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?
They write:
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.
READER COMMENTS
EB
Jul 13 2018 at 10:47am
Nothing new in what the lawyers say. You can see the same problem in several other countries. Now, the question is why after so many years –long before Trump and Jesus– politicians want to control the terms on which temporary workers are admitted. Or let me put the problem from the perspective of Labor Law (yes, there are hundreds of thousands of lawyers specialized in LL around the world): given that governments of all nation-states regulate heavily domestic labor markets –many have created special offices and courts to enforce laws and regulations– why we should be surprised by how they regulate the admission of foreign workers and their relations with prospective employers.
David Henderson
Jul 13 2018 at 1:34pm
EB,
I never said or even hinted that we should be surprised.
EB
Jul 13 2018 at 3:20pm
Glad to know that you were not surprised. Perhaps you know most of the regulations that limit access to job openings in California, and if so, which ones you think have the largest negative effect on employment (effective demands that cannot be met) and how employers have been responding to this problem.
I live in Chile, but last October walking in Carpinteria during the Avocado Festival (two months before the big fires), I talked to growers about how they were dealing with restrictions to hire workers but I got only anecdotes (and no data). Because of the fires, I assume that now the situation is quite different, but still, an interesting case.
Daniel Kuehn
Jul 13 2018 at 11:44am
The same sort of monopsonistic restrictions exist for the high-skill temporary visas. Those need to go and I don’t even understand why we distinguish based on skill level or occupation. If immigration administration wants a separate “temporary” visa I don’t really see the point, but fine. But if you’re going to have that all of these restrictions should be removed and of course the numbers increased or left uncapped.
Alexandre Padilla
Jul 13 2018 at 1:20pm
David,
All non-immigrant working VISA binds you to one employer. I know it’s a minor point but it’s not restricted to H2-A visas.
David Henderson
Jul 13 2018 at 1:35pm
Alex and Daniel,
Good point. I was in that situation with my F-1 student visa practical training when I was at the U. of Rochester my first 18 months.
john hare
Jul 13 2018 at 4:08pm
This makes me think of the time I employed a man on work release. He was afraid to disagree with me about anything because my complaint, valid or not, would send him back to actual prison. I never sent a complaint, but he was functionally paranoid about the possibility. He was a much better employee after he was released and could work without fear.
I assume this is how many of the single employer Visas work to create a captive work force. I am happier with paying higher wages to free people than ones that are functionally slaves.
David Henderson
Jul 13 2018 at 6:00pm
Good for you, man.
john hare
Jul 14 2018 at 6:20am
I may have misstated my point. It is more profitable and easier on me to have free people that have options than functional slaves, even if it costs more. If I make a mistake, a slave is more likely to let it become a larger problem than someone that can go down the road at will. If there is a mistake in the blueprint, a free person is far more likely to stand their ground and prevent a problem that I don’t have to fix later with jackhammers and red ink.
Also, a slave mentality is to deliver the least that they can get by with. Some employers believe that “job scared” employees are better. My experience is the opposite. It’s not that I am particularly generous, it’s that the only thing more expensive in my business than high quality employees is low quality employees.
I can’t help but feel that it is possible that the Visa employer restrictions reduce the net productivity of the guest workers.
Matthias Goergens
Jul 17 2018 at 2:08am
They’ll definitely limit the productivity. Even more directly, also because they forbid people from moving to a more productive job.
Thaomas
Jul 14 2018 at 11:28am
Why have separate limits for temporary and permanent workers visas? People should be able to change their minds after arriving ans seeing how their slice of the labor market is working.
The problem is that we allow far too few immigrants total and that because of geographical accidents we are less restrictive (although still TOO restrictive) of relatively low skilled immigrants from Mexico and Central America than of better skilled and educated immigrants from farther away.
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