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Growers score legal victory in H-2A rule battle

by Joan Murphy | July 09, 2009
WASHINGTON -- A federal court sided with grower groups June 29 and put on hold the Obama administration's move to abandon December 2008 H-2A rules.

At issue are final H-2A rules, which took effect Jan. 17, 2009, that were designed to fix problems with the 1987 temporary visa rules after a nearly two-year regulatory process. In March, just hours after Secretary of Labor Hilda Solis took office, the new rules were suspended, replaced with the original 1987 rules, and accompanied by a 10-day comment period.

But Judge William Osteen Jr. of the U.S. District Court for the Middle District of North Carolina ruled against the government, saying the rule change would hurt growers more than the government by increasing their business costs.

For example, the Adverse Effective Wage Rate, the H-2A minimum wage, for North Carolina farmers under the 2008 Rule is between $7.25 and $8.51 per hour, but it is $9.34 per hour under the 1987 Rule. Plaintiffs would not be able to cover their losses from the rule change, said the 21-page opinion.

"The farmers who use H-2A labor in North Carolina and around the country thought that the final rules for H-2A that were recently implemented balanced both the needs of agriculture while improving working conditions for farm workers," said Stan Eury, executive director of the North Carolina Growers Association, one of 18 groups that sued the Department of Homeland Security and the Department of Labor to prevent the new rules from being overturned.

North Carolina farmers have long depended on the H-2A agricultural worker program to have a legal, non-immigrant workforce to help with planting and harvesting crops, and the December 2008 final rule was carefully crafted after considering some 800 comments, said Mr. Eury.

As a result of the latest legal move, employers who filed under the December 2008 rule will see no change, said Frank Gasperini, executive director of the National Coalition of Agricultural Employers, in a notice to members. The Department of Labor will process cases under the December 2008 rule until further notice, he said.

Agricultural businesses also should make sure that their I-9 hiring records are in order, as U.S. Immigration & Customs Enforcement announced plans to inspect 652 businesses to determine if they are complying with employment- eligibility-verification laws.

"This nationwide effort is a first step in ICE's long-term strategy to address and deter illegal employment," Department of Homeland Security Assistant Secretary for ICE John Morton said in a press statement.

Under the administration's new strategy, ICE is focusing its resources on the auditing and investigation of employers suspected of cultivating illegal workplaces by knowingly employing illegal workers.

The 652 businesses were selected as a result of leads and information obtained through other investigative means, said ICE. During the last fiscal year, ICE issued 503 notices all year.