anuary 2009 Volume 15 Number 1
H-2A Re-Engineering, Braceros
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The US Department of Labor (DOL) "re-engineered" its H-2A regulations effective January 17, 2009, converting the H-2A program from a certification to an attestation program. DOL reduced the roles of State Workforce Agencies (SWAs) in determining whether farmers need H-2A workers to fill jobs.

DHS also made mostly employer-friendly changes to its administration of the H-2A program, including allowing employers to petition for unnamed workers and raising the time H-2A workers can remain in the US after the end of their visas from 10 to 30 days. DHS limited H-2A recruitment to 28 countries, and established a pilot system for departing H-2A workers to report to DHS.

Program. The H-2A program allows farm employers anticipating too few workers to apply to DOL for approval to hire foreign workers. DOL can approve farm employer requests for H-2A workers if two conditions are satisfied: (1) there are not a sufficient number of US workers "who are able, willing, and qualified, and who will be available at the time and place needed" to fill the jobs; and (2) the employment of H-2A workers "will not adversely affect the wages and working conditions" of US farm workers.

Unlike the H-1B (foreign professionals) and H-2B (seasonal nonfarm workers) programs, there is no cap or ceiling on the number of H-2A visas that can be issued. In FY07, DOL certified 7,500 farm employers to fill 77,000 jobs with H-2A workers, representing a doubling of H-2A activity in less than a decade. DOL certified 97 percent of the employer applications and 96 percent of the jobs that employers wanted to fill with H-2A workers in FY07.

DOL cited unauthorized farm workers and "growing concern about the stability of the agricultural industry given its difficulty in gaining access to a legal workforce" as the reasons for re-engineering of the H-2A program. DOL also said that the H-2A program was so "cumbersome and prone to delays" that many farm employers did not use it to obtain workers.

DOL published its re-engineering proposal in February 2008. It received over 11,000 comments on the proposed changes, most of which were "form letters or emails repeating the same contentions." In a lengthy response to the comments, DOL discussed the reasons for the changes and the specific changes in 18 areas ranging from special procedures to wages to audits and debarment.

Major Changes. The three major changes involve shifting effective control of the border gate from DOL to employers, basing the AEWR on a DOL survey rather than a USDA survey, and making a number of other changes.

The H-2A program has been a certification program, meaning that DOL must certify that the employer tried and failed to recruit US workers. By contrast, the H-1B program relies on employer attestations that they tried and failed to recruit US workers while offering appropriate wages.

Attestation is a trust-the-employer approach that aims to keep employers honest via audits. DOL has used this approach in both the H-1B program and in the program under which employers sponsor foreigners needed to fill jobs for immigrant visas. DHS released a report in September 2008 concluding that 51 of a sample of 246 H-1B petitions, 21 percent, filed in 2005-06 involved fraud or technical violations of H-1B regulations.

Since 2005, DOL has used the program electronic review management (PERM) for employers seeking immigrant visas on behalf of foreigners. Some immigration lawyers openly advised their employer clients that they could help to minimize the number of US workers who responded to required ads and help employers find US workers who do respond but are not qualified.

In response, DOL announced audits of 2,500 of the 6,500 PERM applications filed by employers in the past year with the help of the largest US immigration law firm, Fragomen, which called the audits "unlawful and unconstitutional" because they prevent lawyers from advising employers about hiring decisions. DOL said that employers alone must decide whether to hire a US job applicant, but in September 2008 dropped the audits of Fragomen-assisted employers because, it said, its rules on the role of attorneys in screening US applicants were not clear until it issued clarifying rules on August 29, 2008.

The second major change involved minimum wages. Farmers seeking approval to hire H-2A workers must offer and pay the higher of the federal or state minimum wage, the local prevailing wage, or the DOL-determined Adverse Effect Wage Rate; the AEWR is usually the highest wage. Since 1989, the average hourly earnings of field and livestock workers as determined in a quarterly USDA survey of farm employers have been used to set one AEWR per state.

Under the re-engineering, DOL will use the BLS Occupational Employment Statistics program to determine the AEWR in far more detail. The OES generates wage data for 800 occupations by MSA, and its companion National Compensation Survey generates wages for four levels of worker proficiency, from Level 1 entry to Level 4 master.

