September 24, 2019

Adele Gagliardi, Administrator Office of Policy Development and Research, Employment and Training Administration U.S. Department of Labor 200 Constitution Avenue NW, Room N–5641 Washington, DC 20210

RE: Docket ID # ETA-2019-0007 (Temporary Agricultural Employment of H-2A Nonimmigrants in the United States)


Dear Ms. Gagliardi:

The Pennsylvania Farm Bureau (PFB) appreciates the opportunity to file these comments in connection with the above-referenced docket, which pertains to the Department of Labor’s Notice of Proposed Rulemaking on the H-2A non-immigrant visa program. PFB is a general farm organization, made up of more than 62,000 members. Since 1950, PFB has provided support, advocacy and informational and professional services for Pennsylvania agriculture and farm families.

General Comments

PFB represents farmers engaged in every conceivable facet of agricultural production, and many of them challenges in securing enough workers. A number of our members have turned to the H-2A guest worker program to help meet these labor demands, as is evident given the continued growth in the H-2A program. However, Pennsylvania farmers’ increased usage of the H-2A program is not necessarily an indication that the program is workable or user friendly, but rather that domestically sourced labor is becoming scarcer. Administrative burden, costly wage structures, complicated application processes, and strict housing requirements present challenges to those currently using the program and create barriers to entry for those who might wish to but cannot.

PFB appreciates the Department of Labor’s efforts to modernize the H-2A application process and update the current regulations that govern the program while providing stakeholders the opportunity to provide feedback. PFB believes that there are many elements to this proposed rulemaking that are positive and worthy of support; at the same time, however, there remain several areas that can and should be improved before the final rule is promulgated.

Provision-Specific Comments

1. PFB supports provisions in the proposal that would modernize and streamline the H-2A application process by expanding the usage of electronic features.

Although E-filing already takes place for much of the H-2A application process, allowing an e-signature instead of a wet signature will align the H-2A application process with more standard business practices. E-filing is a welcome practice for those with adequate internet access.

However, PFB urges the Department to maintain mail filing for applicants where rural broadband connectivity prohibits e-filing from being a viable option. We see the benefit of e-filing features that seek to minimize inadvertent errors that delay processing. These beneficial features include reusing application information from the previous year, ensuring all forms are properly filled out before allowing them to be submitted, and standardizing terms and conditions to promote more consistency.

2. PFB cautions that changes to the H-2A filing process should not have the ultimate effect of making the process more complicated and/or difficult to follow.

The Department’s proposal would change the H-2A filing process by having the H-2A application filer send the job order electronically to the National Processing Center (NPC), and then the NPC would send the job order to the relevant State Workforce Agencies (SWA). With this step now being delegated to the NPC, H-2A filers are concerned that they will not be aware if their application is transmitted to the relevant SWAs. Additionally, filers should be able to see or receive notice of activity by SWAs (for instance, whether the housing documentation or recruitment results were sent). This would improve application transparency. It is also unclear if this change will result in simplification or process improvement, as this creates an additional step in the process with DOL serving as the intermediary.

In the final rule, PFB suggests that the Department not over-complicate this process, and cautions that it should have an alternative plan in place if the changes do not produce the intended results. It is to recognize that farmers are critically dependent on timely consideration and approval of their applications in order to have their workers at their place of business when needed. The Department should assure that whatever reforms are instituted should meet this test.

Finally, PFB supports the Department’s definitional change, which allows flexibility on date of need as listed on the H-2A application. The Department’s proposal would allow an employee’s start date to take place within 14 days of the first date of need listed. Weather is a major factor in farm work and can often delay planting and harvesting. This change helps H-2A users adapt under unpredictable circumstances that affect employment demands.

3. Regarding defining the area of intended employment, if a maximum commuting distance is utilized, it should offer flexibility to account for typical travel delays and not penalize employers.

