03/04/08

Sweeping H-2A Reform Regulations
Proposed by USDOL and DHS

After years of working with the agricultural industry on immigration reform legislation, the Bush administration became familiar with the many complaints and concerns regarding the operation of the H-2A program. In early August, White House officials contacted the National Council of Agricultural Employers (NCAE) soliciting recommendations on how to change the program. An August 10th, 2007, White House news release stated, "No sector of the American economy requires a legal flow of foreign workers more than agriculture, which has begun to experience severe labor shortages as our southern border has tightened. The President has therefore directed the US Department of Labor (USDOL) to review the regulations implementing the H-2A program and to institute changes that will provide farmers with an orderly and timely flow of legal workers, while protecting the rights of laborers."

After deliberation by the NCAE H-2A Committee, which is comprised of 20 members from around the nation, almost all of whom either provide H-2A services or use H-2A themselves, NCAE sent letters to the White House with extensive specific recommendations. In early February, the administration responded with an extensive rewrite of the USDOL H-2A regulations, and less extensive and more subtle changes in the US Department of Homeland Security (DHS) regulations governing H-2A visas. After a first look, it is apparent that the proposed changes are not all good for employers, and agricultural employers will have to respond to USDOL with force on a number of issues.

Some of the highlights of the proposed H-2A regulations:

• Employers would be required to pay for all recruiting.


• USDOL fees would increase from $10 per worker to $100 per worker.


• Abandonment of the "certification" process for an "attestation" process that really isn't much different in practical terms.


• Employers would be required to run media advertising earlier (before the application was filed) and in more places, such as states designated as "source states" by USDOL.


• State workforce agencies would have to either I-9 or E-verify US H-2A job applicants.


• Employers would no longer have to do the same kind of documentation, such as recruitment reports, and would no longer have to send them to USDOL and the state for approval, but instead they would be subjected to more frequent and in-depth compliance audits.


• The Adverse Effect Wage Rate (AEWR) would be split into several categories: job type; experience level; and region of the state. The result would be many different AEWRs in each state, perhaps even hundreds.


• The employer would have to apply for an AEWR determination prior to each H-2A application.


• The 50% rule for hiring domestic workers is retained.


• More flexibility in housing requirements, such as inspection timing and housing allowances in certain circumstances.

There are dangers in the proposals that not all will recognize. They are immensely complicated and require technical analysis to be fully understood. The wage rate will lure many, without analysis. NCAE is leading the effort to respond to these regulations. (WGL is a member of NCAE and WGL Executive Director Mike Gempler is currently serving as President.) NCAE has retained the leading experts on H-2A to perform a detailed technical, legal and political analysis of the proposed rules and the H-2A committee will meet on March 6, 2008, to establish an official position. After the NCAE position is established, the recommended position will be sent to the industry and grass-roots support of the NCAE position will be encouraged. All interested parties have until March 31, 2008, to send comments to USDOL and DHS.

Detailed H-2A regulatory development information is available on the NCAE website for members. Your support is encouraged. To join online go to www.ncaeonline.org.

To learn more about using the H-2A Program, visit our H-2A Overview page.