Last-minute changes to farm worker program raise groups' ire
By John Riley
The Dallas Morning News, January 2, 2009
Washington, DC — Farm worker advocates and opponents of illegal immigration are blasting one of President George W. Bush's 'midnight regulations' that will make it easier for agricultural employers to hire foreign workers.
They say the changes undermine worker protections, exploit immigrants and set wage levels so low that domestic workers cannot compete with foreign workers for jobs.
The regulation, which makes changes in the U.S. Labor Department's H-2A Temporary Agriculture Worker Program, allows agricultural employers to hire temporary foreign workers if not enough domestic workers are able or willing to fill farm jobs.
The changes also promise to reduce paperwork and make processing deadlines more efficient.
They are expected to take effect Jan. 17, three days before President-elect Barack Obama takes office.
Midnight regulations are rules pushed by the executive branch in the waning days of a lame-duck president's term. However, the incoming president is free to revise or revoke such last-minute changes.
In fiscal 2008, the U.S. State Department issued more than 64,000 H-2A visas, a 26 percent increase over the previous fiscal year. Since 2003, the number of temporary agricultural worker visas has steadily increased, according to a department spokeswoman.
But the number of workers covered by H-2A visas is only a small segment of a larger farm worker contingent that's close to 1.6 million, more than 80 percent of whom are foreign-born, said Craig Regelbrugge of the American Nursery and Landscape Association. Of those foreign-born workers, nearly three-quarters are unauthorized, he said.
The changes to the H-2A program revise the wages for temporary workers from the current standard to one based on data from the Bureau of Labor Statistics Occupational Employment Survey in order to make the H-2A program comparable with other guest-worker programs, a Labor Department memo said.
That means that wages will be set using a multiple-tier system based on local market rates.
Other changes provide employers additional time to search for domestic workers, lessen the burden of proof on employers seeking H-2A visas for foreign workers they wish to hire and reduce the application forms and filings an employer must complete.
Labor Department officials say the changes are needed to provide agricultural employers with workers in a timely fashion so that crops can be harvested.
But Bruce Goldstein of the Washington, D.C.-based Farmworker Justice Fund said the four-tier wage structure is not a reliable standard because the survey it relies on doesn't study farms, which are regulated by the U.S. Department of Agriculture. As a result, he said, it sets farm worker wages too low and makes it hard for the workers to earn a living wage.
Additionally, Goldstein said, the new regulations weaken worker protections because employers can now claim they have fulfilled the program's requirements instead of having to provide evidence of their compliance before their visa requests are approved.
'These seem typical of the Bush administration policies, where whatever employers want, that's what we're going to give them,' said Ira Mehlman of the Federation for American Immigration Reform, a nonpartisan advocacy group that seeks to reduce illegal immigration.
Mehlman said that by continuously adding foreign workers to their employment rolls and paying them according to the prevailing wage, employers undercut the need for domestic workers by relying on a steady stream of immigrants who can be easily replaced if they complain. Employers' actions also cap wages at such low rates that Americans can't compete for agricultural jobs.
'We hear all the time that there are no Americans who will do these jobs,' Mehlman said.
'Maybe it's the wages and working condition that Americans won't accept.'
Another drawback is that the new regulations may confuse farmers who must reconcile the changes to the program with the priorities of the incoming Obama administration.
That confusion can affect farmers' decisions to plant seeds, harvest crops, or sell their businesses and whether to add or cut jobs from their payrolls, Regelbrugge said.