H2A rules

Antonio de Jesus Bailon, an H-2A-visa foreign guestworker, picks Gala apples at Griggs Orchards in Orondo, Wash. A survey indicates the wage for guestworkers will significantly increase again next year.

The minimum wage for H-2A-visa foreign guestworkers in Washington and Oregon likely will increase from $15.03 to $15.83 per hour in 2020.

That’s an increase of 5.32% and still will be the highest in the nation.

The national average likely will be $13.99 per hour, up 5.58%, according to a 2019 survey of prevailing wages of field and livestock workers released by USDA National Agricultural Statistics Service on Nov. 21.

“This is unacceptable. The farm economy in the Pacific Northwest is in a deep recession and charging farmers who do the right thing even more is poor public policy that needs to change,” said Dan Fazio, executive director of the farm labor association Wafla in Olympia, Wash. Wafla is the largest H-2A provider in the West, filling more than 16,000 H-2A positions in 2019 with 90% or more in Washington, mostly in tree fruit.

The NASS calculations usually are adopted in December by the U.S. Department of Labor as the Adverse Effect Wage Rates — called AEWRs — for the coming year. The AEWR is above state minimum wages and is intended to prevent wages of domestic workers from being adversely affected by the importation of foreign workers.

In Washington, many H-2A workers in tree fruit are paid piece rates that typically are higher than the AEWR. Growers who employ H-2A workers have to use the AEWR as the minimum for all their workers. They say it tends to push all wages up because growers not using H-2A have to pay more to attract workers.

The NASS survey rate for Idaho, Montana and Wyoming is $13.62, up $1.85 or 1.03%, from $13.48. It took a 15.9% jump in 2019.

California goes from $13.92 to $14.77, a gain of 6.1%.

Nevada, Colorado and Utah goes from $13.13 to $14.26, an 8.6% increase. Arizona and New Mexico goes from $12 to $12.91, a 7.5% boost.

“This is another increase in costs that farmers can’t afford,” said Michael Marsh, president and CEO of National Council for Agricultural Employers in Washington, D.C.

“I think it will force some folks out of business and probably fewer crops will be fully harvested,” Marsh said. “If you have marginal fruit or crops you might decide not to harvest. It also makes foreign products much more competitive in the U.S. because labor costs here are much higher.”

The AEWR increase a year ago was larger than in several years and resulted in NCAE trying several avenues to get it rescinded, including suing the U.S. Department of Labor. NCAE lost in U.S. District Court and has an appeal pending in the D.C. Circuit Court of Appeals.

“NCAE will not stop pushing. We have to get some positive resolution here,” Marsh said. “This is not in line with actual costs and there is no adverse effect on domestic wages so there is no need for an adverse effect rate. As long as you continue averaging wages across categories it just continues wage spiral out of control.”

Joel Anderson, executive director of Snake River Farmers Association in Heyburn, Idaho, called year-over-year AEWR increases “very troubling” and “unsustainable.”

The association assists 615 grower members in obtaining more than 4,000 H-2A workers annually, mostly in the Mountain West.

“I know several growers who will no longer be able to use the H-2A program if these increases are implemented,” Anderson said.

They will try to find local workers or quit farming, and either hurts U.S. workers, he said.

“If they are fortunate to find U.S. workers and they are not using H-2A, the U.S. workers will likely be offered the fair market wage, which is significantly less than the AEWR. Thus by raising the AEWR to a level producers can’t afford, the U.S. Department of Labor reduces the offered wages for U.S. workers in those positions,” Anderson said.

Peri & Sons Farms in Yerington, Nev., a co-plaintiff with NCAE in the lawsuit that is on appeal, is a fresh-market vegetable farm that employed 1,768 H-2A workers in 2018 and estimated the 2019 AEWR increase would cost it $3.7 million.

Olson’s Greenhouse Gardens in Salem, Utah, grows bedding plants and flowers in Utah, Colorado and Idaho for big box stores. It hires 400 to 450 H-2A workers annually and 200 on regular immigration visas and only a few domestic workers because they are hard to find.

Jordon Rolfe, Olson’s chief operating officer, said the likely 2020 AWER increase perpetuates a trend that is “devastating to agriculture” and will force Olson’s to absorb wage increases of $2 million in two years — more than 30% compared with the national average of 5 to 6% in the same period.

“This is assuming no additional employees or hours. It significantly impacts our ability to sustain, let alone grow,” Rolfe said.

“The path we are on is unsustainable and must be addressed. We call on our leaders in Washington, D.C., to work together to find a solution. Soon it will be too late,” he said.

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