May 15, 2009

From the Editor

The (U.S.) Department of Labor is amending its regulations to extend the transition period of the application filing procedures currently in effect for all H-2A employers with a date of need on or before July 1, 2009, as established in the H-2A Final Rule published on December 18, 2008, and in effect as of January 17, 2009. The transition period is extended to include all employers with a date of need on or before January 1, 2010.

As far as I can tell, the above paragraph – taken from the April 16 issue of the Federal Register – is saying growers who signed up for H-2A workers under the new rules will be able to stick to those rules – for the rest of this year, at least.

The H-2A program, designed to provide agricultural businesses with short-term foreign labor when there are not enough domestic workers available, has had plenty of criticism heaped on it over the years, namely that it’s expensive, tough to qualify for and its application process is long and difficult. The new rules were an attempt to streamline that application process, among other things.

As stated above, the new H-2A rules went into effect Jan. 17. Less than two months later, however, the labor department announced a proposed nine-month suspension of the new rules and a reversion to the original rules. According to the announcement, many “stakeholders” had raised concerns about the new regulations, and the labor department wanted a chance to review and reconsider. It offered a 10-day public comment period before it made a final decision.

The proposed suspension put a lot of growers in a bind. By the time it was announced, many of them had already completed H-2A contracts based on the new rules. If the suspension became official, did that mean they would have to rewrite their contracts based on the old rules? Would they have to repeat the entire application process while their crops rotted in the fields?

Fortunately, the National Council of Agricultural Employers (NCAE) and other industry groups made their voices heard, and the labor department decided to let things stand until next year. The feeling in the industry was that, imperfect though the new H-2A rules might be, scrapping them in the middle of labor recruiting is a bad idea.

“This decision … offers important in-season stability for agricultural producers and employees who participate in the H-2A program,” said Frank Gasperini, NCAE’s executive vice president.

According to the Federal Register, the labor department received more than 800 “unique, substantive comments” on its proposal and is in the process of considering those comments.

Time will tell if further long-term changes are made to the H-2A program. Until then, hire away.

For more information about NCAE or to get involved, visit www.ncaeonline.org.