Rural Laws: January, 2001 - Number #12

The H-2A program is currently the only guest worker program for farm employers seeking temporary foreign workers. Certification means that a US employer must convince the US government on a job-by-job basis that there are not sufficient US workers to fill job vacancies--each job vacancy needs a certification that US workers are not available to fill the job despite employer and government recruitment of workers at government-set minimum wages and housing conditions, etc. Certification keeps the border gate closed to guest workers until the government certifies that Americans are not and will not available at a stipulated wage and housing package to fill a vacant job.

Farm employers prefer attestation to certification. Under attestation programs such as the H-1B program for foreign professionals, US employers open the border gate and obtain guest workers quickly by declaring in an attestation that they fax to DOL that they tried and failed to find US workers. Enforcement, if any, waits until DOL receives complaints from workers or employers of violations of program rules. In most attestation programs, employers promise to pay the prevailing wage for the occupation for which workers are recruited.

Under the H-2A program, farm employers must try to recruit US workers and pay H-2A workers an Adverse Effect Wage Rate (AEWR). Since 1987, the AEWR has been the average hourly earnings of field and livestock workers; the data are collected from farm employers four times a year, and published by USDA in its Farm Labor publication for states and regions. In 2001, AEWRs range from $8.17 an hour in northeastern states such as New York to $6.60 in Kentucky and surrounding states; California's AEWR is $7.56.

The AEWR in the state with the most H-2A workers, North Carolina, is $7.06 an hour in 2001. AEWRs rose seven to eight percent in the southern plains states and in the northwest, and rose one to two percent in the Carolinas and Georgia. US farm employers may pay workers piece-rate wages, and fire those who cannot work fast enough to earn the AEWR.

Sheep. In the western states, most H-2A farm workers are shepherds employed to tend sheep; most are paid $800 a month to tend about 1,000 sheep. In Colorado, the US Department of Labor's Wage and Hour Division sued John Peroulis Sheep Ranches Inc in federal court, alleging that he mistreated his Peruvian H-2A shepherds -DOL asked that Peroulis be prevented from hiring H-2A workers in the future.

Peroulis has some of the largest sheep ranches in Colorado and Wyoming, some 40,000 acres with 16 herds of 1,000 sheep each, and has been fined repeatedly over the past 10 years by DOL. Peroulis paid six H-2A shepherds $650 a month, and allegedly did not provide them with sufficient food, took their passports and made unlawful deductions from their wages.

About 602 Colorado ranchers applied for H2-A herders and ranch hands in 2000, according to John Bartlett, regional certification officer for the Labor Department.

Not all of the workers recruited to work on Colorado farms are unskilled Latinos. There are several services that bring foreign farm workers into the US as equipment operators, including Suppes Harvesting and U.S. Custom Harvesters Inc. in Colorado. Some of these firms recruit Australians and New Zealanders, whose harvest season is opposite that of North America. Suppes reimburses half the travel cost if workers complete the season, provides housing and food, and guarantees $1,500 a month or $7.04 an hour.

The leading sheep and wool producing states are Texas and Wyoming, which trade off on holding the top spot, followed by California. Kern county's sheep sales were $12 million in 1999, followed by Fresno county's $4 million. About 95 percent of sheep revenue represents the sale of lambs, which are normally born in the fall and marketed when they are five to eight months old.

Trees. In Grayson County, the Christmas tree capital of Virginia, one farmer hires Mexican workers through the H-2A program in November-December each year; Virginia produces about 1.7 million Christmas trees worth $34 million a year, with 20 percent from Grayson county. There are an estimated 900 hired workers employed to produce Christmas trees in Grayson county. The Virginia Employment Commission estimates that there are a peak 9,902 migrant farm workers in the state, plus 6,453 other farm workers.

The North Carolina Growers' Association is the major organization that brings Mexican workers to the US, usually to work in tobacco crops in North Carolina; some stay for the Christmas tree harvest.

Taxes. The wages paid to H-2A workers are exempt from Social Security taxes, and several farmers, believing that wages paid to SAWS were also exempt, failed to pay Social Security taxes on SAW wages. The IRS attempted to collect Social Security taxes on these wages from one employer, but that employer persuaded a federal bankruptcy judge in California to exempt the wages of SAWs from Social Security taxes. However, U.S. District Judge James M. Ideman on January 28, 1998 reversed a bankruptcy court ruling that found that the SAW program was a "derivative" of the "H-2 program designed to meet seasonal agricultural labor requirements, [and thus fell] within the exemption from employment taxes set forth in Internal Revenue Code Section 3121(b)(1)."

Jen Mccaffery, "Virginia's migrants easily exploited," Roanoke Times, December 10, 2000. Mike McPhee, "Herders abused, reports claim FBI investigating Craig rancher," Denver Post, December 2, 2000.