The Department of Labor (DOL) and Homeland Security announced in February a proposal for the most significant overhaul in 20 years of the nation's agricultural guest worker program, the H2A program.
Many farmers avoid the current H2A program because it is cumbersome and costly to implement in their farming operations. It currently supplies only about 75,000 foreign workers out of 1.2 million farm workers employed at peak harvest, or less than 2 percent, which has spurred the Bush administration to move forward and develop administrative fixes to the complicated H2A program after Congress failed to pass immigration reform last summer.
“Last summer, the DOL and Homeland Security pulled the regulations and began talking to major stakeholders to see what could be done to improve the program,” explained Leon Sequeira, an assistant secretary at the Department of Labor, when he spoke to the Kentucky Farm Bureau Congressional delegation. “A couple of weeks ago, we announced the proposal, and we encourage you to comment on what is proposed.”
Sequeira explained that the DOL proposal includes changes to the program and the process in an effort to make it easier for the farmers to implement in their operations. He also stated that worker protection measures were also important areas addressed in the changes.
In the application process, one key step that changes in the proposal is that employers would file with DOL instead of both DOL and the State Workforce Agency (SWA), the Kentucky Office of Employment and Training. Employers would still work with their SWA on the recruitment of local workers, a critical part of the application process.
“Housing has been a huge impediment for using the program, so we’ve tried to introduce flexibility in the proposal,” said Sequeira. “We are proposing that, as an alternative, you can provide a housing voucher to employees.”
Many farmers struggle to provide safe and affordable housing for their H2A workers on the farm, so the housing voucher would allow the employee to secure their own housing in the community. This would allow the employee to choose their housing and give options to farmers who might not have the space or ability to provide housing on the farm.
“We also heard a lot of complaints that workers were unduly restricted,” said Sequeira. “We propose to introduce flexibility to allow workers to perform incidental farm labor that doesn’t involve their job description.”
By far, the biggest complaint farmers have had with the H2A program over the past several years has to do with the wage rate they are required to pay the employees.
The current rate is an average rate for agricultural jobs based on USDA statistics that capture all agriculture occupations, from picking vegetables to custom combining, and averages the pay to define the current wage rate for a geographic region.
The DOL has proposed a change in the methodology of calculating the rates, relying on the Bureau of Labor Statistics data. The proposal uses data looking at geographic precision, a variation among skill level, and a variation among occupation.
“What most people really want to know is what is the wage rate it gets me,” said Sequeira. “The wage comes up to about what you would get under the big trade proposed by the AgJobs.”
The AgJobs legislation was introduced in 2005 to provide a stable, legal agricultural workforce, to extend basic legal protections and better working conditions to more workers, and for other purposes. In the AgJobs legislation, the wage would have been rolled back to the 2002 level until a better way was developed to calculate wages. Sequeira said that the DOL believes they have found that better way through working with the Bureau of Labor statistics.
Along with program changes, the proposal also introduces increased fees for the program.
Currently, the H2A fee structure includes a $100 application fee, plus $10 fee per worker, with maximum fee of $1,000. The proposed change would increase the fees to $200 per application and $100 per worker with no maximum.
Sequeira stated that the fee increase is an effort to realistically cover the current cost of processing applications. He did explain that the fee changes were open for public comment, and if employers felt the fee proposal was too high, they should make their voice heard in the public comment forum.
The complete DOL proposal is available for review on their Web site, and the public comment period for the proposal ends on March 31, 2008.
“After we receive the public comments, we modify the proposal. Then it has to be cleared by the Office of Management and Budget,” said Sequeira. “We hope to finish this up by this fall.”