Labor Department boosts workplace protections for migrant agricultural workers

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Pelosi decimated for claiming that illegal immigrants need to stay in Florida to ‘pick the crops down here’

Twitter melted down after a recent clip featured Speaker of the House Nancy Pelosi claiming that Floridian farmers "need" illegal immigrants to stay in their state and "pick the crops." 

The Department of Labor will publish a final rule next week that increases workplace protections for temporary migrant workers in the agricultural sector.

The rule has been in the works for months, but notice of its finalization comes just one week after House Speaker Nancy Pelosi, D-Calif., said farmers need illegal immigrants to "pick the crops."

Seasonal migrant workers hired by U.S. agricultural producers are not picked at random from groups of illegal immigrants, and instead must obtain a visa to work in the U.S. under the H-2A temporary agricultural workers program.

On Thursday, the Department of Labor released a copy of the final rule that adjusts the H-2A program in ways that will increase protections for migrant workers and make it easier for U.S. agricultural producers to employ these workers.

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Secretary of Labor Marty Walsh with President Biden.

"The major provisions contained in this final rule will strengthen protections for workers, modernize and simplify the H-2A application and temporary labor certification process, and ease regulatory burdens on employers," the Labor Department said in its rule. 

"It is the policy of the Department to maintain robust protections for workers and vigorously enforce all laws within its jurisdiction governing the administration and enforcement of nonimmigrant visa programs," it continued.

Among other things, the rule requires U.S. farmers to ensure migrant workers are given housing that meets certain standards. The rule gives as examples, "minimum square footage per occupant, sanitary food preparation and storage areas, laundry and washing facilities." 

Employers will have to certify to the federal government that migrants will have access to facilities that meet these standards.

The rule also increases the value of surety bonds that U.S. employers must post before hiring H-2A workers. These bonds cover any liabilities that might arise if an agricultural producer fails to honor its contract with migrant workers and is a way to protect those workers from abusive employment conditions.

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Seasonal farmworkers pick and package strawberries in Salinas, California. (iStock)

The Labor Department rule makes other technical changes aimed at making it easier for farmers to apply for H-2A workers, including by allowing them to file electronic applications.

Contrary to Pelosi's commented last week, the process of allowing migrants to work in the U.S. for seasonal agricultural work is a complicated one.

First, a producer in the U.S. must ask the Labor Department for a certification that there is a shortage of "able, willing, and qualified" workers in the U.S. to do the work, and that "employment of the alien in such labor of services" will not affect the wages of U.S. workers in similar jobs.

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A handful of Labor Department offices are involved in decisions to grant the producer a temporary agricultural labor certification.

A handful of Labor Department offices are involved in decisions to grant the producer a temporary agricultural labor certification. Once granted, the producer must petition the Department of Homeland Security to hire nonimmigrant workers.

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If DHS gives the producer the go-ahead, foreign migrant workers living outside the U.S. must apply for a non-immigrant H-2A visa at a U.S. embassy or consulate and get permission from U.S. Customs and Border Protection to enter the U.S. to do the work.

The Labor Department’s new rule governing the H-2A program is expected to be formally published next week and will take effect in November.