WGA Says New Guest Worker Plan Is Flawed

MATTHEW ENIS

IRVINE, Calif. — Many of the changes proposed for the federal guest worker program by the Bush administration will make the program more difficult for farmers to use, the Western Growers Association argued last week.

“Though we appreciate their efforts, we had great hope that significant, positive improvements would be proposed by the administration,” said Tom Nassif, Western Growers' president and chief executive officer. “Unfortunately, that is not the case. It appears the country's agriculture industry will continue to be faced with labor shortages of 20% to 30% at times. As an industry, we have long acknowledged that the majority of our workers are falsely documented. We want to employ a legal workforce, but our federal government just can't seem to get its act together and deliver a workable solution to the labor problem that plagues our industry.”

WGA officials praised some aspects of the plan, including provisions that would allow H-2A visa holders to do incidental non-ag work without violating the terms of their visas, and allow employers to provide housing vouchers in lieu of constructing housing for the workers, but overall, the association argued that the plan would worsen the labor shortages that have become a major problem for the produce industry, particularly in the Southwest.

The problem has been compounded in recent years due to enhanced border security and new laws, such as Arizona's Legal Workers Act, which threatens businesses with stiff penalties — including possible full revocation of their business licenses — if state officials discover any undocumented or falsely documented immigrants on their payrolls.

In WGA's official comment on the administration's new H-2A visa proposals, Jasper Hempel, executive vice president and general counsel for the association, said that growers are already being squeezed between false documentation charges when they're lax in their screening, and discrimination lawsuits when they're too aggressive. If new pressures are brought to bear, such as the Department of Homeland Security's “No Match” rule — which would require employers to quickly fire any employees who can't clear up discrepancies in documentation or Social Security records — many growers may simply begin relocating their operations to Mexico.

“The simple fact is: our crops are going to be harvested by foreign workers,” Hempel wrote. “The only issue is whether or not the harvesting occurs in the United States, where our economy will benefit from the 3.5 jobs created upstream and downstream for every farmworker job, or whether another country will reap those economic benefits.”

Hempel criticized several provisions in the administration's new H-2A guest worker proposal. For example, the new regulations would not allow employers to file a petition and present countervailing evidence when the Secretary of Labor denies their labor certification application or fails to act on it.

Employers would have only 48 hours to notify the DHS, in writing, if an H-2A worker fails to arrive on their start date, or leaves the work site before their contract is up. And, while the onus is on growers to obtain pre-certification for these agricultural guest workers, the laws would prohibit them from collecting any visa processing fees from applicants.