U.S. Department of Labor's H-2A Visa Rules Sustained
Today, Judge Osteen of the U.S. District Court for the Middle District of North Carolina (case #1:2010CV00200), in Greensboro, denied a preliminary injunction by North Carolina Growers Association and the American Farm Bureau Federation.
For the last 14 months, many of the H-2A visa provisions established to protect foreign workers and American farm laborers' jobs have been absent. In the final days of the presidency of George W. Bush, his administration finalized a set of rules easing the burden on growers who employ foreign laborers under the law known as the H2-A program, which regulates the importation of agricultural workers. Most importantly, the Bush rules, which came to be known as the "midnight rules," did away with the Adverse Effect Wage Rate (AEWR). This wage is determined by the Secretary of Labor each year for each state. It was always greater than the minimum wage, which is the wage typically paid to American farmworkers. This last provision cost workers substantial amounts of income.
"Today, America's farmworkers, an integral part our nation's food security, were offered renewed hope for the protections they deserve," said David Strauss, Executive Director of the Association of Farmworker Opportunity Programs (AFOP). "We applaud Judge Osteen for his courage and dedication to protecting worker's rights."
For decades prior to the Bush Administration's "midnight rules", H2-A regulations required growers to certify that they could not locate American workers for their plantings and harvests, despite vigorous recruitment efforts. Foreign workers could then only be hired under specific contracts and if those contracts ended, the workers would need to immediately return to their country of origin. The grower had specific responsibilities: they were required to: pay the roundtrip transportation costs of the workers, provide safe and clean housing, and, most importantly, pay a special increased hourly wage known as AEWR.
The federal government still faces serious opposition from portions of the grower community that have enjoyed the extremely inexpensive labor the H2-A program provided under the Bush Administration rules. This ruling, which may be appealed by North Carolina Growers Association and the American Farm Bureau Federation, is still a positive step by the U.S. Department of Labor and Secretary Solis toward the restoration of farmworker rights.
The Association of Farmworker Opportunity Programs is the national federation of nonprofit and public agencies that provide training and employment services to migrant and seasonal farmworkers. For additional comment or interview, please contact Ayrianne Parks at (202) 828-6006 x140
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