March 17, 2000

Having trouble finding temporary hired help to plant, pick or tend to your crops? You may want to consider the H-2A Federal Agricultural Guest-Worker Program, a Department of Labor (DOL) program that will grant temporary or seasonal work visas for non-immigrant employees when you can show that a sufficient work force is not available in your area.

Unfortunately, the current program is not at all user-friendly, particularly because it is administered on the federal level by the Immigration and Naturalization Service (INS). There are so many obstacles, most people simply give up. Often, by the time a grower realizes he or she needs H-2A workers, it is already too late to wade through the mountains of paperwork and regulations. Commercial flower grower Pamela Arnosky of Wimberley warns those who take a stab at it: "Just be prepared to see how frustrating, redundant, and downright stupid the federal government can be."

Pamela Arnosky, along with her husband, Frank, are owners of Texas Specialty Cut Flowers, a farm that provides fresh-cut flowers to H-E-B’s Central Market and other customers in the Austin area. They are expanding their business to include a new product line of certified organic vegetables this spring and have filed a request for H-2A workers for a second year.

"We are victims of our own success here in Central Texas. The economy is booming and our business has doubled again for the third year in a row! The trouble is, we can’t find any help. Everybody can get a good job in Austin that pays considerably more than farm work. To hire anybody at Austin rates, we’d be paying them more than we pay ourselves," she said. "Right now, the process is bogged down. We understand there has been a 67 percent increase in applications this year."

Mark and Cathy Itz, owners of McCall Creek Farms, a 500-acre cattle operation with 18 acres of flowers and vegetable production at nearby Blanco, are in need of five workers right now. The couple, who wholesales their crops to the H-E-B warehouse in San Antonio, made application to the H2-A program for the third consecutive year. They said the process has been extremely frustrating.

"They (DOL) lose your letters and your applications. They say they mailed you a response when they didn’t. The application process was supposedly cut from 60 days prior to your date of need in 1999 to 45 days this year. Our date of need was March 1, and we started out processing the application before Christmas. March 1st has come and gone and we have yet to hear from the INS," Itz reported March 4. "Ron Paul is our congressman. I called his office two times yesterday and today. I’m about to fax a complaint. I’ve had the same problem for three years in a row, so I have the same complaint filled out. All I have to do is change the dates and numbers and fax it back."

The DOL is also notorious for rejecting your applications without explaining why. It’s usually because you followed the instructions in their H-2A Program Employer Information Booklet. Though the regulations have changed, they agency hasn’t bothered to update the instructions since 1987.

Why do it then, you ask? Like the Arnoskys, Itz insists it is next to impossible to find help locally.

"I’ve tried high school kids, but they show up late and want to leave early. They would rather have a cushy job, like in a video store. It’s hard to find responsible, mature people in this area willing to do this kind of work, especially in 100-plus degree weather. We have even offered a dollar-and-a-half over minimum wage, but planting, chopping, and harvesting is tedious and hard. And it’s seasonal. They want it all year. Even in the shed, where I need somebody to help make bouquets, it’s hard to find help because they want full-time work and we don’t have it," she said. "The guest workers, on the other hand, need the income, even if it’s temporary. And they have a very high work ethic."

In an attempt to remove the glitches and make the program a realistic alternative for growers, senators Bob Graham (D-FL), Larry Craig (R-ID), and Gordon Smith (R-OR) recently introduced H-2A reform legislation. Called the Agricultural Job Opportunity Benefits and Security Act (S. 1814), the reform legislation emphasizes several key points. The first is that H-2A must be economically feasible.

According to Itz, the current program can be costly.

"The INS charges a $110 flat rate. The DOL gets $100 plus $10 for each job certified. You have to have workers' comp (proof of workers' compensation insurance, or its equivalent insurance, required before certification is granted). That comes up to about $1,500. Because of the red tape and delays, you wind up having to express mail lots of papers, and that’s $13 bucks a throw. It adds up, but I still wouldn’t trade these guys," she said. "Still, you’d better have a couple thousand dollars to get going. Too, once they leave their home, you are responsible for paying their transportation. You have to reimburse them for that, and you also have to pay for them to get back home."

