AHC Comments - Temporary Agricultural Employment of H-2A Aliens in the United States; Notice of Proposed Rulemaking (NPRM). RIN 1205-AB55 (also known as ETA 2009-0004)

October 20, 2009

Mr. Thomas Dowd
Administrator
Office of Policy Development and Research
Employment and Training Administration
Room N-5641
U.S. Department of Labor
200 Constitution Avenue, NW
Washington, DC 20210

RE:     Temporary Agricultural Employment of H-2A Aliens in the United States; Notice of Proposed Rulemaking (NPRM). RIN 1205-AB55 (also known as ETA 2009-0004)

Dear: Mr. Dowd

The American Horse Council (AHC) appreciates the opportunity to submit these comments on the Department of Labor’s (DOL) proposal to amend the regulations governing the H-2A temporary agricultural worker program.

The AHC is a Washington-based association that represents the horse industry before Congress and the federal regulatory agencies.  The AHC includes over 160 equine organizations representing all horse breeds and virtually every facet of the horse industry, including horse owners, breeders, veterinarians, race tracks, horse shows, trainers, rodeos, farriers, breed registries, horsemen's associations, state horse councils and commercial suppliers.

H-2A Temporary Worker Program

Despite substantial efforts to recruit and train U.S. workers, horse farms, ranches, owners and breeding or training facilities must use the H-2A agricultural worker program to bring aliens into the country as temporary, non-immigrant workers.  Without these foreign workers, the horse industry could not continue to operate as it does now.

The AHC believes that while flaws still existed substantial improvements were made to the H-2A program by the December 18, 2008, final rule (2008 rule).  The regulations governing the H-2A program previous to that rule change had many shortcomings that made the admissions process long and cumbersome.

The DOL under the previous administration characterized the 2008 rule as an effort to “modernize the broken H-2A program so that it can serve its intended purpose of providing farm employers with a legal means to hire agricultural workers when no U.S. workers can be found.”    The AHC supported that broad goal and is concerned that a new rulemaking process so soon after implementation of the 2008 rule has not allowed a full evaluation of the positive or negative effects of that rule. 

While the AHC respects the stated reason for this new rulemaking process, namely the belief that the 2008 rule “does not provide an adequate level of protection for either U.S. or Foreign workers,”  we believe that several provisions of the new proposed rule could make the H-2A program burdensome or unusable for American employers, including horse farms.  This could have far reaching consequences such as the displacement of U.S. workers directly employed by those businesses or jobs indirectly supported by horse farms and breeding operations.    

Proposed Changes

The proposed rule includes many changes to the H-2A program.  The AHC suggests that the following provisions are of particular concern to the horse industry.

End of the Attestation-Based Process 

The 2008 rule created an “attestation-based” application process whereby an employer would attest, under threat of penalties, including fines, revocation of certification, and program debarment, that it has fully complied with all H-2A program requirements.  This was intended to expedite processing applications for the H-2A program.

The proposed rule would largely abandon the attestation-based labor process created by the 2008 rule and return to a “labor certification” process, which requires a certifying officer (CO) to verify that there are no qualified Americans available for the job involved.  Additionally, the proposed rule leaves in place elevated penalties that were part of the trade off for the more expedient attestation-based process in 2008 rule and actually makes them more severe.

The AHC believes the attestation-based process was quicker, less cumbersome and more efficient.  We believe a return to a certification process will be a step backwards and recommend keeping the current attestation-based process in place.  If the DOL decides to return to a certification process in its final rule, the AHC believes the penalties in place prior to the 2008 rule should be reinstated.    

Recruitment Requirements 

Like the 2008 rule, the 2009 proposed rule would require H-2A employers to go through a recruitment process to ensure that there are no qualified American workers able and available for the temporary job involved before filing an application for Temporary Employment Certification. 

The proposed rule would require employers to submit a job order for approval with the State Workforce Agency (SWA) serving the area of intended employment not less than 75 days before the date workers are needed.  The AHC is concerned that this requirement makes the SWA the relevant decision-making agency with respect to review of a job order, currently applications are filed with the CO, with only an informational copy going to the SWA.  In the present program it is the CO that reviews and determines whether a job order is acceptable.  The AHC believes transferring this authority to personnel in the local SWA offices will likely lead to uneven evaluations of job order applications filed by employers seeking H-2A workers. 

The AHC recommends that the authority to determine whether a job order is acceptable should remain with the CO rather than with the individual SWAs.  If the proposed process is retained in the final rule it is clear that further regulation will be needed to guarantee timely and consistent review of job orders by the SWAs.

Additionally, a new and potentially very burdensome provision of the proposed rule would require that employers with “remote workplaces” provide physical space or other assistance to interview U.S. workers in a place other than the worksite that is readily accessible to the population most likely to apply for the job opportunity.

