Changes to visa program could hit ND farmers

Congressional, legal action may lessen impact

Changes to visa program could hit ND farmers
Ryan (23, left) and Richard (19, right) Kemp, workers from South Africa on H-2A visas, prepare an old grain bin for transfer to another section of Stephanie Hatzenbuhler's ranch just west of Mandan. (Photo Michael Standaert)

For farmers like Dunn County’s Lenci Sickler, recent U.S. Department of Labor rule changes that alter the pay rates for temporary seasonal foreign workers could cause his labor costs to skyrocket, he said, unless they are rescinded.

Sickler supplements his staff with three workers from South Africa who travel to North Dakota on H-2A visas for seasonal spring through autumn work then return home in the winter.

Most of the time the visa workers are involved in normal farm labor, from baling hay to tending to cattle. Occasionally they drive a truck, or haul grain, hay or cattle to pasture for an hour or so.

This is where the rule changes could really bite.

Technically workers engaged in any truck driving could now be reclassified under a specialization as drivers instead of general laborers. This means that their wages could increase from around $17 per hour up to $27 per hour not just for the time behind the wheel but for the entire season.

“Unfortunately, that’s one of the highest wages that the Department of Labor has put in, especially for North Dakota, so it would be extremely detrimental,” Sickler said. “If we would fall into those categories, I mean we would have to really evaluate how we have our employees work or whether the H-2A program is even viable anymore.”

The DOL has run the H-2A program since 1987 to help fill agricultural workforce needs. It has largely been seen as beneficial for both farmers and temporary workers who make wages at a higher level than in their home countries. There have also been occasional issues with inadequate housing, poor treatment and wage theft in some parts of the country, particularly related to workers sourced from Mexico or other Latin American countries.

Last December, the department increased the basic wage rate, and made the changes currently opposed by many farmers at the end of February this year that specified types of employment that should be paid at a higher wage, including driving trucks.

Nationally, the average basic wage rate is $16.13 per hour, with the highest in California at $18.65 and the lowest in a belt of southern states stretching from South Carolina to Louisiana is $13.67. North Dakota’s basic rate now stands at $17.33 per hour.

Dependency rises

The wage increases also come as North Dakota farmers are more dependent on seasonal foreign workers. According to data provided by Job Service North Dakota, the number of applications from farmers and the total number of H-2A visa workers have steadily risen the past three years.

Applications from farms jumped from 736 in 2021 to 979 for the current period of 2023, which runs through the end of September. The number of workers also increased, from 2,444 in 2021 to a current 3,155. Nationally, there were more than 372,000 H-2A workers in the U.S. in 2022, a sharp rise from the 75,000 temporarily employed in 2010.

Dawn Mandt, executive director of the Red River Regional Council, which concentrates on community and economic development in Grand Forks, Nelson, Pembina and Walsh counties, said she’s noticed farmers in her region addressing their workforce needs through the H-2A visa program in recent years.

“It’s really on a steady incline,” Mandt said of the reliance on the program.

The program isn’t necessarily taking away work opportunities from locals. It is, however, biting into housing stock.

“There’s an impact that it is having more broadly on communities, because farmers are required to provide housing [to H-2A workers], so we literally have no housing available anymore,” Mandt said.

In the four counties her organization covers, applications have jumped from 91 in 2021 to 145 in the current 2023 period, while H-2A worker numbers have increased from 323 to 534 in that time frame as well.

Potential reversal

The DOL is currently facing two lawsuits aimed at blocking the changes. One is from the National Council of Agricultural Employers, and another from USA Farm Labor, Inc., the latter one of the primary agencies arranging H-2A visa workers for farmers in North Dakota.

Another potential action is a Congressional Review Act resolution introduced by around two-dozen U.S. senators, including North Dakota’s Kevin Cramer, in April that could temporarily pause the changes until further review. A spokesperson for Cramer indicated that the vote could occur soon, but no date had been nailed down.

USA Farm Labor mainly connects farm workers from South Africa with farmers looking for workers and works with around two dozen clients in North Dakota. The agency has traditionally been a go-to for those migrant workers during what would be their off-season in the southern hemisphere.

Alex Cracchiolo, USA Farm Labor spokesperson, said the main issue with the DOL rule changes entails the classifications that could bump a worker up to a heavy trucking category even if that wasn’t the main duty of the worker.

“Hauling stuff with a semi, regularly, all day every day across state lines is a vastly different job than taking stuff over to the local grain elevator,” Cracchiolo said. “Especially considering it’s not even a primary duty, but something that’s going to get done once in a while during a season.”

That was Sickler’s main issue as well, and he said he hoped the DOL could address why it had made the changes and how the calculations – which vary from state to state – are figured. He thinks they end up being higher in North Dakota due to comparisons with other truck driving jobs locally.

“I get it, we live in a state that has the oil industry and the wages in the oil industry are quite a lot higher, but those jobs aren’t hauling grain from the farms to the elevator, those are specialized trucking jobs,” Sickler said.

“There's a lot more regulations, rules, there’s a lot more training, there's a lot of that stuff,” he said. “So they're using those positions and factoring them in to just the guy that's hauling hay down the road to his neighbor. So that I think is a little unfair.”

DOL’s regional and national public affairs team was provided a set of questions related to the changes to the H-2A rules and how the trucking specialty wage was calculated in North Dakota, but did not respond within a week after receiving them.

Some smaller farms that can’t pay the wages may end up shutting down, Cracchiolo said. Others could turn to illegal workers or end up working around the clock to get their tasks done themselves with whatever local workers are available.

“None of those options are particularly appetizing for a lot of people,” he said.

According to a survey of 139 of its clients nationally, 65 percent said they would not use the H-2A program after this year if the changes remain in place, Cracchiolo said.

Stephanie Hatzenbuhler, operator of Diamond J Angus just west of Mandan, also currently employees three South African H-2A workers at her farm. She said her experience has been beneficial, since the workers already speak English and most come from farm backgrounds themselves, making integration with her operations easier.

She’s not so happy about the potential changes though, and suspects they may be overturned.

“It's hardly affordable the way it is,” she said of the recent wage increases. “I don't even know how you'd keep track of specialized jobs, put it that way.”

If the policy does remain in place, she, like many farmers may cut back on their reliance on H-2A visa workers, or only do the hauling and trucking themselves.

“If you just keep these guys as general farm laborers, it doesn't apply, you know, so that's kind of what we've been doing,” Hatzenbuhler said. “So what they want to call specialized work, well you know what, I'm just gonna do that myself.”

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