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H2A program requires more than finding available workers

OSHA-compliant living quarters and kitchen facilities are among various requirements to employ laborers under H2A.

Many foreign or H2A program participants return to the U.S. to work on the same farms year after year because they like the certainty of work; they like the pay and they know they will have a decent place to live while they’re here.

Providing living quarters and meals or kitchen facilities that are OSHA compliant are among several requirements for employing laborers from other countries under H2A, says Brandon Davis, an attorney and partner in Phelps Dunbar LLP in New Orleans.

“If you bring in foreign labor, you’ve got to provide housing, and the employer or the farmer has to pay for that,” said Davis, who spoke on labor and immigration issues at the Mid-South Agricultural and Environmental Law Conference in Memphis, Tenn. “You have to provide workers’ compensation – that’s true for U.S. workers, and it’s true for foreign laborers.

“Either you must provide meals or your bunkhouse has to have cooking facilities. All of the housing and cooking facilities have to compliant with Occupational Safety and Health Administration requirements.”

Sometimes the relationships developed over the years of working together go beyond employer and employee, said Davis.

“I was involved in a removal case that was just horrible,” he said. “One of my clients had a great employee who also worked as a trainer on their farm who had an allegation of sexual violence that was disproved in a criminal proceeding in state court.

“Notwithstanding that, he was subject to an order of removal for crimes of moral turpitude in Immigration Court. He lost the removal trial, and that was the first time I ever cried in open court. When the judge issued her ruling, I said, ‘Well, your honor here’s the dismissal in state court. It’s clear he was set up.”

The judge replied that none of that was admissible in her court. Davis said he attempted to argue the man had three children and that a doctor, the owner of the farm, a priest and other character witnesses had all testified on his behalf.

“The judge said to me: ‘Costa Rica is a resort, and so there’s no problem with him going back there.’ He had been in this country 25 years; his family has been very successful, but it is what it is. That’s the regime we’re dealing with in this country now.”

For more information on the Mid-South Ag Law Conference, visit www.NationalAgLawCenter.org.

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