8 Things to Know About Proposed H-2A Reforms

Despite government red tape and its expense, the H-2A visa program has experienced rapid growth in recent years. For many specialty crop producers, it has become the only game in town to source reliable labor.

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In an effort to address grower complaints about the program, Secretary of Agriculture Sonny Perdue convened a working group made up of stakeholders and the regulatory agencies involved in managing the program to seek improvements.

“Changes to the H-2A program should be coming from Congressional action,” says Kerry Scott, Program Manager for labor placement firm másLabor. “But they have found it difficult to get anything done these days, especially anything related to immigration, even though H-2A is considered a non-immigrant program. This working group sought changes that can be made from a regulatory standpoint without Congress acting.”

After about two years, the group has now released those proposed changes and is allowing a 60-day comment period on the rules. Scott says his company’s legal team has pored through the 500-page document and identified some of the key reforms being proposed.

“These changes are intended to help growers using the program without causing harm to workers from abroad or potential U.S. workers,” Scott says.

Here are the eight key updates.

  • Staggering worker arrivals. Under current rules, the Department of Labor (DOL) doesn’t like employers to stagger worker arrivals by more than a couple of weeks. If growers delay worker arrivals over a longer period of time, it requires filing separate job orders (H-2A applications). This adds paperwork and expense. The proposed rule change would allow employers to receive workers when they need them for up to 120 days after the first group of workers arrive. “This extra 120 days will help a lot of people who need to stagger worker arrivals and minimize the number of job orders,” Scott says.
  • Eliminates the 50% rule. Under the current rules, growers must offer any able-bodied and willing U.S. worker a job if they seek employment until the halfway point (50%) of the H-2A contract. The proposed change would require employers to offer jobs to U.S. workers during the first 30 days of the contract. “If a grower needs more people, he can hire more people,” Scott says. “But they would not be forced to offer these positions after 30 days.”
  • Adding workers. Currently, growers have to estimate how many workers they think they will need several months out when applying for an H-2A job order. “What if the farm has a bumper crop or the farmer picks up a new field or grove and needs more help?” Scott asks. “As the rules are today, the grower would have to file a new job order with a 90- to 120-day lead time. The rule change would allow growers to bring in more workers at any time during the season provided they can prove they need the workers.”
  • Adding new worksites. Under current rules, employers must provide the addresses where the workers will be working. The proposed rule change will allow the employer to add new worksites to the original job order without filing a new application.
  • Two new program sectors. Reforestation and pine straw collection would move from the H-2B program into the H-2A program. “This is being done more for the benefit of the H-2B program, because its number of available visas are capped and have not been updated since the program was created. There was a temporary bump in visas this year, but it really is a only band aid-fix and does not resolve the problem,” Scott says. “Moving these quasi-agricultural sectors into the H-2A program (which has no cap) will free up a significant amount of H-2B visas.”
  • Streamlined and simplified paperwork. The change would move some documentation from paper to digital, online filing. It also would allow for e-signatures.
  • Allows more market-based wage rates. Currently, H-2A wages are set in states, or clusters of states, based on surveys conducted by USDA’s National Ag Statistics Service. With this data, the DOL establishes the Adverse Effect Wage Rate in those states or clusters of states. “These wage rates are set and are the same for all jobs being conducted on the farm,” Scott says. “That doesn’t always make sense, considering the different types of work on the farm. A person doing hand harvesting is a different job than someone operating a sophisticated, very expensive piece of harvesting equipment. The change would allow for more market-based wages to be applied to the type of job being done on the farm.”
  • Expands the area of intended employment. The current norm is that applications list an “area of intended employment,” which is basically a 60-mile radius from where the farm is based. The worker is intended to work within this area. “In some cases, this is perfectly fine,” Scott says. “But, for instance, citrus growers might have workers traveling all over the place. The rule change would allow workers to travel reasonable distances beyond the 60-mile radius without the need to file a separate job order.”