The new rules went into effect March 17 and make the program more complex, more expensive, and more open to misunderstanding and therefore potential litigation, said Walter Kates, FFVA’s vice president of labor relations. The Obama administration adopted the new H-2A rules, striking down changes that had been made by the Bush administration.

FFVA has sent to all producer members a bulletin that explains in detail relevant aspects of the regulations, from submitting a job order to handling of documents after employment. Producer members also may access the bulletin online.

The net impact of the changes will be to discourage program participation because of unneeded complexity and cost. “It’s just one more indication that the federal government is discouraging employers from using the program,” said Kates.

The purpose of this article is to briefly summarize the new rules, as well as to provide an update on efforts to block their implementation and the greater need for comprehensive immigration reform in order to provide for a legal, stable workforce in America’s farms and ranches.

WHAT’S NEW WITH H-2A?

Although much of the process for the guest-worker program remains the same, many details have changed. Employers who file applications to participate with dates of need on or after June 1 must comply with the new rules.

Those include a lengthy and cumbersome – not to mention costly – certification process to be filed with the job order. Those additional costs will hurt smaller businesses, Kates said. The new rules impose a very broad definition of corresponding employment, which means that employers must write a very precise job description to exclude any work their U.S. workers will be doing. Otherwise, U.S. workers become eligible for the same benefits that H-2A workers receive, including housing and meals. The new rules also:

    • Limit the ability of H-2A workers to perform limited incidental work outside the job description.

    • Eliminate the responsibility of state workforce agencies (in our case, Workforce Florida) to verify the work authorization of those they refer to employers.

    • Reinstate the old methodology to figure the adverse effect wage rate with a requirement to raise wages if the prevailing wage rate increases during the contract period. This provision alone could force employers to pay up to 25 percent more for H-2A workers than for their U.S. counterparts.

    • Require employers to pay a long list of costs and engage in unrealistically vigorous efforts to recruit U.S. workers.

The changes are not going unchallenged. The American Farm Bureau Federation and the North Carolina Growers Association sued on March 12, seeking a temporary restraining order against the new rules. The groups hope to delay implementation, saying that the Obama administration rushed the rules through without considering the effect they would have on small businesses.

THE BETTER SOLUTION

Knee-jerk regulations and lawsuits aside, the situation can only truly be resolved at the congressional level, Kates said. “Sane and enforceable regulations governing the hiring of foreign workers are more necessary than ever,” he added.

In answer to that need, members of both parties support fixing U.S. immigration laws.  For example, Sen. Chuck Schumer, D-N.Y., and Sen. Lindsey Graham, R-S.C., have been working together to fashion a compromise that includes a biometric national worker identification card.

But some supporters of immigration reform say a step-by-step approach may be necessary, especially during a tough election year.
 

One of those steps would be passing the AgJOBS bill. The legislation would overhaul the agricultural foreign-worker program and create a path to legalization for certain farm workers. 

FURTHER INFORMATION DOWN THE LINE

FFVA will continue to provide information to its members through bulletins, the weekly FFVA Voice newsletter and special communications. In the meantime, producer members are encouraged to call the Labor Relations Division with questions and concerns at (321) 214-5200.