The house judiciary subcommittee on immigration enforcement will be holding a hearing on Thursday, September 8th on the American Specialty Agricultural Act (ASAA). The Act would eliminate the problems plaguing the H-2A program and institute a new visa category and program titled the H2-C program. The ASAA hopes to rectify the problems with the current H2-A visa program that have resulted in the majority of agricultural growers avoiding the use of the H2-A program altogether. The H-2C program contained in the ASAA would be distinct from the H-2A program in the following ways:
• Rather than the Department of Labor, the Department of Agriculture would administer the H2-C program. Historically, many agricultural growers agreed with the assessment of economist James Holt that there is “a culture of hostility toward the H2-A program and program users within the Department of Labor”. By replacing the Department of Labor with the Department of Agriculture as the H-2C program administrator, this culture of hostility would hopefully be eliminated.
• While the H2-A program originally included an attestation based process, this process was rescinded by the Obama administration. The H2-C program will return to an attestation based process. This process will reduce the necessary paperwork to hire a H2-C worker because an employer can attest to compliance with the program requirements rather than filing numerous forms with the Department of Agriculture.
• The H2-A program has an adverse effect wage rate formula for calculating the wages for H-2A workers. This formula often resulted in wages that were too high for employers to be competitive with other growers who were employing illegal immigrants. The ASAA eliminates the adverse effect wage rate formula and instead requires H2-C employers to pay the occupational prevailing wage in their locality, which is the same requirement for other temporary worker visa programs.
• The H2-A program requires employers to provide their guest workers with free housing. The ASAA allows growers to provide either housing or a housing voucher payable to a landlord. Consequently employers are no longer charged with the expense of providing free housing for their guest workers.
• The H2-A program, despite clear statutory language indicating otherwise, requires employers to pay transportation costs for all guest workers once they begin their employment in the U.S. if they decide to leave their employment at any time. This rule was instilled by the eleventh circuit in their decision in Arriaga vs. Florida Pacific Farms, LLC. The ASAA rejects the Arriaga opinion and rule and only requires an H2-C employer to pay for the transportation costs for their workers if the worker completes 50% of the work contract.
• Under the H2-A program, the 50% rule requires employers to provide employment to U.S. workers who apply for employment until H2-A workers have completed 50% of their work contract. The purpose of this rule was to ensure that U.S. workers who desired agricultural work were not displaced by H2 workers. However, this rule has had an adverse effect on the growers business because they are typically required to employ both U.S. and H2-A workers to ensure that they have a sufficient agricultural workforce in the event that U.S. worker decide to leave before the end of the agricultural period. The ASAA completely eliminates the 50% rule.
• Under the H2-A program, H2-A employers are required to guarantee employment for H2-A workers for at least three-fourths of the days covered by their employment contracts. The ASAA reduces this guarantee for the H2-C program to a more reasonable 50% of the workdays for the employment period.
• Dairies and other agricultural producers have not used the H2-A program because they employed their workers on a year round basis rather than on a seasonal basis, and the H2-A program is only available for temporary or seasonal work. The ASAA eliminates the requirement that such visas are only available for temporary or seasonal workers. Consequently, agricultural producers and dairies will be able to take advantage of the H2-C program because they will be allowed to employ full time, non-seasonal employees.
• Under the H2-A program, the efficacy of the program and the cost of the program to employers was frequently undermined by litigation. The ASAA hopes to reduce frivolous litigation by allowing growers to include binding arbitration and mediation clauses in their contracts with H2C workers. Furthermore, the ASAA provides that the federally funded Legal Services Corporation (LSC) may not sue an H2-C employer on behalf of H2-C workers unless mediation has been attempted through the federal mediation and conciliation service.
• Temporary agricultural visa programs have been criticized based on the assertion that temporary agricultural workers are anything but temporary, but rather stay in the U.S. illegally following their period of temporary employment. To address this concern, the ASAA does the following. First, the H2-C program does not allow temporary workers in the U.S. to bring their families with them during their periods of employment. The rationale behind this rule is that a person’s family is their strongest tie to their place of residence. Second, the bill requires that H2-C workers return home after ten months of work. Third, all H2-C employers are required to promptly alert the Department of Homeland Security if a worker has been fired or voluntarily left their employment.
• The H2-C program allows up to half a million foreign workers a year to receive H2-C visas. Based on statistics from the University of California at Davis and the Department of Labor, this allocation of temporary agricultural visas is projected to cover the needs of agricultural growers and producers.
Please check back with the Stern & Curray news blog to find out what new developments arise from the September 8th hearing on the ASAA and the proposed H-2C program.