H-2A confusing but necessary for many producers

Many of Virginia’s agricultural producers could be out of business or forced to downsize if it weren’t for the federal H-2A program that allows foreign citizens to temporarily work on a U.S. farm.

"It would be devastating for us without the H-2A program," said Jim Saunders, personnel director for Saunders Brothers Inc., a nursery and orchard operation in Nelson County. "People don’t realize how important these foreign workers are to agriculture. I don’t think we can find domestic workers to get us through the season."

Dana Boyle, who runs Garner’s Produce in Westmoreland County with her husband and her father, agreed.

"If there was no H-2A program, we’d have to downsize tremendously," she said. "The H-2A program is like insurance for us; it guarantees that we’ll have workers throughout the season."

Without an adequate labor pool, Saunders explained, "the land that now grows crops may end up growing houses. We’ll either grow on this side of the U.S.-Mexican border, or on that side, because that’s where the labor pool is. I’d rather have our food grown here in the U.S."

Both Saunders and Boyle have had difficulty finding reliable local help.
When Saunders Brothers wanted to expand a decade ago, they hired 18 local workers between March 1 and June 1. Only one lasted until the end of the season in November, Saunders said. The rest worked an average of three days before quitting.

Boyle said she hired two local workers last year. One worked for three hours before quitting; the other never showed up.

Saunders said his local employees didn’t like planting, potting, fertilizing, pruning, weeding and loading trucks, which is the type of work a nursery and orchard job involves. The 300 greenhouses, 120 acres of apples and 30 acres of peaches are labor-intensive. "When the peaches or apples are ready to be picked, you can’t wait," he said.

So Saunders and three of his brothers, who run the business with their father, "had a pow-wow and decided to give the H-2A program a try."

The program was started in 1986 to allow farmers to hire legal, temporary foreign workers.

"That solved our problem," Saunders said. "We get a good, reliable, stable work force." This year, all of the 42 H-2A workers at Saunders Brothers have worked on the farm before.

"I have three guys who have worked here every year for the past 10 years," Saunders said.

Boyle has been hiring H-2A workers for seven years, and one of her four workers has been on the farm every year. Two of the others are his brothers, and the fourth this year is their brother-in-law.

Since the H-2A program was created, the U.S. Department of Labor has repeatedly revised the rules, which confuses farmers who use the program. In March, the DOL announced it was going to suspend Jan. 17 rules that would make the program better for farmers.

After a 10-day comment period during which the department received 800 responses, the DOL published an interim final rule extending the transition from old regulations to the Jan. 17 regulations from this April until Jan. 1, 2010.

"The interim final rule didn’t substantially change the final rule issued in December, but it didn’t specifically address the question of suspension either," said Ron Gaskill, senior director of Congressional relations for the American Farm Bureau Federation. "It’s very possible" that the DOL could issue a final rule that would suspend the changes to the regulations, Gaskill added.

"It’s a confusing program to begin with, and now the DOL is going out of its way to further confuse an already-confusing program," said Wilmer Stoneman, associate director of governmental relations for the Virginia Farm Bureau Federation. "It’s not fair to the growers."

Tobacco, fruit and vegetable growers and nursery operators are all affected by changes to foreign worker programs.

"Any farming that requires a lot of hand work is very much dependent on H-2A workers," Stoneman said.

Saunders said the changes, if not suspended, "will be very beneficial to agriculture."

Changes include allowing H-2A workers to change employers when both employers qualify for H-2A; extending from 10 days to 30 the time after a growing season by which a worker must return to his or her home country; prohibiting employers and recruiters from imposing fees on H-2A workers; and allowing employers to apply for multiple agricultural workers.

H-2A workers eager to return year after year

Antonio Dominguez-Gomez is several months into his ninth year of employment at Saunders Brothers Inc. in Nelson County. He took last year off to "rest" for a year and work construction in his native Mexico.

However, the pay wasn’t very good, and Gomez decided to come back to Saunders Brothers this year as an H-2A worker.

