from the DOL, which requires employers to show that: (1) there are not enough willing, able, and qualified U.S. workers available to fill the jobs when and where employers need them; and (2) employing foreign nationals for temporary agricultural work will not adversely affect the wages or working conditions of U.S. agricultural workers. This requires a series of lengthy procedural steps and paperwork on part of the employers and the recruiters and petitioners they hire to bring nonimmigrant workers into the U.S.
In the age of the coronavirus pandemic—and always—agricultural workers are essential to U.S. food security and the American economy. Here, the DHS’s effort to facilitate nonimmigrant entry into the U.S. for temporary agricultural employment despite the current administration’s ban on immigration highlights the critical role of farmworkers in maintaining the nation’s food supply. Thus, creating a stronger avenue for legal migration to the U.S. serves to benefit our nation during COVID-19 and beyond.
According to the most recent National Agricultural Workers Survey (NAWS) Research Report, 69% of farmworkers that the DOL interviewed and hired in FY 2015–2016 were born in Mexico, and 83% of all farmworkers were Hispanic. The NAWS does not include H-2A workers in its survey sample. Notably, the U.S. Department of State (DOS) issued over 200,000 H-2A visas in FY 2019. On average, each temporary agricultural worker in the H-2A visa program maintained employment in the United States for six months. Although the gradual expansion of the H-2A program likely played an important role in lessening illegal immigration to the United States from Mexico, H-2A visas still fill only 10% of farm labor.
Moreover, Congress should amend the H-2A visa program to mitigate the bureaucratic complexity that is packed into the program’s 200+ rules. As it exists, the H-2A visa program ensures that employers will provide workers with the required wage rate in their state, housing, transportation, and workers compensation. Also, the employer must guarantee the worker a total number of work hours equal to at least three-fourths of the workdays in each 12-week period. Nevertheless, the power imbalance between employers and H-2A employees has led to intolerable violations of workers’ legal rights that commonly go unchecked.
In addition, many migrant and seasonal agricultural are subject to challenges such as: “hazardous work environments; poverty and insufficient support systems; inadequate or unsafe housing; limited availability of clean water and septic systems; inadequate healthcare access; continuity of care issues; lack of insurance; cultural and language barriers; fear of using healthcare due to immigration status; and lack of transportation.” Notably, less than half of farm workers have healthcare. This unacceptable fact is especially problematic during a pandemic, and even more so as coronavirus infections among farmworkers increase. Further, demanding better working conditions puts H-2A workers at risk of deportation. Because temporary agricultural workers may only acquire H-2A visas at the request of a U.S. employer, they often remain focused on getting the job done regardless of living and working conditions.
Simply put, the H-2A should require U.S. employers to provide migrant workers with fair living and working conditions—at minimum.
In sum, Extending H-2A visas in response to the COVID-19 national emergency creates additional opportunities for nonimmigrant workers in the U.S. and supports the nation’s food supply. However, the H-2A program itself is in need of drastic reform.
 Temporary Changes to Requirements Affecting H-2A Nonimmigrants Due To the COVID-19 National Emergency: Partial Extension of Certain Flexibilities, 85 Fed. Reg. 51304 (Aug. 20, 2020) (to be codified at 8. C.F.R. pts. 214, 274) [hereinafter August 20 TFR].
 August 20 TFR, supra note 1, at 51304–51305.
 Immigration and Nationality Act, 8 U.S.C. §1101(a)(15)(H)(ii)(a) (2018).
 8 C.F.R. §214.2(h)(5)(iv)(A) (2020).
 H-2A Program for Temporary Agricultural Workers, Center for Global Development, https://www.cgdev.org/sites/default/files/archive/doc/migration/H-2A_Fact_Sheet8.6.pdf, (last visited Aug.23, 2020).
 8 U.S.C. §1188(a)(1).
 See 20 C.F.R. §§ 655.121, 655.130, 655.135(d), 655.135(g), 655.143, 655.144(a), 655.150, 655.153, 655.154, 655.161(a) (providing the procedural requirements for U.S. employers to obtain a Temporary Labor Certification and bring foreign nationals into the U.S. on a temporary or seasonal basis to perform agricultural work).
 Janeen Madan Keller & Thomas Ginn, Including Immigrants is Good Policy Not Just During the Pandemic, but Afterwards Too (June 29, 2020), https://www.cgdev.org/blog/including-immigrants-good-policy-not-just-during-pandemic-afterwards-too.
 Trish Hernandez & Susan Gabbard, JBS Int’l, Findings from the National Agricultural Workers Survey (NAWS) 2015-2016: A Demographic and Employment Profile of United States Farmworkers, rsch Rep. No. 13 1 (2018), https://www.dol.gov/sites/dolgov/files/ETA/naws/pdfs/NAWS_Research_Report_13.pdf.
 Id. at i.
 Daniel Costa & Phillip Martin, Coronavirus and farmworkers: Farm Employment, Safety Issues, and the H-2A Guestworker Program (Mar. 24, 2020), https://www.epi.org/publication/coronavirus-and-farmworkers-h-2a/.
 David J. Bier, H-2A Visas for Agriculture: The Complex Process for Farmers to Hire Agricultural Guest Workers, Cato Inst., Immigration Rsch & Pol’y Brief No. 17 1 (2020), https://www.cato.org/sites/cato.org/files/2020-03/IRPB-17-update-4.pdf.
 See Id.(describing the H-2A program as “bureaucratically complex”).
 Centro de los Derechos del Migrante, Inc., Ripe for Reform: Abuses of Agricultural Workers in the H-2A Visa Program, 6 (2020), https://cdmigrante.org/wp-content/uploads/2020/04/Ripe-for-Reform.pdf.
 Rural Migrant Health, Rural Health Info. Hub, https://www.ruralhealthinfo.org/topics/migrant-health#msaw, (last visited Aug. 23, 2020).
 U.S. Dep’t. Labor, National Agricultural Workers Survey 17 (2017), https://www.dol.gov/sites/dolgov/files/ETA/naws/pdfs/NAWSPAD_Codebook_2003_2016.pdf.
 Coronavirus Infections Among Farmworkers on the Rise, Legal Services Corp. (June 12, 2020), https://www.lsc.gov/media-center/blog/2020/06/12/coronavirus-infections-among-farmers-rise.
 Louis Velarde, How one visa program keeps America fed, The Washington Post (June 17, 2020), https://www.washingtonpost.com/video/national/how-one-visa-program-keeps-america-fed/2020/06/17/ac3be98d-1ed1-4d4c-8dc7-85cbbeecb5fc_video.html.
Jessica is a 2021 JD candidate at Vermont Law School (VLS). She has a B.S. in Marketing and a Master of Business Administration Degree (M.B.A.) from the University of Massachusetts, Dartmouth. The Agriculture and Food Systems specialization drew her to VLS and over the last 2 years, she has worked as a student clinician for the Center for Agriculture and Food Systems and spent summer 2020 working as a legal intern for the Center for Science in the Public Interest.