Another expense under the current program is that the applicant must provide housing that meets Occupational Safety and Health Administration (OSHA) and DOL standards. In Texas, the Texas Work Force Commission is the coordinating agency for the DOL, with the responsibility of pre-inspecting H2-A housing. The reform measure, if passed, would grant growers the option of either providing housing or giving guest workers a temporary housing allowance.

Under the existing H-2A program, the employer must provide either three meals a day to each worker or furnish free and convenient cooking and kitchen facilities for workers to prepare their own meals. If meals are provided, then the employer may charge each worker a certain amount per day for the three meals.

Also, the wage or rate of pay must be the same for U.S. workers and H-2A workers. The hourly rate must also be at least as high as the applicable Adverse Effect Wage Rate, Federal or State minimum wage or the applicable prevailing hourly wage rate, whichever is higher. If the worker is paid on a piece rate basis and the piece rate does not result in an hourly piece rate earning during the period at least equal to the amount the worker would have earned had the worker been paid at the hourly rate, then the worker’s pay must be supplemented to the equivalent hourly level.

Additionally, the employer must agree to engage in independent positive recruitment of U.S. workers. This means an active effort, including newspaper and radio advertising in the areas of expected labor supply and placing a job order with the nearest TWC office.

"The kicker is that it has to be a daily newspaper. We have to put our’s in the Austin American Statesman, and it’s $665 for an ad this year. Growers in Gillespie County can advertise in Kerrville, where it’s only $38," said Itz, referring specifically to Douglas Zenner, a Gillespie County peach grower, and a cousin to Mark Itz, who has also participated in the guest worker program. "That seems very unfair to me. We are penalized because of where we live."

Other requirements under the present law require the employer to: (1) provide tools and work-related supplies at no cost to the worker; (2) guarantee to offer each worker employment for at least three-fourths of the workdays in the work contract period and any extensions (if the employer affords less employment, then the employer must pay the amount which the worker would have earned had the worker been employed the guaranteed number of days); (3) hire any qualified and eligible U.S. worker who applies for a job until 50 percent of the period, or the work contract, has elapsed; and (4) assure that the job opportunity for which H-2A certification is being requested is not vacant because the former occupant is on strike or is being locked out in the course of a labor dispute.

The pending Agricultural Job Opportunity Benefits and Security Act recognizes that growers who use the program have to be able to remain competitive in the marketplace. The bill would create a national registry of agricultural jobs, with first preference to domestic workers, second to immigrants on the path to legalizing their status and finally to immigrants looking for temporary work. The bill would also help foreign agricultural workers who have been here for a specific period of time gain legal status and guarantee workers a wage premium and housing allowance.

Another goal of the S.1814 is to make the program more "user friendly." Simply reducing the amount of paperwork required would be a good first step. Itz is encouraged that steps are being taken to, hopefully, get the INS out of the loop.

"Anything would be an improvement, but I still worry whether or not the proposed program is going to work. I wish they would do something so I could get the same guys back from year to year. They are already trained and know what to do. It would be nice if they would put a provision in there for that," she commented.

Other factors may be at work which could speed up the H-2A overhaul. Federal Reserve Chairman Alan Greenspan, in his remarks at a Banking Committee hearing last month, included references to the "ever decreasing" pool of unemployed American workers. Greenspan further stated, "The one obvious means that one can use to offset that is expanding the number of people we allow in, either generally or in specifically focused areas."

Also, the AFL-CIO, in February, called for amnesty for millions of illegal immigrants now working in the United States. However, the labor group still opposes guest-worker programs.

According to the National Council of Agricultural Employers (NCAE), the current H2-A program brings in about 35,000 guest workers. NCAE suggests that number could easily double or triple over the next four or five years.

For more information, call the Texas Workforce Commission at 1-800-252-9924 (or call 512/475-2571).

H-2A details may be found on the TWC website: www.twc.state.tx.us  (E-mail questions or comments to alienlabor@twc.state.tx.us ).