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January 2019, Volume 25, Number 1

H-2A; H-2B

USDA's Farm Labor Survey reported that the average hourly earnings of field and livestock workers rose six percent between 2017 and 2018, from $12.47 to $13.25, twice the three percent increase for private-sector production workers. The Farm Labor Survey is used to set the Adverse Effect Wage Rate, the minimum wage that must be paid to H-2A workers and US workers employed alongside them.

There was a 23 percent jump in the mountain states of Colorado, Nevada, and Utah, where average hourly earnings rose from $10.69 to $13.13 an hour. California's average rose from $13.18 to $13.92, up six percent, while the average hourly earnings in Washington and Oregon rose from $14.12 to $15.03; this $15 AEWR is the highest in the US. Average hourly earnings dropped slightly in Florida and in the Cornbelt states of Iowa and Missouri.

Farmers asked Congress to freeze AEWRs for 2019, arguing that sharp increases such as the 23 percent jump in mountain states would hurt them. The National Council of Agricultural Employers, whose 300 members including associations employing an estimated 85 percent of H-2A workers, sued DOL to prevent the higher AEWRs from going into effect.

DOL and DHS in November 2018 published regulatory notices that would require employers seeking H-2A and H-2B guest workers to post job vacancies online for at least 14 days at to recruit US workers. The American Farm Bureau Federation wants farm employers to continue to satisfy their recruitment of US workers obligation by using only print ads.

Senator Dianne Feinstein (D-CA) was re-elected to a fifth six-year term in November 2018. Feinstein, who was endorsed by both the UFW and the Western Growers Association, has been a driving force for an earned legalization program for unauthorized farm workers and a new guest worker program for farmers.

Under Feinstein's various Blue Card proposals, unauthorized farm workers would earn immigrant visas for themselves and their families by continuing to do farm work. A new guest worker program eliminates requirements that farmers try and fail to recruit US workers, ends requirements for employers to provide free housing, and reduces the Adverse Effect Wage Rate that must be paid to guest workers.

Feinstein's Agricultural Worker Protection Act of 2017 included a Blue Card legalization program for unauthorized farm workers and an employer-friendly guest worker program for farm employers. Congress did not act on Feinstein's bill.

DOL certified 242,762 jobs to be filled with H-2A workers in FY18, up 20 percent from FY17. Georgia (13 percent), Florida (12 percent), Washington (10 percent), North Carolina (9 percent), and California (8 percent), had over half of the jobs certified.

The largest H-2A employers included the NCGA, 11,600 jobs certified, followed by WAFLA, 5,200, Fresh Harvest and Zirkle, 2,000 each, and Alewelt Concrete and Elkhorn Packing, 2,700 each. Berries accounted for almost 10 percent of all jobs certified.

Washington's Employment Security Department in October 2018 proposed that farmers using the H-2A program pay $1,000 to apply, plus $100 per worker for the first 1,000 H-2A workers, to cover ESD costs that are not met by an annual federal grant of $300,000 to cover the state's costs of the H-2A program. ESD estimated that the fee would raise $3.2 million a year, and rise as the program expands.

ESD surveyed 2,130 farm employers in October 2018 to collect data on piece rates paid to US workers so that ESD can establish prevailing wages that must be paid to H-2A workers. WAFLA in 2015 advised growers not to complete the survey, and complained when ESD found that the average piece rate for picking gala and red delicious apples rose to $25 a bin in 2017 from $20 in 2016.

Fresh Harvest. The largest H-2A employer in California agreed to pay $1 million in back wages to workers who rode Fresh Harvest vehicles to and from work, but will not pay travel time to workers in the future. Several similar suits seeking worker pay for travel time are pending.

H-2B. There are 66,000 H-2B visas available each year to employers offering seasonal nonfarm jobs; they are distributed in two tranches of 33,000 each. Employers typically request all of the available H-2B visas, and Congress in FY17 and FY18 allowed DHS to issue an additional 15,000 H-2B visas to employers who would suffer hardship without them.

When 33,000 H-2B visas for became available for summer 2019 on January 1, 2019, DOL servers crashed as employers and their agents tried to submit 100,000 requests to DOL. Over 81,000 H-2B workers were requested January 1, 2018.

The H-2B Workforce Coalition and the Seasonal Employment Alliance want Congress to double the number of H-2B visas available.

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