May 2, 2008

Emergency Relief Bill Might Take Heat off Growers and Workers

Fruit and vegetable growers who were hoping to get into the 2008 growing season with a greater sense of security about their seasonal labor supply did not get much encouragement from the Bush administration as spring came.

Hoped-for streamlining of processes so growers could obtain a greater supply of legal workers under the H-2A program resulted in proposed new rules in early February that drew heated opposition and threatened to cause new problems.

In late March, the administration basically restated its position on the “no-match rule,” so employers can expect new letters from Social Security this summer.

With prospects dim that Congress would address basic immigration reform or pass the AgJOBs legislation that would take the pressure off agriculture, it will take emergency legislation to give farmers a fix before harvest comes this fall.

There remained some hope that might be possible. California Sen. Dianne Feinstein, who has been shepherding the AgJOBs legislation through the U.S. Senate, was expected to introduce new legislation, the Emergency Agricultural Relief Act, that would take the heat off undocumented workers until such time as more permanent immigration and guest worker reform legislation can be passed.

Emergency relief

Feinstein’s emergency relief act would, according to Dawn Drake, manager of the Michigan Processing Apple Growers, give undocumented workers a work visa, provided they could prove agricultural employment. The test would be at least 150 days or 863 hours of work or earnings of at least $7,000 working in U.S. agriculture within 48 months prior to Dec. 31, 2007.

Workers would be required to work in agriculture at least 100 days a year for the next five years. The program would be capped at 1.35 million workers. Workers would be required to pay a $250 fee, plus processing fees. The visa would sunset after five years.

The legislation would make some changes to H-2A. There would be no H-2A cap on visas. The Adverse Effect Wage Rate (AEWR) would be frozen at the 2007 level for three years. Employers could provide a housing allowance (voucher), instead of actual housing, if there is adequate rental housing available. This program would also sunset after five years.

Mike Gempler, president of the National Council of Agricultural Employers, said, “We need some solutions and we need them fast. We continue to support AgJOBS, but we need something now, some emergency temporary provisions. We don’t see permanent solutions coming this year.”

No-match rule

In late March, the Social Security Administration and the Department of Homeland Security (DHS) proposed changes to a “no-match rule” that was shot down by a district judge last fall. That would clear the way for no-match letters to be sent out later this year.

According to Gempler, the revised version addresses “procedural issues,” but is “basically the same rule.”

The rule would put a bigger burden on employers who hire unauthorized workers.

The original No-Match Notice of Proposed Rule Making was published June 14, 2007, and, after a comment period, the final rule was issued Aug. 15. The rule outlined procedures employers were to follow when they were notified that a worker in their employ had filed a Social Security number that did not match Social Security Administration records.

A lawsuit that included members of the produce industry halted mailing of the no-match letters. Since then, DHS and Social Security have been involved in “supplemental rulemaking,” which resulted in a restatement of the administration’s position.

“We are serious about immigration enforcement. The No-Match Rule is an important tool for cracking down on illegal hiring practices while providing honest employers with the guidance they need,” said Homeland Security Secretary Michael Chertoff. “This supplement specifically addresses the three grounds on which the district court based its injunction. We have also filed an appeal and are pursuing these two paths simultaneously to get a resolution as quickly as possible.”

The rule, he said, outlines clear steps an employer may take in response to receiving a letter from the Social Security Administration indicating that an employee’s name does not match the social security number on file. Businesses that follow the guidance in the No-Match Rule, comprising various actions to rectify the no-match within 90 days of receiving the letter, will have a safe harbor from the no-match letter being used against them in an enforcement action, Chertoff said.

With these changes, the Social Security Administration is expected to get the green light to mail no-match letters, along with a letter from DHS instructing employers on actions to take, according to the United Fresh Produce Association.

H-2A reforms

In early February, DHS announced a series of proposed rule modifications to provide employers with a “streamlined” hiring process for temporary and seasonal agricultural workers under the H-2A program.

“These proposed changes are designed to provide an efficient and secure program for farmers to legally fulfill their need for agricultural workers within the law, rather than outside the law,” Chertoff said. “This commonsense simplification of H-2A will provide farm employers with a more orderly and timely flow of legal workers, while continuing to protect the rights of laborers and promoting legal and secure methods for determining who is coming into the country.”

These “commonsense simplifications” were not recognized as such in the field. Mike Nobles, president of H2AUSA in Memphis, Tenn., said it was “80-20 at best, 80 percent bad.” His company obtains H-2A workers for farmers, handling the paperwork needed for them to get foreign workers.

The horticulture industry wanted reforms so growers could get legal workers. The H-2A program had been so fraught with obstacles that only about 70,000 workers came in under a program that, conceivably, should have provided more than a million.

Nobles and many others were writing their comments on the proposed new rules, comments that were due April 14.

Gempler said the proposed new regulations were “mixed, with some surprises for us.” The National Council of Agricultural Employers was also preparing comments.

“While there was some change, it did not bring the flexibility we want,” he said. “There were literally hundreds of technical points. We don’t want to minimize the amount of effort they have made, and we want to work with them to get this right,” but this was not the kind of change the industry was looking for.

Nobles said the new provisions would add about $100 to the cost of getting a worker, a cost that already amounts to about $1,000 per worker. Growers now pay for visas, applications, agents to help them locate workers, costs of transportation to and from foreign countries – and his $1,000 estimate does not include the housing growers must provide and wages that are higher by about $3 an hour.

In Nobles’ view, the proposed revisions add to a farmer’s incentive to hire undocumented workers.

“It costs more to be legal,” he said.

The proposed revisions add to those costs. Moreover, penalties for getting it wrong are increased “up to 10-fold,” he said. Growers who file an “attestation” about local housing availability or local worker unavailability that turns out to be false can be charged with felonies, he said.

“I don’t think growers will go through the grief. These proposed rules could be the final nail in the H-2A coffin.”

Since his business is all about placing H-2A workers on farms, he hopes his comments, and those of others, will result in the H-2A reforms the industry has hoped for.