State asks feds to interpret visa rules

Almost two months after the Maine Department of Labor announced it would review federal visa programs that bring foreign workers to Maine, the state is asking the congressional delegation for help.

In late September, the state agency said it would analyze the laws for flaws. The move was prompted by the deaths of 14 foreign workers when their van flipped into the Allagash River earlier in the month.

This week, the lack of progress was noticeable: The accident occurred on Sept. 12, and Gov. Angus King’s administration has fewer than seven weeks remaining in office.

The review was touted as a way to give legislators and the congressional delegation an education into the federal rules that allow companies to import more than 1,200 foreign workers to plant or cut trees in places where “they’re the only red meat around for the flies,” in the words of one labor official.

In late September, Adam Fisher, spokesman for the state labor department, said his agency was going to evaluate whether the federal H-2B visa program offers enough protections to foreign workers who come to Maine to cut or plant trees. The agency also was going to look into why foreign workers employed in agriculture under another visa, the H-2A program, are guaranteed housing and transportation, while their counterparts employed in forestry are not.

On Sept. 30, Commissioner of Labor Valerie Landry said the review of the visa programs would be completed “in a couple of days,” and then passed on to the state’s congressional delegation.

In mid-October, Sen. Susan Collins said she was waiting to see the department’s review.

Earlier this week, Fisher said the delay occurred because the agency was “waiting until after the election was over.”

Late Wednesday, Landry finished a letter to the state’s congressional delegation asking for help. The elected officials received their letters by fax on Thursday.

“We are asking for your guidance in understanding why forestry and agricultural workers are covered under different visa programs and, specifically, why forestry workers are not covered under the H-2A program despite apparent similarities in job characteristics,” Landry wrote. “We would ask for an analysis of congressional intent as well as a discussion of the pros and cons of including forestry workers under the H-2A program.”

Department officials have said there is no difference between planting a rosebush – which is considered an agricultural job – and planting a tree.

According to federal laws, foreign workers working in forestry jobs thinning and planting trees under the H-2B program are allowed to work only for one employer and for up to 11 months at a time. They are allowed to receive workers’ compensation and are paid overtime, but they are not provided housing or transportation.

Under the H-2A visa program, agriculture workers, who harvest fruits and vegetables, cannot work overtime and are not allowed to collect workers’ compensation unless state law requires it, but they are provided housing and transportation to work.

On Thursday, Michael Frett, director of the department’s bureau of labor standards, said, “Fundamentally, there was an assumption that each [visa] program was established under specific understandings and intentions.

“We know about the programs. We know about the differences,” Frett said. “We don’t know why the differences exist.”

U.S. Rep. John Baldacci said Thursday he received the Labor Department’s letter and has asked the Congressional Research Service to provide him with a history as to why the visa programs are different.

Baldacci, who will be sworn in as governor in early January, said, “It’s unacceptable” that 14 foreign workers had to die on their way to work, indirectly because of different visa programs.

He said that as governor he would review the history and discuss possible changes in the visa programs with the state’s congressional delegation.

Sens. Collins and Olympia Snowe also sent out a request for the same history.

Felicia Knight, spokeswoman for Collins, said she didn’t think the state Labor Department was going to stop analyzing the federal visa programs, but rather was asking the congressional delegation for help “so they can continue what they’re doing.”