H-2A Was So Last Season…Get Ready For H-2C?

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08/23/2017

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H-2A Was So Last Season…Get Ready For H-2C?

By: Michael Saqui and Rebecca Hause-Schultz

House Judiciary Committee Chairman Bob Goodlatte (R-Va.), is introducing a bill to the U.S. House of Representatives that would overhaul the current H-2A program with a goal of eliminating certain requirements of the H-2A program currently in place. On July 19, the House Judiciary Immigration and Border Security Subcommittee held a hearing titled “Agricultural Guest Workers: Meeting the Growing Needs of American Agriculture.” Chairman Goodlatte said before the hearing that “it’s clear that the current program is outdated and broken for American farmers, and it’s well past time to replace it with a reliable, efficient, and fair program to provide American farmers access to a legal, stable supply of workers, both in the short-and long-term, for seasonal as well as year-round work.” The video of the hearing as well as the testimonies of the four witnesses brought before the committee can be found here.

As proposed, Goodlatte’s program would create an “H-2C” visa program which would be administered and enforced by the USDA. Among other changes, the legislation would differ from the H-2A program by allowing employers to attest that they can't find U.S. workers rather than going through a labor certification process, and it would allow for an initial visa period of up to 18 months of continuous stay for temporary/seasonal work (up to 36 months for non-temporary work). It also does not contain the current H-2A program requirements that free housing and transportation be provided for workers, and it would end the H-2A program altogether once the H-2C program becomes operational. Additionally, the H-2C program would provide that the USDA may not require filing a petition seeking foreign labor more than 28 days before the date of need. As far as compensation goes, the bill would change the pay requirement to the highest of 115% of federal, state, or local minimum wage rather than the Average Effect Wage Rate (AEWR), and piece-rate compensation would be permissible as long as it met the required hourly wage.

The new version of the bill “makes a good faith attempt” to take into account the comments and concerns of the agricultural community, Goodlatte said. The bill is similar to proposed 2013 legislation also introduced by Chairman Goodlatte, the “Ag Act” (H.R. 1773), that ultimately failed to pass. The summary of that bill can be found here.

COUNSEL TO MANAGEMENT:

This bill has a long way to go before passing, but its introduction demonstrates the ever-changing and highly political debate over access to and need for foreign labor. However, with increasing labor needs and renewed legislative focus on the H-2A program, hopefully relief will be coming for agriculture. If you have questions about what to do if the DOL issues a violation to your company or about potential violations that H-2A employers are subject to, contact the experts at The Saqui Law Group.

 

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