As any employer knows, hiring forms, applications and rules are cumbersome, time intensive, duplicative, and can sometimes lack flexibility and common sense. This can be especially true for farmers trying to hire workers through the H-2A guest worker program. In seasonal farming situation, it can be tough to find domestic laborers and sometimes foreign workers are the only option, but the process of getting them hired is notoriously cumbersome.
In September, the Department of Labor (DOL) announced changes through a Final Rule in an effort to modernize the burdensome H-2A visa process for guest workers and make it easier for employers to follow the law and hire workers.
First, DOL’s Electronic Recruitment Rule rescinds the requirements to advertise a job opening in print newspaper, expands and enhances electronic job register, and uses state workforce agencies to promote job openings, which are further reaching and more cost effective. Also, DOL’s Office of Foreign Labor Certification announced updates to the pertinent H-2A forms and online filing process for the H-2A temporary agricultural program.
“Both of these actions by DOL are critical changes the Administration is making to improve the H-2A application process,” said Sonny Perdue, Secretary of the U.S. Department of Agriculture. “President Trump is committed to ensuring our farmers and producers have access to a stable, legal agricultural workforce. By streamlining these processes, DOL is bringing the H-2A process into the 21st Century allowing farmers to be able to better and cost-effectively advertise for workers they need and fill out the required forms faster and more efficiently, because no one should have to hire a lawyer to hire a farm worker.”
DOL’s new labor application process modernizes two forms by making them electronic, removing time-intensive paper applications that require delivery via mailing. Beginning Oct. 1, an employer seeking to employ emergency, H-2A workers or those starting on or after Dec. 15, 2019 must submit a job order using the new form ETA-790/790A (and corresponding addendums) and an H-2A application using the new form ETA-9142A (and corresponding appendices) in the FLAG System. For more information, visit DOL’sForeign Labor Application Gateway(FLAG) page at flag.dol.gov.
“That should help keep costs down for farmers,” said Joyce Chen, a labor economist and associate professor in Ohio State’s College of Food, Agricultural, and Environmental Sciences (CFAES).
The new rules on getting visas for temporary foreign workers will also allow agricultural employers to pay migrant workers an hourly wage based on what other domestic workers employed in the same position in the area are paid. The current formula for calculating wages requires farms to average the hourly wages of both U.S. supervisors and their field workers to generate an hourly wage for temporary foreign workers in a county.
So, if a domestic lettuce picker in Sandusky County is paid $10 an hour and a supervisor is paid $15 an hour, the temporary migrant worker not in a management position has to be paid at least $12.50 an hour, the average of those two hourly wages.
“The new rules will allow farmers to hire temporary migrant field workers for less than they do now,” Chen said. “But they’ll still be required to pay a wage in line with what domestic workers doing the same job get.”
Ohio’s agricultural industry depends heavily on an ever-shrinking number of migrant workers from Mexico and Central America, many of them undocumented. The rule changes that the U.S. Department of Labor is putting in place likely will increase the number of temporary migrant workers brought to the United States and might reduce the number of undocumented workers, Chen said.
“The changes to the rules on wages for migrant workers will create more opportunities for both workers and employers to operate through official channels,” said Chen, who works in CFAES’ Department of Agricultural, Environmental, and Development Economics (AEDE).
Employers seeking to hire migrant laborers have to apply for an H-2A visa for each person they hire. That visa allows a migrant laborer to work on a U.S. farm for up to a year.
But as part of the application process for those visas, employers are required to hire all qualified and willing U.S. workers for a certain period, which will be shortened when the new rules go into place. Under the changes, agricultural employers will be required to hire U.S. workers for the first 30 days of when the visas for their migrant workers begin.
Currently, farms have to hire U.S. qualified workers that seek the work for at least half of the duration of the visa. So, if a farm owner pursues a six-month visa for a migrant worker to plant peppers in Huron County, he or she has to hire all qualified and willing U.S. workers for the first three months.
The change to 30 days might not be advantageous for domestic farm laborers, Chen said.
“Workers seeking jobs later in the season, after the first 30 days, are more likely to find that no positions are available,” she said.
Administrative changes to the H-2A visa process will likely make it easier for farmers to apply for the visas, Chen said. Under the new rules, agricultural employers will have to file only one application to hire temporary workers, even if they bring on crews at different times in the season. The current system requires a farm owner to file a separate H-2A visa application each time he or she wants another set of workers, even within the same growing season.
The new process also requires that all applications be filed electronically rather than through paper applications, which typically take longer to process.
“Overall, this will be positive for farmers and will help streamline some of the bureaucracy for hiring migrant workers, as well as give them more flexibility in hiring throughout the season,” Chen said.