The Labor Department estimates that 600,000 to 800,000
immigrants are currently working illegally on America's farms. Many
fear that the increase in internal immigration enforcement will
have serious repercussions for the agricultural sector. In response
to this problem, the AgJOBS Act of 2007 would have granted amnesty
to the illegal immigrants who currently work in the agricultural
industry. That approach was deeply flawed and irresponsible.
The Department of Homeland Security (DHS) and Department of
Labor (DOL) are now taking the correct approach by proposing
changes in the H-2A Visa program. H-2A Visas are temporary visas
for nonimmigrant workers who perform agricultural labor. The Labor
Department estimates that only 75,000 workers in the agricultural
sector are in the H-2A program. Two main reasons account for this:
The wages required by H-2A are higher than prevailing wages, and
the application process is too cumbersome.
The Administration's proposal would address these problems,
making the program more attractive to employers. Congress should
support these efforts, and both Congress and the Administration
should consider further improvements that would help the program to
meet today's workforce demands.
Problems with the Program
The limited use of the H-2A program can be attributed primarily
to the inflated wages that employers are required to pay H-2A
workers. The current method by which the DOL calculates wages is
flawed, resulting in wages that are higher for H-2A workers than
for American employees.
Also, the application process is notoriously bureaucratic.
Employers must file paperwork with three different departments:
They must give a temporary agricultural labor certificate to the
Department of Labor, file an I-129 petition with the DHS, and apply
for visas at the State Department. Along the way, employers run
into numerous obstacles. For example, employers must identify the
workers when filing a petition with the DHS. The entire process
takes months, and workers are often no longer available when the
visas are granted.
The new rules proposed by the DHS and DOL aim to make the
program more flexible while reinforcing security measures. The most
significant proposals are the following:
- Adjust the methodology of the Adverse Effect Wage Rate
(AEWR). The changes would allow wages to better represent the
market, locality, occupation, and the skill level of the H-2A
- Allow nonimmigrant workers to work for up to 120 days while
the employer is waiting for a petition to be approved. This
rule would apply to employers who wish to hire H-2A workers already
residing in the United States.
- Allow employers to apply for petitions for unnamed
workers. This change, which has already been implemented by the
DHS, is meant to make the process more flexible for agricultural
- Establish a pilot land-border exit program for guest
workers. The system would ensure that H-2A workers are not
overstaying their visas. It would also record either biographic or
Keeping America's Door Open
A flexible H-2A Visa program is the right approach because
internal enforcement alone will not be enough to motivate employers
to hire legal immigrants. To continue on this path, policymakers
should also make the following reforms:
- Further streamline the application process. Policymakers
should reduce the number of departments an employer must go through
and find ways to process and turn around documentations, including
visas, in a quicker manner.
- Require bonds to ensure timely exit. The DHS should
rapidly implement the voluntary exit systems at the land borders.
Once the system is in place, employers should be required to put up
a bond to ensure that H-2A workers exit the country before their
Foreign workers have always been a pillar of the American
economy. As it currently functions, the H-2A Visa program limits
the ability of employers to hire nonimmigrant workers. Rather than
protecting American jobs, these regulations are punishing the
American employer and encouraging illegal activity. Reforming work
visas is a pivotal step in fixing the U.S. immigration problem.
Diem Nguyen is a Research Assistant
in the Douglas and Sarah Allison Center for Foreign Policy Studies,
a division of the Kathryn and Shelby Cullom Davis Institute for
International Studies, at The Heritage Foundation.