New rules will ease farm hiring, affect wages

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By Tyche Hendricks

The U.S. Department of Labor announced new rules Thursday that would make it easier for farming companies to hire foreign guest workers and would change the way their wages are set, potentially lowering farmworker pay.

The regulations were condemned by labor, farmworker and immigrant advocates, who said they would worsen wages and working conditions for both U.S. agricultural workers and temporary guest workers.

Representatives of the farming industry, which had worked with the Bush administration to change the rules, voiced optimism that the program would be less burdensome and more attractive to use. Fewer than 10 percent of U.S. farmworkers are believed to be employed under the H-2A program.

A Department of Labor statement issued Thursday describing the changes said the new rule "addresses a number of criticisms about the current program, including that it is so cumbersome and prone to delays that many agriculture employers refuse to use it." The statement noted that the changes are the first in 20 years.

Paul Schlegel, a policy director specializing in immigration at the American Farm Bureau, praised two changes to the guest worker program:

-- First, the new rules allow growers to "attest" that they have tried to recruit U.S. workers, rather than undergoing a more rigorous "certification" process.

-- Second, they change the method of setting wage rates from an average of wages in the industry to a database of actual existing wages.

"It looks like they are going to a market-based wage, and to us that would be a very significant improvement," said Schlegel. "It's not going to be the inflated wage we have now."

But labor advocates complained that the new system would hurt workers.

"It will result in a loss of wages for H-2A workers and for U.S. workers because they're placed in competition with the foreign workers," said Sonia Ramirez, legislative representative for the AFL-CIO. "We should be doing more in honoring the letter of law and enforcing the law, as opposed to reducing the law."

Bruce Goldstein, director of Farmworker Justice, a group that advocates for agricultural workers, added that the new rules do not address the larger problem - that a substantial majority of farmworkers are illegal immigrants.

"We don't understand why the Department of Labor would invest millions of dollars in these new regulations when there is a bipartisan proposal in Congress that was negotiated between farmworker unions and agricultural growers to address these issues in a reasonable way," said Goldstein.

That proposal, known as the AgJOBS bill, has broad support but nevertheless stalled in Congress during the past five years. It would include some similar changes to the H-2A program but would link them to a program to legalize undocumented farmworkers who pledge to continue working in agriculture for a period.

The Bush administration's new rules take into account some egregious abuses of the past and increase penalties for willful violations of workers' contracts or the program rules, said Cindy Hahamovitch, a professor of history specializing in immigration and labor at the College of William and Mary in Williamsburg, Va. But she questioned whether the rules would be enforced, saying there have been few sanctions in the program's 60-year history.

"The idea behind these rule changes is to wean farm employers off undocumented workers," added Hahamovitch. "The plan is to make guest workers cheaper and easier to get than 'illegal' workers. This has been tried many times before. The result was an expanded guest worker program but degraded living and working conditions for all farmworkers."

The new regulations are to be published in the Federal Register on Thursday and will go into effect 30 days later. They have been in the works for most of the past year, but are part of a series of rule changes being rushed into effect by the Bush administration before President-elect Barack Obama takes office Jan. 20. Reversing the new H-2A rules would require going through the lengthy formal "notice and comment" rule-changing process again.

Goldstein said his group is considering legal options, but he also encouraged Congress to exercise its prerogative to step in and prevent the new regulations from taking effect. Such a move could face a Bush veto, however.

California Sen. Dianne Feinstein opposed the new rules, saying they ignored the AgJOBS agreement: "This revision breaks apart a carefully crafted agreement between the growers and the farm labor community. I believe it will be undone."