On the eve of spring harvest of hand-picked fruit and vegetable crops, the onerous and mostly ineffective H-2A program used by growers to legally recruit foreign workers has become even more arduous to utilize.

Effective March 15, employers seeking work visas for foreign workers must now document that they have sought qualified U.S. workers. Previously, under rules adopted by the Bush administration and reversed by the Obama administration, they just has to attest to the inability to attract U.S. workers. This is just one of the new rules adopted by the Department of Labor.

“Here we go again,” said Tom Nassif, president of Western Growers. “The Department of Labor is reversing the Bush administration changes to the H-2A guest worker program, for the second time, which is likely to be met with a court challenge. This cycle never seems to end.

“Meanwhile our nation’s farmers are stuck with regulations that are cumbersome and not workable because they are too costly and ignore the realities of farming. This mess underscores the need for a legislative solution,” he added.

Barry Bedwell, president of the California Grape and Tree Fruit League, said the new rules are “not comforting news to growers. It will make a complicated and onerous program very, very cumbersome again. For anyone who might consider the H-2A program, these new rules will only make them more leery.”

Bedwell admits that the program has not been widely used, but it could have been in the face of growing labor shortages had the Obama administration not turned back the streamlining efforts of the Bush administration. “These new rules just turn back the successful efforts of previous administration to improve the program.”

“Growers are feeling whip-sawed by constantly changing rules,” said Craig Regelbrugge, vice president of government relations for the American Nursery and Landscape Association (ANLA). The H-2A program already is a “regulatory beast” authorized by two lines of text in the Immigration and Nationality Act, but hundreds of pages of regulations and program guidance. “The lack of a clear statutory framework leaves the program — and users — vulnerable to shifting political priorities and ideologies.”

It was not widely used before the latest changes in the regulations and could be utilized even less now. Only 2 to 3 percent of the season ag labor force came via the already cumbersome H-2A program last season.

According to the Labor Department, employers filed 8,150 labor certification applications last year requesting 103,955 H-2A workers for temporary agricultural work. The department approved a total of 86,014 workers. “This new rule will make it possible for all workers who are working hard on American soil to receive fair pay while at the same time expand opportunities for U.S. workers,” said U.S. Secretary of Labor Hilda L. Solis. “The actions that we have taken through this rulemaking also will enable us to detect and remedy different forms of worker violations.”

“Even with an economy that is suffering through 10 percent unemployed, domestic workers are not applying for these jobs,” said Nassif. “We know our produce is going to be harvested by foreign workers, the question is, will it be here in the U.S. or will it be abroad? We are already dependent on foreign energy; do we really want to become dependent on foreign food? Our government officials have got to quit tinkering around with regulations and really address the problem; it’s time to pass AgJOBS.”

Western Growers’ 3,000 members grow, pack and ship 90 percent of the fresh vegetables and nearly 70 percent of the fresh fruit and nuts grown in Arizona and California, about one-half of the nation’s fresh produce.

In recent years H-2A has become more widely used by nursery and greenhouse growers. Some users have turned to the program as the only way to ensure a legal labor force, often in the aftermath of an immigration raid or other enforcement action, according to Regelbrugge.

Some of the other changes effective March 10 are:

• Returns to using the USDA Farm Labor Survey as the basis for determining the Adverse Effect Wage Rate.

• AEWR. The 2008 rule used the Occupational Employment Statistics Survey, which resulted in a substantial reduction of worker wages (an average of over $1 per hour).

• Reinstates the critical role of the State Workforce Agencies (SWA) in assisting employers by using their expertise on local labor market conditions and recruitment patterns, thereby expanding job opportunities for U.S. workers.

• Reinstates the requirement that the SWA inspect and approve employer-provided housing before the Department issues an H-2A labor certification.

• Requires that all employer-provided transportation meet, at a minimum, the same Federal standards for vehicle safety, vehicle insurance and driver licensure applicable to most other agricultural workers.

• Creates a national electronic job registry for all H-2A job orders to improve U.S. worker access to agricultural jobs and help growers find workers from across the U.S.

e-mail: hcline@farmpress.com