by Heather Chapman

Finding farmworkers is a perennial challenge, and the pandemic hasn’t helped. Many hire seasonal immigrant workers to deal with the labor shortage; in fact, more than one in 10 of the nation’s farmworkers is here on an H-2A visa. But applying for such workers can be a daunting prospect to the uninitiated. So Lily Calderwood with University of Maine Extension rounded up some experts for a recent webinar aimed at demystifying the process, from filing the paperwork and advertising the jobs to figuring out the application fees and housing the workers.

Hiring H-2A workers is an expensive, paperwork-intensive undertaking, but most farmers who have done it say it’s well worth the hassle. “Usually when they get the workers they are very satisfied,” said Joe Young, executive director, New England Apple Council. “The workers work. That’s what they are there to do. I mean, they leave their family and their country to make money. So they will work. The frustration goes back to the process and getting approved through the state and U.S. Department of Labor immigration service.”

USDA has tried to streamline the process with, which now allows farmers to access all application forms online, keep track of time-sensitive actions and track applications on a real-time dashboard. But the process is still often confusing and the paperwork, Calderwood dryly noted, can be “as clear as mud.”

She advised: Start early. The program has strict deadlines, and you must submit your application at least 80 days before the start of work, preferably before May, to avoid visa delays that can hurt your harvest.

You’ll need to provide the start and end dates for work, as well as the approximate number of workers needed. Though Maine farms using the H-2A program tend to be large, Young said many bring in five or fewer workers.

For each application, the Labor Department charges $100/farm plus $10/requested worker. Each farm is also charged an immigration fee of $460 per farm per petition. For each worker you’ll be charged $190 for visa processing and $1,160 for transportation to and from their home country. The transportation fee includes a COVID test and transportation to and from the embassy in the workers’ home countries to get their visas. This may not be a complete list of fees, so read the application carefully.

You have to list on your application how many hours each worker will get (you have to guarantee at least 35 hours/week) and how much you’ll pay them. Farmworkers must be paid at least as much as the prevailing wage for farmworkers in your region.

All workers doing the same job must be offered the same number of hours at the same pay rate, regardless of their skill or how hard they work. That includes local high school and college students. But you can pay a local worker more if they have more responsibilities. You can also do piecework pay rather than an hourly rate, but the piecework pay has to average out to at least as much as the worker would have been paid at a fair hourly rate.

After you submit your preliminary paperwork, the state will schedule an inspection to make sure you’re providing workers with appropriate living quarters. You have to provide safe, adequate housing to all H-2A workers and all American workers who live more than 50 miles away. It must have a bathroom, lighting, clean water and the ability to do laundry and wash hands. If the housing doesn’t have a kitchen, you have to provide workers with three meals a day. You also have to make sure the workers aren’t overcrowded. Beyond housing, you must provide workers’ compensation insurance and all the tools the workers need to do their jobs.

All the housing, equipment and application costs can add up quickly, so some farmers agree to share workers and housing (called a joint employer application) to cut costs. That can also help save money since it’s cheaper to pay the application costs once. But farmers also share joint liability under such an arrangement, so Young advised them to take care.

Another potential legal minefield: Making value-added products such as jam from another farm’s berries. Farmers often buy fruit for such products from other farmers when their own harvest is short. That’s fine as long as your own produce makes up at least half of the product, but farmers can run afoul of immigration policies if it’s unclear who owns the berries. In other words, if your farm buys berries without a signed contract, and you hire immigrant workers to turn them into jam, the Labor Department may decide your employees are really working for the farmer who grew the berries. In that case, the department would investigate whether the farm that sold the berries was complying with all state and federal regulations too.

The rule of thumb is that workers in a processing facility work for whoever owns the processing facility, and workers in the field work for whoever owns the field. The best way to protect yourself, Young said, is to sign any contracts to buy another farmer’s produce before you begin the H-2A process.

After you’ve been approved for the foreign workers, you need to make sure they’re not taking jobs from locals. The H-2A program is meant to provides a legal avenue for foreign labor when there’s a documented shortage of domestic workers. You’ll have to give locals a shot at the jobs first, but it’s not as easy as posting a link on Craigslist, said Julie Kramer, program manager at the Maine JobLink Program under the state labor department.

First you must register with your state labor board; after they make sure your operation is legitimate, you can submit specific work orders to the seasonal work website, Kramer said. Then they’ll strip out the identifying details and post the job orders to the website. If a qualified American applies for the job, you must hire them before you can hire an immigrant worker. To ensure locals have a fair chance, employers must leave the job listing up for at least the first half of the work period.

After your workers arrive, make sure to record the hours they actually work (as opposed to the hours offered in the work order). Payroll can be a bit tricky, since immigrant labor requires different documentation than U.S. workers, but there are experienced companies you can hire to take care of payroll.

In general, Young advised interested farmers to talk to other people who use the H-2A program and see who they trust as a resource in the state workforce agency. Probably half of what happens in the program comes from government interpretation rather than being spelled out in the regulations, so it’s important to find someone experienced with the process.

Young acknowledged that the whole process of hiring H-2A employees might sound like too much trouble to the uninitiated, but said it’s worth it for many farmers: “I don’t want to scare you away from H-2A, because if you know any H-2A employers, it does work. It’s kept a lot of people in business, and they wouldn’t do without it.”