With a growing number of Washington farm owners turning to the

H-2A guest worker program to meet their labor needs, the cost of administering

and providing oversight of the program now exceeds the federal funding provided

for it.

It’s a scenario that pushed the state Employment Security

Department to turn to the Legislature this year for help.

Use of the temporary agricultural worker program, which allows

agricultural employers to legally use foreign labor to temporarily fill

employment gaps, has increased by more than 1,000 percent since 2009, while the

federal dollars to administer the program have remained flat, according to the

Employment Security Department, which processes H-2A applications, as well as

partners with other state agencies to conduct field checks and other forms of

oversight.

The state Legislature responded to the situation by passing E2SSB

5438 in April 2019, legislation that established an Office of Agricultural and

Seasonal Workforce Services within the Employment Security Department, as well

as authorized the agency to create a 12-member advisory committee that will

take two years to review budget, procedures and policies related to

administering the program.

The original version of the bill looked to

gain additional funding by imposing a state fee on farmers who use the H-2A

program, but that fee was later removed after pushback from farmers and

industry groups. Instead, the Legislature authorized the Employment Security

Department to spend about $3.5 million from another account to address the

needs during the two years of the panel review. However, that funding is not a

sustainable solution, said Suzi LeVine, Employment Security Department

Commissioner.

During its two-year tenure, the advisory committee will further

consider the cost of the program and provide key advice as legislation is

implemented. The committee will include agricultural worker and employer

representatives, as well as officials from other state agencies that the

Employment Security Department partners with to support the agricultural sector.

“This bill helps us better implement the program to meet the needs

of farmers, farmworkers and the people of Washington state overall. It brings

the voices of the farmer and farmworker communities into the room to advise the

program, ensures better oversight in the fields and organizes our resources

more efficiently to deliver a win-win scenario for our state,” LeVine said in a

statement.

The bill also sheds light on the severity of the agricultural

worker shortage in Washington, said Bre Elsey, associate director of government

relations for the Washington Farm Bureau.

The Employment Security Department expects Washington growers to

request about 30,000 temporary agricultural worker visas this year, a figure

that highlights the severity of the worker shortage in the state, she said.

“I think a lot of folks are just unaware of how big the situation

is with labor and with agriculture,” Elsey said. “This program allows us to

find those 30,000 workers so we can harvest the food that everybody eats or

else we just don’t harvest it.”

Even more so, the bill sheds light on a misguided federal funding

structure under which the federal government does not grant money to states in

a manner that scales the funds to need, she said.

Washington is the third largest user of the H-2A visa program but

receives one of the lowest amounts of federal funding to implement it.

Figures provided by the Washington Farm Bureau show that the state

received $19.97 in federal funding per capita in 2016, while Rhode Island, the

state that used the lowest number of H-2A workers that year, received $19,036

in federal funding per capita that year.

Washington had 13,689 H-2A workers in 2016, while Rhode Island had

four.

However, charging farmers a fee to bridge the funding gap would

make it harder for small farms to compete for limited local labor, while having

little effect on the largest farms, Elsey said.

“There’s really large unintended consequences when you mess with

the H-2A program. The people who are impacted the most are not the big

corporations that can afford the inflated wages and can afford to use the H-2A

program,” she said. “It’s the little farmer that you were trying to save ends

up not having any labor.”

In its current form, employers using the H-2A program spend about

$766 per worker on application fees alone, according to the Washington Policy

Center. They are additionally obligated to pay all of their farmworkers $15.03

per hour, rather than the state minimum wage of $12, and they have to provide

housing for workers and cover other costs including travel expenses, food,

child care and other social services.

“The H-2A program is incredibly expensive already and it is a last

resort for farmers and ranchers. They are not seeking H-2A workers first,

they’re seeking them last, so adding additional fees to what is already an

expensive program essentially prices ag labor out of being an option in

Washington state,” said Pam Lewison, agricultural research director for the

Washington Policy Center.

By providing qualified workers who are guaranteed to stay for a

predetermined length of time, H-2A serves as an insurance program that

guarantees work for both sides, Lewison said.

But Andrea Schmitt, a farmworker attorney with Columbia Legal

Services, believes that provision of guaranteed labor can actually create an

unfair work structure and power imbalance between the employer and employee.

As guaranteed laborers who have their visas tied to their

employer, H-2A workers are especially vulnerable to retaliation if they voice

complaints, she said. That retaliation can be immediate or it can be more

subtle, sometimes coming in the form of an employee being marked as a “trouble

maker,” rendering it virtually impossible for them to work under the program in

the future.

“Some of these companies are scary to people. Beyond not giving

work, people feel intimidated by the degree of control that the companies end

up having in communities where huge percentages of the people are working on

H-2A visas,” Schmitt said.

For that reason, it is crucial that the Employment Security

Department have adequate funding to carry out oversight of the program, she

said. In its current form, the department is responsive to complaints but may

not be catching situations where H-2A workers are too intimidated — or don’t

know how ­— to file a complaint.

“What you have to have is people who can affirmatively get out

there and in a culturally appropriate way build trust with the guys who are

working in these places and actually figure out whether there’s anything wrong

because they’re not going to volunteer that information the first time you talk

to them for five minutes,” she said.

Columbia Legal Services was supportive of the original H-2A bill

that included a state fee to be charged to employers.

Although not supportive of a user fee, the Washington Farm Bureau

also agrees that adequate funding is crucial to proper oversight and

administration of the program. The agency is hopeful that the new advisory

panel will provide a chance for various groups to rally behind the common goal

of pressuring the federal government into allocating more money to the state to

administer the program.

If a funding solution isn’t determined during the advisory

committee’s two-year tenure, the topic of the state fee likely will be

revisited, Lewison said.

In the meantime, stakeholders said they view the creation of the

working group as a positive first step toward beginning to address the

problems.

“We’ve got to be talking about

it because it shows no sign of slowing down in terms of growth,” Schmitt said.