Given that traffic patterns can vary across the United States, it is hard to place a specific metric on the appropriate travel time to determine an area of intended employment per. Metrics such as mileage will not reflect areas in which travel is faster, and therefore the mileage could be longer. Using travel time as a metric could penalize those who travel difficult terrain or encounter heavy traffic on their way to the worksite.

4. The expansion of the definition of agriculture in the proposed rule is welcome; however, the Department should make accommodations of in the final rule that allow for additional year-round agriculture industries to access the H-2A program.

Agriculture is a large industry. Therefore, the definition of agriculture that determines which agriculture sectors have access to the H-2A program should encompass the entire industry. PFB is pleased to see the Department take steps to expand the definition of agriculture in the proposed rule to include more agricultural sectors.

While the inclusion of pine straw and reforestation could be beneficial to those industries, the Department should also consider other facets of the agriculture industry that currently do not have access to the H-2A program, because of the year-round nature of the work. For example, dairy, livestock, poultry, mushrooms, and indoor agriculture do not have access to the H-2A program. There is no statutory basis to treat industries that fall under special procedures any differently from industries without access to the program. In the final rule, the Department should make accommodations that allow for other year-round agriculture industries to have access to the program.

5. The U.S. Department of Agriculture (USDA), not the U.S. Department of Homeland Security (DHS) or the U.S. Department of Labor (DOL), should be the single agency in charge of determining an employer’s temporary or seasonal need for workers.

Regarding the Department’s proposal to move the adjudication of an employer’s temporary or seasonal need either to DHS or DOL exclusively, PFB believes that having one agency make this determination should improve application processing. However, neither DHS nor DOL is the proper agency to make this determination, because neither has a keen understanding of the agriculture industry. PFB believes that USDA would be the best agency to make this determination, as USDA interfaces with farmers daily and is more connected with the work that takes place on-farm. Given that the proposed options are DHS or DOL, PFB maintains that USDA would be the ideal agency to take on this responsibility, but if USDA is not chosen, we prefer DOL to DHS.

Whichever department that ultimately determines the question of temporary or seasonal need should classify a job as temporary or seasonal based on the time the worker spends in the United States, rather than if the job itself is a temporary or seasonal task. This would allow for greater program access for industries whose work needs are not explicitly seasonal, such as dairy, livestock, poultry, indoor agriculture, and mushrooms.

6. The proposed rule’s changes to joint employment applications will lead to increased liability.

The proposed changes to joint employment applications create problematic situations of increased liability. PFB cannot support the type of approach explained in the proposed rule as the following, “if employer C and employer D file a joint employer application…and employer C fails to pay the H-2A workers the required wage, employer D will be jointly liable for employer C's violations.”

When violations occur that are clearly linked to one employer in a joint-employer agreement, the other employer should not be implicated in the infraction. This proposed change also negatively affects those who utilize the association structure to file a master application. These proposed provisions change how liability has been allocated for the entire history of the H-2A program. PFB asserts that those who commit infractions in the H-2A program should be held responsible for their wrongdoing, but innocent employers, who simply share an application, should not be held liable for another employer’s violations. PFB appreciates the option for small growers to jointly apply for H-2A workers and transfer these workers among different farms. However, the requirement that the worker must work at least one day a week for each employer is entirely too prescriptive and does not reflect the realities of the agriculture industry. In the final rule, the Department should provide greater flexibility to American farmers by removing the one day per week requirement for this type of joint employment relationship or replacing it with a less stringent restriction, which could be a measurement such as percentage of hours or days per contract.

At the same time, a strict one-day-a-week approach does not account for how weather patterns affect planting, harvest, and other crop activities. For example, hot weather conditions can cause fruits to ripen faster, and thus affect timing of harvest. Under the proposed rule, a farmer may have to forgo picking a perishable crop for at least one day, in order to comply with the joint employer application requirement. This proposed provision does not allow farms of varying sizes to utilize the joint employment model, as all the workers would have to work on each farm at least one day a week. It does not allow a small farm with fewer employment needs to jointly apply with a larger farm that typically needs more employees. The proposal also does not allow multiple employers with varying peak employment needs to adjust worker time allotments when one grower has peak employments needs while the other is in a slowdown period. In the final rule, PFB urges the Department to replace these proposed provisions with better options that allow for greater flexibility.

