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October 2011, Volume 17, Number 4

H-2A Reform, Cases, H-2B

Representative Lamar Smith (R-TX) introduced the American Specialty Agriculture Act (ASSA, HR 2847) in September 2011 to provide up to 500,000 H-2C visas a year to foreign farm workers who could stay in the US up to 10 months a year. H-2C jobs would not have to be of a temporary or seasonal nature, so year-round dairy jobs could be filled by H-2C workers, but H-2C workers would have to leave the US after 10 months (sheepherders with H-2A visas are allowed to remain in the US up to three years).

During hearings on September 8 and 12, 2011, farm employers praised the proposed attestation process that would govern access to H-2C workers under the ASSA. The H-2C program would allow farm employers seeking permission to hire H-2C workers to attest that they are abiding by program regulations, eliminating the current certification process that requires farm employers to try to recruit US workers under DOL supervision before receiving permission to hire H-2A workers.

Farm employers asserted during the September 12, 2011 hearing that they were appealing more DOL denials of certification to hire H-2A workers; there were 160 appeals in 2010 and an estimated 700 in 2011. DOL approved 93 percent of employer applications covering 74,000 jobs to be filled with H-2A workers in the first 10 months of FY11.

The second major change in the H-2C program concerns housing. The H-2A program requires farm employers to provide free and approved housing to H-2A and out-of-area US workers. The ASSA allows farm employers to provide housing to H-2C workers or provide them with a housing voucher that they could give to a landlord to obtain housing.

The third change in the ASSA could reduce wages. Farm employers seeking certification to hire H-2A workers must offer and pay the higher of three wages, the federal or state minimum wage, the prevailing wage, or the Adverse Effect Wage Rate. The AEWR, which varies by state and is $9 to $12 an hour in 2011, is usually the highest of the three. The ASSA changes the minimum wage requirement to the higher of the federal or state minimum wage or the prevailing wage in the occupation in which the H-2C worker will be employed.

The ASSA would make other changes as well. For example, the H-2A program requires farm employers to reimburse a worker's in-bound transportation costs if the worker completes 50 percent of the work contract. However, growers must also pay the minimum wage, and the 11th Circuit Court of Appeals in the Arriaga decision concluded that, if transportation expenses reduced a worker's wages below the minimum during their first weeks of US employment, the farm employer must reimburse sufficient transportation costs so that H-2A workers earn at least the minimum wage. The ASSA repeals this Arriaga decision.

The ASSA also eliminates the current 50 percent rule in the H-2A program, which requires farm employers to hire US workers who apply for jobs until 50 percent of the employer-specified work period is completed. Growers complain that many US workers hired in the first half of the typical 10-month period that H-2A visas are valid work only for a few weeks, forcing them to retain extra workers or send an H-2A worker home and then perhaps have to bring him back after the US worker quits.

The ASSA reduces the three-fourths guarantee (employers must provide work for at least three-fourths of the work days in the period they specify) to half of the work days they specify. The ASSA allows growers to require H-2C workers to resolve grievances via mediation and arbitration rather than suing, and prohibits attorneys supported by Legal Services Corporation funds from representing H-2C workers outside the US.

The ASSA prohibits H-2C workers from bringing family members into the US and requires employers to notify DOL if H-2C workers abandon their jobs or violate their contracts (Employers of H-2A workers must notify DOL within 48 hours of workers abandoning their jobs or being terminated or risk $800 fines). USDA would administer the H-2C program.

Representative Dan Lundgren (R-CA) in September 2011 introduced an alternative to the ASSA, the "market-based" Legal Agricultural Workforce Act. The LAWA would grant 10-month W-visas to foreigners who could move from one farm employer to another while in the US for up to 10 months each year. There is no cap on the number of visas that could be issued under the LAWA, which would be administered by USDA.

Employers certified by USDA to hire W-visa workers would pay Social Security and the Federal Unemployment Insurance Taxes on the wages of W-visa workers to cover the cost of administering the LAWA. W-visa workers would pay for their own transportation to the US and housing in the US, but would receive a refund of their Social Security contributions as an incentive to return.

Representative Howard Berman (D-CA) in September 2011 introduced the Agricultural Labor Market Reform Act, essentially the AgJOBS bill that would allow currently unauthorized farm workers to earn legal immigrant status and make employer-friendly changes to the H-2A program.

The Senate held a hearing October 4, 2011 on the current "farm labor crisis." Most participating senators and witnesses asserted that there were crop losses due to lack of labor in summer and fall 2011, and that these losses would increase if a law requiring all US employers to participate in E-Verify were enacted. Some senators and witnesses said that they could accept mandatory E-Verify if there were an alternative to the H-2A program that made it easy to hire legal guest workers.

