Haitian Nonimmigrant Farmworkers? But Only if Growers Ask for Them

By David North on January 18, 2012

The relatively small-scale nonimmigrant programs for unskilled workers now have new rules which would allow Haitian workers to come to the U.S. ... if U.S. employers are interested.

USCIS announced on January 17 that Haiti was one of five nations added to the list of countries where recruitment is to be permitted for both the H-2A (farmworker) and H-2 B (nonagricultural, unskilled worker) seasonal nonimmigrant programs.

During fiscal year 2010, the most recent year for which we have complete data, there were 139,406 and 69,984 admissions in the H-2A and H-2B programs, respectively. Mexico had the big majority of admissions in both programs, according to 2010 Yearbook of Immigration Statistics Table 32.

The decision to add Haiti to the long list of countries where unskilled nonimmigrant workers may be recruited is presumably meant to be a supportive gesture by our government to the hard-pressed authorities in Port-au-Prince, and a nod to the Haitian-American communities in the U.S.

This decision raises three interesting, interwoven, and speculative questions:

  1. How many U.S. employers will actually use the H-2 programs to hire workers from Haiti?

  3. If there are any nonimmigrant Haitian workers admitted, will a large percentage of them stay illegally in the U.S.?

  5. Will there be yet another extension of the Temporary Protected Status (TPS) program for illegal Haitians in the U.S., which would legalize the presence of those absconding workers?


The quick answers to these questions are: 1) not many; 2) probably; and 3) only USCIS knows.

Growers Choice

If an American employer, working in the normal labor market, decided he would never hire someone of Italian origin, for instance, or decided he would hire only people of Italian origin, he would quickly find himself in trouble for violating federal anti-discrimination laws. But if the same employer decided to use either of the H-2 programs, he could decide (quite legally) to hire only people from, say, Jamaica.

So opening the H-2 programs potentially to people from Haiti will mean nothing for people in that country unless some U.S. employer decides he wanted to establish a relationship with a recruiting agency in Haiti.

From my work with farm labor programs in the past, I would speculate that there will not be much use of the Haitian option by the H-2A employers. Growers are conservative; if the grandfather of the apple grower in upstate New York had his crop picked by Jamaicans, the grandson will, too. Experimenting within the confines of the H-2A programs with a new nation of origin might be a daunting prospect. So would coping with a new language in the work force (Creole, in the case of Haitians). Employers will tend, according to the laws of momentum, to stay with a known labor source.

I know rather less about the non-ag program, H-2B, but suspect that some of the same forces would be at work.

Will They Stay Illegally?

Having spent a few days in that miserable country, a shambles even before the earthquake, I would imagine a Haitian who managed to enter the U.S. under either of the H-2 programs would be strongly tempted to stay here illegally. Given the laxness of interior enforcement of the American immigration law, and the terrible conditions back home, no Haitian nonimmigrant worker in his right mind would do anything else.

Current participants in the H-2 programs are in a different situation. They all live in nations more prosperous than Haiti. Most of them are in cycles where they work part of the year in the U.S. and part of it at home; their lives are a bit better than their peers back home, as they have some U.S. income each year. Why take chances when you don't have to?

The new Haitian nonimmigrant worker would not have experienced these cycles, as this would be his first year in the U.S., so his likelihood of becoming an illegal would be greater than that of others in the same program.

Another Round of TPS?

Adding to the factors encouraging illegal presence (or absquatulation, a wonderfully archaic term) of these Haitians is the on-again, off-again, on-again history of TPS for Haitians.

Under TPS, the Secretary of DHS decides, without reference to Congress, that persons illegally in this country on the date of a disaster in some other country, can stay legally in the U.S. for a period, usually 18 months, and may work legally while they are here. As has been pointed out in earlier blogs, these TPS periods are practically never terminated, they just get rolled over, again and again.

Typically, however, the original grant of TPS is a one-shot affair. In the case of El Salvador, for instance, if you were from that country and were here illegally in the U.S. on or before the earthquake of March 9, 2001, you could sign up for TPS. That has been rolled over regularly, but the original date has never been changed, meaning that illegals arriving from that country after March 9, 2001, have not been covered by the TPS program.

In the case of Haiti, however, the first TPS was declared for those from Haiti in the U.S. illegally on the day of its earthquake, January 12, 2010. Later, another TPS proclamation moved that date forward to January 12, 2011.

Might a Haitian nonimmigrant worker arriving in the US during the year 2012 think that USCIS might again advance the TPS date to cover his situation? That would be a reasonable bit of speculation.

One can add TPS status to an existing nonimmigrant status, so such a worker might be in the happy situation of being able to choose the status that best suits his needs.

The H-2A, H-2B List of Nations

This is a direct quotation from the January 17 USCIS document:



In addition to the 53 countries currently on the list, the following five countries were designated for the first time this year: Haiti, Iceland, Montenegro, Spain and Switzerland.


Can you imagine the Florida orange grower sending his foreman to Switzerland to recruit pickers? And then buying cross-Atlantic plane tickets for the workers he hired? Iceland, despite its banks' problems, has a lot of prosperity; and it would make more sense for an unskilled worker from Montenegro or Spain to seek jobs in relatively nearby France or Germany, rather than in the U.S. I can see the rationale for Haiti, but for none of the others.

I would love to know something about the thought process behind that list.

Perhaps the methodology used was this: "First, announce the process in the Federal Register; then, on the stated date, and in a room of appropriate size with an appropriate number of witnesses present, assemble a large map of the world and the requisite number of equally-weighted darts ..."