Bush Administration Finalizes Changes to H2A Program
Immigration Labor - H-2A Changes
Changes Slash Requirements to Hire U.S. Workers, Reduce Wages and Worker Protections for Nation’s Farmworkers
| Federal Regulations | FJ Documents |
 Download the DOL Regulations |
Litany of Abuses in H-2A Program |
| DHS Regulations Part 1
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The DOL’s many harmful revisions to the H-2A visa program include reducing obligations for growers to effectively recruit U.S. workers before applying to bring in guestworkers, lowering the wage rates by changing the program’s wage formula and eliminating government oversight of the program.
FJ Report Documents Litany of Abuses in H-2A Program
In anticipation of DOL’s changes to the program, Farmworker Justice released a report last week documenting abuses that have occurred under the current H-2A program due to lack of enforcement and government oversight
According to the report, “the DOL’s proposed changes will only make a bad program worse. The cases listed [in this report] are “just the tip of the iceberg” because guestworkers are often reluctant to complain. The report highlights the program’s negative impact on U.S. workers as well. In one case, a grower in Arizona replaced nearly his entire U.S. workforce –some 200 legal farmworkers—with guestworkers instead. A lawsuit on the case is currently pending.
The new rules, by minimizing oversight of employers’ applications for H-2A guestworkers, could result in the growth in the program in 2009 from 75,000 to 200,000 guestworkers. There is no annual visa cap.
Wage Rates under the Bush Regulations
The wage rates under the new H-2A regulations are available at http://www.flcdatacenter.com/OESWizardStart.aspx. The code you would most likely use is 45-2092 (Farmworkers and Laborers, Crop, Nursery Greenhouse), although some workers may also come in under 45-2093 (Farmworkers, Farm and Ranch Animals). The applicable wage rate will most likely be the Level I wage.
H-2A workers who were recruited or hired before January 17, 2009 will continue to be paid the wage rate in effect at the time of recruitment or hire (the 2008 AEWRs are available here). According to DOL, employers may not reduce worker's wage rates if a lower wage rate could be calculated under the new regulations.
Legal Challenge to Bush Regulations
On January 12th of 2008, farmworker organizations filed a lawsuit in U.S. District Court in Washington D.C. In addition to the complaint alleging that the new (Bush) regulations are illegal, the plaintiffs requested a temporary restraining order against the DOL and DHS to prevent the new regulations from taking effect.
Plaintiffs in the case were the farmworker unions UFW and PCUN and individual US and H-2A farmworkers. They were represented by attorneys from Farmworker Justice, the law firm of Wilmer Cutler Pickering Hale and Dorr, Florida Legal Services and the Law Offices of Marcos Camacho.
On Thursday, January 15th, the court denied the motion. The judge concluded that the plaintiffs did not meet the legal standard for emergency court action, but did not decide whether the regulations are illegal. Although the court denied the motion for emergency relief, the underlying case continues.
Statement by Farmworker Justice on the ruling (01/16/2008).
Statement by UFW and PCUN (01/16/2008) .
Major U.S. papers condemn Bush's changes to guestworker program
New York Times: A Cheap Shot at Workers, Undoing the damage done;
Miami Herald: Rules changes target vulnerable workers;
LA Times: Bush rewrites the rules.
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