Apple picker

Ernesto Salgado picks Kanzi apples in Mt. View Orchard, East Wenatchee, Wash., on Oct. 9. He’s a domestic worker but about 20,000 H-2A-visa guestworkers picked apples in central Washington this year.

The Trump administration is working to finalize employer-friendly changes to H-2A-visa agricultural guestworker rules, but farmers worry the changes may last only a year, depending on whether the Biden administration reverses them.

The Adverse Effect Wage Rate, the minimum wage for H-2A workers, has been frozen for the next two years. After that, it will increase at the rate of inflation.

The freeze could be shortened to one year but probably no more than that because of the rule-changing process, said Dan Fazio, director of the Wafla farm labor association in Olympia.

The AEWR freeze was announced Nov. 2. The balance of H-2A rule changes, released as proposals by the U.S. Department of Labor on July 15, 2019, likely will go to the White House Office of Information and Regulatory Affairs this week for review, said Michael Marsh, president and CEO of the National Council of Agricultural Employers in Washington, D.C.

The proposals largely allow greater flexibility in the use of H-2A workers, including:

• Working within 14 days of the listed first date of need and staggered worker entry for up to 120 days after the date of need.

• Employers continuing to try to recruit domestic workers for 30 days after the date of need instead of half of the length of a contract, which can last up to 10 months.

• Allowing employers to change the number of workers they request and their work locations within the general original area of intended employment and application terms.

• Employers would pay H-2A workers’ transportation from the U.S. consulate in the country of origin, not the workers’ hometowns, to the place of employment and back.

Expanding the program for dairy and other year-round employment would take legislation such as the Farm Workforce Modernization Act that passed the House last December but died in the Senate, Marsh said.

While the AEWR freeze helps growers, the AEWR should be eliminated entirely because “evidence is overwhelming” that there is no adverse effect on domestic workers caused by foreign workers, Marsh said.

“The freeze is good but not great,” said Fazio.

Any savings from the freeze would be “more than wiped out” by a recent Washington Supreme Court ruling that may require all agricultural employers to pay overtime, Fazio said.

“The court, acting as a super Legislature, has confused things that will lead to more litigation,” he said. “We hope the Legislature straightens things out. I expect a motion for reconsideration from employers.”

The AEWR, if there is one, should match state minimum wages, Fazio said.

Ag overtime and a COVID-19-related ban on the use of bunkbeds in farmworker housing are the two greatest concerns of Wafla grower members right now, Fazio said.

Marsh said NCAE will work for positive treatment of the H-2A program.

Fazio said amnesty alone will not alleviate seasonal agricultural labor shortages unless it results in more illegal immigration.

“We would hope that Democrats would stop taking the irrational position that guestworkers are being exploited and look at the data, which shows the opposite,” Fazio said. “We would hope that any immigration measure would be accompanied by a rational guestworker program and E-Verify (electronic verification of employment eligibility).”

On COVID-19, Marsh said NCAE is advocating the National Academy of Sciences prioritize farmworkers as essential for vaccines. The United Farm Workers has joined in calling for that.

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