But the H-2A program comes with massive administrative challenges impacting nearly every grower who utilizes the program. Growers using the H-2A program are required to aggressively recruit U.S. workers, and to file detailed recruitment reports. State workforce agencies routinely refer workers to H-2A employers during the first half of the employer’s H-2A contract. Many referred workers never show up for an interview. Of those that do, few actually report to work. And far fewer stay more than a week or two.
Employers who routinely perform pre-employment drug testing are being told they cannot drug test worker referrals. Users of the program are required to advertise for jobs not later than 75 days prior to the date of need; the practical effect of this is to advance the minimum start date of the H-2A process to more than 80 days. This is so far in advance that many growers have not yet made crop decisions for the year. For apple growers, it is very difficult to predict the number of workers needed as well as the start and stop dates accurately that far in advance. Weather conditions throughout the year play a major role in the size of the crop as well as the start and stop dates for pruning, pest management, harvest and other activities.
A few years ago a neighbor of mine here in Virginia who uses the program realized that due to weather conditions he would need his fall workers to stay several weeks longer than initially anticipated. He filed the necessary paperwork and asked for an extension. By the time he heard back it was nearly Easter the next year, the crop and the workers were long gone. He had to leave apples on the trees.
Just last month, apple growers in the Northeast had a near-disaster when the State Department made a last minute ruling putting the application of hundreds of Jamaican workers in jeopardy just days before the harvest was to begin. Members of Congress intervened and the workers arrived on time (or nearly on time) but just a few more days of inaction could have meant lossesestimated at $95 million for affected growers. Many of these problems pre-date the Obama Administration. During the Bush Administration, one long-time user had his application rejected because – when he could not fit the entire answer to a question on the form in the space provided he wrote "see attachment."
The H-2Aadministrators at the Department of Labor (DOL) told him that he should have fit as much of the answer as possible in the box and then said "see attachment." Another apple industry leader had questions about his applications and had a staff person from his operation spend literally an entire day hitting the redial button on the telephone before she finally got an answer at the DOL office in Chicago.