DOL made a number of other changes to increase worker protections, including explicitly barring employers from recouping employer recruitment and application costs from workers, requiring labor contractors with H-2A workers to post a bond with DOL, and requiring employers to begin recruitment of US workers at least 60 days before the employer-specified need date, up from the current 45 days. DOL raised fines for willful violations of employer promises from $1,000 to $10,000, promised random and targeted audits to ensure employer compliance with their application promises and program rules, and set out procedures to debar employers from the H-2A program, with appeals possible.

DOL broadened the definition of the "agricultural labor or services" that H-2A workers can perform to all activities that meet either the Internal Revenue Code or the Fair Labor Standards Act definition of agriculture and added activities even when performed for more than one farmer. For example, picking peaches is farm work, and packing them is farm work if almost all (90 percent or more) of the peaches being packed were grown on the farm packing them. The change in definition appears to open so-called "commercial" packing and processing activities to H-2A workers, giving farmers the option of using the H-2A or H-2B program to obtain workers for such activities. DOL says that farmers may choose H-2A or H-2B workers, but cannot have both in one operation.

DOL also included logging in its revised definition of "agricultural labor or services," but rejected suggestions to allow the use of H-2A workers in dairy operations (the jobs are not temporary or seasonal) and reforestry, a sector that currently obtains foreign workers under the H-2B program. DOL normally approves the employment of H-2A workers for up to 10 months, the usual maximum duration of a temporary or seasonal job. DOL focuses on the duration of the job, not the worker, and rejected suggestions of diary producers that, since the average tenure of a milker is reportedly nine to 10 months on one farm, the diary industry should be eligible to hire H-2A workers.

Procedures. Under the H-2A program, employers apply to a National Processing Center in Chicago for approval to hire H-2A workers. After the NPC accepts an employer's application, it is sent to the appropriate SWA to begin intrastate and interstate recruitment; SWAs also inspect the employer's housing.

The employer is to begin recruitment of US workers at least 60 days before the need date, but must file the application only 45 days before the need date; a preliminary recruitment report on these first 15 days is to be included with the employer's application. Some employers do not want to begin recruitment efforts so far before the need date. One association reported that less than 10 percent of US worker applicants applied between days 30 and 45 of the current recruitment period, and that over 80 percent of these early recruits failed to report on the need date.

SWAs will no longer receive employer applications for H-2A workers, but will continue to post employer job orders, conduct prevailing wage and practice surveys, and inspect the housing that growers offer to out-of-area US and H-2A workers.

DOL accepts H-2A applications filed by associations of employers that require workers for a variety of crops and locations. This means that a US worker seeking to harvest tobacco only near his home in North Carolina may be deemed unavailable if the job order requires work throughout the state and requires harvesting of other crops as well. The new regulations spell out requirements for labor contractors, called H-2ALCs, who must have a physical address and contracts with farmers to be approved for H-2A workers. H-2ALCs must try to recruit US workers by listing the names of the employers where workers will be employed in required ads.

DOL currently requires employers to interview and hire qualified US workers who apply for jobs until 50 percent of the employer-stated period of need for H-2A workers is completed, for example, five months of the typical 10 month employer-specified period. Employers dislike the 50-percent rule because they may have to lay off and pay return transportation costs for an H-2A worker in order to open a job for a US worker. Few employers do this— more common are efforts to discourage US workers from accepting or continuing with the job.

DOL eliminated the 50-percent rule and substituted a 30-day rule for five years. Employers must hire US workers who respond to recruitment ads until the first 30 days of the employer's date of need have passed, for instance, for a June 1 date of need, the employer would begin recruitment efforts April 1 and could stop hiring US workers on July 1. After five years, US employers may stop hiring US workers on their date of need, for example, June 1.

Wages. The AEWR is usually the highest of the three wages that must be offered and paid to H-2A workers and any US workers employed alongside them. In 93 percent of H-2A applications in FY07, the AEWR was the effective wage (Mayer, 2008, 5). The federal minimum wage rose from $5.85 to $6.55 in July 2008. The 2008 AEWR, based on USDA's survey of average hourly earnings in 2007, ranged from a low of $8.41 an hour in states such as Arkansas to $10.44 in Iowa.

DOL changed the basis of the AEWR from the USDA survey of farm employers http://usda.mannlib.cornell.edu/MannUsd ... entID=1063) to a BLS survey http://www.bls.gov/oes) of 200,000 establishments in May and November, Occupational Employment Statistics (OES). Published OES data are "aged" and averaged over three years.