7. Some of the proposed rule’s provision affecting recruitment activities should improve efficiency, particularly replacing the “50 percent rule” with a 30-day requirement, but others would place excessive burdens on employers and infringe on relationships between farmers and farm labor contractors.

The proposed changes in the rule, which allow for recruitment activities to take place prior to filing Form 9142, should make the application process more efficient. A more notable improvement is the proposed change to replace the current requirement to hire referred U.S. workers through half of the employment contract (the 50 percent rule), with the new 30-day requirement. As the Department stated in the proposed rule, “…more than 84 percent of the U.S. workers who applied for the available job opportunities did so during the active recruitment period before the start date of work and through the first 30 days after the start date of work.” This new practice better aligns the requirements with the employment activities that have historically occurred and reduces the potential for workplace disruption associated with a new hire starting after the majority of the workforce has been trained.

This provision further explains that should an employer utilize the “staggered entry application,” as stated in the proposed rule, employers must hire referred workers throughout the period of staggering or thirty days, whichever is longer. PFB appreciates this approach and rejects any attempt in the final rule to further extend the hiring period for staggered entry users beyond what is currently proposed.

However, PFB has grave concerns about another aspect of the Department’s approach. Under the new interpretation contemplated in the rule, an H-2A applicant is obliged to contact not only former U.S. workers employed directly by the employer, but also employees provided by a farm labor contractor (FLC). Such an approach places an excessive burden on the employer and infringes on the relationship between a farmer and the farm labor contractor. As a matter of practicality, extending the requirement to directly contact farm labor contractor’s employees creates a conflict between the H-2A applicant and farm labor contractor. Requiring H2A applicants to offer employment to farm labor contractor sourced employees would require the applicant to offer employment to a worker who, typically, has an existing contractual relationship with the farm labor contractor. Consequently, the Department’s new interpretation and application of the provision to require applicants to offer employment to farm labor contractor employees will prevent farmers who use the H-2A program from having a workable relationship with a farm labor contractor, given the farmer will now be required to interfere with the farm labor contractor’s clients. These provisions could also lead to a breach of contract for the farmer in the event he or she attempts to hire the FLC’s employees in the following year.

Given the complexities involved in finding agricultural labor, employers use farm labor contractors to ease the hiring process by removing themselves from the process. The farmer’s relationship instead is with the contractor, not the workers who the contractor sources. This new requirement to contact every worker who ever worked on their land, even if the farmer did not directly hire them, undermines the benefits of contracting with an entity to provide agricultural workers. PFB requests that in the final rule, the Department maintain the current regulation, which only requires employers to contact employees in which direct hiring occurred.

8. Provisions of the proposed rule that provide for post-certification amendment flexibility are welcome.

PFB supports the Department’s proposal to permit the employer to request amendments to the Application for Temporary Employment Certification to additional places of employment within the area of intended employment if the conditions of the job order are not affected. Having post-certification amendment flexibility will allow farmers to better react to unforeseen weather conditions that could alter where employees are needed. PFB affirms that since the post certification amendments are limited to employment locations within the area of intended employment, that the integrity of the labor certification program is upheld with these post certification amendments. The Department should provide farmers with ample time to submit post certification amendments, as the conditions that surround the need for changes are not bound by regulatory framework. Upon receiving an amendment request, the Department should process this request as quickly as possible.

9. The Department’s proposed changes to the appeals process in the rule will impede the ability of farmers to quickly and efficiently defend their applications when a Notice of Deficiency (NOD) is issued.

