H-2A workers

H-2A guestworkers from Mexico pick late blossoms off apple trees in Washington state. A federal government-impose minimum wage threatens the viability of some farmers who hire foreign guestworkers.

A requirement for employers using the H-2A-visa agricultural guestworker program to recruit domestic workers would be reduced under a proposed rule change.

The proposal would require employers to recruit domestic workers for 30 days after their date of need for H-2A workers instead of the first half of the H-2A contract, says Dan Fazio, director of the farm labor association WAFLA in Olympia.

It also would allow employers to schedule the arrival of their H-2A workers for up to 120 days after the start of their contracts, which was never specified before, Fazio said.

USDA and the U.S. Department of Labor, with advice from business and labor, have been working on the proposal that will be published in the Federal Register in four to six weeks and open for public comment, he said.

DOL sent the proposal to the Office of Management and Budget before the end of last year. It is being circulated to other agencies such as the Department of Homeland Security, Department of Justice and State Department for review, said Leon Sequeira, a Kentucky labor and employment attorney.

“The content isn’t public until it is published in the Federal Register, and it’s impossible to predict how soon that will be. It depends on the length of the rule,” said Sequeira, formerly an assistant secretary of labor in the last Bush administration.

“Once the proposed rule comes out, I will file comments on behalf of clients,” he said.

Fazio said there are other elements of the proposal, which was discussed at a Feb. 6 agricultural conference in Washington, D.C.

“It has some good fixes but there’s no change in calculation of the AEWR (Adverse Effect Wage Rate, minimum wage for H-2A workers) and no ability to get reimbursement from workers for housing. Those are the two most important things for growers in Washington state,” Fazio said.

It also lacks year-around contracts for H-2A workers, which dairies want, he said. Currently, H-2A workers are limited to 10-month contracts.

“I’m not sure any of those three can be addressed by regulation. They need legislation,” he said.

A public comment period and further review will follow publication in the Federal Register so it will probably be 2020 before any final rule change takes effect, Fazio said.

Michael Marsh, president and CEO of the National Council of Agricultural Employers, said he has not seen the proposed rule but that it stems from efforts NCAE started in the early days of the Trump administration.

“I’m anxious to see what’s in it. Hopefully, it will make the program more user-friendly and efficient,” Marsh said.

He said a federal court has not yet ruled on a preliminary injunction sought by NCAE and a Nevada farm to rescind 2019 increases to the AEWR.

The public comment period on another proposal from DOL requiring H-2A employers to advertise for domestic workers online instead of in print media ended in December. It is under review for a final draft, Sequeira said. A final rule could take effect this spring or summer, he said.

Central Washington field reporter

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