Comment Quickly on Immigration ReformWritten by Bryce Reece
On Feb. 13 the Department of Labor (DOL) issued a 47-page proposal to amend regulations regarding nonimmigrant workers employed in temporary or seasonal agricultural jobs. Contractual enforcement of nonimmigrant workers and employer responsibilities are also addressed. These proposed changes would supposedly “re-engineer” the process by which employers may obtain temporary labor certification from the DOL for use in petitioning the Department of Homeland Security (DHS) to employ a nonimmigrant worker in H–2A (agricultural temporary worker) status.
Workers from outside the U.S. are not only vital to Wyoming and the nation’s sheep industry, but are becoming increasingly important to all of Wyoming’s livestock industry. As importantly, they are vital to all of U.S. agriculture. As the DOL noted in its proposal, “Data from the National Agricultural Worker Survey (NAWS)…shows that in 2006, 19 percent of all agricultural workers were first-time U.S. farm workers.” Among the new workers, 85 percent were foreign-born and 15 percent were U.S. citizens. A new worker is defined as anyone with less than a year’s experience.
Legally bringing in workers from outside of the United States is a laborious, tedious, time-consuming and expensive proposition. This statement has become increasingly true since 9/11. Increased and heightened security has made the process a bureaucratic and administrative maze, one that many employers are on the verge of abandoning. Faced with the increased difficulty of compliance, smothering and draining regulations and a seemingly endless parade of federal bureaucrats throwing up roadblocks, it’s hard for people in the countryside trying to run a business and do things right.
A lack of U.S. workers interested in or seeking employment in agriculture has compounded the problem. While those in agriculture have seemed to be “crying in the wilderness” about this worker shortage, some have been listening. Senator Diane Feinstein (D-Calif.) recently highlighted the unique labor needs of agriculture and the importance of foreign labor in a September 2006 floor statement: “We have one million people who usually work in agriculture. I must tell you they are dominantly undocumented. Senator Craig pointed out the reason they are undocumented is because American workers will not do the jobs. When I started this I did not believe it, so we called all the welfare departments of the major agriculture counties in California and asked—can you provide agricultural workers? Not one worker came from the people who were on welfare who were willing to do this kind of work.”
The program, which is most commonly used in Wyoming for bringing in foreign workers, is called the “H-2A Program.” The H–2A worker visa program provides a means for U.S. agricultural employers to hire foreign workers on a temporary basis. They fill a labor niche that cannot be met in the U.S. The H-2A program is vital to the western sheep industry; and, it is the H-2A program that has become a nightmare for agricultural producers looking to bring foreign workers to the U.S. legally. It is the H-2A program that the DOL is proposing to modify and “fix.”
Senator Larry Craig (R-Idaho) summarized the problem this way”[T]his economic sector, more than any other, has become dependent for its existence on the labor of immigrants who are here without legal documentation. The only program currently in place to respond to a lack of legal domestic agricultural workers, the H–2A guest worker program, is profoundly broken. Outside of H–2A, farm employers have no effective, reliable assurance that their employees are legal. We all want and need a stable, predictable, legal workforce in American agriculture. Willing American workers deserve a system that puts them first in line for available jobs with fair market wages. All workers should receive decent treatment and protection of fundamental legal rights. Consumers deserve a safe, stable, domestic food supply. American citizens and taxpayers deserve secure borders and a government that works. Last year, we saw millions of dollars’ worth of produce rot in the fields for lack of workers. We are beginning to hear talk of farms moving out of the country, moving to the foreign workforce. All Americans face the danger of losing more and more of our safe, domestic food supply to imports. Time is running out for American agriculture, farm workers, and consumers. What was a problem years ago is a crisis today and will be a catastrophe if we do not act immediately.”
In the proposal out for comment, DOL claims its purpose in re-engineering the H–2A program and the resulting outcomes will be:
• Simplify the process by which employers obtain a labor certification.
• Increase employer accountability to further protect against violations of program and worker standards.
• Efficiencies in program administration that will significantly encourage increased program participation, resulting in an increased legal farm worker labor.
• U.S. workers will be better protected from adverse effects when they are competing with workers who are legally present in the U.S. and who are subject to all of the requirements of the H–2A program.
• Institute a new auditing process to verify that employers have, in fact, met their responsibilities under the H–2A program.
• Alter the current H–2A housing inspection procedures.
The devil is always in the details, however, and we have identified several areas within the proposed changes where more harm than good could occur. Several agricultural groups have joined forces to analyze and prepare comments on these proposed changes.
The WWGA is asking all agriculture supporters and particularly employers who currently, or may in the future, utilize the H-2A program, to comment. Comments can be submitted electronically, which is the quickest and least expensive method.
For those wishing to secure a copy of the proposed changes, they can be found at http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=ETA-2008-0001 (click on one of the icons in the first row under “views”).
With comments due on a very short timeline, April 14, we have posted helpful information including sample comments on our website at www.wyowool.org. Diane Carpenter in our office and I would also be glad to answer questions from those submitting comments on this tremendously important effort.