The Department proposes a major departure from the current appeals process in the propose rule by no longer allowing employers to appeal a Notice of Deficiency (NOD). Instead employers are only permitted to file an appeal after a denial has been issued, with limitations on the facts introduced into the case and changes to the time allowed for review. Often H-2A applications are for jobs whose arrivals are time sensitive. The proposed limitations on the appeals process would not allow farmers to expeditiously defend the contents of their application when the NOD is issued. This would force farmers to decide between a potential delay in worker arrival by waiting to appeal after the complete denial or comply with the NOD to continue the application process.

Given the fact that H-2A workers are often utilized on farms dealing with perishable commodities, timely arrivals are vital to farm operations. Under this proposal, the Department is creating additional steps and qualifications, which waste valuable time as employers wait to learn if they will have labor available when needed. These added steps and qualifications to appeal the Department’s denials will lead to fewer employers receiving favorable review decisions. DOL proposes that it will no longer provide a copy of the appeal file to the employer, which forces the employer to file a brief without access to any information. This is a clear violation of due process and demonstrates another unwarranted change compared to how the program has historically operated. While these new steps may streamline the appeals process for the Department, these Departmental efficiencies compromise employer protections and timely worker arrivals. PFB suggests that the Department consider the implications of appeals limitations for employers and remove these provisions in the final rule.

10. The Department’s proposal to allow for staggered entry in one application for up to 120 days from the start date is a positive change that leaves room for further improvement.

Agricultural workloads tend to fluctuate depending on crop activity. There are various steps that are taken before a crop is harvested in which agricultural labor is needed. However, many farmers do not need their entire workforce at the very beginning of the season. Under current H-2A regulations, farmers must file separate applications if they want to spread out the arrival of their employees, which takes additional time and if this process is being outsourced, results in additional fees incurred by the farmer. PFB applauds the change in the proposed rule that allows for staggered entry in one application up to 120 days from the start date. This commonsense reform will minimize the amount of applications that the farmers must complete, and the agencies must process. PFB welcomes this efficiency but suggests further improvement to this provision by recommending that the staggering take place for either 120 days or 50% of the contract, whichever is longer.

11. Several of the proposed rule’s provisions related to worker housing would exacerbate the barriers employers already face when providing it.

Housing is one of the primary barriers to entry for employers interested in using the H-2A program to meet their labor needs. Rising housing costs and local ordinances have made the construction of farmworker housing in certain regions challenging. The cost to construct new housing for H-2A workers ranges from $4,000 to $10,000 per worker, and rental rates are expensive too. Because of the problems in procuring housing, many H-2A employers rent hotels and motels for workers to live in during their time in the United States. The Department’s proposal prohibits this practice from continuing, and places an immense burden on growers in the process.

The proposed rule indicates that state and local housing standards must address the health and safety concerns as set forth in the OSHA temporary labor camp standards. Considering these OSHA standards are intended for temporary labor camps, there is no basis to apply temporary camp standards to permanent housing. By imposing the OSHA standard on all rental and public accommodations, farmers will face additional hurdles, as many hotel and motel accommodations will not meet the new standard. PFB requests that these provisions be removed in the final rule, as they will lead to employers no longer being able to meet the housing requirements to participate in the H-2A program and could lose their labor source.

PFB supports the housing provisions which allow the applicable state agency to issue a 24 month-housing certification to employers. However, PFB recognizes this benefit may be limited in scope, as this simply provides the states the ability to certify for 24 months but does not limit them from continuing inspections on an annual basis. The Department should consider ways to incentivize states to adopt the 24-month practice.

12. While some of the transportation revisions in the proposed rule related to travel reimbursement are marginally helpful, concerns regarding driver fatigue should be addressed through educational initiatives, rather than additional standards.

PFB appreciates the Department’s revisions to the transportation reimbursement requirements in the rule that only require travel reimbursement from the Consulate or Embassy, instead of from the worker’s home.

PFB sees this as an incremental improvement to the transportation requirement as it is currently imposed, which requires employers to pay transportation from the worker’s home to the place of employment in the United States and back. This change will make calculating reimbursements simpler for farmers and provide minimal cost savings. PFB urges the Department to consider provisions which would allow the employer to share the transportation costs with the employee as the work in the United States is mutually beneficial to both the employee and employer.

