Jul 15, 2019

Update: Industry reacts to DOL’s H-2A rule proposal to streamline program

The Department of Labor (DOL) on July 15 proposed a rule to “modernize and improve” the H-2A Temporary Agricultural Labor Certification Program.

According to the proposal, the reforms would:

• Streamline the H-2A application process by mandating electronic filing of job orders and applications with the use of digital signatures;
• Provide employers with and the option of staggering the entry of H-2A workers on a single application;
• Strengthen protections for U.S. and foreign workers by enhancing standards  applicable to rental housing and public accommodations;
• Strengthen surety bond requirements;
• Expand the department’s authority to use enforcement tools like program debarment for substantial violations of program rules; and
• Update the methods used to determine the Adverse Effect Wage Rates and prevailing wages to ensure U.S. workers similarly employed are not adversely impacted.
• Expand access to the H-2A program by revising the definition of agricultural labor or services to include employers engaged in reforestation and pine straw activities.

According to a DOL news release, “Furthering the agenda to help America’s farmers, the Department of Labor (the Department), Employment and Training Administration and Wage and Hour Division, today is posting online a Notice of Proposed Rule-making (NPRM) to solicit public comment on proposed changes to improve the H-2A temporary agricultural labor certification program. These proposed changes would modernize the department’s H-2A regulations in a way that is responsive to stakeholder concerns and enhances employer access to a legal source of agricultural labor, while maintaining the program’s protections for the U.S. workforce and enhancing enforcement against fraud and abuse.”

Secretary Perdue Statement on the Department of Labor’s Proposed H2A Modernized Rule

U.S. Secretary of Agriculture Sonny Perdue issued the following statement on the Department of Labor’s proposed rule to modernize the H-2A program to reflect stakeholder concerns and improve access to a legal source of agricultural labor:

“President Trump once again shows his commitment to helping America’s farmers, ranchers, and producers continue to be the most productive in the world by increasing their access to a stable and legal workforce. The proposed rule will increase access to a reliable legal agricultural workforce, easing unnecessary burdens on farmers, increase enforcement against fraud and abuse, all while maintaining protections for America’s workers. When this rule goes into effect, our farmers will be released from unnecessary and burdensome regulations allowing them to do what they do best.”

The NPRM includes several major proposals that would streamline and simplify the H-2A application process, strengthen protections for U.S. and foreign workers, and ease unnecessary burdens on employers. For example, the NPRM would streamline the H-2A application process by mandating electronic filing of job orders and applications, promoting the use of digital signatures, and providing employers with the option of staggering the entry of H-2A workers on a single application.

The NPRM also proposes to strengthen protections for U.S. and foreign workers by enhancing standards applicable to rental housing and public accommodations, strengthening surety bond requirements, expanding the Department’s authority to use enforcement tools like program debarment for substantial violations of program rules, and updating the methodologies used to determine the Adverse Effect Wage Rates and prevailing wages to ensure U.S. workers similarly employed are not adversely impacted.

Finally, the NPRM would expand access to the H-2A program by revising the definition of agricultural labor or services to include employers engaged in reforestation and pine straw activities, as workers performing these services share many of the same characteristics as traditional agricultural crews. The proposal would also codify and update procedures governing the certification for job opportunities in animal shearing, custom combining, beekeeping, and reforestation.

The DOLt is posting a copy of the NPRM in advance of its publication in the Federal Register. A copy of the NPRM can be found by clicking here.

Note: This version of the proposed regulations may vary slightly from the published document if minor technical or formatting changes are made during the review by the Office of the Federal Register. Only the version published in the Federal Register is the official proposed regulation.

Reactions to the proposal from ag employers

“The National Council of Agricultural Employers (NCAE) applauds the Trump Administration’s announcement today of its Notice of Proposed Rule-making (NPRM) to modernize and improve the H-2A temporary agricultural labor certification program.

According to the Department of Labor’s announcement, “These proposed changes would modernize the Department’s H-2A regulations in a way that is responsive to stakeholder concerns and enhances  employer access to a legal source of agricultural labor, while maintaining the program’s protections for the U.S. workforce and enhancing enforcement against fraud and abuse.”

“We are very pleased the administration has agreed to roll out this much needed modernization effort for the H-2A program. It is obvious, based upon the 489 pages included, the deep dive that was done by the agencies in their effort to evolve the program to one more responsive to the needs of stakeholders,” said Michael Marsh, president and CEO of NCAE.

According to the department, the wide-ranging rule-making will streamline the application process and strengthen protections for U.S. and foreign workers. The rule also looks to update methodologies used to determine Adverse Effect Wage Rates while addressing many other issues.

Marsh noted, “The breadth of this proposed rule is substantial.  NCAE will be working with its committees, members and legal counsel to develop targeted, cogent comments to provide to the department.  This type of hefty rule-making doesn’t come around often.  Our sleeves are rolled up and we’re raring to go!”

Established in 1964, NCAE is the national trade association focusing exclusively on agricultural labor issues from the employer’s perspective.

