Labor Department Changing Farm Worker Rules

The U.S. Department of Labor (DOL) has published new rules for the H-2A Guest Worker Program that have sparked protest from agricultural employers.

The new rules, to go into effect March 15, were published in the February 12 edition of the Federal Register. The final rules govern the labor certification process and enforcement mechanisms for the H-2A temporary agricultural worker program. The DOL said the rules are aimed at strengthening worker protections for both U.S. and foreign workers, but employers say the change means higher costs and a process so time-consuming they may not be able to hire enough labor to harvest their crops.

The H-2A nonimmigrant visa classification applies to foreign workers coming to or already in the United States to perform agricultural work of a temporary or seasonal nature. The Department of Homeland Security may not approve an H-2A visa petition unless the DOL certifies that there aren’t enough U.S. workers qualified and available to perform the labor involved in the petition and that the employment of the foreign worker won’t have an adverse effect on the wages and working conditions of similarly employed U.S. workers.

Agricultural employers have opposed the changes since the Obama administration tried to reverse a Bush administration policy last year. Many felt the policy, put in place during the waning days of the Bush administration, made it easier for employers to hire foreign labor for low wages. When Labor Secretary Hilda L. Solis tried to reverse the Bush administration rule, a federal judge granted an injunction blocking the action.

The latest change is hailed by the United Farm Workers (UFW) union. In a statement, the UFW said the Bush administration’s policy “dramatically impacted wages and working conditions for foreign agricultural workers.” Under the Bush rules, the union said, agricultural employers could more easily access cheap foreign labor with little government oversight.

The union says Solis’ rules reversed some wage cuts and would “remedy cutbacks in labor protections and restore the requirement that U.S. workers be hired before foreign laborers are imported.”

During fiscal year 2009, employers filed 8,150 labor certification applications requesting 103,955 H-2A workers for temporary agricultural work, according to the DOL. Ninety-four percent of the applications submitted were certified for a total of 86,014 workers.

The DOL says overall benefits of the new rule include increased wages for workers, the creation of a national electronic job registry, and protection against worker abuses by prohibiting cost-shifting from the employer to the worker for recruitment fees, visa fees, border crossing fees, and other U.S. government-mandated fees.