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April 2009, Volume 15, Number 2

H-2A Re-Engineering, OES

The US Department of Labor (DOL) "re-engineered" its H-2A regulations effective January 17, 2009, converting the H-2A program from a certification to an attestation program, changing the formula for determining the Adverse Effect Wage Rate (AEWR), and modifying the 50 percent rule, which 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.

The UFW sued DOL on behalf of US citizen and H-2A farm workers, requesting an injunction to block the new regulations from going into effect. A federal judge denied the request, concluding that the farm workers who sued could not show they would be irreparably harmed by the new regulations. However, on March 17, 2009, DOL announced that the new H-2A regulations would be suspended for nine months and re-examined.

About 90 percent of the farm employers who apply for H-2A workers applied the year before, and over 95 percent of employer requests for H-2A workers are approved. Nonetheless, some farm employers complained that they made plans under the new regulations and would now have to satisfy the old H-2A regulations.

Western New York farmer Eric Brown, who hires 30 H-2A workers to harvest apples, said: "It is a legal way to bring non-resident people into this country to do work that the people of this country don't want to do. It works. It's not easy, but it works." In western New York, an increased number of Border Patrol agents has prompted more farmers to apply for H-2A workers. The AEWR for 2009 in New York is $9.50 an hour.

The Dairy and Sheep H-2A Visa Enhancement Act (H.R. 1660) was introduced on March 23, 2009 to allow dairy farmers to employ H-2A workers even though the jobs are year-round. HR 1660 would grant dairy workers three-year visas that could be renewed once.

OES Data. A key component of the H-2A re-engineering was a switch in 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. OES data are collected by SWAs from employers under protocols developed by BLS, and published by both the SWAs and BLS.

The OFLC makes the BLS OES data available at various levels of geographic detail ( However, the fact that the data are for workers brought to farms by third parties, and are often not available for the MSA in question, may limit the ability of the OES to provide area-specific data, one of the purposes of the re-engineering.

For example, the North Carolina SWA estimated statewide employment in farming, forestry and fishing occupations (SOC-4500) that provide support activities for crop production (NAICS 1151) at 1,570 in 2008. Level 1 wages (the mean of the lower third of the wage distribution) were $6.86 an hour, and Level 4 wages (the mean of the upper two-thirds of wages) were $9.38 an hour. About 45 percent or 710 of these support workers were crop workers, SOC-45-2092, and their Level 1 wages were $6.84 while Level 4 wages were $8.71.

Most North Carolina farm workers are hired directly by the farmers who employ them rather than indirectly via support firms. The 2002 Census of Agriculture reported that only 10 percent of North Carolina farmers' total labor expenditures were for contract labor expenses, meaning that 90 percent of labor expenditures were made directly to the workers employed by farmers. UI-covered employment and wage data showed that agricultural support firms accounted for 13 percent of average farm employment of 29,513 in 2006 and 14 percent of the total $785 million in farm wages paid. (

Wages for crop support workers, SOC 45-2092, vary significantly around North Carolina, according to both the North Carolina SWA and the FLC data centerÑ the FLC data center uses data from surrounding areas if data are not available for the area in question. The FLC data center has a geo code of one if the data are from the MSA in question; two if the data are from the MSA plus contiguous areas; three if the data are statewide; and four if the data are national for the occupation.

North Carolina has 15 MSAs. In 2008, eight reported wages and employment for SOC 45-2092 (crop support workers) at the geo code one, meaning from the MSA, and seven reported data from geo code two, meaning from the MSA plus contiguous areas. Level 1 wages varied from a low of $6.52 in Virginia Beach to a high of $10.68 in Asheville, and Level 4 wages varied from a low of $7.80 in Greenville to a high of $11.85 in Asheville.

For the four-county Asheville MSA, the North Carolina SWA data estimated 500 farm workers (SOC 45-0000) in 2008 and a Level 1 wage of $6.92 an hour and Level 4 wage of $9.78. However, for the subset of crop workers, SOC 45-2092, wages were much higher; the Level 1 wage was $10.68 an hour and the Level 4 wage was $11.85. The number of crop workers was not disclosed, but for the state of North Carolina, crop workers were 35 percent of farm workers.

The Burlington MSA includes only one county. Workers with farming occupations, SOC 45-0000, had a Level 1 wage of $11.68 an hour in 2008. However, Level 4 wages were $17.05, perhaps because a third of farm workers are high-wage logging equipment operators (SOC 45-4022). The North Carolina SWA does not provide wage data for Burlington crop workers, SOC 45-2092, but the FLC data center provides data at geo level 2, meaning that the Level 1 wage for SOC 45-2092 includes data from adjacent MSAs, Durham (which also has no state data for SOC 45-2092), Greensboro-High Point, which has a Level 1 wage for SOC 45-2092 of $7.56 and a Level 4 wage of $9.50.

The California SWA generates wages for crop workers, SOC 45-2092, for the MSAs in the major farming areas (, but the FLC data center does report support worker crop wage data for some of the major farming MSAs, including Kern-Bakersfield, Fresno, and Imperial.

For Visalia, the Level 1 wage for SOC 45-2092 in 2008 was $7.69 an hour and the Level 4 wage $8.99 an hour at geo code 1, meaning the data were from this MSA. For Monterey, the Level 1 wage for SOC 45-2092 in 2008 was $7.91 an hour and the Level 4 wage $9.03 an hour at geo code 1, and for Napa the Level 1 wage for SOC 45-2092 in 2008 was $9.42 an hour and the Level 4 wage $13.13 an hour at geo code 1.

Diana Louise Carter, "Area farmers raise pitchforks at delays in guest worker reform," Rochester Democrat and Chronicle, March 25, 2009.

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