Employers to Benefit from Plans to Modernize H-2A Visa Program

 

Roy Maurer By Roy Maurer July 26, 2019
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​The U.S. Department of Labor (DOL) is set to propose a number of reforms to the labor-certification process of the H-2A visa program for temporary agricultural workers.

The program is currently governed by regulations issued in 2010.

"The proposed rule will increase access to a reliable, legal agricultural workforce, easing unnecessary burdens on farmers, increasing enforcement against fraud and abuse, all while maintaining protections for America's workers," said U.S. Secretary of Agriculture Sonny Perdue. "When this rule goes into effect, our farmers will be released from unnecessary and burdensome regulations, allowing them to do what they do best."

Industry groups like the American Farm Bureau Federation and the National Council of Agricultural Employers welcomed the proposal.

The president of the California Farm Bureau Federation said changes to the visa program are encouraging as farmers in California and elsewhere cope with chronic labor shortages.

"We continue to analyze the full proposal, but our initial reading shows that it would streamline certain aspects of the program and expand it to include additional forms of agriculture, such as reforestation work," California Farm Bureau Federation President Jamie Johansson said.

More California farmers have begun using the H-2A program, he said, but he added that the program has generally not been flexible enough for many of the state's agricultural employers.

[SHRM members-only toolkit Obtaining U.S. Employment Visas]

Mandating Electronic Filing

The proposed changes include a new requirement that most employers file applications and job orders electronically, to reduce costs and filing delays and improve efficiency. Electronic filing wouldn't be required for any employer that is "unable or limited in its ability to use or access electronic forms as a result of a disability" or other circumstances. The agency also plans to promote digital signatures.

Required e-filing will not be a disruption for most employers using the program. Based on fiscal year 2019 data, approximately 94 percent of H-2A applications were filed electronically.

Updating Wage Rates

Currently, employers are required to advertise and pay a wage that is the highest of the adverse effect wage rate, the prevailing wage, the agreed-upon collective bargaining wage, the federal minimum wage or the state minimum wage.

Under the proposed rule, the DOL would modify how it calculates adverse effect wage rates, the minimum wage that the DOL has determined agricultural employers must pay to U.S. and immigrant workers. Instead of setting a single rate for all agricultural workers in a state or region, the DOL would use state-specific, occupation-based wages intended to produce more accurate results. The proposal reflects the DOL's concern that the current method grouping all workers' wages together may depress the wages of workers in higher-paid agricultural occupations.

In addition, the agency proposed to update how state workforce agencies conduct prevailing wage surveys by trimming impractical, "resource-intensive" standards, such as in-person interviews.

Providing Hiring Flexibility

Employers could stagger the entry of H-2A workers under the proposal. Businesses with approved petitions could bring workers into the United States at any time up to 120 days after the date of need identified on the certified application without filing another petition. "This will provide employers with the flexibility to accommodate changing weather and production conditions that are inherent to agricultural work. … It will also reduce the need for employers to file multiple applications for the same occupational classification in which the only difference is the expected start date of work," the DOL said.

Expanding Access

The proposed rule would revise the definition of agricultural labor to include workers in reforestation and "pine straw activities," which are currently covered under the H-2B visa program. The DOL noted that work considered landscaping—in which the largest contingent of H-2B workers are employed—would not be included in the revised definition.

David North, a fellow at the Center for Immigration Studies, a Washington, D.C.-based think tank, and former farm labor assistant to the U.S. Secretary of Labor, called the modified definition of agricultural labor a "slick move" and a way around the numerical limits of the H-2B program.

"Forestry workers are covered under the H-2B program, which has numerical limits. The H‑2A program has no numerical limits. … Allowing forestry workers to become H-2As not only frees their employers of any numerical ceilings, it helps all H-2B employers by taking some 11,000 workers out of the H-2B system."

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