03/16/09

USDOL Announces Intent to Freeze New H-2A Regulations

As members are undoubtedly aware, the Bush Administration engaged in a large end-of-term effort to introduce and finalize new H-2A regulations, and published final regulations on December 18, 2008. The regulations were hotly debated, fervently opposed by labor, but became effective January 17, 2009.

Farm labor advocates made it clear that they detest the new regulations. The newly-elected Obama Administration is close to the farm labor movement. It was assumed that the new regulations would be challenged by the farm labor groups and, if they were unsuccessful, by the Obama administration. The farm labor groups filed suit on January 12th, 2009 requesting a temporary restraining order, preliminary injunction and permanent injunction against the new rules. The TRO and preliminary injunction were refused on January 15th by a judge in the District of Columbia US District Court, and the new rules went into effect on January 17th.

We were waiting for the other shoe to drop and expected some sort of reaction from USDOL. Labor Secretary Hilda Solis, who is a friend of the farm labor movement, was confirmed on February 24th and had her symbolic formal Oath of Office ceremony on Friday, March 13th.

On the same day as Secretary Solis' swearing-in ceremony, (Friday, March 13th) the new Solis US Department of Labor announced its intention to "suspend", for 9 months, the new final H-2A rule which was pushed through at the very end of the Bush administration and which went into effect on January 17th. This new H-2A rule, scheduled to soon be suspended, has in the opinion of Northwest Growers staff, good and bad changes from the old rules. However, here in the Northwest, we were anticipating to see generally lower wage rates in the new rules, which is a big positive for our members.

The proposed suspension rule is to be published tomorrow, March 17th. The rule will give 10 days for comment. After the comment period is over, the department will issue new regulations regarding the suspension. Given the political climate and haste of the department, this is likely to occur a short time after the end of the comment period. The suspension order would reinstate the old (1/16/2009) rules "verbatim" and USDOL is likely to recalculate the 2008 AEWR for 2009. Because USDOL is opening the entire rule, after the 9 months suspension they could develop significantly new H-2A regulations.

Around the country, substantial numbers of applications and contracts for 2009 have already been completed based on the new rule. Suspension of the new rules; at this late stage will be confusing and could be extremely difficult for farm employers with pending applications and contracts. NGA supports the National Council of Agricultural Employers position to continue to advocate for passage of AgJOBS as a more permanent solution to design of the H-2A program and the legal status of agricultural workers. HOWEVER, investigation into legal remedies to the proposed suspension is underway.

In the interim, our members should urge our elected officials and regulatory agencies to maintain the H2A program in its current form for 2009 in order to assure regulatory stability for employers and employees alike. Members who use H-2A should emphasize that they have established budgets, contracts and quotes based on the new regulations, and that it is extremely difficult to do business with regulations changing immediately after "retooling" for a previous change. Comment by going to www.regulations.gov and searching for H-2A. The most recent entry should be on top and that should be the March 17 filing of the proposed "suspension". We are assuming that the USCIS H-2A regulations will be suspended also.

Will applications already made or those made prior to the effective date of a suspension be under the new or old H-2A applications?

The draft federal register release obtained today and which will be published tomorrow states: "If a final decision is reached to suspend the final rule, any H2A application for which pre-filing positive recruitment was initiated in accordance with the H2A final rule [new rule] prior to the date of suspension will continue to be governed by the H2A final rule [new]." As we are in the "interim period" with applications being filed for start dates prior to July 1, pre-filing positive recruitment begins upon filing the Form ETA 790 and the Form 9142. USDOL has 7 days to accept or reject the application.

For more information, visit this DOL Website link