Access to labor was a concern for Ohio’s food and agriculture sectors before the onset of the COVID-19 pandemic which brought more volatility to the food supply chain. Now, the challenges with labor have only gotten worse.
In April 2021, the federal government moved to bolster the available labor supply in the U.S. by increasing the number of available H-2B (non-agricultural) visas, in part to help with the challenges of labor agriculture and the nation’s food supply chain. In May, the Departments of Labor and Homeland Security published a joint temporary final rule making available an additional 22,000 H-2B temporary non-agricultural guest worker visas for fiscal year 2021 to employers who are likely to suffer irreparable harm without these additional workers. Of the supplemental visas, 6,000 are reserved for nationals of the Northern Triangle countries of Honduras, El Salvador and Guatemala.
DHS first announced the planned supplemental increase of 22,000 visas for the H-2B Temporary Non-Agricultural Worker program on April 20, 2021. The supplemental H-2B visa allocation consists of 16,000 visas available only to returning H-2B workers from one of the last three fiscal years (FY 2018, 2019 or 2020), and 6,000 visas for Northern Triangle nationals, who are exempt from the returning worker requirement.
“The temporary final rule is designed to prevent permanent and severe financial loss to U.S. employers by supplementing the congressionally mandated H-2B visa cap, takes into account feedback from American businesses, employer organizations, and labor representatives, and is one piece of the administration’s broader comprehensive framework for managing migration throughout North and Central America,” said Tracy L. Renaud, U.S. Citizenship and Immigration Services (USCIS) acting director. “This rule incorporates several key provisions to ensure adequate safeguards for U.S. workers and H-2B workers. The rule requires that employers take additional steps to recruit U.S. workers, and provides for ‘portability,’ which allows H-2B workers already in the U.S. to begin employment with a new H-2B employer or agent once USCIS receives a timely filed, non-frivolous H-2B petition, but before the petition is approved. Portability enables H-2B workers to change employers more quickly if they encounter unsafe or abusive working conditions. DHS and the Department of Labor will also conduct a significant number of post-adjudication reviews to ensure compliance with the program’s requirements.”
Starting May 25, eligible employers who have already completed a test of the U.S. labor market to verify that there are no U.S. workers who are willing, qualified and able to perform the seasonal nonagricultural work can file Form I-129, Petition for a Nonimmigrant Worker to seek additional H-2B workers. They must submit an attestation with their petition to demonstrate their business is likely to suffer irreparable harm without a supplemental workforce. Additional details on eligibility and filing requirements are available in the temporary final rule and the Temporary Increase in H-2B Nonimmigrant Visas for FY 2021 webpage.
A new report, “Ohio’s H-2A and H-2B workforce: An update,” by Margaret Jodlowski, Assistant Professor in The Ohio State University College of Food, Agricultural, and Environmental Sciences Department of Agricultural, Environmental & Development Economics, said the move offers a temporary solution but doesn’t address a long-term resolution to ongoing labor shortages in agriculture and beyond.
“This increase is far less than the requested number of H-2B visas for the first half of FY2021,” Jodlowski said. “Labor supply access is likely to remain a significant area of concern for both agricultural and non-agricultural operations.”
H-2A and H-2B are both visa programs that offer U.S. employers the opportunity to hire noncitizens for temporary work in agricultural and non-agricultural positions, respectively. Food processors, including meatpackers and poultry processors, hire workers through the H-2B program rather than H-2A; this is important because while there is no limit on the number of H-2A visas issued, H-2B visas are subject to a cap. In a typical year, meaning one without the disruptions that characterized the pandemic, the cap for H-2B was set at 66,000 workers, split evenly between the two halves of the fiscal year. Demand for these visas routinely exceeds this cap.
The most recently available data on state-level H-2B participation comes from requests made during the first quarter of FY2021: October 2020 through December 2020. Ohio businesses requested 522 H-2B positions during this quarter, of which 413 (79%) were certified.
Jodlowski adds that the true extent to which there is unmet demand for labor on farms or in agricultural processing positions is still unknown. Even though H-2A positions are not capped, there are many features that make the program unappealing. The process for filing a petition involves a not-insignificant amount of time, or the services of an agency that prepares the materials on behalf of an operation. These requirements mean that larger operations, and especially those with dedicated HR personnel, are more likely to be able to take advantage of these programs and therefore secure the workers they need.
“Many operations were already deterred due to either due to the time or expense involved in filing a petition or hiring an agency to prepare the materials on behalf of an operation,” Jodlowski said.
Jodlowski pointed out that while measures such as temporarily raising the cap on H-2B workers and providing additional flexibility for workers who are already in the country are valuable, they are, of course, only temporary. As such, it remains imperative that continued progress is made towards a solution, legislative, programmatic, or otherwise, that connects U.S. operations with workers and workers with these critically important jobs.
In addition, through the Agricultural Workforce Coalition (AWC), nearly 300 other trade associations in June signed a letter urging the Senate to make meaningful immigration reform to address labor shortages in the agriculture sector. Specifically, the groups are advocating for expansion of the H-2A visa program to allow for year-round, uncapped labor.
“Without immediate action by the Senate, the federal government’s outdated policies and broken immigration system will force many farmers to consider whether they can continue in labor-intensive agriculture,” wrote the groups. “As representatives of agricultural organizations throughout the United States, we stand ready to help you develop and pass legislation to fully address the needs of American farmers by stabilizing the current workforce, addressing enormous costs to use the H-2A program, and enabling year-round producers to access the H-2A program.”
Earlier this year, the U.S. House passed the Farm Workforce Modernization Act (FWMA), which creates a limited number of non-seasonal H-2As. While this was a good first step according the AWC, many in agriculture continue to urge Congress to address labor reform that both opens the H-2A visa program to year-round labor, without a cap, and provides legal status for agricultural workers already in the country.