Help Wanted: Foreign Ag Labor Solutions Sarah Gonzalez February 2, 2024

Help Wanted: Foreign Ag Labor Solutions

By Kristi Boswell, Counsel, Alston & Bird
This guest column follows Boswell’s presentation at NGFA’s Country Elevator Conference and Trade Show (CEC) in Louisville, Ky., on Dec. 4, 2023. This article is intended to be informational and does not constitute legal advice regarding any specific situation.

Private and cooperative facilities are struggling to find enough local workers. As the workforce shortage grows, many are turning to various visa programs to supplement critical labor needs. Grain and feed businesses have customers that use the H-2A temporary agricultural program and are considering the H-2A program for labor shortages at their facilities. Could it be an option for your business? At the risk of sounding too lawyerly, the answer is maybe.

Is there another foreign workforce solution your business should be considering? While each business is unique and each program has distinct regulatory requirements, we provide some initial questions to ask in deciding whether your business and labor needs may qualify for any of these foreign labor solutions.

The H-2A program allows agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the United States to perform temporary or seasonal agricultural labor or services. The program is administered by the U.S. Department of Labor (DOL), the Department of Homeland Security, and the State Department.

The regulations require that the agricultural labor or services be seasonal or temporary. Employment is seasonal when it is tied to a certain time of year by an event or pattern, such as a short annual growing cycle, and requires labor levels above what is necessary for ongoing operations. Employment is temporary when the employer’s need to fill the position with a temporary worker will, except in extraordinary circumstances, last no longer than one year.

Employers hiring H-2A workers must follow all the terms and conditions of the program, including paying the applicable wage rate, providing housing, and guaranteeing 75 percent of the total number of hours offered in the contract period.

While many grain and feed businesses consider themselves a part of agriculture, it is important to understand the statutory and regulatory definitions the government uses to decide whether what your business does is agriculture for purposes of the H-2A program. Congress referred to a few other existing laws in defining agricultural labor or services. Specifically, the definition of agricultural labor in section 3121(g) of the Internal Revenue Code of 1986 and the definition of agriculture in section 3(f) of the Fair Labor Standards Act (29 U.S.C. 203(f)) plus the pressing of apples for cider on a farm or logging employment.

Here are some additional questions to consider (or ask your attorney) before applying for the H-2A program:
1) Is your labor need seasonal or temporary?
2) Is the activity considered agricultural as described above? If so, will the work be performed by a farmer or on a farm as “incident to or in conjunction with” farming operations?
3) Is the work being performed on a farm in the employ of the owner, tenant, or operator of the farm?
4) Does the work involve the production or harvesting of an agricultural commodity?
5) If it is post-harvest activity, does the owner or operator of the farm own more than one-half of the commodity being handled, dried, packed, packaged, etc.?

The H-2A program can be a resource to fill labor shortages. However, not all jobs within grain and feed facilities would qualify under the H-2A program — especially jobs that are at the facility and not on the farm. Additionally, the H-2A program is costly and due to complex regulations, businesses typically hire full-time staff or outside assistance to navigate the program correctly.
Other foreign workforce solutions may be options for your business.

One such program is the H-2B temporary non-agricultural program. The H-2B visa program permits U.S. employers to hire foreign national workers to come temporarily to the United States to perform temporary nonagricultural services or labor on a one-time, seasonal, peak-load, or intermittent basis because no qualified U.S. workers are available and willing to fill the position.

One key challenge to using the H-2B category is its annual cap of 66,000. This limits the number of visa holders who can enter the country despite American businesses’ much greater need. Once the H-2B cap is reached—which occurs nearly immediately each year—under authority granted through appropriations language, the DOL and U.S. Citizenship and Immigration Services have the authority to designate a supplemental cap and can accept additional petitions for H-2B workers accordingly. Regardless, the restrictive statutory cap limits the use of the H-2B program.

Another option may be the J exchange visitor visas. The J-1 visa program is an exchange-based exposure, training, or educational program that includes both learning about the United States and the exchange of ideas. The J-1 exchange visa category allows for various temporary exchange visitor classifications. The J-1 program classifications include short-term scholar, student, trainee, intern, camp counselor, summer work/travel, and au pair programs. Employers have developed on-the-job training curricula and provide these training opportunities for J-1 visa holders while supplementing their labor needs.

The TN Visa might also be a program to consider. The United States-Mexico-Canada Agreement (USMCA) created special economic and trade relationships for the United States, Canada, and Mexico. The nonimmigrant USMCA Professional (TN) visa allows citizens of Canada and Mexico, as USMCA professionals, to work in the United States in prearranged, professional-level business activities for U.S. or foreign employers. The TN is granted for up to three years. It is renewable indefinitely, and there is no cap on the total number of years one may remain in the United States in TN status. The applicant must meet the specific program, education, or experience requirements. The program has been used throughout agriculture with success for those jobs meeting the treaty requirements.

Grain and feed businesses may also want to consider partnering with refugee and asylum resettlement organizations. These partnerships have been a success for all parties, providing earning opportunities for transitioning refugees and asylum seekers, and filling critical job needs for employers. Numerous government and non-government organizations aid in hiring these populations.

As grain and feed businesses struggle to find enough local employees to fill key roles, these programs can and should be reviewed to determine whether one may be right for your business. While each program will have challenges and may not work perfectly, through proper counsel and planning, businesses may be able to address their labor needs. Additionally, employers have also discovered many benefits of rich diversity in talent and community outreach.

Our team at Alston & Bird is available to analyze your labor needs to identify whether these or other foreign workforce solutions may work for your business.