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Oct. 31, 2022, by Mateusz Perkowski

Farmers who rely on foreign guestworkers can only expect more red tape from upcoming revisions to the H-2A visa program, according to agricultural labor experts.

The stricter demands and increased costs may dissuade farmers from using H-2A or growing labor-intensive crops altogether — ultimately making the U.S. more dependent on food imports, experts say.

“We’re shipping our production off to our competition,” said Michael Marsh, president and CEO of the National Council of Agricultural Employers.

Marsh said his organization is worried enough to consider filing a lawsuit against the new regulations, which become effective in mid-November.

“We’re very concerned what the outcomes are going to be from this regulation,” he said.

Proposed revisions that would have made the H-2A program more workable were not included in the final rule, though it did have provisions opposed by agricultural employers, said Kate Tynan, senior vice president of the Northwest Horticultural Council.

“We were fairly disappointed,” Tynan said. “Most of the changes make the regulatory and financial burden worse on H-2A users.”

For example, the version proposed by the U.S. Department of Labor in 2019 would have provided a more flexible time frame for the arrival of guestworkers, she said.

Instead of choosing a specific date, growers would set a two-week window for their arrival, Tynan said. The provision better reflected the vagaries of weather, but it was scrapped from the final version.

Similarly, the proposal would have allowed farmers to submit a single H-2A application for groups of workers who arrive at different times, she said.

This staggered entry provision was eliminated from the final regulation, so a separate time-consuming application is required for each group of workers, Tynan said.

Farmers must also continue to hire domestic workers until half the H-2A contract period is over, whether they’re needed or not, Tynan said. This period would have been shortened to 30 days under the proposal.

“You’re still required to hire whoever shows up in the middle of harvest,” she said.

The final rule also didn’t include a grace period that would give farmers two weeks to adjust their payroll systems to newly required wage rates.

Steep hikes in H-2A wages may instantly render a crop uneconomical to harvest, said Marsh of the National Council of Agricultural Employers.

“You get that kind of increase, you might be better off leaving the berries on the bush,” he said.

Though the final regulation approved by the Biden administration is onerous for farm employers, aspects of the Trump administration’s proposal were also troublesome, Marsh said.

“I’d refer to it as a missed opportunity to make some real improvements to the program,” he said.

The final rule relaxes the statistical requirements used to determine the “prevailing wages” paid to guestworkers in Washington state, potentially leading to unwarranted increases, he said.

When the prevailing wage rises in Washington, that in turn affects calculations of the “adverse effect wage rate” for the Pacific Northwest that’s paid by Oregon growers, Marsh said.

Under the new rule, farm labor contractors will be subject to sharply higher costs for surety bonds, which are intended to ensure H-2A workers get paid, he said.

Federal officials are uneasy about farm labor contractors using H-2A, he said. “They’re hearing from the activist community that we’ve got to take care of these farm labor contractors because they’re all bad guys.”

The negative reputation isn’t deserved but the surety bond provisions are bound to make participation in H-2A even more expensive, Marsh said.

“The farm labor contractor just passes those costs onto the grower,” he said. “It can raise expenses to the level that a small farmer can’t afford it at all.”

Growers may also be discouraged from using H-2A by the final rule’s “joint liability” provision for farmers who share guestworkers, said Enrique Gastelum, CEO of Wafla, an agricultural labor association.

Sharing guestworkers within a region is attractive for farmers who couldn’t shoulder the H-2A program’s regulatory and financial load on their own, he said. “It’s been a benefit for smaller growers because they can distribute the costs.”

Under the joint liability provision, if one grower violates H-2A regulations then civil penalties can be imposed on others who rely on the same workers, Gastelum said. “You can be held liable for the violations of another farm.”

Farmers who rely on joint employment of H-2A workers may reconsider the arrangement, or at least carefully consider whether they trust the other employers to avoid mistakes, he said.

In general, they’d be wise to start diligently vetting all their H-2A partners due to the new regulation, including attorneys, recruiters, agents and transporters, Gastelum said.

“I just see there being more scrutiny of the entire H-2A ecosystem, not less,” he said.