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On October 2, 2017, House Judiciary Committee Chairman Bob Goodlatte (R-Va.) introduced a new proposed year-round agricultural guestworker program (“the AG Act”) which aims to replace the current H-2A federal guestworker program as we previously reported here.

The AG Act proposes to replace the H-2A program with what will be called H-2C which will be administered and enforced by the United States Department of Agriculture (“USDA”). The AG Act aims to consolidate all food-related agricultural guestworkers under one system. All of the current H-2A and H-2B workers are included, in addition to groups that were not previously included, such as dairy and fishery workers.

Under the AG Act, the guestworkers can stay within the United States for up to 18 months for temporary/seasonal work (36 months initially for non-temporary work) before needing to return to their home country. For seasonal or temporary work, after the guestworker’s stay expires, the guestworker is required to leave the U.S. for a time period equal to one twelfth (1/12) of the duration of their stay. For work that is not seasonal or temporary, guestworkers whose stay has expired are required to remain outside of the U.S. for 45 days, or a time period equal to one twelfth (1/12) of their stay, whichever is less. The AG Act also proposes a 500,000 annual cap for new guestworkers. However, any guestworker who has been previously admitted under the H-2A or H-2B program does not apply to the proposed cap. In addition, the AG Act will allow experienced unauthorized agriculture workers to continue working in agriculture by joining the H-2C guestworker program, providing them with legal authorization to work in the United States.

Among other changes, the AG Act differs from the current program by allowing employers and guestworkers to enter into an “at-will” employment status rather than a contractual status which means the guestworkers can move freely throughout the agriculture marketplace to meet demands, as long as the employer is designated as a registered agricultural employer by the USDA and the employee has already completed the agreed-upon period of employment with his/her original employer. Unlike H-2A, under the H-2C program there is no mandate for employers to provide housing and/or transportation, and it would reduce the number of guaranteed work hours from 75 percent of the hours stated in the work contract to 50 percent.  It does still require employers to recruit U.S. employees before filling the vacancies with H-2C workers, but the employers will not be forced to hire U.S. workers once the guestworkers have arrived. In addition, compensation is proposed to change under the AG Act. Rather than paying the guestworkers the Average Effect Wage Rate (AEWR), employers will be required to pay at least the state or local minimum wage, or 115% of the federal minimum, whichever is highest. The AG act does permit employers to pay guestworkers via piece rate as long as that rate equals or exceeds the applicable wage rate.

COUNSEL TO MANAGEMENT:

The Ag Act has many steps to endure before it becomes law. It must pass the committee and then pass in the House and the Senate. The proposed bill will change many aspects of the current H-2A program. There are those who strongly support this bill as perhaps the only opportunity to change a flawed program and address the industry’s problem with undocumented workers while others strongly oppose, believing the dangers of attempting an entirely new program are too great or feeling that this kind of nonimmigrant work visa discriminates against US workers. The bill aims to address the concerns of agricultural employers looking to have a legal, viable workforce without an overwhelming amount of bureaucratic hurdles and includes the farmers who need access to guestworkers on a year-round basis. If you have questions regarding H-2A compliance or litigation, please contact the experts at The Saqui Law Group. 

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