The AHC believes this requirement for physical locations should be dropped from any final rule.  Such a requirement could prove very costly to employers forcing them to obtain and staff an interview site.  Phone and virtual interviews have become standard for many years when a potential employee is not in the immediate area of the worksite to determine if the candidate is at all suitable for a position.  There is no reason why H-2A employers should not be able to utilize such interview methods rather than provide physical space at great expense.

Similar to the current rules, the proposed rule requires employers to place at least two newspaper advertisements, one of which must be on a Sunday.  Employers must also  contact former U.S. employees who were employed within the last year and recruit in all States currently designated as a State of traditional or expected labor supply for the intended job. 

 Furthermore, the proposed rule would also require employers to maintain recruitment reports during the pre-filing recruitment period and file it with the application. This report must include information regarding all recruitment sources, names of all U.S. workers who applied or were referred to the job, confirmation that former workers were contacted and an explanation for any workers who were not hired.  This report has to be updated continuously through 50 percent of the contract work period.  A record of the recruitment report must be retained for 5 years.

The AHC generally believes that most of the proposed recruitment process simply increases the cost of the recruiting efforts without tangible benefits for workers or employers.  The problem is not a lack of awareness of available jobs, it is a lack of willing and experienced U.S. workers.  While the H-2A program is characterized as being for unskilled workers, in truth these workers should have some familiarity with horses.  Putting an inexperienced person in charge of the breeding, raising, caring for and training of horses is hazardous not only for the workers themselves, but also the horses, some of which are very valuable.  Expanding and adding more requirements to the recruiting process is more likely to simply identify people who “like horses,” rather than employable U.S. workers.

Wage Rate 

The 2009 proposed rule would require H-2A workers and American workers in corresponding employment be paid a wage rate based on the AEWR, the prevailing hourly wage or piece rate, or the Federal or State minimum wage whichever is higher as does the 2008 rule. 

However, the proposed rule would alter the manner by which the AEWR is calculated.  The 2008 rule requires that the AEWR be based on published wage data for the occupation, skill level, and geographical area from the Bureau of Labor Statistics (BLS), Occupational Employment Statistics (OES) survey.  The proposed rule would revert to the previous method in place before the 2008 rule and calculate the AEWR based on the United States Department of Agriculture Farm Labor Survey.

The AHC believes that there is no valid economic justification for a separate AEWR standard, in addition to the prevailing and statutory minimum wage.   Furthermore, the AHC does not believe either calculation method produces an accurate measure of market-based wages by occupation, skill level, geographic location and market conditions for each locality.

The AHC believes that the employment of H-2A workers should be subject only to a prevailing wage standard. 

Housing Inspections

The 2009 proposed rule requires a request for inspection of housing be filed at the same time as the job order and the inspection must be completed prior to the issuance of a labor certification. This differs from the 2008 rule which increased the amount of time SWA had to conduct required housing inspections.

The AHC supports retention of the 2008 rule that extended the time period for inspection up until occupancy by a worker.  The application process should not be delayed due to the lack of timely housing inspections by government agencies.

 

Worker Verification  

 The 2008 regulations require SWAs to verify the workers they refer to employers are U.S. citizens or legal residents authorized to work.  The 2009 proposed rule eliminates this requirement and places the burden back on employers to determine whether workers referred by the SWA are authorized workers.

The agricultural community believes without the 2008 rule verification requirement a large number of referrals from SWAs will be ineligible for employment, taking away jobs from U.S and H-2A workers and will place an unnecessary burden on employers who are making a determined effort to hire only authorized workers.

The AHC strongly recommends the 2008 regulation requiring SWAs to verify the workers they refer are U.S. citizens or legal residents authorized to work should be retained in any final rule.  SWA’s should not be permitted to refer workers without regard to their employment authorization status and leave it up to the employer to determine employment.

Associations 

Like the 2008 rule, the 2009 proposed rule would allow associations to file master applications on behalf of their members and retains most of the guidelines for such applications that have been in place.  However, the proposed rule would limit such master applications to a single state.  Consequently, an association filing on behalf of its members would be required to file a separate application for each state in which its members are seeking H-2A workers.  

The proposed change will only result in an increase in paper work for SWA, the DOL and employers.  The AHC believes the final rule should allow for the bundling of job orders by associations across state lines.

Admission Period 

Although the proposed rule does not suggest a change in the admission period for the H-2A program, some employers in the horse industry would like to have alien workers admitted for a longer period.  The H-2A program permits a worker to stay in the United States temporarily, which is deemed by the Department to be up to ten months, although no defined period or limit is set out in the law.  The AHC suggests that the DOL consider admitting equine workers for a longer period of up to one year.  This would greatly assist some employers that not only breed horses but also begin their training and prepare them for sale.

The AHC appreciates this opportunity to comment on the proposed rule changes.  If you need any additional information, please contact us. 

Sincerely,
                                                                                   

James J. Hickey, Jr.                                                                                                                  

President