H-2A rule changes may come

Rick Anderson, WAFLA special projects director, left, and Leon Sequeira, former assistant secretary of labor, talk at WAFLA H-2A Workforce Summit luncheon in Wenatchee, Wash., Jan. 17.

WENATCHEE, Wash. — With all the uncertainty about DACA and immigration reform, the best chance for foreign guestworker reform may be rule changes by the Trump administration, a former Bush administration official says.

“The rule making process is long and painful, but in coming months I think we will see some proposals for executive changes to H-2A,” said Leon Sequeira, a Kentucky labor attorney and former assistant secretary of labor under President George W. Bush

Sequeira spoke to about 200 mostly tree fruit growers at the WAFLA farm labor association H-2A Workforce Summit at the Wenatchee Convention Center, Jan. 17. Sequeira was the main author of Bush administration changes to the H-2A-visa guestworker program that were rescinded by President Obama.

Trump could reform the program’s cost structure, broaden participation from just seasonal work to year-round and dairies and could improve application processing and timing, Sequeira said. Duplicative filings with the U.S. Department of Labor and Washington state could end and applications shouldn’t have to start from scratch every year, he said.

“We have to reduce unnecessary bureaucracy. It’s way to complicated to navigate the program. You shouldn’t have to hire a lawyer to hire a farmworker,” Sequeira said.

The H-2A program is replaced by an H-2C program under bills from House Judiciary Chairman Robert Goodlatte, R-Va., but H-2C does not address all of agriculture’s concerns and it’s questionable if it or any guestworker reform will be part of immigration reform or congressional authorization of Deferred Action for Childhood Arrivals, Sequeira said.

Given apparent political polarization in Congress neither DACA nor immigration reform, that guestworker reform could be tied to, may pass, he said. Therefore, administration regulatory changes seem more likely, he said.

A problem, he said, is that a year into office the Trump administration still lacks political leadership in place to drive policy changes. About 220 out of 385 key Senate-confirmed political appointments at 15 cabinet departments remain unfilled with the State Department having the most openings and only one in three filled at the Department of Labor, he said.

Dan Fazio, director of WAFLA, urged growers to lobby members of Congress for action.

“If you don’t get reform to H-2A, you probably won’t be in business 10 years from now,” Fazio said, adding Rep. Dan Newhouse, R-Wash., probably understands the issue better than most.

H-2A is cumbersome, slow and expensive. Growers have to provide worker housing and have to provide transportation from and back to the country of origin, most often Mexico. A mandatory minimum wage is often higher than state minimum wages.

H-2C does not mandate housing and allows a minimum wage of the federal minimum wage plus 20 percent or the state minimum wage, whichever is higher.

But it includes E-verify (electronic employment eligibility) and requires illegal immigrants return to Mexico to seek H-2C visas which are capped at 450,000. That could leave a shortage of up to 1 million

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