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The effort to re-engineer the H-2A program continued on September 4, 2009, when the US Department of Labor (DOL) announced revised regulations that undid some of the revisions effective on January 17, 2009.

Under President Bush, DOL "re-engineered" the H-2A program by implementing three major changes in January 2009: (1) attestation was substituted for certification; (2) the formula to determine the Adverse Effect Wage Rate (AEWR) that farmers must offer workers was changed and lowered by an average $1.44 an hour; and (3) the 50 percent rule that required US farm employers to continue to hire US workers until half of the usual 10-month period of employment of H-2A workers has been completed was dropped.

Farm worker groups sued to block implementation of the new H-2A regulations, but a federal judge refused their request for an injunction. However, President Obama's DOL in March 2009 overturned the revised H-2A regulations and reinstated the old H-2A regulations. Farm employers sued, and a North Carolina federal judge in June 2009 issued an injunction preventing DOL from requiring farm employers to apply for H-2A workers under the old regulations.

The Bush-era H-2A changes generally reduced the minimum wage that farm employers have to offer US and H-2A workers by switching the database for determining the AEWR from a USDA survey of farm employers to a State Workforce Agency survey of nonfarm establishments that provide support services to farmers. These Occupational Employment Services (OES) wages are generally $1 to $2 an hour less than USDA average hourly earnings.

In announcing new H-2A regulations on September 4, 2009, DOL said that farm employers should seek to hire H-2A workers only when "there are demonstrably no available domestic workers for these jobs." The Obama DOL criticized one Bush-DOL justification for the revision, that is, to make it easier for farm employers to hire H-2A workers, by noting that employer applications under the Bush-era revised regulations fell, which likely reflects the recession and more ex-farm workers returning to the fields.

The September 4, 2009 regulations return the H-2A program to a certification model, which means that employers must try to recruit US workers, document who responded to their recruitment efforts and why they were not hired, and submit this documentation with their request for certification to hire H-2A workers. DOL also returned to the USDA survey as the basis for calculating the AEWR, and proposed a new national electronic job registry to make US workers aware of jobs for which employers are seeking to hire H-2A workers.

State workforce agencies will once again be required to inspect farm worker housing before farmers are certified to employ H-2A workers and will resume providing information to DOL on local conditions and recruitment practices. The September 2009 regulations allow employers of loggers and several forestry-related occupations to apply for H-2A workers, as proposed by the Bush-revisions. Many forestry-related foreign workers are admitted under the H-2B program, which is capped at 66,000 a year, while the number of H-2A visas is not capped.

A federal judge in June 2009 agreed with the North Carolina Growers Association and 17 other grower groups that DOL's plan to restore "old" H-2A regulations that were "revised" in January 2009 by the outgoing Bush administration would cause undue disruption. The judge's injunction keeps the revised H-2A regulations in place and allows Christmas tree farms to hire H-2A workers and not pay overtime wages by moving them from forestry to agriculture until the September 4, 2009 regulations are effective.

AgJOBS. Farm worker advocates welcomed the September 4, 2009 regulations, while reactions from farm employers were mixed; their main concern was the prospect of a higher AEWR under the USDA survey. Both worker advocates and employers continue to push for enactment of the Agricultural Job Opportunities and Benefits Act (AgJOBS). Senator Dianne Feinstein (D-CA) re-introduced AgJOBS (S 1038, HR 2414) in May 2009, citing farm labor shortages that could lead to less food production and more food imports.

AgJOBS would legalize currently unauthorized farm workers and reform the H-2A program in ways similar to the Bush-DOL regulations. The legalization provisions would allow up to 1.35 million unauthorized farm workers who did at least 150 days or 863 hours of farm work in the 24-month period ending December 31, 2008 to apply for Blue Card probationary status. H-2A workers who did sufficient qualifying work could qualify for Blue Cards, but not H-2A workers admitted after the enactment of AgJOBS.

Blue Card holders could work and travel freely within the US and enter and leave the US, and could earn an immigrant status for themselves and their families by continuing to do farm work over the next three to five years.

The AgJOBS' revisions to the H-2A program would allow farm employers to attest that they complied with H-2A recruitment rules, as proposed in the Bush-DOL revisions, permit employers to offer a housing allowance instead of free and approved housing to H-2A and out-of-area US workers, and freeze the AEWR at its 2008 levels and study it.

AgJOBS would expand an exception in the H-2A program, which requires that employers of H-2A workers generally employ them for a maximum 10 months. Currently sheepherders are allowed to remain in the US up to 36 months; AgJOBS would expand this exception to dairy workers.

Broader Reform. Meeting with the Mexican and Canadian presidents in Guadalajara, Mexico on August 10, 2009, President Obama said that comprehensive immigration reform would have to wait until 2010 to allow Congress to deal with health care, energy and financial regulation. Obama said that the US "can create a system in which you have strong border security, we have an orderly process for people to come in, but we're also giving an opportunity for those who are already in the United States to be able to achieve a pathway to citizenship so that they don't have to live in the shadows, and their children and their grandchildren can have a full participation in the United States."

On June 25, 2009, Obama met with a bipartisan group of 30 Senate and House members to discuss immigration reform. On August 20, 2009, DHS Secretary Janet Napolitano met with 100 immigrant advocates at the White House; Obama paid the group a visit. The advocates urged Obama to push for immigration reform in 2009 and urged DHS to slow the effort to have state and local police receive training to enforce immigration law. The advocates formed the Fair Immigration Reform Movement (FIRM) and pledged to push for comprehensive immigration reform.

Comprehensive immigration reform would include some type of secure ID aimed at preventing unauthorized workers from obtaining US jobs and earned legalization for many of the unauthorized foreigners in the US. Earned legalization means that unauthorized foreigners would have to pay fees and back taxes and demonstrate continued US employment and some knowledge of English to become immigrants.

In the run-up to IRCA in 1986, the "third-leg" of the metaphorical legalization and sanctions stool was an increase in Border Patrol agents to deter illegal entries. Today, the third-leg is "future flows," which stands for new guest worker programs that, according to advocates, would reduce pressure on foreigners to come illegally to the US and for US employers to hire them.

Some proposals call for a commission to determine the number of guest workers and immigrants to be admitted for economic reasons. However, most immigration lawyers and employer advocates do not want to vest power over future flows in an independent commission? they prefer that levels of guest worker and immigrant admissions be set in law.

Employers fear that a commission may listen to unions and other advocates who say there is no need for more guest workers. The AFL-CIO approved a resolution during its September 2009 convention that called for immigration reform to give priority to workers' rights and workplace protections so that prosperity would be shared by all workers, immigrant and native-born. Many union leaders call guest workers "indentured workers" because they are tied to a US employer.

Polls. More Americans favor reducing immigration, according to a July 10-12 2009 Gallup poll (www.gallup.com/poll/122057/americans-return-tougher-immigration-stance.aspx). Half of those polled favored reducing immigration, a third prefer to keep immigration at current levels, and 14 percent favor increasing immigration.

Between 2002 and 2006, Gallup polls found that a majority of Americans favored decreasing immigration and 10 to 15 percent favored increasing immigration. In 2008, support for increasing immigration rose? 39 percent favored decreasing immigration, 39 percent maintaining at current levels, and 18 percent favored increasing.