Last January, in the final days of the Bush administration, the Department of Labor finalized new regulations intended to streamline the H-2A agricultural guest worker visa program. Then in March 2009, the Obama administration tried to suspend those regulations but was stopped short by a federal court order. Undaunted on their mission to issue anti-business regulations that are impossible to use, the Department of Labor has now circumvented the federal court ruling and has issued its own H-2A regulations, effective since Monday, March 15th.
The DOL’s new regulations effectively undo the short lived Bush-era H-2A rules, rendering the program even more difficult to use. The new regulations are easy to violate and carry costly penalties if you do so, unknowingly or not. While I was on a national call with Immigration Works last week, a rep from the American Farm Bureau Federation (AFBF) referred to the new regulations as the “worst we have seen.” Watch the AFBF’s labor specialist talk about the new H-2A rules here.
The new regulations place costly burdens on farmers who use the program legitimately to find foreign workers to fill agricultural jobs for which U.S. workers are not available or more accurately – for jobs U.S. workers do not want. Despite a critical shortage of agricultural workers in this country, 15 million Americans currently choose to work in jobs that pay an hourly wages far below that of the typical hourly wage for a farmworker. That leads us to the question, whose jobs are President Obama and the Department of Labor protecting with these new regulations??
Beyond placing insurmountable financial burdens on the agribusiness industry the DOL has added another provision to their ill-conceived reversal of the Bush regulations…Now, farmers must accept the workers that their state workforce agency sends them. Here’s how’s the new rule will work: Once the mandated referral time has elapsed and you have hired a H-2A worker (because they are the only ones who want this type of work) and your state workforce agency sends you an American candidate for a job you advertised for months ago, you have two options. 1) You can fire the H-2A worker and hire the American worker or 2) You can keep them both. Yes, those are your only two choices. What will most farmers do? They will keep both workers because American agricultural workers, on average, quit within 3 days of being hired.
Amidst the rhetoric, one crucial point is frequently overlooked – foreign workers often help keep American workers employed. The DOL probably doesn’t know this but every H-2B crab picker on Maryland's Eastern shore supports 2.5 jobs for native-born workers. Every farm job in the U.S. – 75% of which are filled by foreign workers on H-2A visas - sustains 3.5 non-farm jobs. And with every H-1B visa issued, American technology companies create 5 jobs for other workers.
So, all in all, the DOL’s new H-2A regulations make a bad situation worse. The AFBF is asking a federal district court to delay the Obama administration’s final rule on the H-2A foreign worker program in hopes that a comprehensive immigration will reach Capitol Hill this spring. Senators Schumer and Graham recently announced the framework of their bi-partisan comprehensive immigration reform bill. With health care reform on its way to the President’s desk, immigration reform is the next topic up for debate. If and when comprehensive immigration reform begins to move in Washington, the Partnership will take a firm stand to protect Buffalo Niagara’s agribusiness industry.