The Trump administration has released its long-anticipated proposed rule changes for hiring H-2A-visa foreign agricultural guestworkers that it says will streamline the application process and update how minimum wages are set.
The U.S. Department of Labor released its proposal on July 15, several months later than expected and after receiving help from USDA and the departments of State and Homeland Security.
A group of farmers met with President Donald Trump in April of 2017 and said inadequate labor is their biggest issue. In May of 2018, DOL and the other three departments announced they would work together to update H-2A regulations.
Monday’s release of the proposal brought welcoming comments from agricultural groups who also said they need time to review the 489 pages before commenting extensively.
Chuck Conner, CEO of the National Council of Farmer Cooperatives, called the proposal a “significant step” but said a permanent solution to the agricultural labor crisis needs congressional action to address current and future needs.
A bill that would have replaced the H-2A program with a less costly H-2C program divided agricultural groups and failed to get a vote in the U.S. House last July.
Michael Marsh, president and CEO of the National Council for Agricultural Employers, said the proposal will bring much-needed changes and that a short, 60-day public comment period means DOL wants to move expeditiously and may make the changes by the start of the new federal fiscal year on Oct. 1.
That would be “outstanding,” he said.
However, Dan Fazio, director of WAFLA, a farm labor association, said DOL has to respond to every comment it receives before issuing a final rule. It would be ambitious to get it done by January, but hopefully it will be done by March, he said.
WAFLA provided 15,771 H-2A workers in the Northwest in 2018 and 13,848 out of the 24,862 hired in Washington, mostly in tree fruit.
“This is a good proposed rule that reflects the administration’s ‘Buy American, Hire American’ policy,” Fazio said. “The biggest issue for WAFLA members is wages. Government mandated wages are spiraling out of control.”
Farmers can’t hire Americans or foreigners if high wages force them out of business, he said.
The proposed rule’s methods for calculating minimum wages are not readily understood so he doesn’t know if it will limit runaway growth of wages, he said.
Use of state minimum wages would level the playing field for foreign and domestic workers, he said.
DOL sets the minimum wage for H-2A workers every January. It is called the Adverse Effect Wage Rate, or AEWR, and is intended to prevent the wages paid to foreigners from depressing those of domestic workers.
DOL has never shown an actual adverse effect but assumes there is one and arbitrarily hikes the minimum based on USDA wage surveys, Marsh says. That perpetuates a never-ended upward spiral, he added.
NCAE has petitioned DOL to determine if foreign workers adversely affect domestic workers’ wages. NCAE is also appealing this year’s AEWR in federal court.
The AEWR varies by region but went up an average of 6.3% nationwide this year and 22.8% in Nevada, Utah and Colorado. It rose 6.4% in Oregon and Washington to $15.03 per hour and 15.9% in Idaho to $13.48. The increase in hourly earnings for all U.S. employment was less than 3%, Marsh said.
Fazio said free housing for foreign workers is another big cost for farmers.
Noting the “Buy American, Hire American” slogan, Fazio said if that’s the goal, why not allow farmers to charge foreign workers who need housing $1 per hour of their earnings for housing.
There are a lot of technical changes in the proposed regulations, such as requiring employers to try to hire domestic workers for only 30 days after starting to use H-2A workers instead of for the first half of their employment, Fazio said.
WAFLA will meet with growers in Pasco, Yakima and Wenatchee, Sept. 26, to answer questions, he said.
Joel Anderson, executive director of the Snake River Farmers Association in Heyburn, Idaho, said that while the changes will ease some burdens they may create new ones. The association assists 615 grower-members in hiring more than 4,000 H-2A workers annually.
Jamie Johansson, president of the California Farm Bureau Federation, issued a statement saying while the proposal appears to streamline certain aspects of the H-2A program few California farmers use it. He said congressional action is needed to provide legal status to domestic farmworkers.
Tom Nassif, president and CEO of Western Growers, Irvine, Calif., agreed legislation is needed to retain existing workers. He said he appreciates the administration’s efforts to incorporate feedback from agricultural employers in the reforms.
“While we encourage swift implementation of these important modernizations to the agricultural guestworker program, we urge Congress to codify these changes into law as we have seen previous regulatory progress reversed by ensuing administrations,” Nassif said.
“Apple growers are increasingly reliant on the H-2A guestworker program. Labor is a grower’s largest expense. The proposed modernization will save time and cut administrative costs,” said Jim Bair, U.S. Apple Association president and CEO.
“We will be providing our feedback and commend the Trump administration for this initiative,” he said.
USDA Secretary Sonny Perdue issued a statement saying the rule “will increase access to a reliable legal agricultural workforce, ease unnecessary burdens on farmers, increase enforcement against fraud and abuse, all while maintaining protections for America’s workers.”
The application process will be streamlined by mandating electronic filing of job orders and applications, promoting the use of digital signatures and providing employers with the option of staggering the entry of H-2A workers on a single application, DOL’s Office of Foreign Labor Certification said.
Staggered entry on one application will save growers time and money, Marsh said.
The definition of agricultural labor or services would be revised to include employers engaged in reforestation or pine straw. Procedures would be updated governing certification of guestworkers in animal shearing, custom combining and beekeeping.