February 5, 2016

GUEST WORKERS: Existing Program Cumbersome, But Some are Utilizing It

Though several Western Growers members are using the U.S. Department of Labor’s H-2A Program, which is the only agricultural worker visa program, they seem to be doing it reluctantly and even after years of use, still call it “cumbersome” and “very difficult to use.”
“We use it because it is our only option,” said Carmen Ponce, vice president of human resources and in-house counsel for Tanimura & Antle (T&A), which is headquartered in Salinas, CA.  “We have no other way to fulfill our contracts.”
Western Growers Board Member Sonny Rodriguez, who operates his farm labor contractor business under the moniker of The Growers Company Inc., Somerton, CA, echoed similar sentiments to describe his experiences over the last decade with the government program.  “We have no choice but to use it,” he said.  “It is a long arduous process.  It seems as if it was designed not to be used.”
Western Growers’ Vice President and General Counsel Jason Resnick said it seems that way because that is an apt description.  “It has always been difficult and cumbersome, but we achieved a little bit of relief in December of 2008, when the Department of Labor announced a streamlined rulemaking process during the final days of the George W. Bush Administration.”
Resnick explained that the proposed rules were going to make it easier for employers to apply for and receive the guest workers that they needed.  “Unfortunately one of the first things the Department of Labor did under the new Obama Administration was roll back those changes and announce a new rule-making process.  The new rules made it worse.”
Resnick, who has been helping Western Grower members fill out H-2A applications since 2005, said it appears that those in charge don’t like the program and continually come up with new ways to make it more unworkable.
Ponce agreed with that assessment.  “Every year they seem to come up with something new to throw at us.  One year a particular procedure is fine and the next year it causes problems.”
Ponce, Rodriguez and Resnick have each been using the H-2A process to apply for temporary guest workers for the past nine to 10 years, and while familiarity has brought some knowledge of the potholes and pitfalls to avoid, they all say it is still no walk in the park.
At the most recent Western Growers Annual Meeting, outgoing Chairman of the Board Vic Smith of JV Smith Companies noted in his Chairman’s Address that immigration reform does not appear that it is going to happen anytime soon while the farm labor shortage grows more acute every year.  He urged industry members and Western Growers to utilize the H-2A program to a greater extent in the coming years to alleviate the shortage situation.  Smith reasoned that in other regions of the country, the program is utilized to a greater extent, so it is doable.  Those who have used it don’t disagree, but they also are sure that the current program can’t be the sole answer to the industry’s growing labor shortage.  Resnick said if scores of California and Arizona growers and shippers applied for thousands more workers, DOL and the other three agencies involved in the process would be overrun with work.
Rodriguez agreed, noting that a computer glitch in the past year held up the approval of a number of applications well beyond the timetable spelled out in the regulations.
Ponce said 2016 marks the ninth year T&A has applied for and received temporary workers under H-2A.  “The first year we received about 200 workers and this year we were certified for 749.  I do not remember if we have increased our number each year, but it has been steadily increasing over time.”
She said for these nine years all the workers have been recruited for the winter vegetable harvest in the Yuma area.  The company has not yet had to recruit foreign workers for its spring and summer program in California, but Ponce is preparing for that potentiality.  In early January, she said the company is already trying to entice its Yuma and Imperial Valley workers to make the trek up to Salinas for the summer harvest, as she fears “we will have a shortage of labor.”
Many laborers who work for the firm in the desert regions during the winter no longer come to Salinas because of the cost of living.  Ponce said housing is very expensive in the Salinas Valley and many workers say it just isn’t economically feasible to follow the northern migration of the vegetable crops.  T&A is tearing a page out of its H-2A playbook and is currently in the process of building farmworker housing in Salinas that can handle as many as 800 single adults.  The housing is not designed for families, which will undoubtedly cause some of those workers in the desert regions or Ventura County to decline the offer to come to Salinas Valley this summer.
Of course, under the H-2A program, a company application has to provide certified housing for workers.  Resnick said that is one of the major stumbling blocks to increased participation in the program.  Many companies don’t have that housing and it is difficult to obtain.
Ponce said T&A struggled with that aspect of the program for several years before purchasing two apartment buildings in the desert for the singular reason of supplying housing for their winter vegetable H-2A workers.  The apartment complex was retrofitted with $400,000 of upgrades and remains vacant during the time of the year when the Yuma area is not in production.  That is an expensive proposition, but Ponce said is a necessary one to be able to have housing for those workers when it is needed.
Right now, the Salinas housing being built by T&A is designed to provide suitable housing for its domestic workers who do come up to Salinas this summer, but Ponce said if the company needs to supplement its work force with H-2A workers “that housing will be used for them.”
The T&A executive said the company will have to make the decision to apply for summer H-2A workers sometime in March.  The application for workers has to be submitted in the 45-60 day window prior to need.  “Hopefully I’ll know by then whether we will need additional workers this summer.  Hopefully we won’t.”
Resnick said the timing deadline for the H-2A application is one of the choke points that creates delay.  The applicant is actually working with multiple government agencies as the application works its way through the system.  It is often plagued with delays meaning the harvest starts without the workers being approved for use.
Resnick explained that even after the application is approved, each worker must be interviewed by the U.S. consulate in Mexico, or their country of origin, to be certified for the program.  Often times, he said there is a very short window between approval of the application and the need for the workers.  “Sometimes we have the approval, but there are no interview times available for several weeks.”
The Western Growers legal staff has been submitting applications for members on a fee basis since 2005.  He advises all industry firms to work with an experienced application processor when they attempt to secure H-2A workers.  He said there are just so many obstacles that need to be cleared.
Rodriguez agreed.  He has been filing for H-2A workers for the past nine years and said new issues arise every year.  He praised Resnick and Western Growers for helping him through the process each year.  The Growers Company has somewhat solved the consulate interview issue by alerting the consulate staff way in advance that they will have a need for interview time.  Rodriguez said this tends to work, but it is just one of the many issues that complicate the entire process.
Both Resnick and Rodriguez said there have been a few changes in recent years that have made the process easier including the use of email as a communication tool between the government agencies and the applicant.  Previously communication was by mail and Rodriguez said it was often the cause of delays.
After an application has been approved, it is only then that the applicant can request certification of his housing and start to recruit for workers in Mexico, who then must go through the aforementioned U.S. Consulate interview process.
Ponce said only the first year did T&A have to interview in Mexico for workers.  “Since then we have received more than enough applications through word of mouth.”
But she said that loyalty comes with a hefty cost.  The company pays all of its employees well, including the H-2A workers, with incentive bonuses creating an average pay well above the adverse effect wage rate with some workers approaching a pay of $20 per hour.
Rodriguez reiterated his position that the only reason to use H-2A is because there is no other option.  He likened it to the old country & western song that opines that the “girls get prettier at closing time.”  When the crops need to be harvested and there are no workers, employers have to welcome them wherever they can get them…including the H-2A program.
He notes that even with about 4,000 H-2A workers in Yuma this year, the labor shortage is still chronic.  “My crews are rarely full.  The workers just aren’t here.”