Immigration Subcommittee chair Senator Charles Schumer (D-NY) called mandatory E-Verify alone an "existential threat" and a "death sentence" for many US farms. He said: "even if [employers] offer Americans twice or sometimes three times the minimum wage and provide benefits, American workers simply won't stay in these jobs for more than a few days."

Georgia farm leaders testified that lack of labor led to crops rotting in the field during summer 2011, and detailed the difficulties of growers in finding US workers. California-based Western Growers Association testified that the farm labor supply is shrinking due to stepped up border enforcement and I-9 audits, and predicted that "US agriculture will be decimated without a workable mechanism to hire the labor we need."

Senator Dianne Feinstein (D-CA) and UFW President Arturo Rodriguez advocated legalization of current unauthorized farm workers rather than a new guest worker program. Rodriguez said that the 1.1 million unauthorized farm workers in the US were "professionals" who are not easily replaced by US workers. Feinstein promised to re-introduce AgJOBS, the legalization and revised guest worker proposal negotiated by worker advocates and farm employers in December 2000, but drop a path to citizenship for legalized farm workers.

Senator Saxby Chambliss (R-GA) in July 2011 re-introduced the HARVEST Act (Helping Agriculture Receive Verifiable Employees Securely and Temporarily, S 1384). HARVEST, originally introduced in September 2010, would allow H-2A workers to fill year-round jobs in dairies and nurseries, allow farm employers to attest that they will abide by H-2A regulations rather than undergo certification, and change the Adverse Effect Wage rate to be 115 percent of the federal or state minimum wage, whichever is higher.

HARVEST includes several provisions of the AgJOBS legalization-and-H-2A reform proposal negotiated by farm worker and farm employer advocates in December 2000, including attestation rather than certification, a housing allowance instead of free housing, and changes to the AEWR. Worker advocates oppose HARVEST because it includes only the pro-employer changes to H-2A included in AgJOBS and goes beyond them in some cases, such as allowing employers to pay travel costs only from the place where a worker was approved to enter the US, generally a US consulate, rather than from the worker's home.

Under HARVEST, farm employers would apply to USDA rather than DOL for H-2A workers, and USDA's NASS Farm Labor Survey would expand to obtain wage data on six categories of workers, including crop and nursery workers and ranch and farm animal workers. After two years, USDA and DOL would determine if NASS-FLS average hourly earnings "accurately reflect prevailing wages" for the jobs in the area and whether a "new methodology" is required to prevent the depression of wages for US farm workers.

Major media editorialized against these new and revised farm guest worker proposals in favor of AgJOBS. Farm employer groups appeared to be split between the Smith and Lundgren proposals. Many growers that use the current H-2A program favor Smith's ASSA, while some California growers who do not use the H-2A program favor Lundgren's LAWA.

Meanwhile, farm employer groups maintained their criticism of the current H-2A program. Libby Whitley, the president of MASLabor, asserted that the "dysfunctional H-2A program cannot be fixed." Joe Bailey of Bailey Nurseries in St. Paul, Minnesota reported that Bailey used H-2A workers in 2008-09 and then reverted to US workers because of "hassles" with the H-2A program. Bryan Little of the California Farm Bureau said: "the vast majority of agricultural employers in California and across the country cannot use it [H-2A] because they don't have employee housing, there are significant delays in getting workers here, and a host of other reasons."

Frank Gasperini of the National Council of Agricultural Employers called the H-2A program "complicated, confusing and unpredictable." He asserted that, if E-Verify is made mandatory, farm employers will have to hire a million legal guest workers.

A survey of farm employers conducted for NCAE found that 47 percent were "not at all satisfied" or "only slightly satisfied" with the H-2A program. According to the survey, three-fourths of the employers of H-2A workers reported that workers arrived after the date that farmers specified they were needed, and that late arrivals were on average 22 days late. Gasperini did not clarify whether the delays were due to DOL certification procedures, USCIS review, DOS issuance of visas to the workers specified by farm employers, or delays in farmers recruiting foreign workers.

In the NCAE survey, over a third of respondents who obtained workers via the H-2A program had annual sales of more than $1 million, and over half complained to their Congressional representatives about the H-2A program. According to the survey, 36,000 US workers were referred to the vacant jobs advertised by farm employers seeking H-2A workers in 2010. Three-fourths of the referred workers did not begin to work, and most of the US workers who began working on farms that sought certification to hire H-2A workers did not complete the season.

The US Department of State issued 64,404 visas to H-2A workers in 2008 and 55,921 in 2009. About 93 percent of H-2A visas are issued to Mexicans.

