DHS Eliminates World War II-Era Visa Exemption for Caribbean H-2A Workers

 

For nonimmigrants, a prerequisite for entry into the United States is a visa stamp, obtained at a U.S. consulate abroad. Depending on the specific visa and particular consulate, the applications and interviews can be a straightforward, easy process or a complex administrative nightmare. However, some categories of nonimmigrants have been exempted from this requirement – the visa waiver program being the most well-known example. But DHS has recently eliminated the exemption for a small group of H-2A agricultural workers from the Caribbean.

Formerly, an appropriate visa stamp was not required for H-2A agricultural workers and their dependents who are British, French, or Netherlands nationals, or nationals of Barbados, Grenada, Jamaica, or Trinidad & Tobago, who have their residence in British, French, or Netherlands territory located in the adjacent islands of the Caribbean area, or in Barbados, Grenada, Jamaica, or Trinidad & Tobago.

While that covers a sizeable portion of the Caribbean, in practice Jamaicans made up 99% of such workers.[i] DHS cannot provide an accurate accounting of how many people will be immediately impacted because of the way its databases have been configured.[ii] USCIS reports that employers petitioned on behalf of about 190 Jamaican H-2A workers per year during FY2011-2015, but the database does not include spouses and children in that number.[iii] The CBP database tracks the number of Jamaican nationals (principals and dependents) arriving under the H-2A program, averaging 4,215 annually, but counts multiple arrivals by a single person as separate arrivals.[iv]

The visa exemption was created more than seventy years ago to address U.S. labor shortages during World War II by expeditiously providing a source of agricultural workers from the British Caribbean to meet the needs of agricultural employers in the southeastern United States. However, the labor shortage allowed many black farmworkers to demand higher wages, which employers balked at, especially in segregated America.[v] Consequently, Congress bowed to the wishes of the agricultural lobby and looked beyond the U.S. borders for labor, resulting in two guestworker programs: the Bracero program for Mexican laborers in the southwest, and the another program for Caribbean laborers working in Florida and along the southeastern seaboard.[vi] The Caribbean program required a certain wage, free transportation, housing, and a work guarantee[vii] but did not require an actual visa stamp.

The Caribbean labor importation scheme was the actual precursor to the H-2 temporary foreign worker program, eventually codified in the Immigration and Nationality Act (INA) of 1952.[viii] Agricultural and non-agricultural temporary workers were included in the initial H-2 program.[ix] In 1986, the Immigration Reform and Control Act (IRCA) separated them into the current H-2A (agriculture) and H-2B (non-agriculture) sub-categories.[x] But despite these developments, the visa stamp exemption was never addressed or reconsidered.

In the years following World War II, many of the former British, French, and Dutch islands in the Caribbean gained independence – notably Jamaica in 1962. At the same time, technological advancements in agricultural have dramatically impacted the amount and type of labor needed. For example, in the 1940’s sugar cane was harvested with machetes – now it is done mechanically. But the old policy of not requiring a visa stamp for these H-2A workers stayed in place until July 6, 2018.[xi]

The visa exemption served its purpose in wartime but “[t]his basis for the exemption no longer exists and continuing to provide an exemption for these individuals would be incongruent with the visa requirements for H-2A workers from other countries.”[xii] According to DHS, eliminating the visa exemption further national security interests by appropriately screening H-2A hopefuls.[xiii] Moving forward, H-2A workers from the Caribbean will need to secure the appropriate visa from a U.S. consulate before coming to the United States for temporary agricultural work.

Ryan Morgan Knight is an associate attorney with Haynes Novick Immigration in Washington, DC, focusing his practice on a broad spectrum of employment-based nonimmigrant and immigrant visas.

 

[i] Elimination of Nonimmigrant Visa Exemption for Certain Caribbean Residents Coming to the United States as H2-A Agricultural Workers, 83 Fed. Reg. 130, 31448 (July 6, 2018).

[ii] Id.

[iii] Id.

[iv] Id.

[v] See Cindy Hahamovitch, No Man’s Land: Jamaican Guestworkers in America and the Global History of Deportable Labor, Chapter Two: Everything But a Gun to Their Head, 22-49 (Princeton University Press 2012) (“Employers’ complaints of labor scarcity reveal that workers were present but increasingly demanding” at 27); see also Isabel Wilkerson, The Warmth of Other Suns (Vintage, 2010), 150-157 (describing a black farmworker crew seeking to improve their wages in a Florida orange grove during WWII).

[vi] Hahamovitch, No Man’s Land, at 22-49.

[vii] Id., at 44-45.

[viii] Act of June 27, 1952, ch. 477, codified at 8 U.S.C.§1101 et seq.

[ix] Andorra Bruno, Immigration: Policy Considerations Related to Guest Worker Programs, Congressional Research Service Report for Congress, 1 (2006): http://fpc.state.gov/documents/organization/62664.pdf

[x] Immigration Reform and Control Act of 1986, Pub.L. No. 99–603, 100 Stat. 3359, 8 U.S.C. §1101; Mike Holley, Disadvantaged by Design: How the Law Inhibits Agricultural Guestworkers From Enforcing Their Rights, 18 Hofstra Labor & Employment Law Journal 2001, 581-583 (detailing history of guestworkers leading up to the modern H-2A program).

[xi] Visa Interviews Finally Required for Jamaican H-2A Guestworkers, by David North, published by the Center for Immigration Studies, February 5, 2016: https://cis.org/North/Visa-Interviews-Finally-Required-Jamaican-H2A-Guestworkers

[xii] Elimination of Nonimmigrant Visa Exemption for Certain Caribbean Residents Coming to the United States as H2-A Agricultural Workers, 83 Fed. Reg. 130, 31448 (July 6, 2018).

[xiii] Elimination of Nonimmigrant Visa Exemption for Certain Caribbean Residents Coming to the United States as H2-A Agricultural Workers, 83 Fed. Reg. 130, 31448 (July 6, 2018).