Statement of National Council of Farmer Cooperatives CEO Chuck Conner on H-2A Visa Program Proposed Rule Making

“In issuing a proposed rule today on changes to the H-2A visa program for agricultural guest workers, the Department of Labor (DOL) is taking a significant step to improve a system in need of a dramatic overhaul. While we are still reviewing the details of the rule, we understand that it contains provisions that will help streamline the program and simplify the process for the farmers and growers who use it. We would like to recognize the efforts of Secretary of Agriculture Sonny Perdue, who has worked closely with the DoL through the interagency process to secure these important changes.

“While this new rule is welcome, a permanent solution to the labor crisis faced by agriculture is congressional action to address both current and future needs of the sector.  NCFC will continue to work with policy makers and other stakeholders to find a path forward for such a solution.”

United Fresh weighs in

“United Fresh Produce Association appreciates the administration’s efforts to make regulatory changes that can improve efficiencies in the H-2A program. This Notice of Proposed Rulemaking includes a number of changes to the H-2A program that were supported by United Fresh and our members. We encourage the administration to finalize these new productive H-2A reforms after the notice and comment period has ended. In particular, United Fresh is pleased with the electronic filing and digital signature proposal along with staggering entry of H-2A workers on a single application. 

Despite these improvements, we all understand a complete overall of the current guest worker program is needed which will require Congress to make those changes through legislation. In addition, we must find a solution to the current workforce which will work hand in hand with an improved H-2A program. We implore Congress and all interested stakeholders to stay at the table and continue to find a legislative path forward for this type of reform. United Fresh and our members stand ready to continue these discussions and will work with our members across the country to support legislation that accomplishes these goals.”

California Farm Bureau: Proposed changes show promise

A statement from the California Farm Bureau:

“As farmers in California and elsewhere around the country try to cope with chronic employee shortages, the president of the California Farm Bureau Federation said administrative changes to the current H-2A agricultural visa program could be one element of a solution, while Congress continues to work on broader legislation.

The U.S. Department of Labor announced plans to modernize and improve the existing H-2A agricultural visa program, which allows people from certain countries to enter the United States temporarily for on-farm jobs.

“We’re encouraged by the administration’s efforts to improve the H-2A system,” CFBF President Jamie Johansson said. “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.”

More California farmers have begun using the H-2A program, he said, but added that it has generally not been flexible enough for many of the state’s crops and commodities.

“When we asked Farm Bureau members earlier this year to tell us how they are addressing employee shortages, only 6% of the farmers who responded to our survey said they were using H-2A,” Johansson said. “Changes proposed by the administration may increase that proportion, but farmers also need wider improvement to immigration laws that can only be addressed through congressional action.”

Farm Bureau and other organizations continue working with members of Congress on solutions that would provide legal status to current farm employees in the U.S. while further enhancing the agricultural visa program to include a portability mechanism.

“Ultimately, immigration laws need to accommodate employees and their immediate family members who are in the country now, plus allow future employees to enter the U.S. and move from farm to farm for employment,” Johansson said. “We will continue to pursue that goal with Congress and the administration. H-2A reform is only one piece of the puzzle.”

The California Farm Bureau Federation works to protect family farms and ranches on behalf of nearly 36,000 members statewide and as part of a nationwide network of nearly 5.6 million Farm Bureau members.”

Western Growers statement on H-2A rule proposal

In response to the proposed rule for regulatory amendments to the H-2A program, Western Growers President and CEO Tom Nassif issued the following statement:

“We appreciate the emphasis the Administration has placed on resolving agriculture’s ongoing labor challenges, and their efforts to incorporate feedback from agricultural employers into the proposed H-2A reforms. While we encourage swift implementation of these important modernizations to the agricultural guest worker program, we also urge Congress to codify these changes into law as we have seen previous regulatory progress reversed by ensuing administrations. Furthermore, legislation will be required to address the pressing need agricultural employers have to retain their existing workforce.”

Founded in 1926, Western Growers represents local and regional family farmers growing fresh produce in Arizona, California, Colorado and New Mexico. Our members and their workers provide half the nation’s fresh fruits, vegetables and tree nuts, including half of America’s fresh organic produce. For generations we have provided variety and healthy choices to consumers. Connect with and learn more about Western Growers on Twitter and Facebook. 

USApple commends H-2A proposal

“The U.S. Apple Association (USApple) is pleased that the Labor Department is proposing to improve and streamline the H-2A program. The official publication of the proposal (took place) this week, which will start the clock on a 60-day period for public comment.

“Apple growers are increasingly reliant on the H-2A guestworker program to grow and harvest their crops,” said USApple President and CEO Jim Bair. “Labor is a grower’s largest expense, but the current program is bureaucratic, expensive and cumbersome. The proposed modernization will streamline the application process, saving time and cutting administrative costs.”

The nearly 500-page proposal is the result of nearly two years of information gathering and discussions amongst administration officials and stakeholders, including USApple and other ag industries dependent on hand labor. 

“USApple strongly supports this effort and appreciates the opportunities we have had to discuss challenges with the program and offer suggestions for improvements,” continued Bair. “We will be providing our feedback and commend the Trump administration for this initiative.”