H-2A Frequently Asked Questions Guidance - Round 17: Temporary or Seasonal Need Assessments; Relevant Information or Factors Related to H-2A Labor Contractors Operating in an Area of Intended Employment Where Agricultural Production May Occur Year-Round

Dear Administrator Pasternak: The Northwest Horticultural Council (NHC) writes today to provide comment regarding the U.S. Department of Labor's (DOL) H-2A Frequently Asked Questions (FAQ's) guidance document published in the U.S. Federal Register on September 26, 2022. The NHC is a trade association that manages federal and international trade issues for the growers, packers, and shippers of apples, pears, and cherries in Washington, Oregon, and Idaho. Our growers produce approximately 69 percent of the apples (supplying 78 percent of the U.S. fresh market), 88 percent of the fresh pears, and 69 percent of the fresh sweet cherries grown in the United States. The NHC represents growers with farms of all sizes. While it remains cost-prohibitive for many, more and more growers have turned to the H-2A program to secure the workforce they need to grow and harvest their crops – in spite of paying a wage that is 19 percent or more above the state minimum wage plus the costs of benefits like housing and transportation. The number of H-2A workers brought to Washington state alone increased by a third in just one year, from just shy of 18,800 in 2017 to approximately 25,000 in 2018. The number has continued to rise substantially even through the COVID-19 pandemic, with approximately 29,000 worker positions being filled in 2021. In Oregon, the number of H-2A workers jumped by one-third between 2018 and 2021. Numbers are also increasing in Idaho. The NHC appreciates DOL providing guidance to stakeholders so they can better understand DOL's expectations for Applications for Temporary Employment Certification. The process of applying to use the H-2A program is exceptionally cumbersome, and delays in certification can be very costly for growers. Therefore, reducing the number of Notices of Deficiency (NOD) issued by DOL is important. However, the NHC is concerned that the guidance document does not adequately address all of the factors that impact the labor needs of growers. Attached are our full comments, which includes recommendations to make this document more useful to stakeholders and to streamline the process for both program users and administrators. In summation, it has always been a challenge for agricultural producers who cannot offer employees a stable job year-round to find adequate labor. The H-2A program was created for the specific purpose of helping growers meet these seasonal labor needs when facing worker shortages. The program is needed more today than it ever has been in the past. Labor shortages have become so acute in recent years that thousands of growers depend on the H-2A program for the labor they need to grow and harvest their crops. While DOL must administer this program in a manner that ensures all regulatory requirements are met and that the program is truly serving its statutory purpose, the NHC cautions DOL against adopting policies that force growers to jump through unnecessary hoops – and face costly delays that can harm their crops – in order to prove the seasonal or temporary nature of the jobs they are seeking to fill. The process to become an H-2A employer is exceptionally complex, and we appreciate DOL providing guidance to help growers better navigate this process. However, the NHC requests that DOL consider the input provided in these comments and incorporate changes to the guidance document as needed in order to A) not improperly exclude growers from using the program for needs that truly are seasonal or temporary in nature; or B) prevent unnecessarily complicating and extending the timeline of the application process by creating an expectation that NOD's be issued in order for the agency to obtain the information needed to fully consider an application. Thank you again for the opportunity to provide comment on this guidance document. Sincerely, NORTHWEST HORTICULTURAL COUNCIL Kate Tynan Senior Vice President