Obama Administration Issues New Agricultural Guest Worker Rule Placing Priority on American Workers

Department of Labor Secretary Hilda Solis recently announced a new rule for the H-2A guest worker program, which allows farmers to hire foreign laborers for seasonal work.  (DOL Press Release, February 11, 2010).  The “new” rule actually restores regulations that were in place before the Bush administration made revisions to the H-2A program in late 2008—changes that gave farmers an easier path to hiring temporary foreign workers.  (For more information on the Bush changes see FAIR’s Legislative Update, February 11, 2008).  The Labor Department first announced the proposed rule in September 2009, which is now a final rule as published in the February 12 edition of the Federal Register.  (Federal Register, February 12, 2010).  The Obama Administration says the changes will raise wages and strengthen labor protections for foreign and American workers.  The move has been met with mixed reviews, receiving praise from labor-rights advocates and dismay from the agricultural industry.

There are three primary changes under the new H-2A rule:

• Reinstating the labor certification process instead of attestation;
• Returning to the use of the USDA Farm Labor Survey as the basis for determining the Adverse Effect Wage Rate (AEWR); and
• Prohibiting cost-shifting from the employer to the worker for all fees incurred by temporary agricultural workers, including recruitment fees, visa fees, and border crossing fees.

Deanne Amaden, regional director of public affairs for the U.S. Department of Labor in San Francisco, said that “The intent of the new rule is twofold.  We want to protect the workers who are coming over here legally while at the same time making sure willing domestic workers aren’t being overlooked and aren’t being given lower wages and fewer benefits.”  (Yuma Sun, February 15, 2010).

By reinstating the labor certification process, the new regulations, which take effect on March 15, require farmers to make a greater effort to fill jobs with American workers.  According to Solis, “The major change is that we are asking employers to prioritize those American workers that might be available.”  (DOL Press Release, February 11, 2010).  Under the new rule, farmers who apply for temporary immigrant workers will have to prove they conducted job searches.  Farmers claim the new regulations will just make it more burdensome and expensive to get visas for foreign workers.  (The Associated Press, February 17, 2010).  Groups representing growers say it will complicate their search for workers because employers seeking H-2A visas for guest workers will be required to provide documented proof that they looked for qualified American workers to fill jobs, instead of simply attesting to the effort, as allowed by the Bush rule.  (The Wall Street Journal, February 12, 2010).

The new H-2A rule also directs the Department of Labor to create a national electronic registry of farm jobs to help employers find U.S. workers and alert U.S. workers to available jobs.  Although American farm worker organizations support the changes, agribusiness groups say they will be costly and could be prohibitively cumbersome for many farmers.  (The New York Times, February 12, 2010). Craig Regelbrugge, a spokesman for the American Nursery and Landscape Association, said that growers “are just beside themselves that these rules keep changing; it just makes it impossible.”  Id.

The new rule also reinstates the prior method of calculating wages for temporary farm workers.  In announcing the changes, Labor officials said that the method of calculating wages for temporary foreign workers under the Bush rule had reduced farm workers’ wages by an average of a dollar an hour in the year they were in effect.  (DOL Fact Sheet, February 11, 2010). The Obama Administration says this change will ensure that U.S. workers in the same occupation, working for the same employer, receive no less than the same wage as foreign workers.  (DOL Press Release, February 11, 2010). Farm worker organizations adamantly opposed the Bush changes, arguing that they had rapidly lowered wages for American agricultural laborers.  So it is no surprise that these groups applaud Obama’s H-2A revisions.  Arturo Rodriguez, president of the United Farm Workers of America, called the new rule “a great victory for all farm workers.”  (The Wall Street Journal, February 12, 2010).

In 2009, 94 percent of the applications submitted for H-2A workers were approved by the Department of Labor, bringing 86,014 foreign workers to the United States.  (DOL Press Release, February 11, 2010).  But according to Labor officials, H-2A workers account for only a fraction of the approximately one million farm workers in the United States.  Id.  They estimate that at least half of those workers are illegal immigrants.  (The New York Times, February 12, 2010).  Employers complain that the H-2A program is costly, bureaucratic, and inflexible.  (The Wall Street Journal, February 12, 2010).  Some in the agricultural industry feel that the new rule will only further reduce the already underutilized H-2A program.  “The bottom line is we’re going to see a major reduction in utilization of the H2-A program, particularly among smaller growers,” said Jason Resnick, general counsel for the Western Growers Association in Irvine, Calif.  (The Associated Press, February 17, 2010).  Supporters, however, argue that the fact that approximately half of farm workers are legal (either American workers or guest workers) demonstrates that there are American workers willing to do these jobs if provided decent wages and conditions.

fairus.org/site/News2

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