As labor shortages persist in the ag industry, many farms might be looking at using the H-2A and H-2B programs. Megan Wright, senior director of business expansion at másLabor, recently joined an Ag Retailers Association (ARA) webinar to explain the key aspects you need to understand to be successful.
1. Know the Specific Type of Labor You Need
While it might seem obvious farmers would need seasonal, agricultural labor, it’s important to think through exactly what tasks those employees will be completing. This determines if you need to hire H-2A or H-2B labor.
“The H-2A program is designed for all temporary or seasonal agricultural labor needs. On the flip side of that coin, we have the H-2B program — that’s also temporary and/or seasonal but for non-agricultural labor needs,” Wright explains. “Maybe some of the job duties that you have labor needs for take place on on the farm, but heavy tractor trailer drivers would be construction workers, or maybe you need to build a new farm building. What if you have manufacturing-style job duties?”
The H-2A program is uncapped because agriculture is considered a matter of national security, but the H-2B program does have a finite number of visas available each fiscal year.
2. Start the Process Early
Once you’ve decided whether you need H-2A or H-2B workers, the legal process can start. Wright recommends beginning these conversations 180 days before labor is needed for the H-2B program and 120 days for the H-2A program.
“There are an infinite number of H-2A visas, and the filing process itself is also just shorter,” she says. “The true nuts and bolts again of the process takes 75 days in a normal scenario, and I say normal because first-time program users can actually qualify for what’s called an emergency filing at no extra cost. That allows us to shrink that down and have workers arrive in as little as 45 days.”
3. Prepare for Housing and Transportation Requirements
The H-2A program does require employers to provide free housing.
“We always recommend to think of housing solutions as the the first thing you do when considering the H-2A program,” Wright says.
And though the H-2B program doesn’t require housing, it can still be an opportunity to ease the process.
“We still have folks coming into the country, potentially for the first time, who wouldn’t know the first place to look for housing. As an employer, if you wanted to take that extra step to provide a housing solution for the H-2B workers, you would then be allowed to deduct rent. So, we actually do find that a lot of our employers go ahead and do that knowing that they can recoup funds spent again through those payroll deductions.”
Travel expenses are another area some employers might be surprised by. That’s because it encompasses more than just the gas or plane fees.
“Both H-2A and H-2B employers are responsible for inbound and outbound travel, aka getting them from their front door to your front door and then back home again at the end of the contract period. I think what some folks tend to forget is that this isn’t just the literal transportation itself. It also includes a daily sustenance. It also includes potential motel stays,” Wright explains.
4. Be Willing to Hire Domestic Labor Also
If you want to hire international employees, you must be open to hiring domestic ones as well, according to the U.S. Department of Labor.
“The U.S. Department of Labor is in charge of the certifying process, and they’re clearly going to want to make sure that we’re not discriminating against U.S. workers by participating in these programs. You have to engage in positive U.S. recruitment,” Wright says. “As an employer, you need to be willing to hire a qualified, willing, available and able U.S. or domestic worker.”
The U.S. worker would need to have your minimum skill requirements and agree to the terms of the H-2 contract.
“If they come to you and they meet those requirements during this overall approval process, you absolutely have to interview them, and in that case, you would have to hire them on as well,” Wright says.
5. Stay Informed on President Donald Trump’s Immigration Reform Policies
Because H-2 workers have a lawful presence in the U.S., Trump’s deportation policies should not apply to them.
“It’s always important to note that Trump himself participates in both H-2 programs at Mar-a-Lago and at the Trump winery in Virginia,” Wright says. “But there might be misunderstandings, and there might be miscommunications. We might need to keep in mind that law enforcement may not be familiar with the H-2 programs overall.”
She recommends these best practices for avoiding any discrepancies with H-2 employees and law enforcement:
1. Your workers should have possession of copies of their legal documents, their passport, their visa, and are carrying those copies with them — especially if they leave the work site.
2. Make sure they have an emergency contact who can be reached at all times.
3. Create a document explaining the employee’s legal status in the U.S. and their rights (másLabor has these available).
