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PLNA e-News: Protecting Values In the Nation

Will New H-2C Guest Worker Program See the Light of Day?

Tuesday, February 13, 2018   (0 Comments)
Posted by: Gregg Robertson
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H-2A WorkersWASHINGTON, D.C. - Congressman Bob Goodlatte (R-Virginia) has introduced a bill to create a new guest worker program for agriculture, H-2C, which would include nurseries. The bill has made it through committee with some objectionable amendments added, but there are efforts now to have the bill amended and incorporated into the expected DACA (deferred action for childhood arrivals) legislation. The DACA legislation could be considered within the next month, but it is doubtful that the Goodlatte bill will make it into DACA. (for background see January e-News)

Following are the concerns with the current bill language and the recommendations for changes that agriculture advocates are making:

Concern: Farmworkers and employers are uncertain that an unlawful farmworker will be allowed back into the country when he or she departs for the initial “touchback” required by the bill.

SolutionAllow Farmers to “Preapprove”/ “Pre-certify” Workers Before They Leave the U.S.  This change creates certainty for farmers by allowing them to seek and receive preapproval of their H-2C petitions for their current workforce BEFORE their workers leave the country for their touchback and allows the precertification of the workers’ admission back into the U.S. BEFORE they leave, via the issuance of advance parole documents.

Concern: The bill only provides 6 months for current unlawful workers to touchback, which is not enough time and will interrupt the growing season for farmers.

SolutionExtended Touchback Window.  This change extends from 6 months to 1 year the period of time following implementation of the H-2C program during which unlawful farmworkers must complete their touchback. This allows employers of seasonal workers to coordinate the touchbacks of their farmworkers during periods that are less critical, and provides enough flexibility for farmers who employ year-round workers to stagger the touchbacks of their farmworkers and reduce the impact on operations.

Concern: The cap is insufficient to address the needs of seasonal agriculture and the maximum visa term of 18 months is insufficient to provide a stable labor supply.

Solution: Lengthened Visa Term.  This change extends the standard visa term from 18 months to 24 months while keeping the time period required for workers to return home at 45 days. This would increase the total number of agricultural workers subject to the cap who could be in the U.S. at any one time to 900,000 after the first year of the program (because each year a total of 450,000 new workers would be allowed to obtain visas under the cap and stay for two years so there would always be an overlap). This calculation does not take into account those, like all current unlawful farmworkers, who will never count against the cap.

Concern: Farmers do not have enough time to prepare for mandatory E-Verify.

Solution: Extend the E-Verify Effective Date as it Applies to Agriculture. This change extends the implementation of the E-Verify requirement for agricultural employers from 18 months to 24 months.  

Concern: Many farmers rely on migrant, or “at-will,” farmworkers and the bill does not sufficiently provide certainty that the “at-will” program will actually take effect.

Solution: Expedited At-Will Employment.  This change requires DHS to implement technology to support at-will employment under the H-2C program no later than 24 months after enactment and allows “at-will” employment no later than 24 months after enactment.

The chances that this bill will be incorporated into DACA legislation are slim, given the overwhelming list of other issues that Congress faces in crafting a DACA bill. 

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