The state Employment Security Department wants lawmakers to create a new department within the agency to increase compliance with the H-2A federal agricultural guest worker visa program.

New fees assessed on farmers in addition to a limited amount of federal funds would help pay for the new Office of H-2A Compliance and Farm Labor under Senate Bill 5438, which was proposed by Employment Security Department and sponsored by a group of urban western Washington-area Democratic senators.

The H-2A program offers temporary visas for seasonal agricultural workers for employers who can demonstrate that there are not enough domestic workers who are “able, willing, qualified, and available to do the temporary work.” Under federal law, employers are required to provide workers with transportation, housing, affordable meals, hygiene facilities and at least 75 percent of the hours promised in the contract.

Although Washington receives about $300,000 of federal dollars per year to administer the program, state officials say it is not enough money to cover the cost.

According to the fiscal note accompanying the bill, the department would need to raise an additional $3.5 million on top of what it receives from the U.S. government per biennium to fund the new office with about 14 employees.

U.S. Department of Labor statistics show that nearly 25,000 H-2A positions were certified in Washington in 2018. That number is expected to grow to 30,000 this year said Nick Streuli, a legislative director with the Employment Security Department. He said the use of the H-2A program has increased by more than 1,000 percent in the last decade in Washington.

“We believe the use of the H-2A program is important to the agriculture industry in the state of Washington,” Streuli said. “This bill represents our commitment to that belief and the need for additional resources to fund the work associated with the program.”

If it becomes law, Senate Bill 5438, sponsored by Sen. John McCoy, D-Tulalip, and nine other Democrat senators would create the the Office of H-2A Compliance and Farm Labor under the Employment Security Department and would establish an advisory committee to review relevant issues with farm workers and to investigate ways to increase domestic farm worker recruitment.

Streuli says his department has met with the U.S. Department of Labor and members of Congress to seek more funding Washington’s H-2A program but has not yet seen results.

“Given the dramatic rise in the use of the program we just don't feel like we can wait for congressional action,” he said.

To fund the program, the department would collect a fee from farmers for each H-2A application, as well as a per-employee fee.

The bill requires the fees to be set annually and prohibits the Employment Security Department from collecting more revenue than the projected cost of the program for the next calendar year. It also allows discounted rates for employers with track records of compliance with the H-2A program.

Because H-2A visas tie workers to a single employer, some worker advocates say the H-2A program needs greater oversight and enforcement because of the laborers’ unique position.

“Columbia Legal Services has litigated a number of cases involving H-2A workers and employers,” said Andrea Schmitt, an attorney with the nonprofit legal service. “We've seen up close the ways that the H-2A program makes workers uniquely vulnerable to abuse.”

The farm industry “is opposed to any kind of adequate state oversight of contracted workers coming in from out of the country,” said Rosalinda Guillen with Community to Community Development, a Bellingham-based worker advocacy organization. “They would have us believe that there will be harm done to the agricultural industry.”

Some growers were worried that increasing the fee for H-2A will price them out of the program, or price competitors out of the program, which would further deplete the already strained domestic farm labor supply.

“I think we're being asked to sign a blank check and we would like to work with everybody, including farm labor advocates, in going forward to solve this problem,” said Mike Gempler of the Washington Growers League.

“I worry that as H-2A becomes expensive and cumbersome, more of the larger growers that use farm workers will stop using H-2A and make the domestic labor shortage even more dire for small farms like mine,” said April Clayton of Red Apple Orchards.

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