DOL allows employers to specify one of four wage levels for H-2A workers sought, levels I through IV, with I being entry level, II and III requiring progressively more education and/or experience required, and IV being master, often with some managerial duties as well. Most employers are expected to specify their jobs as Level I. The OES obtains data on nine farming occupations, the largest of which is farm workers and laborers, crop, nursery and greenhouse (SOC 45-2092).

DOL calculates Level I wages as the average for the bottom third of workers' wages ranked from low to high, and sets the Level IV wage as the average for the top two-thirds of the wage distribution (Mayer, 2008, 9). Level II and III wages are created by dividing the difference between Levels I and IV by three, and adding the difference to Level I and subtracting it from Level IV (Mayer, 2008, 10). For example, if the Level I wage was $6 an hour and Level IV $9 an hour, Level II would be $7 and Level III would be $8.

The OES collects data from establishments engaged in agricultural support activities. In California, Quarterly Census of Employment and Wages (ES202) data for 2007 reported that total employment in Agriculture, Forestry, Fishing & Hunting (NAICS 11) averaged 386,000, and ranged from a low of 304,000 in the first quarter to a high of 442,000 in the third quarter http://www.labormarketinfo.edd.ca.gov). Employment in Agriculture & Forestry Support Activity (NAICS 115), the part of agriculture covered by the OES, averaged 180,000, about 47 percent of the total, and ranged from 134,000 in the first quarter to 213,000 in the third quarter.

Switching from the USDA survey to the OES will normally reduce the AEWR. Across the US, the mean hourly wage in May 2007 for SOC 45-2092 was $8.82; the median was $8.19. NASS reported that average hourly earnings for US field and livestock workers were $9.41 in April 2007.

DOL said it "strongly values the geographic and occupational precision of the OES estimates as well as the ability to establish four wage-level benchmarks commonly associated with the concepts of experience, skill, responsibility, and difficulty within a given occupation. These features are unique to the OES survey, and it is in part for this reason that the survey is also used in other foreign worker programs administered by the Department, including the H-1B and H-2B programs."

The OES collects data only from "establishments that support farm production rather than engage in farm production" such as farm labor contractors, while USDA wage data are from farm employers who hire workers directly.

Reactions. Most farm employer associations welcomed the changes to the H-2A program, but most said they do not go far enough to make the H-2A program employer friendly. Most employer associations said their preferred solution to unauthorized farm workers is AgJOBS.

Farm worker advocates denounced the "midnight changes" to H-2A regulations, arguing that they reduced protections for US farm workers. The New York Times editorialized against the H-2A changes on December 15, 2008 and endorsed AgJOBS, as it has previously. House Education and Labor Committee Chair Rep George Miller (D-CA) asked DOL in October 2008 to withdraw the proposed changes to both H-2A and H-2B program regulations.

President-elect Obama's designated Secretary of Labor, Hilda Solis (D-CA), said in responses to questions about the new H-2A regulations: "There is no question that the guest-worker program needs significant overhaul, but slashing wages and reducing basic rights for the most vulnerable workers in our country, especially hardworking Latino farm workers, is not the answer."

Farm Worker Justice http://www.fwjustice.org) cited seven changes that it believes will harm farm workers, ranging from attestation to wage changes. Attestation invites abuse, according to FWJ, which believes that immigration law requires DOL to certify employer needs for H-2A workers.

Second, the H-2A changes allow employers to refrain from recruiting in areas with US farm workers if local farmers in these areas are seeking workers, thus ending requirements for midwestern farmers to recruit in south Texas if local farmers are recruiting workers as well (DOL "will not designate a State as a traditional or expected labor supply State if the State has a significant number of employers that are recruiting for US workers for the same types of occupations and comparable work.") SWAs can refer workers to fill jobs for which the employer is requesting H-2A workers only if the SWA first verifies that the worker is legally authorized to work in the US.

Third, the new H-2A regulations allow US workers to be paid less than H-2A workers if they were hired before the H-2A workers and do not do the same work. Fourth, FWJ disagrees with the shift from the USDA to the BLS OES for determining the AEWR. The fifth objection regards housing. One obstacle for many farmers wanting to hire H-2A workers is the lack of housing— inspected housing must be provided at no charge to H-2A and out-of-area US workers. DOL's revised regulations permit employers to substitute rental units or public accommodations, such as a motel, if the housing they planned to use becomes unavailable.

