Summit targets H-2A issues

Dan Wheat/Capital Press Jeanne Malitz, a San Diego labor attorney, listens to a question after speaking at the Washington Farm Labor Association Workforce Summit in Yakima, Feb. 20. Malitz is working to expand use of H-2A workers through waivers of certain rules.

Growers get help navigating current guestworker program


Capital Press

YAKIMA, Wash. -- While most people attending Washington Farm Labor Association meetings here hoped immigration reform brings a better foreign guestworker program, they also heard about the help available for using the cumbersome H-2A program.

Growers could make more use of sharing H-2A guestworkers through multiple or sequential contracts if immigration reform fails, Dan Fazio, association director, said at the association's Workforce Summit.

Sequential contracts make H-2A more affordable for smaller growers by shortening the time they have to pay the higher H-2A adverse effect wage rate of $12 per hour and reducing the time they have to hire domestic workers with H-2A wages and housing if any apply, he said.

When growers need workers at different times they can share H-2A workers through sequential contracts. Workers can pick cherries for one grower, thin apples for the next and pick pears or apples for a third, each using the same workers for different portions of their stay.

The association helped facilitate one such arrangement last season and has two prospects this year, Fazio said. It hasn't been done more because it is difficult to do, he said.

Jeff Ballew, national agribusiness leader at ADP Inc., of Roseland, N.J., and Dan Keto, chief technology officer of Integrated Management Systems, Kent, talked about their program of recruitment, hiring, payroll and regulatory compliance services to lessen H-2A risk and expense for growers.

An apparent longshot help is waiver of the so-called 3/10 bar for H-2A visa applicants. In December 2011, the Obama administration decided to allow people applying for green cards -- permanent residency status -- to apply for a waiver to the 3/10 bar, a rule requiring them to leave the country for three to 10 years. The waiver should also apply to illegal aliens who have returned to Mexico and then want to obtain H-2A visas to return to the U.S., said labor attorneys Tom Roach, Pasco, Wash., and Jeanne Malitz, San Diego.

Roach told of his frustration in three unsuccessful cases in the past year. Malitz said such waivers are occurring and the key is enough evidence the workers have incentive to return home at the end of their H-2A contracts.

The H-2A visa program has become increasingly difficult for growers to use under Obama administration rules and the U.S. Department of Labor nitpicks people on small things, said Leon Sequeira, a Washington, D.C., attorney and former assistant secretary of Labor in the Bush administration.

In response to a question from Fazio, Sequeira said it would be risky for a grower to use H-2A workers for some of his orchards and not others because he would be saying he had adequate domestic workers for some and not the others.

"So much of H-2A is open to interpretation. It would seem to be permissible but DOL may decide it is not," Sequeira said.

Malitz said the grower's chances of staying out of trouble would be best if he paid the H-2A and non-H-2A workers the same wages.

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