Michael Clemens and Kate Gough: Or Means Or
By David Henderson
Congress created the H-2A as a visa for temporary farmworkers: people who do not intend to settle in the United States and eventually become permanent residents. The executive branch has interpreted that to mean seasonal farmworkers. So the H-2A program currently allows workers only for parts of agriculture whose labor demand varies wildly with the seasons, like vegetable pickers and Christmas-tree cutters. (There are minor exceptions: year-round sheep herders can be hired on the visa.)
But that limitation to seasonal work is not in the law passed by Congress. What Congress created in the H-2A is a visa for farm workers of a “temporary or seasonal nature.” That could include nonimmigrant workers who are in the United States temporarily. The restriction to seasonal work is a traditional decision and interpretation.
So write Michael Clemens and Kate Gough in “Don’t Miss this Chance to Create a 21st Century U.S. Farm Work Visa,” Center for Global Development, May 31, 2018.
The restriction to seasonal work, even though the law explicitly allows visas for temporary work, means, note Clemens and Gough, that large swaths of U.S. agriculture are off limits for such visas. What’s an example?
The dairy industry, for example, is largely classified as being non-seasonal, and mostly cannot hire workers on H-2A visas—despite the fact that dairy depends heavily on foreign workers. The predictable result is a large black market, with its many harms to the workers and to the farms, plus a growing public frustration with unauthorized work.
We’ve heard a lot about the increasing importance of monopsony in the labor market lately. I’m not sure how much of it is true, but the current regulations explicitly create monopsony, although not naming it as such, in the market for H-2A workers. They write:
Not by coincidence, the modern H-2A visa contains the same core flaw as the old Bracero visa: it binds workers to a single employer. If an employer breaks the rules in any way, a farmworker on an H-2A visa cannot quit and find another employer down the road who is on the up and up. That worker’s only choice is to stay on and endure, return home (at roughly a 75 percent pay cut), or enter the black market. That creates a situation where abuses are more likely and accountability is minimal.
This is like the Black Codes of the late 19th century in the South, which W.E.B. Du Bois wrote so clearly about in Black Reconstruction.
Clemens and Gough purpose a straightforward reform: let them leave to another employer. They write:
Perhaps the single best thing the government could do to protect workers’ rights would be to empower workers with another choice: to leave an abusive employer and lawfully work for a different one. This would help protect the rights of both foreign and domestic workers, because when workplace conditions and practices improve for some workers they tend to improve for all.