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November 1, 2018

Need Boosts H-2A Filings

H-2A certifications in California and Arizona are poised to reach a record high this year as growers access the U.S. Department of Labor program in an effort to address the acute labor shortage that plagues production agriculture.

For the past decade, the Western Growers Legal Department has been helping those members traverse the bureaucratic maze to secure those workers. “Just through Q3 (Sept. 30) of this year, California has certified more than 16,000 positions,” said Jason Resnick, WG’s general counsel and vice president. “By the end of the year, we should be close to 20,000. In 2017, for the entire year, we certified 15,000.”

Arizona has not seen a dramatic increase in year over year H-2A applications but it has moved up two spots in the ranking of states. Through the third quarter of this year, Arizona employers have secured 6,112 H-2A workers, which represents 3.2 percent of the foreign ag workers approved in the United States, and puts Arizona in eighth place among the states.

California’s activity for 2018 makes it the fifth highest user of the program following Florida, Georgia, North Carolina and Washington. Resnick said the interest is fueled by need, but also because with experience it has become easier to use. “It has certainly gotten easier over time as we’ve gained extensive experience,” said Resnick.

But he also noted that the Department of Labor has cut down on the paperwork requirements and added an online portal that makes it easier. However, he said that the U.S. Customs and Immigration Service still utilizes a paper application so the process has room for improvement, but it’s better than it was.

“California has seen quite an increase in the last five years,” he said. “Five years ago we were not in the top five. I think it is going to continue to expand in California, but there are challenges.”

He said agriculture continues to advocate for more streamlining of the application process and for continued modernization including a switch to a total on-line application. “We’d like to see more electronic processing and direct communication with a point of contact to discuss issues,” Resnick said. “We’d also like to see some technical changes to allow for the staggering of the workers. It’s gotten easier but it is still a restrictive program with lots of processes and legal loopholes that need to be changed to make it more employer friendly.”

One company that has joined the H-2A game in the past few years and gotten assistance from Western Growers is Talley Farms in Arroyo Grande, CA. “We started using it three or four years ago through a labor contractor and now this is our second year doing it on our own,” said Ryan Talley. “We have had a much better experience doing it ourselves.”

While the paperwork was tedious the first year and the company went through a learning curve, he said this year was much easier. And the result has been very satisfying. “The individual workers are happy to be here, they appreciate the opportunity and are eager to work.”

Compared to the local workforce, he said the H-2A workers are more productive and the quality of work is superior. “If you have a crew with 16 to 18 workers, 16 to 18 people show up,” he said.

Talley said the key to success is using the company’s longtime workers to recruit H-2A workers. “We are recruiting from the home towns of some of our domestic workers. We go down there (to Mexico) recruit workers and explain exactly what we are looking for. We are getting recommendations from our workers. It’s a win-win. It has been a wonderful experience for us.”

Talley personally participated in the recruitment in Mexico and he believes that was very important. “The key was having individuals already working for us talking to individuals in their own towns,” he reiterated. The company recruited 45 people with the majority having nine to 10 month contracts and a few having three to four month contracts.

He admits that it was the fear of the unknown that prevented Talley Farms from trying to access the H-2A years earlier. “We heard the horror stories and thought it was a daunting task.”

He said one hurdle Talley Farms did not have to jump was the housing issue. “We already had enough houses on our farm to handle the workers. That’s a problem others have that we don’t have.”

Resnick said that is one of the biggest challenges. The H-2A regulations require the employer to provide suitable housing for the workers. “That is a limiting factor,” he said, “especially in California. Availability and affordability of housing in California is a problem. Zoning rules make it difficult to build new housing and it’s difficult to buy housing because of the cost. Many employers say that is a significant deterrence.”

Some H-2A workers have had to be housed quite a distance from the field requiring extensive travel time, which can gets into a complicated situation regarding wage and hour laws.

One thing that is not a problem is the prevailing wage laws. DOL rules set the adverse effect wage that the workers must be paid. In California, for 2018, the wage is $13.18. “Most workers will make that and more so it’s not an issue,” Resnick said. “In Arizona, the prevailing rate is lower than the state’s minimum wage, so it is not an issue at all.”

With regard to the program itself, Resnick said employers put in an application for a set amount of unnamed workers and then they must recruit those workers once the application is approved. “Overall I think it is working pretty well now,” he said. “We don’t see the issues that we had in the past such as delays in approving the application beyond the time when the workers were needed. That doesn’t seem to happen anymore.”

Resnick said for those interested who can solve the housing issue, “it is a workable program that can give you a legal, guaranteed workforce. And WG’s legal department can help with the paperwork.”