The H-2 Alien Employment Program

Before the passage of the Immigration Reform and Control Act in 1986, the law permitted aliens to enter the U.S. on a temporary status to work at jobs for which no domestic workforce was available. This was the H-2 program; it required the Secretary of Labor to certify that no U.S. workers were available for the work and that local wage scales would be unaffected. The Attorney General would then issue visas for temporary employment. Most often, these aliens were agricultural workers.

IRCA authorizes the use of temporary workers for agricultural employment under its
H-2A program. The program uses the same certification process as its predecessor. Acceptable applicants are employers engaged in agricultural businesses who are seeking to fill seasonal or temporary jobs: virtually any employers engaged in farming and any association of individuals or companies engaged in agricultural activities who need seasonal help.


The Petitioning Process

The applicant must show that the local work force is insufficient and that local wage scales and working conditions will not be affected. He must provide evidence of having made a recruiting effort within the ‘multi-state region of expected labor supply'. Finally, the prospective employer must provide workman's compensation at his own cost if there is none provided by state law for the jobs in question.

Petitioners are required to apply at least sixty days before the labor is first needed. The Department of Labor then has seven days to notify the petitioner of any deficiencies; the corrected petition must be then be refiled within five days. If the petition is acceptable, the Labor Department must certify at least twenty days before the labor is needed.

Denied petitions may be appealed through a rapid administrative process. If the denial is based on the availability of local workers, the employer will have the burden of proving that the local work force was not willing, able or qualified for the work.

Recruitment and Reverse Citizenship Bias

IRCA's citizenship bias clause may be applied in cases where the employer is found to be attempting to import labor at the expense of American workers. An application for H-2A visas with foreknowledge of an available domestic labor pool may result in a charge of discrimination directed at Americans based on their citizenship.

Employers are required to continue to recruit and employ from the local labor pool until fifty percent of the work period has elapsed. This rule does not apply to the independent employer who does not utilize more than 500 man-days of labor per year and is not affiliated with associations or other employers that have petitioned for H-2A consideration.

Worker's Rights

Federal pay guarantees for domestic workers are not applicable to these alien workers. Alien workers are guaranteed payment for three quarters of the days for which they are contracted. If they are displaced under the fifty percent rule, the guarantee does not apply.

H-2A workers must be provided housing by the employer that meets federal standards for temporary labor camps or secure housing that meets local standards for rental or public housing. These workers are eligible for government legal assistance, but only on matters pertaining to the guarantees contained in the worker's contract.