The H‑2A program provides work visas for seasonal or temporary foreign farm workers. In my paper on the program, I explained how complex the process already is, containing over 200 rules that farmers must follow to hire workers legally. Now the Department of Labor (DOL) is proposing to make it even more expensive and costly to hire legal farm workers in the midst of an unprecedented labor shortage and a dramatic increase in inflation, particularly in the United States and especially for food. It is also attacking a program designed to prevent illegal immigration, while Border Patrol is recording record arrests at the southern border.
Currently, all H‑2A workers, as well as any U.S. workers in comparable positions, must be paid the same Adverse Effect Wage Rate (AEWR)—the H‑2A program’s minimum wage—but under the proposed regulation, several job types on farms will now have separate and higher AEWRs. The rule will both inflate the required wage rates and create a new massive administrative burden for all H‑2A farmers to separately track every activity of every employee—H‑2A and U.S. employees—on their farms to avoid violating these new wage rules. DOL also proposes to intentionally misclassify H‑2A workers into higher wage occupations if they perform any job duties that could fit under that job category.
In my paper, I explained how the AEWR already inflates H‑2A wages:
DOL adjusts the AEWR annually based on a survey and uniquely classifies overtime, hazard pay, bonuses, performance incentives, and all other payments as wages. This inflates the [required] base hourly rate before adding these types of extra compensation for the following year. This inflated average rate then applies to all workers, pricing out H‑2A and U.S. workers who had below-average wages. When these workers drop out, the surveyed wage is artificially inflated even further. Many farmers feel these procedures put the AEWR on an upward escalator that becomes more disconnected from reality each year. The average AEWR has grown about twice the rate of inflation.…
The AEWR has other methodological problems. For instance, it is based on the average farm wage (which includes many high-end outliers) rather than the median wage, nor does it include the cost of mandatory benefits provided to H‑2A workers and U.S. workers in similar jobs such as housing and transportation.
One purpose of the H‑2A program is to prevent a farm labor shortage, and it has failed. The most important reason why is that the AEWR is set much too high, so farmers cannot afford to hire enough workers. The results are lost productivity, higher prices, and illegal immigration.
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