By TIM THORNBERRY
Kentucky Correspondent

LEXINGTON, Ky. — For a system that saw few changes its first two decades of existence, the H-2A guest worker program has been batted over the last couple of years, creating controversy and confusion for those looking to use it.

What began in 1986 as an update to an antiquated regulatory process for foreign workers in the agricultural sector has become a system of change and change-back of sorts, brought about by two administrations that have viewed it in two different ways.

The George W. Bush administration implemented its first makeover in 2008, when then-Labor Secretary Elaine L. Chao announced proposals following a review of the program by the U.S. Department of Labor (DOL) identifying practices that had contributed to making the program difficult to use.

“This issue must be addressed now, or our country will see eroding competitiveness in its agricultural sector, crops being left to rot in the fields and increasing shifting of domestic food production to overseas,” said Chao.

“These proposed changes to the H-2A program will provide farmers with an orderly and timely flow of legal workers and increase protections for both U.S. and foreign workers.”

Those changes included wage revisions, the reduction of duplicate paperwork on the state level and lengthening the required time in which employers must first locate U.S. workers for their labor needs. Farm labor advocates were quick to condemn the proposals, saying it would cut wages and reduce the protection of immigrant labor. But, an 11th hour enactment set the rules in place just before Bush left office.

As of March 15, however, the Obama administration had reversed many of those changes, including an adjustment to the Adverse Effect Wage Rate (AEWR), stiffer penalties for violations of the system and a 50 percent rule that would require employers to hire domestic labor for half the time of a contract.

This means that if a farmer has a contract with a legal immigrant, a domestic worker can take that job for up to half the time of that contract, even though the farmer has already paid the fees and costs to get that immigrant worker to their farm.

The AEWR is the minimum wage rate that farmers or agricultural employers who are seeking to use non-immigrant alien workers must offer to pay their U.S. and alien workers, if the prevailing and federal or state minimum wage rates and the collective bargaining agreement are below the AEWR. In Kentucky, Tennessee and West Virginia, that rate for 2010 was set at $9.71 per hour.

Rick Alexander, executive director of the Agriculture Workforce Management Assoc., said the current change reverts back to the way the rate was figured before the Bush rules, causing the rate to increase.

The rate is figured by using the National Agricultural Statistics Service’s USDA Farm Labor Survey. Before this change, the AEWR was calculated from the Bureau of Labor Statistics Occupation Employment Statistics.

“It went up significantly. Probably the average in Kentucky and Tennessee on existing contracts was around $8,” he said.
Most existing contract wages were set before the big jump went into effect for the 2010 growing season, but it is the 2011 season in which it will have the biggest impact. Alexander said even with a recently announced drop in the AEWR, the increase is much higher than what farmers paid during their last growing season.

The proposed new rate will be $9.48, which will go to the Federal Register in February and, historically, has been set by the end of February. That figure, once set, will be the same in all areas of the state and will be the same for all those workers on the contract, regardless of their abilities or experience.

“Before, there were four levels; now that they have reverted back to this, there is one, one wage rate no matter what,” said Alexander.
With a high AEWR, farmers using the system are facing how to pay their labor and make a profit, causing many – especially tobacco farmers – to reconsider growing a crop or to hire illegal help.
Alexander said the H-2A program is set up to offer jobs to U.S. workers first and foremost, something he said the current administration gives high priority but that is not happening. Paul Hornback, a farmer from Shelby County and longtime H-2A user, said in all the time he has used the system he has yet to have a U.S. worker want the job.

“I’ve been in the program for 16 years and I have never had a domestic worker show up for work,” he said. “It’s an entry-level job, it’s dirty and hard work. Domestic workers will not or have not filled those vacancies in 16 years; even in this bad economy where unemployment is 10 percent, they still will not come and do those jobs.”

Hornback added the system is complicated and the revisions made it even harder to deal with, a situation that could prompt more use of illegal immigrants.

“If you look at this altogether, it just makes the system much more complicated. It discourages any new employers from wanting to be a part of it,” he said. “We’ve had a lot of problems with illegal immigration and in trying to get people to go the legal route; this is just discouraging them from doing that because of the wage rates, but more so because of the paperwork that is involved.”

Even Hornback, a veteran user, has to get a broker to handle the complicated paperwork that goes along with the H-2A program.
The bottom line is with many sectors of the agriculture industry, a consistent workforce is critical in getting crops planted and harvested on time. It is the immigrant worker often filling a void in that workforce. Hornback said he feels the country needs a type of comprehensive immigration reform that protects our borders, which is the number-one priority, keeping illegal immigrants out.

But, in doing so, he said it would produce a system for immigrants to come into the United States legally that “doesn’t constrain the employer or the employee, that ensures we will have a stable, reliable workforce for those of us using it right now.”