Mar 12, 2008
Growers can now Weigh in on Proposed H-2A Rule Changes

Fred Leitz, a Michigan farmer and treasurer of the National Council of Agricultural Employers (NCAE), is concerned about proposed changes to the H-2A labor program. He wanted to get the word out to growers and encourage them to participate in the rulemaking process.

On Feb. 6, the U.S. Department of Labor and U.S. Department of Homeland Security (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.”

NCAE began studying the proposed rules, which are lengthy and complex, as soon as they were announced. A white paper was being prepared for release some time in February, Leitz said.

After a personal study, Leitz said the DHS portion was on target but the labor department proposals were way off. Growers should study the modifications and let both departments – along with congressmen and anybody else who will listen – know what they think. It’s imperative they make clear the reasons they don’t use H-2A, he said.

According to DHS, the proposed modifications would relax current limitations on an employer’s ability to petition for multiple, unnamed agricultural workers. The modifications also would extend, from 10 to 30 days, the time a temporary agricultural worker can remain in the United States after the end of employment. They would reduce, from six to three months, the time a temporary worker must wait outside the country before he or she is allowed re-entry. Additionally, workers who are changing from one H-2A employer to another can start work with the new employer before U.S. Citizenship and Immigration Services approves the change (provided the new employer participates in the USCIS E-Verify program).

The labor department listed other changes that would occur under the new rules: The methodology for calculating H-2A wages would be revised to better reflect locality, occupation and skill level – which also would protect the wages and working conditions of U.S. workers.

The modifications would increase the length of time employers are required to recruit domestic workers before they are permitted to apply for H-2A workers. Additionally, new tools to ensure employer compliance are being proposed. These would include audits, revocation of certifications, increased debarment authority and substantial increases in fines, according to the labor department.

The proposed rules could become permanent by midsummer, Leitz said, so the time to change them is now. Migrant advocate groups in Washington, D.C., will make their voices heard. Farmers need to do the same.

What to do

Press releases and fact sheets about the proposed rules are available at www.dhs.gov or www.dol.gov. The proposals were published in the Federal Register Feb. 13, and are open to public comment until 45 days after publication. To make a comment, visit www.regulations.gov. For the DHS proposals, type “USCIS-2007-0055” in the search engine. For the labor department proposals, type “20 CFR Part 655.” Follow the instructions from there.

To learn more about NCAE, visit www.ncaeonline.org.


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