The two final objections concern reimbursement for travel expenses and the 50 percent rule. Farm employers have been required to reimburse the cost of travel from the worker's home to the US job if the worker completes half of the employer-specified season, and to pay the worker's way home if the worker completes the season. DOL changed travel reimbursement requirements to be from the US consulate where the worker got an H-2A visa or the port of US entry. FWJ also objects to ending the 50-percent rule.

H-2A. In FY08, the US Department of State issued 64,000 H-2A visas, up from 50,971 in FY07 and 30,201 in FY00. DOL has not yet released its FY08 report; in FY07, DOL certified 76,800 jobs to be filled by H-2A workers. Some states reported more jobs certified--in Washington there were 1,140 jobs certified to be filled by H-2A workers in 2007 to 2,094 in 2008.

Salvador Gonzalez Farm Labor Contractor was certified to employ 180 H-2A workers in the Sacramento Delta from July-December 2008. The workers, from Colima, Mexico, expected to earn $100 a day, based on the AEWR of $9.72 an hour and 10-hour work days. Most reported paying $600 in recruitment and travel fees in Mexico, and some left before the end of their contracts because of insufficient hours. California Rural Legal Assistance attorneys sued Gonzalez in August 2008, alleging that the H-2A workers were not given the 40 hours of work a week promised.

Sierra-Cascade Nursery produces 250 million strawberry plants a year near Tulelake, California with the help of 500 H-2A workers. Sierra, which began to use the H-2A program in 2005, says it spent $1 million on extra payroll processing costs and attorneys' fees to employ H-2A workers. Sierra complained that, of the 100 US workers referred by the Oregon Employment Service, only five completed the season.

Iowa-based Pioneer Hi-Bred International was sued in December 2008 by 51 workers from south Texas who allege that they were provided with inadequate living and working conditions on an Iowa farm.

A 28-year old Tennessee woman who responded to ads at Pope's Plant Farm in December 2007 offering $8.65 an hour said she was discouraged by the farm's owner, who said she would be the only English-speaking worker in a crew of 20 men. The woman said that, when she applied at other farms who were seeking approval to hire H-2A workers, she was discouraged from completing an application.

The William Wilberforce Trafficking Victims Protection Reauthorization Act, signed into law in December 2008, allows foreign labor recruiters to be prosecuted for fraud if migrants do not receive promised wages or working conditions after arriving in the US.

Braceros. A federal court in San Francisco on October 10, 2008 tentatively approved a settlement that allows US residents who were Bracero workers in the US between January 1, 1942 and December 31, 1946 to receive 38,000 pesos ($3,500) each as compensation from the Mexican government for the 10 percent of wages that were withheld and often not repaid in Mexico. During the wartime Bracero program, US farm employers withheld 10 percent of Bracero wages and sent them via Wells Fargo to a Mexican government bank.

Bracero applicants or their US heirs must apply for the compensation at Mexican consulates by January 5, 2009 and provide documents attesting to Bracero work during the war years http://www.casobracero.com). Just before the deadline, attorneys said that 5,000 US residents filed claims.

The Braceros' suit, filed in 2001 in California, was dismissed twice by courts that decided too much time had elapsed and that the Mexican government could not be sued in US courts. In 2005, the Mexican government, without admitting it lost the 10 percent of Bracero wages withheld by employers and sent via banks to Mexico, agreed to pay $3,500 in compensation to Braceros living in Mexico. However, only 49,000 of the 212,000 Mexican applicants could provide the required documentation to receive payments.

John Riley, "Last-minute changes to farm worker program raise groups' ire," Dallas Morning News, January 2, 2009. Mayer, Gerald. 2008. Temporary Farm Labor. The H-2A Program and the U.S. Department of Labor's Proposed Changes in the Adverse Effect Wage Rate (AEWR). RL34739. November 6. http://opencrs.com/document/RL34739 Pam Belluck, "Settlement Will Allow Thousands of Mexican Laborers in U.S. to Collect Back Pay," New York Times, October 16, 2008.

http://migration.ucdavis.edu/rmn/more.php?id=1408_0_4_0