New changes to H-2A filing will help employers handcuffed by current process, high costs | Michigan Farm News

New changes to H-2A filing will help employers handcuffed by current process, high costs

Category: Technology, Crops, Fruits & Vegetables

by Mitch Galloway | Farm News Media

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H-2A is a guest-worker program farmers use to meet “seasonal” labor requirements. In Michigan, its usage increased more than 600% over the last five years, according to data provided to Michigan Farm News.

Saving time and money are just a few of the ways farmers can benefit from the proposed updates to H-2A filings.

Employers under the new proposed H-2A rule will now be required to e-file with the U.S. Department of Labor (DOL) and the State Workforce Agency. Included for employers are the options to sign documents using electronic signatures and staggering worker arrivals on one single contract up to 120 days from a worker’s first start date.

Previously, they were required to sign hard copies of signature papers and file separate contracts for each start date. About 94.1 percent of H-2A applications are already filed electronically.

H-2A is a guest-worker program farmers use to meet “seasonal” labor requirements. In Michigan, its usage increased more than 600% over the last five years, according to data provided to the Michigan Farm News.

In 2018, the Office of Foreign Labor approved 8,359 visas in Michigan. Most of the time, those visas are used for statewide apple and vegetable production, said Katie Vargas, operations manager of the Great Lakes Ag Labor Services LLC (GLALS), an affiliate company of the Michigan Farm Bureau.

Now, the new H-2A update will save employers money and time amid the planting season, Vargas said.

“It allows them to ramp up their workforce as agriculture naturally does, and they don’t have to continually file additional applications and incur more costs for the workers,” said Vargas of GLALS, a third-party entity that acts as an agent helping employers complete the H-2A application process for temporary or seasonal labor. “Cost is the biggest, prohibitive area for this program, and the staggering (of workers) has always been an issue. As seasons ramp up and different jobs are needed — so early planting, early seasonal work versus harvest work — employers have had to go through the whole process each time they (process) people.”

Additional amendments to the current H-2A filing process include:

  • Wage calculation separates out specialized positions. These positions would be assigned distinct wage levels based on those job skills and responsibilites.
  • Employers may amend contracts post-certification for limited unforeseen circumstances.
  • Employers may close domestic recruitment 30 days after the contract start date or until last staggered arrival date.
  • Employers would be allowed to reimburse workers’ travel from the consulate that issues a visa to Michigan, rather than from workers’ hometown to Michigan.
  • Codify joint employment practice and establish additional rules for this model:
    • All joint employers must have the same start date, and
    • Each employer must provide at least 1 workday (i.e., 7 hours/week) to each worker.
  • Farm Labor Contractors (FLC) may utilize electronic bonds, reducing mailing time and issues.
  • FLC surety bonds will have base amounts and may increase based on actual wage requirements.
  • Housing inspections may be completed every 24-months, with employer attestation that housing remains in compliance and State Workforce Agency approval.

According to Vargas, changes to the H-2A filing process will likely go into effect in 2021.

“It costs employers about $1,500 each,” Vargas said. “That includes application costs, travel, hotel and meal costs, visa costs, filing fees with the Department of Labor and Homeland Security, and domestic advertising. … What’s driving growth (of the H-2A) is a basic necessity for labor. The domestic labor pool has decreased substantially since 2012.”

Vargas said the proposed H-2A rule is addressing both the costs and inflexibility of the current program within the existing law.

“We’re moving in the right direction,” she said. “There’s definitely more that needs to be done by Congress, especially to address the needs of for year-round employers. They can’t use the H-2A program; it’s limited to just seasonal, temporary positions. … However, the explosion of H-2A is really indicative of how the domestic labor pool has decreased for everybody. There’s just not the same pool to pull from.”

The Federal Register published the proposed aforementioned rule on July 26. Comments on the rule are open until Sept. 24.

To submit comments on the e-filing process, visit http://www.regulations.gov and type “1205-AB89” in the comment or submission search box. Members can also send written submissions to Adele Gagliardi, 200 Constitution Ave. N.W., Room N-5641, Washington, D.C. 20210.