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Pundit’s Mailbag — AgJOBS vs H-2A

Our piece Pundit’s Mailbag — AgJOBS vs. Lou Dobbs featured an important letter from Jim Allen, President, New York Apple Association, Inc. The letter focused on the problems caused because the industry is short of harvesting labor and on the need to lobby for the AgJOBS bill.

The letter was widely circulated and brought this note from the Managing Director of another commodity group:

We currently have a Guest Worker Program that enables growers to bring in farm workers on a temporary basis. So if growers are concerned about whether Congress will pass a comprehensive immigration bill, then why don’t they use the H-2A visa program?

Our peach growers have been using the H-2A program for some time.

— Charles Walker
Managing Director
Columbia, South Carolina

Mr. Walker is asking an important question and one that may point to why the industry is having such difficulty getting the legislation it would like passed.

Many growers don’t like the H-2A program. The Pundit often hears complaints, particularly about the requirement that the growers provide housing for the workers.

The program is complex, though, so we asked Robert L. Guenther, Senior Vice President Public Policy for United Fresh Produce Association, to do a little Guest Punditing and let us know what United saw as the flaws in the H-2A program:

Current problems with H2-A Program

Submitted by Robert Guenther
SR. Vice President
United Fresh Produce Association


Farmers in the United States grow, harvest, and market the food that feeds the U.S. and most of the world. Historically, U.S. farmers face the same predicament every year, a shortage of legally documented workers when crops are ready for harvest. The Temporary Agricultural Guest Worker Program, commonly called H-2A, was created in response to this shortage of workers. The program is governed by the Immigration Reform and Nationality Act, as amended by the Immigration and Control Act of 1986 (IRCA). The H-2A Program allows agricultural employers who anticipate difficulty in obtaining domestic workers to petition the government for permission to bring nonimmigrant aliens into the U.S. for temporary or seasonal work.

Unfortunately, over the years, many have seen the H2-A program as unworkable on a broad scale related to labor intensive agriculture for several reasons:

  • Current program is extremely bureaucratic and unresponsive — The H-2A Program has numerous deadlines an employer must comply with. As the time for harvest draws near, a missed deadline can mean a one-week delay on having the workers available to harvest crops. A one-week delay could spell economic disaster for the grower. In fact the U.S. General Accounting Office found that Department of Labor misses the required processing time 40 % of the time for an application. In addition many growers are reporting that workers are showing up weeks after needing them.
  • Program is for many unaffordable as the H-2A program imposes a wage substantially higher than the market wage and also requires that the grower pays housing and transportation — Only the H-2A agriculture worker program sets the required wage based on the “Adverse Effect Wage Rate” (AEWR). This is a flat rate that is paid across the country and is an average of all workers in a specific industry. All other temporary worker programs use the Prevailing Wage Rate, which is determined state-by-state and region-by-region. The Prevailing Wage Rate is also based on each individual industry and specific occupation.

In addition, Employers seeking H-2A certification must provide free housing for non-local workers. The employer can provide the housing by erecting housing, or renting public accommodation type housing. Finally, every non-local worker employed on an H-2A contract is entitled to be paid for all transportation costs related to travel from the place where the worker was recruited to the site of the job, and then back to the worker’s home place. In addition, the employer shall provide free worker transportation, which meets all applicable safety standards, between the worker’s living quarters and the employer’s worksite.

Current program is litigation prone so a lot of people do not want to get into it — In fact the H2-A program has become a magnet for litigation, preventing most farmers from using the program and forcing those using it to exit and take their chances with a largely unauthorized workforce. The law punishes non-H-2A employers for being too diligent in inquiring into the legal status of prospective workers, but potentially criminalizes those employers for not being diligent enough when the Social Security Administration reviews their payroll tax reports or the Department of Homeland Security raids or audits a farming operation. In fact California growers who have tried to use the program have all been sued in recent years. In addition, the Florida sugarcane industry until the 1990’s was the predominate employer of H-2A workers. This changed because of several class action lawsuits brought to enforce various provisions

Many thanks to Robert and to United Fresh for providing this important explanation. In fairness, we also should note that none of this is news to Charles Walker. Among the issues the National Peach Council has lobbied for is to make the H2-A program more acceptable to growers. The NPC web site points out that it has lobbied for, among other things:

  • Guest Worker Program
  • Reform/streamlining the H-2A program
  • Replacing the Adverse Effect Wage Rate requirement in the H-2A program with the “prevailing wage rate” (H.R. 2457 and S. 1442)
  • Placing restrictions on Legal Services Corporation

Still, one wonders if the industry wouldn’t have better luck fighting to make the H2-A program less bureaucratic, more responsive and less prone to litigation than to create a whole new program?

And there is a time and place for everything. It is hard to sustain an argument that on the one hand the industry is desperate — produce is rotting in the field because we have no labor — and on the other hand sustain an argument that the H2-A program is unacceptable because the wage rate required is too high!

Sometimes if you push too hard, you wind up getting nothing. Those who are concerned about immigration in general and do not view it as primarily an ag issue, probably take a lot of comfort from requirements to pay for transportation home. And the mental suggestion of dormitory housing and transport being provided by the grower probably resonates as just what they would find acceptable — an army of workers (hopefully without families with them) staying for a limited time (during which we know exactly where they sleep every night) and then being flown home when they are finished working.

If United and WGA and other groups feel they can pass AgJOBS and that is easier and better for growers, so be it. But we don’t want the best to be the enemy of the good. If they don’t see success with AgJOBS as likely, there may be modifications we can make to the H2-A program that will both help get produce harvested and pass the Congress.

Many thanks to Charles Walker, the National Peach Council, Robert Guenther and the United Fresh Produce Association for helping us think through this important issue.

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