H2A rules

Antonio de Jesus Bailon, an H-2A-visa foreign guestworker, picks Gala apples at Griggs Orchards in Orondo, Wash. A large provider of foreign guestworkers is calling on the federal government to rewrite its proposed H-2A rule changes.

WENATCHEE, Wash. — The U.S. Department of Labor should withdraw its proposed rule changes for the H-2A-visa foreign agricultural guestworker program and rewrite them, says the director of one of the largest H-2A providers in the nation.

The proposed changes omit key items, do not meet goals spelled out by President Donald Trump and secretaries of the departments involved, and one part violates federal law, Dan Fazio, director of the Olympia-based farm labor association Wafla says.

He made those points to the U.S. Department of Labor on Sept. 23.

“We urge you to carefully consider Wafla’s comments in light of the secretaries’ mission statement, adopt our suggestions and republish this regulation for further stakeholder comment,” Fazio wrote.

It’s doubtful the department will do that, but it should, Fazio told Capital Press at a Wafla conference in Wenatchee, Sept. 26.

Wafla assisted more than 200 member employers in hiring more than 10,000 H-2A workers this year and advised six large members that filed applications for 4,000 workers on their own.

In a May 24 statement, the secretaries of Labor, Agriculture, State, and Homeland Security said the proposed rules would modernize the H-2A-visa program, make it more responsive to stakeholders and deepen confidence in the program as a “source of legal and verified labor for agriculture.” They also said changes would “incentivize" farmers’ use of E-verify (electronic verification of employment eligibility).

But the proposal does not reduce program complexity and does nothing to incentivize farmers’ use of E-verify, Fazio wrote in his comments.

Further, one of the proposed rule changes violates the Immigration and Naturalization Act by holding associations such as Wafla liable for violations committed by association members, he said.

The proposed rule does not distinguish between legal and illegal domestic workers, does not protect U.S. workers and doesn’t meet the president’s goal of “Buy American and Hire American,” Fazio wrote.

Washington employers are leaders in using H-2A but state agencies and the state Legislature are leaders in thwarting federal efforts to legalize the agricultural workforce, he wrote.

Fazio proposed five rules that should be added to meet administration goals:

• Employers enrolled in E-verify and who file an H-2A application will not be required to pay Adverse Effect Wage Rates (AEWRs) or prevailing wage rates, but will pay the same rates the states sets for employers not using H-2A.

• Employers who file an H-2A application will not be required to pay AEWR or prevailing wage rates if they agree to hire at least one U.S. worker for every H-2A worker requested and agree to hire all U.S. workers referred to them from the state workforce agency.

• State workforce agencies will E-verify all people they refer to employers for work and will stop referring illegal workers for work.

• Employers may charge reasonable rates for housing and transportation they are required to provide workers. Among other alternatives, the charge may not exceed the lesser of 15% of gross pay during each pay period or $75 per week.

• The fifth proposal seeks to clarify and simplify a complex proposal regarding record keeping of worker hours.

Fazio commented further that the proposed rules render it impossible for associations to file joint H-2A applications with employers, threatening associations’ abilities to represent small farmers.

He said the AEWR is a “flawed measure of wages” because it relies on aggregate data and that it cumulatively drives wages upward. He said state prevailing wage rates be eliminated from the program because there are too many variables preventing them from being accurate. He said a proposal to require joint employers to share workers weekly is unworkable.

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