Labor shortages have affected just about every industry during the past few years, leaving many employers short-staffed searching for solutions. And feed and grain employers are no different.
But the feed and grain industry has a not-so-secret weapon to combat its workforce deficit: the H-2A Temporary Agricultural Workers program.
Kristi Boswell, counsel, Alston & Bird Attorneys at Law
What is the H-2A program?
Passed in the 1950s, the H-2A program allows agricultural employers to hire temporary or seasonal foreign workers when local domestic workers are not available. Growing in popularity, about 380,000 H-2A certifications were issued in fiscal year 2023 compared with about 275,000 in fiscal year 2020.
It is managed by three different federal agencies: the Department of Labor (DOL), U.S. Citizenship and Immigration Services (USCIS) and the Department of State (DOS).
How can feed and grain producers participate?
Historically, H-2A has been used primarily by fruit and vegetable farms, said Boswell, that hire temporary workers for harvest season. In recent years, feed and grain employers have adopted the same strategy for their harvest season.
However, when it comes to grain harvesting and feed manufacturing, it is important to know what kinds of worksites and positions are and are not eligible for H-2A workers.
“So, the first step is deciding whether it’s a seasonal or temporary job. A lot of feed and grain jobs, especially when you get to the facility level, the warehouse level, are less seasonal or temporary,” said Boswell.
The second step is determining if the job is considered agricultural, which for the purposes of the H-2A program, is defined as “performed by a farmer or on a farm and in conjunction with the farming operation,” Boswell added.
These caveats disqualify positions that are year-round or performed off-farm, such as at manufacturing facilities. However, to fill positions like these, employers can apply to H-2B, the nonagricultural program, instead.
“I will say that it is a complex program, but those that can figure it out and rely on it will have a lot of success with it. It is just a matter of making that investment and leaning into it to make sure that you are understanding of the regulations, of the process,” said Boswell. “There’s going to be some growing pains inevitably, as you’re getting into the program, but you know, lots of success stories all-around of those that use the program and just want the program to work a little bit more efficiently for employers and for workers.”
Who can apply?
Along with meeting the definition of seasonal and agriculture, there are an additional series of prerequisites that an employer must first meet before they can take advantage of the program.
The primary two being that “you have to demonstrate that there are not enough U.S. workers, and you have to show that the employed H-2A workers are not going to be adversely affecting the wages and working conditions of those similarly employed U.S. workers,” said Ahndia Mansoori, principal, Kitch Attorneys & Counselors, at the American Feed Industry Association’s 2023 Equipment Manufacturers Conference. Employers "can’t pay them less than the U.S. workers.”
Other requirements for employers include:
- Covering workers’ visa costs as well as the cost of travel to and from their home country
- Providing free meals and housing
- Providing transportation between the workers’ housing and the worksite
To verify that all requirements are met, the program is enforced by the DOL’s Wage and Hour Division, which conducts inspections and audits of worksites.
Challenges to overcome
Naturally, H-2A does not come without its complications.
“So, there’s a lot of opportunities for failure, frankly, unintentional failure, but just hiccups along the road,” said Boswell. “Because often these jobs are incredibly time sensitive, any delay that is caused through the bureaucratic process can be incredibly impactful, especially where you may have a more perishable side of the commodity spectrum.”
Because H-2A is so complex and time sensitive and violations can result in civil money penalties or even debarment from the program, Mansoori strongly advises employers seek legal counsel to navigate the process.
Employers are also struggling to participate due to the high labor costs.
“We’re seeing operations either going out of business or moving offshore, because they just can’t compete because of the labor costs,” said Boswell. “And a lot of that is directly related to the H-2A program.”
And despite being a nonimmigrant program, H-2A is also frequently affected by the U.S. immigration debate, hindering reform.
“Being foreign born, and half of the U.S. domestic workforce working in undocumented status, we get lumped into immigration reform and the immigration political debate very, very quickly,” said Boswell. “And that’s kind of the constant challenge for decades is differentiating the labor needs from the immigration debate.”
Room for growth
But with challenges comes opportunity for improvement.
“The H-2A program has grown exponentially,” Boswell said. “However, it continues to be a regulatory behemoth that is in need of dramatic reform.”
And in a recent effort to achieve some of that dramatic reform, the House Committee on Agriculture’s Agricultural Labor Working Group compiled a list of suggested reforms, some of which include:
- More stable wage rates
- A streamlined recruitment and hiring process
- Allowing year-round industries access to the program
“But, you know, at the end of the day, farmers need a program that works, that isn’t overly bureaucratic and doesn’t put them out of business against their competition because of the regulations,” said Boswell.
