PROPOSED LEGISLATION,(Jul. 24, 2018)

A group of Republican, plus two Democratic, lawmakers have teamed up to introduce and co-sponsor the “AG and Legal Workforce Act,” which would replace what sponsors called the “outdated and broken H-2A agricultural guestworker program” with a new H-2C program. The move is intended to ensure that America’s farmers and ranchers have access to a reliable workforce. Among other things, the bill would expand employer eligibility and the number of visas available, make housing and transportation provision optional, and make Affordable Care Act subsidies unavailable to guestworkers, but require them to have health insurance.

H-2C program. The bill, H.R. 6417, would make the H-2C agricultural guestworker program available to both seasonal and year-round agricultural employers, provide a generous visa allocation for employers to ensure labor needs are met, provide much-needed flexibility to employers to minimize disruptions in farm operations, eliminate regulatory burdens on employers, and contain effective accountability and enforcement provisions, according to the lawmakers.

Eligibility and visa allocation expanded. A bill summary points to several key features that would expand the agricultural sectors eligible for the program, as well as the number of visas available:

• In addition to meeting seasonal agricultural labor needs, the H-2C program would be available to year-round agricultural employers, such as aquaculture operations, dairies, raw food processors, and others.

• The total number of visas available each year would include 40,000 visas for workers employed in meat and poultry processing, and 410,000 for all other agricultural workers.

• Returning H-2A and H-2B workers, and previously unauthorized farmworkers who participate legally in H-2C, would not count toward the annual visa cap on non-meat and poultry processing workers.

• The bill would include an automatic escalator to increase the cap on non-meat and poultry processing visas should the allocation be reached in a given year and limited discretion for the Secretary of Agriculture to allocate additional visas in the event of a labor shortage.

Unauthorized workers get path to certification. H.R. 6417 would permit experienced farmworkers who are currently illegally present in the United States to get pre-certified to join the H-2C program, and after leaving the U.S. briefly, begin working legally.

Visa term lengths and touchback requirements. The bill would also include flexible visa term lengths and certain touchback requirements. All H-2C workers would be eligible for a three-year visa. Workers would be able to meet their touchback requirement by accruing time through multiple periods of absence from the U.S. Specifically, a worker would be required to accrue 60 days, or a time period equal to 1/12th of their stay, whichever is less, before becoming eligible for a subsequent visa.

Wages and regulatory burdens. The bill would require that workers receive “reasonable wages” and would put an end to “excessive regulatory burdens,” according to sponsors. To that end, the proposed legislation would include these provisions:

• Employers would be required to pay H-2C workers not less than the state or local minimum wage, 115 percent of the federal minimum wage (150 percent in the case of meat or poultry processing jobs), or the actual wage level paid by the employer to similarly situated workers in the same job, whichever is greatest.

• Employers would have the option of providing housing and transportation for their workers, but would not be required to do so.

• To discourage “abusive litigation,” farmers and H-2C workers would be able to “agree” to binding arbitration and mediation of any grievances. H-2C workers would not be eligible for taxpayer-funded legal assistance under the Legal Services Corporation Act.

• H-2C workers would be eligible for 36-month visas but would have to accrue 60 days outside the U.S. before becoming eligible for a subsequent visa.

• Once agricultural employers are required to use E-Verify, H-2C workers already in the U.S. would be able to seek at-will employment with registered farmers (who would still need to comply with program requirements) during the time of their work authorization.

Enforcement provisions. The proposed legislation includes these features that sponsors contend would ensure effective enforcement:

• Employers would be required to report any H-2C workers who abandon their jobs within 72 hours.

• H-2C workers who do not return home as required would be barred from reentry to the U.S.

• Employers would deposit 10 percent of H-2C workers’ wages into a trust fund. Workers would only be able to access the escrowed amounts by going to a U.S. embassy or consulate in their home country.

• H-2C workers would not be able to bring spouses and minor children, unless they are also guestworkers.

Taxpayer protections. The bill’s sponsors pointed to certain protections said to be for taxpayers, including that H-2C workers would be ineligible for federal public benefits, Affordable Care Act subsidies, and federal refundable tax credits (the Earned Income Tax Credit and the Child Tax Credit). H-2C workers would be required to have health insurance, however, in order to protect taxpayers from “footing the bill” for expensive medical care.

Employment verification. The AG and Legal Workforce Act would also requires that all U.S. employers use E-Verify, what the lawmakers see as “an effective web-based program that protects jobs for legal workers.” H.R. 6417 would repeal the “error-prone,” paper-based I-9 system and replace it with E-Verify. There would be a gradual phase-in for employers, starting with the largest employers first and eventually phasing in small businesses and agricultural employers.

About the author, Rhamy

Rhamy grew up watching and working with his mother and grandmother in the senior insurance market. This familiarity with the struggles faced by people trying to navigate the incredibly complicated and heavily regulated healthcare market led him to start Poplar Financial while working on his degree at the University of Memphis. After completing his MBA and Bachelors in Finance and Economics, Rhamy guided Poplar Financial through the disruptive opportunity that is the Affordable Care Act. Since then Poplar Financial has received numerous awards from major insurance carriers and has completed its fourth year in a row of doubling in size. Now his team focuses on the processes around human resources and specializes in providing companies with between 20 and 1000 employees with the payroll, benefits, and HR needs.