WASHINGTON, Sept. 14, 2016 - Prospects for comprehensive immigration reform on Capitol Hill appear as elusive as ever, no matter the outcome of this fall’s presidential and congressional elections. That means that the administrative decisions that the new president will make in enforcing immigration law will be that much more important.

The new administration, for one, will set enforcement priorities. President Obama, importantly, has refocused enforcement priorities toward the border and away from employers. Donald Trump’s remarks on immigration in August indicate that he may generally follow that policy, by beefing up border security and focusing deportations on illegal immigrants with criminal records.  And Hillary Clinton has repeatedly said that she won’t deport anyone unless they are criminals or terrorist threats.

But none of that addresses what farmers say is their growing need for a flow of legal workers. Agriculture leaders would love to see Congress expand or replace the existing H-2A visa program for seasonal farmworkers, something congressional Democrats won’t allow to happen outside of comprehensive immigration reform.

But there are steps, which don’t need congressional approval, which a new administration could take to make the H-2A program easier for farmers to use. There’s also precedent for doing so. After an immigration reform bill failed in 2007, the George W. Bush administration implemented changes in Labor Department regulations to accelerate the H-2A application process.

A rule that took effect three days before Obama took office eased a requirement that federal and state officials inspect a farm’s actions and documentation to certify its compliance with the program’s requirements before an H-2A application could go forward. The Bush rule allowed farms to attest, under threat of penalties, that they met the program requirements.

The only problem: The incoming Obama administration said that easing the certification requirements failed to protect either U.S. or foreign workers adequately. The White House acted immediately to kill the rule and reinstate the previous certification process.

One obvious step a new president could do to please farm groups is to reinstate the Bush rule. “The program is so complex now that every little step (in the application process) can hold you up,” said Frank Gasperini, executive vice president of the National Council of Agricultural Employers.

Gasperini believes the Obama administration “encourages either directly or tacitly the idea that it should be difficult for growers” to use the H-2A program.

But reinstating the Bush rule would do nothing to change the basic requirements of the program on issues such as wages and housing, and it would still be limited to seasonal workers, not the year-round employees that dairy producers and others say they need.

There are a number of additional steps that agriculture groups believe an administration could take on its own to ease restrictions. One would be to limit the minimum wage requirements to bring them “more in line with the real world,” said Craig Regelbrugge, former co-chairman of the Agriculture Coalition for Immigration Reform.

Regelbrugge, senior vice president at AmericanHort, the horticulture industry’s trade group, also believes the statistical programs used to set the wages should be revised so they more accurately reflect the job and area where the worker would be employed. The minimum wage is set to prevent H-2A workers from having an “adverse effect” on domestic employees in similar jobs.

Regelbrugge also said the new administration should consider changing the definition of “temporary or seasonal” workers so dairy producers could use the program. Regelbrugge said the idea could be tried on a pilot basis.

Also on a pilot basis, the government could allow farms to provide a “housing allowance” in lieu of housing to farmworkers, he said. The H-2A housing requirement “is a major impediment to many producers having access to the program,” he said.

“The agencies involved have all the room they need to work to streamline processing functions, and could embrace many other reforms that would improve access to the program, or make program use smoother for current users,” said Regelbrugge.


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