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Changes on the horizon for H-2A temporary agricultural labor rules

By Evin Bachelor, Law Fellow, Ohio State University Extension Agricultural & Resource Law Program

The U.S. Department of Labor (DOL) says that it has found a number of inefficiencies in the H-2A temporary agricultural labor visa program, and the department has a solution: change the program’s rules. The DOL has proposed a number of administrative rule changes that it believes will make the approval process move along quicker, relieve burdens on U.S. farms, and create a more level playing field with regards to pay. Before we talk about the rule changes, let’s recap what the H-2A program is.

 

H-2A is a visa program for seasonal agricultural laborers from other countries

Labor shortages have plagued farms across the United States for decades. Congress first created a visa program for non-immigrant labor in the early 1950s, but it wasn’t until 1986 that Congress established the H-2A visa program for temporary agricultural workers. Under this program, farmers may apply to employ H-2A workers on their farm on a temporary or seasonal basis for up to a year, but may apply to renew the worker’s visa for up to three total years.

In order to hire H-2A workers, an employer must certify in an application to the DOL that there are not enough qualified domestic workers willing and able to perform temporary and seasonal agricultural labor. In order to prove that there is not enough domestic labor, the farmer must demonstrate an effort to advertise the available work in the local area.

Further, the farmer must demonstrate to the DOL that employing foreign workers will not negatively affect the wages and working conditions of similarly employed U.S. workers. In other words, a farmer can’t hire foreign labor because it’s cheaper. A farmer is expected to pay the foreign workers the same as the farmer would pay domestic workers, based upon the higher of the DOL’s Adverse Effect Wage Rate, minimum wage, or prevailing wage.

 

What does the Department of Labor seek to change?

The DOL proposes to make several changes to the H-2A program’s administrative rules. Some of these changes update the rules to reflect what is already happening, while some make slight changes to the program’s overall scope.

  • Mandate e-filing. The DOL currently allows farmers to submit their applications online or in hard copy, but reports that four-fifths of applications are completed online. A review by the DOL has found that online applications get completed more quickly, have fewer errors, and reduce costs relative to hard copy submissions. Under the new rule, the DOL would require all applications to be completed online, unless the farmer has a disability or does not have Internet access.
  • Allow e-signatures. The DOL currently requires farmers to sign a hard copy of their applications and either scan the document into the application or mail it. Under the new rule, the DOL would accept e-signatures as equal to handwritten signatures.
  • Subdivide the adverse effect wage rate based upon specific agricultural occupations. In the previous section, we noted that the farmer must pay the foreign workers the same as he or she would pay domestic workers. One way to determine that wage is to use the DOL’s Adverse Effect Wage Rate. Currently, the DOL has one rate for a state or region based upon the combined numbers for field and livestock workers. Under the new rule, the DOL would use Farm Labor Survey data to subdivide agricultural occupations in order to ensure that higher paying occupations, such as supervisors of farmworkers and construction laborers on farms, use an Adverse Effect Wage Rate that properly reflects the wages of those higher paying occupations, rather than one general rate for all agricultural workers.
  • Update the methodology for calculating prevailing wage standards. Another way to calculate the minimum wages of H-2A laborers is to base their pay off of the prevailing wage. The current method of calculating the prevailing wage, which has not been updated since 1981, requires in-person interviews of employers. Under the new rule, the DOL would eliminate the in-person requirement and allow states to collect data using more modern methods.
  • Incorporate guidance letters regarding animal shearing, commercial beekeeping, custom combining, and reforestation occupations into formal rules. When asked for an interpretation of its rules and policies, a federal agency may issue a guidance letter to the person seeking an interpretation. These guidance letters are not necessarily binding, and have no general application beyond the person seeking the interpretation. By incorporating the guidance into a formal rule, the interpretation holds the force of law. The DOL identified these occupations as unique relative to other agricultural occupations, and created a special set of procedures to obtain H-2A laborers to work these types of jobs.
  • Expand the definition of “agriculture” to include reforestation and pine straw activities. Currently, reforestation and pine straw occupations are only available for H-2B applications, which are for non-agricultural occupations. Under the new rule, these activities would be eligible for the agricultural based visa.
  • Reduce the time an employer must allow a domestic worker to apply for a job to 30 days. Currently, the DOL requires a farmer to hire all eligible, willing, and qualified U.S. workers who make themselves available to work until the half way point in the H2-A contract period. This means that if a farmer has H-2A laborers working under a six-month contract, then the farmer must hire any eligible, willing, and qualified domestic worker during the first three months of the contract. Under the new rule, the farmer would only have to leave such opportunity open to domestic workers for 30 days.
  • Allow an employer to stagger the entry of H-2A labor. Sometimes a farmer does not need all of the H-2A labor to arrive at once, but rather needs some to start on one date and then others to start on a different date. Currently, this would require the farmer to submit an application for each date on which the farmer needs H-2A labor. Under the new rule, the farmer would be able to submit one application but stagger the start dates of his or her workers over the course of 120 days. This 120-day clock begins on the day the first H-2A workers enter the U.S.

The public may submit comments until Sept. 24, 2019

As part of the public rulemaking process, the DOL is seeking public input on the proposed rule changes. Members of the public may submit written comments to the DOL until Tuesday, Sept. 24, 2019.

You may submit a comment online (visit https://www.regulations.gov/) or by mail (send to Adele Gagliardi, Administrator, Office of Policy Development and Research, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue NW, Room N-5641, Washington, DC 20210). When mailing comments, be sure to include the rule’s Regulatory Information Number (RIN): 1205-AB89.

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