Thomas Wickham: New rules are step in right direction

Another comment to the U.S. Department of Labor on the topic of H2A.


To: US Department of Labor

From: Thomas Wickham

Date: Mar 23 2009

Re.: Comments re New Rules for H2A farmworker visas

I responding to the new rules for H2A farmworker accreditation within the ten-day comment period ending March 29 2009.

My family and I own and have operated for many years a 200-a fruit and vegetable farm on Eastern Long Island, NY. I have employed four H2A visa holders for the last two years and have been approved for three in 2009. I am also an elected Town Councilman and former Town Supervisor in the Town of Southold, and formerly worked as an agricultural scientist in some of the countries supplying H2A employees.

In principle any rule changes made in the last days of an outgoing administration are deeply suspect and should be carefully scrutinized. The changes made in December 2008 that took effect Jan 2009, however, are modest, and they preserve the twin goals of the program to (1) provide a limited and legal source of agricultural labor that (2) provides every opportunity for American citizens to hold those jobs with no adverse discrimination. The changes enacted in December (the new rules) also put the program on a more workable basis without sacrificing the goals of the program.

Specifically there are four provisions in the new rules that should not be suspended:

1. Provides for new minimum wage rates. The old rules call for an Adverse Wage Rate of $9.70 per hr applied broadly. Because I have a relatively intensive agricultural business and hard-working employees I have stepped up to that rate, at significant cost. Farm owners in SW Virginia, for example, and many other areas really cannot absorb that hit. There is no confidence how this rate was established; even USDOL Wage & Hour officials are unable to justify it. A new, transparent, statistics-based calculation linked to local conditions is clearly called for. The new rules were a step in this direction.

2. Application of the Adverse Wage Rate to non-H2A workers. The H2A program requires employers to pay all employees -- H2A and non-H2A American citizens -- the same $9.70/hr Adverse Wage Rate for comparable work descriptions. This provision actually discourages employers from hiring some US workers, particularly high-school or college students during summer vacation, because some of them are not experienced or highly productive farmworkers. But farms like mine need a range of American workers, and to hire them employers need to have discretion to set individual wage rates that reflect productivity and experience. The new rules retain the principle of wage parity for all employees hired after the H2A contract period starts, but allow for a lower wage for Americans hired prior to the contract. This is a significant improvement.

- 2 -

3. Provides for a shorter time frame for an American worker to bump an H2A. Under the H2A program employers are required to hire American workers who express interest in the positions advertised in the H2A job order. This obligation does not end when an H2A employee arrives and begins his contract; under the old rules (to be effective again if the new ones are suspended) employers must hire any American who applies anytime during the first half of their H2A contracts, i.e., even as late as July for most seasonal operations. Because we must provide housing and all perquisites to the American worker equal to those of the H2A, it effectively means letting the H2A employee go in favor of the American. The new rules keep this provision but shorten the period employers are required to hire the American to the first 30 days of the contract, not the first half of the contract. This maintains the principle but makes for a program with less uncertainty and risk for the employer. It also reduces the possibility of poorly qualified Americans automatically and irreversibly eliminating better qualified H2A employees from their jobs up to the middle of the season.


4. Provides for registering different classes of expediters. There are indications that a small industry of expediters is developing to help employers and employees navigate the H2A process. The original rule deals clearly with labor contractors but experience has shown that there are entities and people providing services that fall outside the definition of labor contractors, and those people and practices need to be regulated too. The new rules provide for a means of listing such people and delisting them when warranted. To suspend these rules will increase the risk of abuse by some of these expediters.


I was glad to read Secretary Solis' acknowledgment of the need for reform of the H2A process in her recent comments. I believe the four provisions listed above are small but positive steps in that direction.

In conclusion, a workable H2A program is a small but extremely important component of overall immigration policy in this country. To be workable the program must be administered openly in a facts-based manner that employers, prospective employees (both American and foreign) find fair and relatively straightforward. Such a program could be a significant part of larger immigration issues. The new rules are a step in this direction.



cc. Sen C.Schumer, K.Gillibrand, Rep T.Bishop