What the H-2A program requires
An employer applying for temporary foreign guest workers must meet a number of conditions:
Recruitment: The employer must try to recruit U.S. workers first. This means advertising in newspapers and on the radio in addition to the efforts of the state work force agencies, such as WorkSource in Washington State.
Wages: The hourly wage must be at least as high as the Adverse Effect Wage Rate, the federal or state minimum wage, or the prevailing hourly wage rate, whichever is higher. The Adverse Effect Wage Rate is established every year by the U.S. Department of Labor. It differs from state to state, ranging from $7.58 to $9.43. For example, the rates are $9.01 in Washington State, $9.16 in Massachusetts and New York, $9.43 in Michigan and Minnesota, and $9.00 in California.
If workers are paid on a piece-rate basis, they must be paid the prevailing rate. If workers earn less than the hourly wage they would have been paid, their pay must be supplemented to the hourly level.
Housing: The employer must provide free housing or rental housing that meets Occupational Safety and Health Administration standards.
Meals: The employer must provide either three meals a day or furnish free and convenient cooking and kitchen facilities. If meals are provided, the employer can charge workers a certain amount per day.
Transportation: The employer must pay transportation from the workers’ homes to the orchard and back by the most economical means. A one-way bus ticket from Mexico to Yakima costs about $170. After a worker has completed half the work contract period, the employer must reimburse the worker for the cost of transportation and subsistence of $39 per day for the travel to the orchard, if the worker paid the cost. After the work contract is completed, the employer must pay travel costs for the return journey.
Insurance: Employers do not need to pay Social Security or unemployment taxes, but they must provide workers’ compensation insurance or equivalent.
Tools and supplies: The employer must furnish all necessary tools and supplies at no charge.
Workdays: The employer must guarantee each worker employment for at least three-fourths of the workdays in the contract period.
U.S. workers: The employer must hire any qualified and eligible U.S. workers who apply for jobs until half the work contract period has elapsed. Domestic workers must be paid the same rate as the foreign workers and provided with free housing if their homes are not within daily commuting distance.
Records: The employer must keep accurate records of the employee’s earnings.