The proposed rule also explicitly requires MSPA standards to apply and shares commentary regarding concerns over driver fatigue. Although traffic accidents such as those referenced in the Department’s proposal are tragic, they are not limited to the agriculture industry. PFB would not support an additional standard regarding driver fatigue to be applied to H-2A workers, and instead encourages the Department to consider educational initiatives that would mitigate these concerns.

13. The Department’s proposal to incorporate certain standards that are currently only found in temporary and employment guidance letters (TEGLs) will allow farmers the opportunity to shape those standards.

PFB supports the effort of the Department to incorporate into the H-2A regulations, the standards and procedures related to animal shearing, commercial beekeeping, and custom combining in the proposed rule that are currently found in temporary and employment guidance letters (TEGL). By incorporating these standards into the proposed rule, industry will now have the opportunity to provide feedback on provisions that relate to their farming operations. Under the current procedure of issuing TEGL, farmers did not have the opportunity to shape the regulations.

14. PFB does not support further regulations requiring employers to provide tools for work.

Considering the tools used in many of these industries are unique to the individual employee’s preferences and techniques, PFB would not support further regulation to require employers to provide tools for the work. Employer provided tools would likely not be used, thus placing economic burden on business owners.

15. Changes proposed to the methodology for conducting prevailing wage surveys will create problems for agricultural employers.

The Department proposes to change the survey methodology for prevailing wage surveys, the practical effect of which will likely spur more widespread payment of wages set by prevailing wage instead of the AEWR. This is problematic for employers. The existing methodology used to produce prevailing wages results in inflated wages, which comprise farmers’ financial sustainability. However, the proposed standards are too lax to ensure that data collection and the wages that result will accurately reflect the marketplace.

Under the proposal, the prevailing wage survey “must cover a distinct work task or tasks performed in a single crop activity or agricultural activity. The concept of distinct work tasks is continued from the Handbook 385, which provides that “Some crop activities involve a number of separate and distinct operations. Thus, in harvesting tomatoes, some workers pick the tomatoes and place them in containers while others load the containers into trucks or other conveyances. Separate wage rates are usually paid for individual operations or combinations of operations. For the purposes of this report, each operation or job related to a specific crop activity for which a separate wage rate is paid should be identified and listed separately.”

The handbook example quoted previously could create a situation in which it is unclear how much distinction between tasks there should be, creating substandard survey responses. The survey should be updated for clarity so growers can provide more accurate and reliable data.

The Department proposes to limit survey responses to wages of U.S. employees only, out of concern that undocumented agriculture worker wages may depress the wages of workers in the U.S. similarly employed. PFB objects to this proposal because of the potential legal implications for employers and the fact that H-2A responses, which would result in inflated prevailing wage rates, remain in the data collection. The Department should be clearer as to who qualifies as a U.S. worker under the proposal.

Many workers have documentation, but the legitimacy of this documentation is unknown to the employer nor can the employer question the paperwork upon employee hiring. The Department should specify if a survey respondent omits employee information because of improper documentation, if this would be demonstrating constructive knowledge that an employee is illegally residing and working in the U.S. If this is the case, PFB strongly opposes these provisions. If survey responses are omitted because of concern they will depress survey results, then similarly H-2A wages and wages of U.S. workers in corresponding employment should be omitted from survey responses as they could inflate the prevailing wages that result from this data. PFB strongly recommends the Department remove this concept from the final rule because it implicates immigration status determination in wage calculation, conflating unrelated issues and perpetuating poor data collection practices.

The Department proposes that a prevailing wage must be issued if a single unit of pay is used to compensate at least 50% of the U.S. workers in the survey. PFB is concerned that this determination will impose an unrealistic wage level on employers as piece rate work may be converted to hourly compensation under the proposal. A better approach would be to set hourly and piece rate wages separately from one another in prevailing wage determinations, instead of utilizing the 50% minimum to determine the unit of pay for the particular crop or agricultural activity. This would prevent piece rate compensation for the most productive individuals from inflating wages that are paid on an hourly basis.

