Foreign guestworker advertising rule may change

Antonio de Jesus “Chuy” Bailon, an H-2A-visa guestworker from Mexico, dumps his picker's bag of Gala apples into a bin at Griggs Orchards, Orondo, Wash., Aug. 21. A proposed rule change requires employers to advertise for domestic workers online.

Employers hiring H-2A-visa agricultural and H-2B-visa non-agricultural foreign guestworkers would be required to advertise for domestic workers online instead of through print media, according to a rule change proposed by the U.S. Depart of Labor on Nov. 8.

Currently, employers seeking DOL certification to hire H-2A or H-2B workers must publish two print advertisements for domestic workers in a newspaper of general circulation in the area of intended employment. Lack of response can be cited as need for foreign workers, but employers must hire any able, willing and qualified domestic workers for those positions during the first half of an H-2A contract.

Under the proposed rule change, employers would no longer be required to advertise in print media but would be required to post openings with state workforce agencies, the Chicago National Processing Center and then on a website of their choosing for 14 consecutive days. The website must be widely used and appropriate for use by domestic workers who are likely to apply for the jobs.

The proposed change does not alter a requirement for employers to contact, in writing, prior-year domestic workers who completed the season, Employers may wish to comment on that during a 30-day comment period that ends Dec. 10, said Michael Marsh, president and CEO of the National Council of Agricultural Employers, in Washington, D.C.

“This is great news and a good start to needed reform for the H-2A visa. NCAE’s advocacy early in the Trump administration has begun to bear fruit,” Marsh said.

He said he looks forward to more proposed rule changes from the administration to improve H-2A.

U.S. Rep. Dan Newhouse, R-Wash., representing a district with many tree fruit growers using H-2A workers, said modern recruitment practices are long overdue and that it will ease the burden on small farms dealing with scarce labor.

Marsh said it will save farmers millions of dollars in print advertising. Farmers could still advertise in print but it would not be required, he said.

“Although a grower may spend more than $5,000 on the required print media advertising, it is rare that a potential domestic worker reads the paper and applies for an open position,” he said.

The farm labor association WAFLA, in Olympia, provided 15,771 H-2A workers in the West in 2018, 13,848 in Washington.

The proposed rule change could save WAFLA and its member growers well over $100,000 per year depending on the cost of online advertising, said Dan Fazio, WAFLA director.

“WAFLA member employers spend more than $250,000 every year for print ads and in 10 years of doing this we’ve never had one person respond to an ad,” Fazio said.

That’s because, he said, ads are in English language publications because virtually no Spanish publications have Sunday editions.

“You have to advertise in publications that have Sunday editions and in areas that have agricultural workers. You have to advertise in your state and in three surrounding states,” Fazio said.

“We support this but there are much bigger H-2A issues, principal among them is wages. We really need to bring wages down,” he said.

Rule changes can take two years to approve and implement. This change could be approved in the 2019 fiscal year given the 30-day comment period, Marsh said.

The departments of Labor, Agriculture, State and Homeland Security announced, May 24, that they would propose new rules to “substantially reduce” the program’s complexity while giving farmers incentives to use E-verify (electronic verification of employment eligibility) to ensure workers are authorized to work in the U.S.

Marsh and Fazio said they believe more proposed rule changes will be forthcoming.

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