In Mexico, he earned about $20 a day. Under the H-2A program, Gomez earns the program’s Adverse Effect Wage Rate of $8.85 per hour.

Saunders Brothers hires its H-2A workers to work from mid-February through mid-November. If Gomez works an eight-hour day, six days a week, for about 40 weeks during that time, he’ll have grossed close to $17,000 by the time he returns to his country.

By contrast, after working for a full year in Mexico at $20 a day, six days a week, Gomez earned only $6,240.

"It’s better to work here," he said of the nursery and orchard operation. He plans to come back again next year.

"But I want your house," he joked with personnel manager Jim Saunders.
Another H-2A worker, Jose Dominguez-Custodio, has worked for the Saunders nursery eight years. He said he needs to work in the United States because the economy in Tizapan, Mexico, is poor and the pay rate is not good.

"What I make here in one day would take one week there," Custodio said.
H-2A can create a win-win situation for both agricultural producers and the H-2A workers.

"We depend on them as much as they depend on us," said Dana Boyle, whose Westmoreland County family farm hires four H-2A workers each year. "We don’t ask them to do anything we wouldn’t do ourselves."

Boyle said she and her husband have worked side by side in the fields with their workers. "They’re like family to us now," she added.

That relationship extends beyond the growing season. During the past seven years, Boyle and her husband, Bernard, have visited their H-2A workers in Mexico three times, sometimes with other family members. When they visit, they stay in a hotel or resort somewhere nearby and then travel to their employees’ town and spend several days with them, living in their homes.

"We just love going down there," Boyle said. "Their little girls call us their aunts."

And while the workers are in Westmoreland County, Boyle said, they are invited to all of her family’s gatherings. During her visits to Mexico, "their family treats us like we treat them here."

Aspects of H-2A program troubling to farmers

The Adverse Effect Wage Rate and the referral rule are two components of the federal H-2A program that are of concern to Virginia Farm Bureau producer members.

"We’ve wrestled with these two issues for years," said Wilmer Stoneman, associate director of governmental relations for the Virginia Farm Bureau Federation. "Our members want to get rid of the AEWR; they generally support the prevailing wage rate."

Under the H-2A program, which was started in 1986 to help agricultural producers fill their need for seasonal workers, employers agree to pay their workers either the AEWR, the prevailing wage rate for a given crop or area, or the state minimum wage, whichever is higher.

The U.S. Department of Agriculture establishes the AEWR, which is an annual weighted average hourly rate for field and livestock workers in 19 USDA regions.

Stoneman said calculating a wage rate that way isn’t fair, because you can’t compare Virginia produce workers with Midwestern cattlemen. "It’s usually skewed in one direction or the other," he added.

The AEWR this year is $8.85, and minimum wage is currently $6.55 per hour until July 24, when it goes up to $7.25.

Virginia producers’ other stumbling block with the H-2A program is the referral rule. Employers who apply for H-2A certification must first attempt to recruit U.S. workers to fill the openings. Once the foreign workers have begun their employment with a grower, the farmer must agree to accept U.S. workers until 50 percent of the contract period has passed.

If a grower is halfway through the season and domestic workers show up, he has to hire them. That means a farmer could end up paying two workers to do one job, Stoneman said.

"You just have to pay double and bide your time," said Jim Saunders, personnel manager for Saunders Brothers Inc., a nursery and orchard in Nelson County that has hired workers through the H-2A program for the past 10 years.

Saunders has had 11 domestic referrals so far this year. Of those 11, seven are still working for him in addition to the H-2A employees. That means he has seven extra laborers for as long as they continue working.

Dana Boyle, who helps run Garner’s Produce in Westmoreland County and has hired H-2A workers for the past seven years, said she doesn’t like the referral requirement because her experience with domestic workers has not been positive.

Boyle has found that the H-2A employees are "good, hard workers who are honest, trustworthy and dependable; they’re worth every penny we pay them."

She admits that the H-2A program is confusing and requires a significant amount of paperwork. "But it’s worth it."

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