M. Janine Duron is the Executive Director of Centro Independiente de Trabajadores Agricolas/Independent Agricultural Workers Center (CITA), a Yuma Arizona-based nonprofit organization designed to help America’s farmers attain and retain a stable and productive workforce.
20 CFR 655.122 (h):
“(h) Transportation; daily subsistence — (1) Transportation to place of employment. If the employer has not previously advanced such transportation and subsistence costs to the worker or otherwise provided such transportation or subsistence directly to the worker by other means and if the worker completes 50 percent of the work contract period, the employer must pay the worker for reasonable costs incurred by the worker for transportation and daily subsistence from the place from which the worker has come to work for the employer [emphasis added], whether in the U.S. or abroad to the place of employment. When it is the prevailing practice of non-H–2A agricultural employers in the occupation in the area to do so, or when the employer extends such benefits to similarly situated H–2A workers, the employer must advance the required transportation and subsistence costs (or otherwise provide them) to workers in corresponding employment who are traveling to the employer’s worksite.”
In the Yuma AZ border area, USDOL investigators have stated that this provision requires employers to pay for worker’s trips to the U.S. Consulates and back, because “it is for the employer’s convenience”that the worker makes the trip to obtain the work visa. It is not so elsewhere.
I submit that it is in every worker’s best interest to be certified to work, whether through a visa, a driver’s license or vocational certification. When a corresponding worker comes to the job with an employment authorization, the employer is not required to reimburse him or her for their education, immigration costs, driver’s license or other government ID which allows or authorizes them to work. It is not a prevailing practice to reimburse any worker in any industry for the steps they take to qualify for an advertised job. Low level interpretations of this and other regulations are allowed, however, to continue to the tune of many hundreds of thousands of dollars for employers in an already unnecessarily costly program.
As a farm worker advocate who loves, interacts daily with and for farm workers (financially poor farm workers at that), you would think I’d want to drag every penny I could out of their employers. But there are problems here:
- Our nation’s condemning attitude towards agricultural employers that is deserved only by some.
- Our beliefs that farm workers are unable to provide for or advocate for themselves, needing to be beneficiaries of a ‘welfare state’ that punishes all employers for the acts of greedy and/or abusive farmers and farm labor contractors.
- The way the H-2A program is written, politicized and allowed to be interpreted. The regulations DO NOT state that the transportation costs include trips for visas. And they are NOT applied to employers across the nation whose workers travel 4-24 hours to obtain their visa, only to return home to wait for it to be delivered days later via courier, then make the trip to the U.S. with visa in hand. Only the trip to the worksite, as specified in the regulations, is reimbursed.
At the end of the day, what’s right is right and what’s wrong is wrong. Farm workers, like other men and women, have their pride and their resources just as others do. We need to help, support and advocate for this awesome group of people, but not cripple them with handouts that they don’t need. Employers need to have and pay for a viable workforce, and not be charged excessively for things like unfruitful newspaper ads and unspecified transportation costs.
We have two options: either the regulations be applied fairly and equally to all or they be rewritten. We dare not let them be applied or rewritten as before after reading about this week’s House Judicial Subcommittee [on Immigration Policy and Enforcement] hearing on Capitol Hill. Instead let them really be reviewed and rewritten with the help of those who are most affected by this effort to help preserve an able and available workforce for America’s farmers: workers, smaller farmers and advocates without political motives. Agribusiness may employ the highest number of workers but they may also be the most financially and politically driven voices.
Much of the input has already been given, now let’s get an advisory committee together to review the material and see if we come up with the same interpretation of what is needed here. Meanwhile, we decry the decision to interpret the transportation regulation in this fashion.
I vote for the latter option.
M. Janine Duron, Executive Director
CITA ~ Centro Independiente de Trabajadores Agricolas
Independent Agricultural Workers Center
Helping Restore America’s Agricultural Workforce
2764 S Maple Avenue
Yuma, AZ 84364