Experienced H-2A employers are very familiar with the program rule that requires them to hire “qualified and eligible” U.S. workers. However, with the increasing number of foreign immigrants who have entered the U.S. seeking asylum, employers have questions about the status of asylum seekers relative to H-2A. First, let’s review the H-2A rule as explained in U.S. Department of Labor’s Fact Sheet #26.
Recruitment of U.S. Workers: In order for the Department of Labor to certify that there are not sufficient U.S. workers qualified and available to perform the labor involved in the petition and that the employment of the foreign worker will not have an adverse effect on the wages and working conditions of similarly employed U.S. workers, employers must demonstrate the need for a specific number of H-2A workers. In addition to contacting certain former U.S. employees and coordinating recruitment activities through the appropriate State Workforce Agency, employers are required to engage in positive recruitment of U.S. workers. H-2A employers must provide employment to any qualified, eligible U.S. worker who applies for the job opportunity until 50 percent of the period of the work contract has elapsed. Employers must offer U.S. workers terms and working conditions which are not less favorable than those offered to H-2A workers.
This begs the questions: “Who is a U.S. worker?” and “Are asylum seekers in the country now U.S. workers?”
Who is a U.S. worker?
The first question is straightforward, the U.S. law that authorizes the H-2A program describes these U.S. workers as “eligible individuals.” Further, “eligible individuals” are defined in this way: “with respect to employment, an individual who is not an unauthorized alien.” Thus, anyone who is authorized to work in the U.S. is an “eligible individual” and “U.S. worker” with respect to the H-2A program. This answers the first question.
Are asylum seekers in the country now U.S. workers?
The asylum seekers who have entered the country in large numbers in recent years may or may not be authorized to work in the U.S. at this time. Asylum seekers who have been given parole can apply for temporary work authorization. If they are granted work authorization, usually with an Employment Authorization Document, then for purposes of the H-2A program they become “eligible individuals” and “U.S. workers.”
So, work-authorized asylum seekers are U.S. workers, this means that H-2A employers are obligated to provide employment to any “qualified, eligible” work-authorized asylum seekers who apply for work until one half of the period of the work contract has ended. If there is enough work, then these workers may be absorbed into the H-2A workforce. If there is not, then it is possible that H-2A workers could be displaced in favor of the U.S. workers.
By Richard Stup, Cornell University. Permission granted to repost, quote, and reprint with author attribution. The post H-2A and Asylum Seekers appeared in The Ag Workforce Journal.