H-2A Process
To qualify for H-2A nonimmigrant classification, the petitioner must:
•    Offer a job that is of a temporary or seasonal nature.
•    Demonstrate that there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.
•    Show that employing H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
•    Generally, submit a single valid temporary labor certification from the U.S. Department of Labor with the H-2A petition.

Once that has occurred, the following steps can be taken.
Step 1: Petitioner submits temporary labor certification application to the U.S. Department of Labor (DOL).  Before requesting H-2A classification from USCIS, the petitioner must apply for and receive a temporary labor certification for H-2A workers from DOL.  For further information regarding the temporary labor certification requirements and process, see the Foreign Labor Certification, Department of Labor Web page.
Step 2:  Petitioner submits Form I-129 to USCIS.  After receiving a temporary labor certification for H-2A employment from DOL, the petitioner must file Form I-129 with USCIS. With limited exceptions, the petitioner must submit original temporary labor certification as initial evidence with Form I-129.  (See the instructions to Form I-129 for additional filing requirements.)
Step 3: Prospective workers outside the United States apply for visa and/or admission.  After USCIS approves Form I-129, prospective H-2A workers who are outside the United States must:
•    Apply for an H-2A visa with the U.S. Department of State (DOS) at a U.S. Embassy or Consulate abroad and then seek admission to the United States with U.S. Customs and Border Protection (CBP) at a U.S. port of entry; or
•    Directly seek admission to the United States in H-2A classification with CBP at a U.S. port of entry, if a worker does not require a visa in cases where an H-2A visa is not required.