Regulatory changes announced in early February by the Departments of Labor, Homeland Security and Agriculture would reduce the limitations and delays associated with H-2A visas for temporary farmhands.
The effort is another attempt at immigration reform through regulation now that broad legislation appears to be dead on Capitol Hill.
The new rules would let employers apply for H-2As directly with the Labor Department rather than having to file both federal and state requests. Other provisions would make it easier for farmers to submit blanket petitions for thousands of workers, facilitate workers’ switching employers and traveling to their home countries, and link H-2A wages to occupation, skill level and local market conditions.
To demonstrate the government is cracking down on illegal employment, companies would have to increase recruiting and advertising efforts to prove that they can’t find American workers to pick fruits and vegetables.
In addition, employers would have to sign up for a government-run electronic employment verification system to take full advantage of the H-2A reforms. They also would be subject to stronger workforce audits and fines of up to $100,000 for hiring violations.
The public has until late March to comment on the proposed changes. A final rule may go into effect by August.
It’s not clear whether employers will benefit or be set back by the regulatory changes, according to Hector Chichoni, manager of the East Coast immigration practice at Squire, Sanders and Demp¬sey in Miami.
“Everything depends on how they implement it,” Chichoni says. “In the long run, you can see a reduction in costs; in the short run, I’m not so sure. Every time you have bureaucrats dealing with the market, it is complex.”
For instance, Chichoni is concerned that one important agency was left out of the reform announcement.
“There was no presence from the Department of State,” he says. He wonders whether consulates will change their rules for approving H-2A visas.
Federal officials who promulgated the regulations touted them as a way to curb illegal immigration, protect legal employees and help farmers, who have been straining from labor shortages while crops rot in the field.
Of the 1.2 million agricultural workers in the U.S., about 600,000 to 800,000 are illegal. Even though the program is uncapped, only 75,000 H-2A visas were used in 2007.
“The changes we are proposing will go a long way toward ensuring that America’s farmers will have a stable, legal workforce that they can … count on at harvest time,” says Charles Conner, deputy secretary of agriculture.
But immigration proponents condemn the rule changes, asserting that they will result in lower wages and poor working conditions for foreign workers.
“The administration has further undercut them with this regulation,” says Cecelia Munoz, vice president for research, advocacy and legislation at the National Council of La Raza.
—Mark Schoeff Jr.