DHS and Labor want to revamp program for hiring temporary farm workers

Last week, the Homeland Security and Labor Departments proposed modifying the rules for hiring temporary and seasonal agriculture laborers in hopes that more farmers will participate in the little-used H-2A visa program. It was intended to provide an adequate stream of legal workers, but the program is so cumbersome and fraught with delays that few farmers actually participate.

Under the program, Labor issues the certifications and oversees compliance with labor laws; Homeland Security's Citizenship and Immigration Services adjudicates petitions; and the State Department issues the visas to workers at consulates overseas. Out of a workforce of 1.2 million, employers sought to hire only about 75,000 workers through the program in 2007. Federal officials estimate that between 600,000 and 800,000 farm workers are in the country illegally.

"There are simply not enough U.S. workers to fill the hundreds of thousands of agricultural jobs that are available in this country," said Labor Secretary Elaine Chao at a briefing for reporters with Homeland Security Secretary Michael Chertoff and Agriculture Deputy Secretary Chuck Conner.

"As we have ratcheted up [immigration] enforcement at the border and in the interior, we have increasingly heard complaints and cries for help from the agriculture sector," Chertoff said. The labor shortage was so severe last year that some states were forced to use prison labor to harvest crops.

Homeland Security will "continue to turn the screws on illegal immigration," Chertoff said. "But at the same time, business, agriculture and the well-being of all of our citizens demands that we find a way to satisfy labor needs that are not otherwise being satisfied through a path that is legal, that protects the workers and protects the employers, and that is efficient so that people in fact want to use it."

All three officials said the existing visa program to bring in temporary workers is so overly bureaucratic and inefficient that it fosters an underground labor market and puts workers at risk for exploitation. "Many farmers who have tried to use the program have had such bad experiences that they stopped using it altogether," Chao said.

As the program is now structured, employers have to file applications with state agencies as well as the Labor Department, but Chao acknowledged that Labor almost never meets its 15-day deadline for adjudicating applications. As a result, the window for harvesting crops often passes before applications are approved, essentially penalizing farmers who try to abide by the law.

Under the proposed revisions, employers would submit applications directly to the Labor Department, and they no longer would have to provide names of individuals they are seeking to hire unless those workers are already in the United States. "It's unreasonable to expect that when you're recruiting from overseas that the agricultural employer is going to know the names of everybody it hires before the process is under way," Chertoff said.

DHS will continue to vet visa applicants but it will compress the timeframe for processing applications by allowing names to be entered later in the process, Chertoff said. Workers also will be able to extend employment by 30 days after their term expires (the current limit is 10 days), allowing them to move to another job if work is available. DHS will reduce the time a worker must remain outside the United States before they are eligible to reapply for a temporary visa from six months to three months, which is more in keeping with agricultural workforce needs.

Under the revised program, employers also would face stiffer penalties for noncompliance. "The idea is to create incentives to abide by the law, and disincentives to violate the law," Chertoff said.

David Venturella, former head of the detention and removal program at Homeland Security's Immigration and Customs Enforcement, said revising the program is long overdue, but he worries that the proposed changes by DHS and Labor still impose too great a burden for employers.

Under the new rules, employers would have to increase advertising and recruiting efforts to give U.S. workers more lead time to apply for agriculture jobs before foreign workers could be hired. Additionally, they will have to maintain records for five years, subject to audit, to prove they are in compliance with the law. Chao said Labor would increase its auditing of employers to ensure compliance, and it will finance those operations by charging higher application fees.

"It seems as though some of the new requirements create an extra burden and are somewhat penalizing, which defeats the purpose of encouraging more people to use it," Venturella said.

The H-2A visa program, created in 1986 to address the farm labor shortage, has never been updated. Farmers in some parts of the country say the program imposes wage rates that are higher than local prevailing wage rates, Conner said. Under the revised program, Labor will develop more finely tuned wage data, linked to specific job categories and descriptions, which will bring wage-rate requirements under the program in line with local wages.

"We are offering [farmers] an opportunity to get back to hiring inside the rules of law without compromising their own business needs," Conner said. "And we are offering farm workers who are now illegal the chance to get inside the law as well, and take advantage of the protections and the opportunities that exist through that." The federal government has struggled to adopt a viable temporary farm worker program since at least 1942, when it permitted Mexicans to work temporarily in the United States under what was known as the Bracero program. It was blamed for depressing wages in the Southwest and was replaced in 1964 by the H-2 visa program, a more restrictive plan that also was eventually blamed for depressing wages. That program was replaced by the existing program 22 years later. Labor expects to publish the new regulations in July or August, Chao said.