PFB encourages the Department to include provisions that prevent mid-season changes in prevailing wage rates. This unpredictability adds financial burden to farmers. Labor costs account for 35-48% of variable production costs in the fruit and vegetable industry. It is typical practice to contract prices for the upcoming season based on data from the prior year. Given this, mid-season increases in labor costs result in profitability challenges as the prices previously agreed to no longer fit the increasing production costs on farm. In the final rule, the Department should place limitations on in-season prevailing wage increases to prevent dramatic changes to farmers’ variable costs.

As the Department proposes to change the methodology for prevailing wage surveys, the Department must take into account the current economic situation facing American producers and the need for affordability and predictability. Should the Department consider indexing the prevailing wage rate to any metric, PFB encourages consideration be given to metrics that reflect the agricultural economy such as wholesale or retail fruit and vegetable prices.

16. While PFB values the Department’s recognition that the current system under which H-2A wages are set is flawed, we disagree with the provisions to disaggregate wages and maintain a survey-based wage as outlined in the NPRM.

With American unemployment below 4%, and the agriculture industry continuing to experience extreme labor shortages, PFB asserts that the concept of an adverse effect wage rate is not applicable to the H-2A program, and other wage setting methods should be implemented. Fewer Americans seek work in labor-intensive agriculture, and the recruitment of guest workers to fill agricultural jobs does not prevent interested Americans from assuming these positions. The Department’s own data relative to the provisions to change the 50% rule to a 30-day rule concluded, “the Department has collected a significant amount of data that shows that a very low number of U.S. workers apply for the job opportunity…” Furthermore, there are requirements to test the labor market to be certain that no domestic residents want these available jobs before a guest worker is brought to the U.S. To add, the sunken costs to participate in the H-2A program such as housing, transportation, lawyer or agent fees, and advertising already make hiring an H-2A worker more expensive than finding a U.S. employee through traditional means.

Due to these added costs and the existence of a labor market test, PFB is disappointed to see the continuation of a survey-based AEWR that does not account for these additional expenses and the economic realities facing the agriculture industry in the proposed rule. The Department’s proposal does not position American agriculture to better compete with our foreign competition as predictability and affordability are not prioritized in these regulations. The Department’s proposal negates the benefits of the streamlining provisions, by continuing a wage structure that is subject to change drastically year-to-year and increases recordkeeping burdens for H-2A users.

In the proposed rule, the Department would offer wage rates corresponding to a specific agricultural occupation per the Standard Occupational Classification (SOC) system using data from multiple sources depending on data availability. PFB cannot support this approach to wage calculation, as it creates variation in payroll expense from year to year and will likely result in higher wage expenditures for farms than the current regulation. American producers are already struggling to be profitable and this proposed wage structure would not make the program more predictable or affordable for those who use it.

A concern raised by some policymakers about the current procedures for determining the AEWR is that the Farm Labor Survey (FLS) does not provide sufficient wage detail by area, occupation, or level of skill and experience required by employers. Currently, the AEWR applies equally to all crop workers, livestock workers, and farm equipment operators in a region or state. However, within a region or state, wages for the same occupation may vary because of differences in the cost of living or in the relative supply of or demand for workers. Under the proposed rule, the wage rates may vary for different positions in each state, depending on the data source. According to data provided in the proposed rule, the wage rate source can vary (FLS National, FLS Regional, OES State and OES National). Varying data sources for each state and position results in different pay rates for each state. This action introduces more variability in the total gross wage calculation, making it challenging for farmers to plan their labor costs each year.

PFB believes the Department should prioritize affordability and predictability in the final rule and abandon these provisions as they are currently proposed. The proposal also includes provisions in the prefiling procedures that disadvantage American farmers regarding when the varying data sets and their corresponding wages become available. The different AEWRs will change at different times of the year based on the data source in which they are determined (USDA FLS, OES, or the prevailing wage). If these wages increase in the middle of the contract, employers must increase employee pay. However, if these wages were to decrease, employers cannot change pay rates accordingly.