DOL issued training and employment guidance letters (TEGLs) on August 4, 2011 dealing with H-2A beekeepers, who can be moved from state to state without their employers seeking local workers in each state, with workers who tend sheep, goats, and livestock in the open range, and with animal shearing and multi-state custom combine owners and operators.

H-2A Cases. The trial of Alec and Mike Sou, owners of the 3,000-acre Aloun Farms, began in July 2011 in Honolulu. They are charged with forcing 44 Thai H-2A workers to work on their Oahu, Hawaii vegetable farm. According to the US attorney, the Thais were "entrapped into working on the farm for meager wages."

The Thai workers paid recruitment fees of $16,000 to recruiter Udon NT in Thailand for US jobs that paid at least $9.42 an hour. Udon allegedly gave $2,500 of this recruitment fee to the Sous. The Thai workers were promised three-year H-2A visas, but most such visas are valid for a maximum 10 months. The Thai workers' visas were not renewed for three years, prompting their suit.

The Sous kept the Thai workers' passports, paid them $1,200 a month rather than the $1,800 a month they were expecting, and deducted $200 a month for food. The workers were housed in a five-bedroom house even though the Sous, through their Aloun Foundation, received $3.1 million from USDA in low-cost loans to build farmworker housing.

The Sous, prominent Hawaii farmers, originally pleaded guilty to one count of importing laborers from Thailand to force them to work and agreed to cooperate with prosecutors, but later withdrew from that deal. The Sous say that, if the federal government had allowed the Thai H-2A workers to stay in the US three years as promised, there would have been no problems.

Wilson Daughtry, a vegetable farmer in Engelhard, North Carolina, was sued in June 2011 by 11 US farm workers who alleged that he discriminated against them in order to hire H-2A workers. Daughtry said that US workers do not want to do farm work: "I don't care if you pay them $20 an hour, you are not going to get them out here to do this type of work." Daughtry called the workers' suit frivolous, saying that the US workers who sued "were treated the same way as everybody else in the field, and for whatever reason they couldn't do the work or chose not to do the work."

Between July 2010 and June 2011, North Carolina farmers advertised 9,050 jobs that they wanted to fill with H-2A workers; the North Carolina Growers Association advertised 7,000 of these jobs. Some 752 US workers were referred to these jobs, but the state's Employment Security Commission does not have data on how many were hired or how long they remained employed.

H-2B. The H-2B program admits up to 66,000 guest workers a year to fill seasonal nonfarm jobs. The number of H-2B visas is usually fully used up soon after visas become available, prompting some seafood processors to complain of too few H-2B visas in summer 2011.

DOL changed the calculation of prevailing wages that employers must pay to H-2B workers effective October 1, 2011, making the prevailing wage the mean wage rate established by the Occupational Employment Statistics wage survey for the occupation in the area of intended employment. In many areas, this change raised the minimum wage of H-2B workers over 10 percent. DOL acted in response to an August 2010 federal court decision requiring DOL to change a Bush administration calculation of prevailing wage.

In September 2011, several Louisiana employer associations sued DOL and DHS to block the new prevailing wage regulations from taking effect as scheduled. They alleged that the sharp jump in the wages they would have to pay to H-2B workers under the revised calculations would lead to increased imports and "unfair" competition from US employers who hire unauthorized workers. North Carolina-based Mike Kelly Forestry Services said that it charged $75 per acre to replant loblolly pines, including trees and labor, and estimated that the change in the H-2B wage might double the cost of replanting trees.

DOL countered that, if more US workers knew about the wages paid in jobs now being filled by H-2B foreigners, they would apply for the jobs. Local employers say that many local residents receive government benefits and do not want to risk stopping and starting these benefits to fill seasonal jobs.

Under pressure from employers of H-2B workers, who filed suits in Louisiana and Florida, DOL delayed the effective date of the new prevailing wage for 60 days. Senator Barbara Mikulski (D-MD) charged that the higher prevailing wage might eliminate 1,000 seafood jobs in Maryland.

Interviews with H-2B workers who earn $8.32 an hour at Motivatit Seafoods in Houma, Louisiana report they would earn $8 a day in Mexico. About half of Motivatit's employees are H-2B workers. Motivatit, with $10 million to $15 million in annual sales, says that the H-2B workers are more reliable than local workers.

Unions and worker rights groups filed a complaint under the North American Agreement on Labor Cooperation in September 2011 alleging that the US failed to ensure that Mexican H-2B workers earned at least the US minimum wage while employed for J&J Amusements and Reithoffer Shows in 2007-08. The NAALC, signed in 1993, is the labor side accord of the North American Free Trade Agreement.

Emiley Morgan, "Agriculture officials seek access to migrant labor," Deseret News September 19, 2011. Julia Preston, "Lawmaker offers plan to lure migrant farm workers, New York Times, September 8, 2011.