Rural Vermont Comments on Proposed Changes to H2A Program

9/24/2019

DOL has proposed extensive and damaging changes to the H-2A temporary agricultural visa program.  Among its many provisions, the proposed changes would lower many workers’ wages, shift costs unto workers, and weaken enforcement of housing standards. We would like to generate a large number of comments in opposition to these changes.  More information about the H-2A program is available at our website: www.farmworkerjustice.org.

Adele Gagliardi
Administrator, Office of Policy Development and Research
Employment and Training Administration
U.S. Department of Labor
200 Constitution Avenue NW, Room N-5641
Washington, DC 20210

Re:  Temporary Agricultural Employment of H-2A Nonimmigrants in the United States

RIN 1205-AB89

Dear Ms. Gagliardi,

Thank you for the opportunity to comment on the proposed changes to the H2A Program.  Rural Vermont is submitting these comments in opposition to most of the proposed changes to the H-2A temporary foreign agricultural worker program. Most of the proposed regulations would decrease farmworker wages, increase their travel costs, decrease oversight of their housing conditions, weaken enforcement of H-2A standards, and reduce job opportunities for U.S. farmworkers. Furthermore, the proposed changes will disproportionately favor the largest farming operations and labor contractors at the expense of family-scale farms.  We need to address the root issues of immigration - and make a path to citizenship for the many year-round migrant workers currently in VT, and across the US, who are members of our community and who live in fear every day of their potential detention and deportation.

Rural Vermont has been working with farmers and community members in Vermont and more broadly for more than 30 years.  We formed during the farm crisis of the 1980s, working with local dairy farmers to get their voices heard by policymakers.  Since then, we have worked on many issues in Vermont, regionally, and nationally - working across various scales and types of farms, and on issues as diverse as on-farm poultry processing, industrial hemp, and healthcare.  At the heart of our work is advocacy, policy, and organizing supporting economic, social, and environmental equity and justice for farmers and community members.  We work closely with many organizations including the Northeast Organic Farming Association, Migrant Justice, Vermont Farm to Plate, and the National Family Farm Coalition among other organizations.

Immigration is a critically important issue for all of our community members - in particular our farmworkers. The majority of farmworkers in the U.S. are immigrants, and approximately half of all farmworkers are undocumented. Anti-immigrant rhetoric and actions by the current Administration have exacerbated an already untenable situation for farmworkers. At a time when the Administration is conducting worksite raids, separating families, and limiting opportunities for legal immigration, it is also seeking to weaken protections in the H-2A agricultural worker visa program. The Administration’s proposed regulations are devastating to farmworkers because they would decrease their wages, increase their costs, worsen their housing conditions, and weaken oversight of program protections. Farmworkers’ conditions, including conditions under the H-2A program, are already exploitative and need to be improved, not worsened.   In Vermont, we see traffic checkpoints set up in strategic locations throughout the State, designed to capture potentially undocumented migrants; we see raids on farms and in our communities; we see our DMV illegally disclosing information about people’s identity - and we are part of a growing resistance which is working to stop these tactics, and to develop paths to citizenship for our community members.

The H-2A program is a guestworker program that allows employers to bring in foreign workers for temporary or seasonal agricultural work if they cannot find domestic farmworkers. Workers in the H-2A temporary foreign agricultural worker program have often paid significant sums to recruiters to obtain jobs, visas, and transportation. H-2A visa workers are dependent on their employers not just for their employment but also for their presence in the U.S. As a result, they are vulnerable to exploitation and reluctant to speak out. Moreover, H-2A workers hold temporary “nonimmigrant” visas with no pathway to immigration status or citizenship. There is no cap on the number of workers who may be brought in under the program, which has tripled in size in the last decade and is expected to continue to grow exponentially. We oppose any changes to the H-2A program rules that would lower wages or otherwise reduce worker protections or DOL oversight for H-2A workers and domestic workers.

Unfortunately, this proposal will increase uncertainty regarding farmworkers’ wages and will likely result in wage decreases for many workers. Guestworkers generally lack bargaining power to demand higher wages, due to their restricted non-immigrant, temporary status and other factors, including the debt they often owe upon arriving in the U.S. The program currently includes an “adverse effect wage rate” (AEWR), which is intended to ensure that the hiring of guestworkers does not undermine (“adversely affect”) the wage standards for U.S. farmworkers. The proposal includes changing the methodology for the AEWR, which will likely lead to wage decreases for the majority of workers, while adding complexity and uncertainty. For low-wage farmworkers, these could be very harmful pay cuts.

Additionally, the proposal would shift home country transportation costs unto workers. The H-2A program currently requires employers to reimburse workers for their long-distance travel costs to the place of employment. Now, DOL proposes to only require employers to pay the costs of transportation for H-2A workers to and from the U.S. consulate or embassy in their home country, rather than their homes. Yet workers often live far from these locations and are recruited where they live. This change will drive many foreign workers further into debt. This cost should continue to be covered by employers, not workers.

The proposal would also reduce the frequency of inspections for farmworker housing and allow employers to “self-inspect” their housing, despite high profile stories of dangerous and substandard housing under the H-2A program. H-2A workers and many U.S. workers depend on their employers for housing.  It is deeply troubling that DOL could allow H-2A workers to live in housing that has not been inspected annually by a responsible government entity.

One modest improvement in the proposal is an increase in the bond amounts required to be posted by H-2A labor contractors (H-2ALCs). This is important because H-2A labor contractors are often undercapitalized and unable to pay back workers for labor violations. However, improvements are also needed to help victimized workers access the bonds. Also, the Administration fails to address the number of other significant challenges workers face with H-2ALCs, and the already troubling lack of transparency with H-2ALCs will be exacerbated by the proposed changes. Too often farm operators seek to keep their labor costs low by hiring H-2ALCs and seeking to use the H-2ALCs as a shield to escape responsibility.

This proposal, if finalized, would facilitate the conversion of the farm labor force into a system of captive guestworkers who can be exploited and easily replaced, and have no opportunity to become citizens. The answer to America’s need for immigrant agricultural workers is not to make wages and working conditions worse for U.S. farmworkers and guestworkers. For too long, our agricultural labor system has relied on depriving workers of their voice and political power. As long as agribusiness is ensured a limitless supply of workers -- be they undocumented or temporary “guestworkers” -- without access to a permanent immigration status, farmworkers will continue to face immense barriers to improvements in workplace conditions. If agriculture needs additional labor, workers both within and outside the U.S. should be given the opportunity to obtain immigration status and citizenship.

Sincerely,

Graham Unangst-Rufenacht

Rural Vermont