PFB does not agree with this approach and suggests that wage rates agreed upon in the contract period do not change based on new available data. To further improve this proposal, the Department should align the release dates of these varying survey methods to minimize wage fluctuation throughout the year.

Ideally, the proposed rule would not result in higher wage expenditures for farms than the current regulation, but that would not be the case for the sample farms in most states. Nationally, the total wage expenditure for the small and medium-sized sample farms would have been 10% higher in 2016, 10% higher in 2017 and 9% higher in 2018 if the wages had been calculated following the proposed rule, compared to the current regulations. Nationally, the total wage expenditure for the large-sized sample farms would have been 4% higher in 2016, 4% higher in 2017 and 3% higher in 2018 if the wages had been calculated following the proposed rule, compared to the current regulations. The proposed rule, does however, result in a lower wage expenditure for the sample farms for some states, particularly the larger-sized sample farms. The estimated differences in payroll expenses for small/medium-sized and large-sized farms by state can be seen in Exhibit 2 below.

The savings for larger-sized sample farms could be attributed to the requirement to pay at the highest applicable AEWR across agricultural occupations as stated in the proposed rule as the following, “if the job duties on the Application for Temporary Employment Certification do not fall within a single occupational classification, the CO would determine the applicable AEWR at the highest AEWR for all applicable occupational classifications.”

On larger farms, workers might be relegated to a single agricultural occupation, but on small and medium sized farms, which make up the majority of H-2A employers, workers often complete a multitude of tasks in a given day across varying agricultural occupations and must be paid at the highest AEWR of all the applicable occupational classifications. With this requirement, small and medium sized farms are discriminated against as they must utilize their workers to complete a variety of duties but are required to pay at the highest rate. On large farms, worker tasks are more singular, and thus not subjected to inflated AEWR’s corresponding with job duties in a different SOC. Safeguards that allow for occasional work in other job categories without additional compensation are notably absent from this proposal and demonstrates another pitfall in this new wage methodology.

The disaggregation without any safeguard for work across several occupations also creates increased legal exposure for employers. Employers will now have to carefully track each employee’s specific job duties to ensure they are being paid the appropriate wage in the event the Wage and Hour Division conducts an audit on the farm or workers pursue unsubstantiated legal ramifications based on claims of work in other agricultural occupation classifications.

PFB does not see a benefit to the disaggregation proposal and urges the Department to replace these provisions with other wage structures in the final rule. PFB has supported wage methodologies in the past that are more predictable, do not inhibit profitability, and take into consideration the costs already associated with the H-2A program. PFB suggests the Department consider paying H-2A workers a percentage over the federal minimum wage instead of the complicated occupation-based AEWR’s as outlined in this proposal. The Department should ensure in the final rule that wage provisions do not impede U.S. agricultural competitiveness, can be predicted from year to year, and does not create the possibility for legal exposure.


PFB appreciates the opportunity to provide feedback on the proposed H-2A regulations and is eager to continue this discussion as the Department drafts the final rule. Labor availability and affordability are paramount to agriculture’s success. While efforts to streamline the program and create efficiencies are welcomed, they do not outweigh the lack of access to the program for year-round sectors and are undermined by provisions that place more requirements on employers. The rule contains notable program improvements such as those that allow for staggered entry, e-filing, flexibility on date of need, and changes to the 50% rule and transportation reimbursement. However, there are also elements that create additional burden for employers. PFB urges the Department to carefully consider the negative implications associated with the problematic joint employment, housing, appeals, and wage provisions as they are currently written in this proposed rule.

PFB urges the Department to improve provisions in the final rule, as outlined in our comments, to provide American farmers with a user-friendly, economical labor system.



Grant R. Gulibon

Director, Regulatory Affairs