The U.S. Department of Labor approves applications for H2A visas and is supposed to enforce the federal regulations governing the program.
The purpose of these regulations is to require H2A employers to provide wages and benefits to their employees that will not adversely affect the wages and job conditions of other U.S. workers employed in similar jobs. Most H2A workers come from countries such as Mexico and Jamaica where jobs are scarce and the economic need is great.
The H2A visa only permits workers to work for one employer during their contract period. They are not free to work with any other employer and their visa does not provide an opportunity to apply for a green card or other immigrant status. After an H2A contract period expires, visa holders must return to their home country and wait for their employer to hire them for the following year.

Out of 47,686 H2A visas that were issued by the U.S. Department of Labor in 2001, over 10,000 of these visas were certified for workers in North Carolina (1). In fact, H2A workers now make up an estimated 10% of all migrant and seasonal farmworkers in the state (2). The vast majority of these workers are employed by one employer, the North Carolina Growers Association (NCGA). The NCGA has handled the H2A application process for its over 1,000 member growers for the past ten years. H2A workers brought in by this Growers Association are sent to farms of member growers throughout the state to work in several labor intensive crops. In September of 2004, NCGA signed a collective bargaining agreement with the Farm Labor Organizing Committee (FLOC) covering all of NCGA’s H2A workers. This agreement was an historic first union contract covering H2A workers.  In North Carolina, the main crop where H2A workers are employed is tobacco. They also work growing, cultivating and harvesting Christmas trees, cucumbers, sweet potatoes, peppers and other vegetables.

All H2A workers in North Carolina are men. They are mainly from rural Mexico, and they live in employer owned housing that is often isolated.

Although they work solely in agriculture, all H2A workers are excluded from protection under the federal Migrant and Seasonal Agricultural Worker Protection Act or AWPA. All other agricultural employees are protected under this Act.

Technically, H2A workers are afforded protection by the Fair Labor Standards Act, federal occupational safety and health standards (OSHA), Environmental Protection Agency (EPA) worker protection standards for pesticides, and  by North Carolina’s wage and migrant housing laws. H2A workers are also provided with a written contract. Agency enforcement of these protections has been weak.

Many H2A workers are reluctant to defend their rights for fear of employer retaliation. H2A visas are issued in the name of the employers, giving employers great leverage over their H2A workers.

A study by the U.S. General Accounting Office found that H2A workers "are unlikely to complain about worker protections violations, fearing they will lose their jobs or will not be hired in the future." (3)

Federal regulations prohibit this type of retaliation but agency enforcement has been weak. The Farmworker Unit has successfully defended H2A workers who have suffered retaliation through the North Carolina Retaliatory Employment Discrimination Act or REDA statute.
The FLOC collective bargaining agreement offers promise for changing this power imbalance. Under the FLOC CBA, H2A workers have a grievance procedure to help enforce their H2A contract rights in a prompt fashion. NCGA H2A workers also have more job security because of CBA provision seniority in hiring and recall. To learn more about H2A workers in North Carolina and across the nation, go to H2A Links.

H2B Workers
Like H2A workers, H2B workers hold a visa that allows them to work for one employer on a temporary basis. After their contract period ends, they must return to their home country and seek employment the following year if they wish to return. H2B workers work in non-agricultural activities.  Like the H2A visa program, their employer must demonstrate that a shortage of available domestic labor exists. H2B workers in North Carolina typically work in the seafood packing industry, forestry, and landscaping. They are protected by U.S. state and federal laws but are not guaranteed benefits such as free housing or transportation.

Legal Aid programs that receive federal funding from the Legal Services Corporation, such as LANC, are prohibited from representing H2B workers. However, the NC Justice and Community Development Center- Immigrants Legal Assistance Project

Resources

1. U.S. Department of Labor, Employment and Training Administration, Office of Workforce Security

2. Institute for Southern Studies calculation based on a report from the U.S. Department of Health and Human Services, Migrant and Seasonal Farmworker Enumeration Profiles Study (September 2000).

3. U.S. General Accounting Office Report, H2A Agricultural Guestworker Program- "Changes could improve service to employers and better protect workers" (December 1997).