Labor contractors help farmers meet need for migrant workers
The contractor essentially hires his own migrant crew, which is used by several farms.
In just a few months Michigan farmers’ fields will be brimming with crops that need to be picked, and farmers will once again face the challenge of finding enough workers to harvest all those colorful fruits and vegetables.
Each harvest season farmers turn to migrant workers to meet that need. To hire migrant workers, however, farmers must go through the H2A temporary visa application process.
The process follows a short timeline and is intensive, which leads some farmers to seek out H2A labor contractors to help secure needed workers.
Attorney Jackie Appleman, of Rhoades McKee, said there are several steps that must be completed before migrant workers can be hired and brought into the country.
First, a farmer must determine his or her date of need because job order applications must be filed with the state approval agency between 60 and 75 days prior to that date of need. In Michigan, that agency is the Foreign Labor Certification Office.
“The Foreign Labor Certification Office only has seven days to reply,” Appleman said.
Assuming that office approves the job order — which includes all the details of the job such as its qualifications, location and what the workers will be doing — the employer then moves on to the next step, which is to file an application with the Department of Labor office located in Chicago.
This application must be filed at least 45 days prior to the date of need.
The Department of Labor will either accept or reject the application. If the application is accepted, the employer is then required to complete a recruitment report showing it cannot find domestic workers to meet its labor needs.
“Basically, it is showing you are trying to recruit domestic workers and you are failing to find enough employees,” Appleman said.
At this point the Department of Labor may approve or deny the application. If it is approved, the employer moves on to the Department of Homeland Security.
Appleman said there is no specific number of days prior to the date of need that the application needs to be submitted to Homeland Security, but she noted the approval process takes at least a month.
Once Homeland Security approves the application, the final step is for workers who have been recruited to appear at a nearby U.S. Consulate for an interview and approval to cross the border into the United States.
“If the worker is approved for a visa, they just have to present their paperwork when they are crossing into the country, and then they successfully come over,” Appleman said.
In addition to the intensive application process, there are several costs associated with securing H2A workers, including government filing fees and attorney fees.
“You also have to provide housing for migrant workers,” Appleman added.
She noted that when hiring migrant workers through the H2A program, employers must show they are unable to fill their hiring needs with domestic workers, and one of the requirements of hiring H2A workers is an employer must hire all qualified U.S. workers who apply for at least 50 percent of the time temporary workers are needed.
“If you are providing housing for workers coming from out of the country, you also have to provide housing for any American workers who apply for the job who can’t make it to the work site from where they are currently living on a daily basis,” Appleman said.
Those costs can add up quickly.
Appleman said one way farmers are mediating those costs is to work with an H2A labor contractor.
“We have a client who is an H2A labor contractor,” she said. “What he does is bring over workers and then he takes them from farm to farm. He is the employer of these workers.”
Appleman said in addition to helping farmers save on worker costs, H2A labor contractors also take on the liability for the workers, which can be a substantial benefit to the farmers.
“He is legally responsible for the workers,” Appleman said. “He is making sure everything is being complied with.
“After workers are brought over, you have certain ongoing obligations in regard to those workers, such as if a worker goes missing you have to report it to Homeland Security within a certain number of days. When you use an H2A labor contractor, that becomes that person’s responsibility, not the farmer’s.”
It's important to note, in cases where there is significant liability for violations, the Department of Labor may seek to establish that the grower and the H2A contractor are joint employers of the H2A workers. If the Department of Labor can establish in a court of law that the grower and the H2A worker are joint employers, then the Department of Labor can pursue any claims against both parties.
Appleman’s client is one of only a few H2A labor contractors operating in Michigan, and this is his first season of offering the service in the state. He has previously supplied H2A workers to farmers in Florida.
“Things have been going really well for him,” Appleman said. “It’s much easier to go through this process once and bring workers over for many jobs, than to go through the process for each and every time you need a job done at a different location.”
Appleman expects more farmers soon will utilize the services of H2A labor contractors to meet labor shortages because of the overall benefits of the employment model. She said so far she has helped her client bring 74 migrant workers to Michigan this year for seasonal employment and she expects that number to go up substantially this summer.