Hudson Valley farmers tied up in federal red tape By BRYAN F. YURCAN

Hudson Valley farmers tied up in federal red tape
By BRYAN F. YURCAN

Finding adequate agricultural labor in the United States and especially in the Hudson Valley and the rest of the state can be an arduous task for farmers.

Most domestic workers aren’t interested in farm labor, and it is increasingly difficult to attract foreign laborers here on temporary visas to do the job, some farmers say. In fact, the federal H-2A program, which was designed to help get a seasonal, temporary foreign work force onto farms, actually does more harm than good, said Orange County onion farmer Chris Pawelski.

Pawelski, the communications director for the Orange County Vegetable Grower’s Association, is a frequent visitor to Washington to lobby members of Congress to bring reform to the program. According to the U.S. Department of Labor (DOL), the H-2A program “establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature.”

But Pawelski said the program is counterproductive, citing many of its “arcane features.”

One such feature is the enormous amount of paperwork required just to apply for the program. “There are major flaws in the application process,” he said. “It is too cumbersome, too much paperwork, and most farmers don’t have that much time to fill out paperwork.” And there is a “huge backlog” of applications, which means it can take a long time for an application to be reviewed and approved.

Chris Pawelski, an onion farmer in Orange County, has been lobbying Congress to reform the federal H-2A program for temporary foreign workers.

Bureaucratic hurdles

Another problem is that a farmer who wants to use the H-2A program has to go to great lengths to prove there is no suitable domestic labor, Pawelski said. According to the DOL’s guidelines, this consists of farmers making “an active effort, including newspaper and radio advertising, in areas of expected labor supply.”

A bill pending in the Senate and House called the AgJOBS Act of 2007 would reform some of the bureaucratic hurdles that exist in the program, but doesn’t address some of H-2A’s other major flaws, Pawelski said. These include the “three-quarters guarantee” that mandates a farmer offer each worker employment for at least three-fourths of the workdays in the work contract period and any extensions. If the employer offers less employment, he must pay the amount the worker would have earned had the worker been employed the guaranteed number of days, even if all the work is already completed.

This means even if all the work is done on the farm before the contract has expired, the farmer must still pay the H-2A workers for the remainder of the time, he said.

Pawelski also cited the “50 percent rule” in H-2A, which states that the farmer must hire any qualified and eligible U.S. worker who applies for a job until fifty percent of the period of the work contract has elapsed.

Bob Hokanson, a former dairy farmer and currently the national affairs director for the New York State Farm Bureau, said the 50 percent rule could have a negative impact on farmers. For example, if a domestic worker decided to apply for a job within the 50 percent time period, the temporary workers would be sent home. If the domestic worker then decided a few days later that he didn’t want to continue doing the work, the farmer would then be short of laborers, he said.

Biggest flaw

In Pawelski’s view, the AgJOBS Act does not reform the biggest flaw of the H-2A program the requirement that farmers must pay their foreign employees the Adverse Effect Wage Rates (AEWR). The AEWR are the minimum wage rates that the Department of Labor has determined must be offered and paid to U.S. and foreign workers by employers of nonimmigrant foreign agricultural workers.

The AEWR differ from state to state, and farmers who employ foreign workers through the H-2A program must pay their laborers whichever is higher between the AEWR, the state’s minimum wage, and the applicable prevailing wage. The prevailing wage rate is defined by the DOL as the average wage paid to similarly employed workers in the requested occupation in the area of intended employment.

Pawelski said that in nearly all cases, the AEWR is the highest wage. In New York, the AEWR is $9.50 an hour, compared with the minimum wage of $7.15. The federal prevailing wage in the Hudson Valley for general apple orchard labor is $7 an hour.

“Every other worker visa program the government has uses the prevailing rate, (but H-2A) uses the AEWR,” he said. “It doesn’t make sense.”

Hokanson said many of the farmers his organization represents have expressed dismay over using the H-2A program due to many of its restrictions. “There are a limited number of H-2A users in New York state,” he said.

According to statistics provided by the DOL, there were about 59,000 workers certified by the H-2A program in 2006.

The peak number of laborers working in the Hudson Valley through the H-2A program in 2006 was 445, according to the New York State Department of Labor. The peak number of H-2A workers throughout the whole state last year was 2,105.

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