Agricultural Guest Worker Reform Legislation
A Common-Sense Ag Guest Worker Proposal
Details of Agricultural Guest Worker Proposal
Background and Issue:
Our immigration system is broken, and our elected leaders have failed to fix it for decades. There are an estimated 12 million undocumented aliens within the U.S. today. Additionally, at times there have been over 100,000 apprehensions at the southwest border during certain months. We cannot continue to treat the symptoms we must treat the underlying problem – failed federal policy. The individuals crossing over seeking work are generally lower-skilled workers in agriculture, hospitality, and construction.
This year a rare opportunity has presented itself. There is bipartisan interest in the House to get something done to solve this issue. Additionally, we see a willingness from President Trump and his top advisors to address this issue before the end of the 116th Congress. Instead of addressing a comprehensive approach I feel we should address the lower skilled workers in H-2A, H-2B, I-9, and those here illegally.
With this opportunity, and years of work on the issue, this proposal outlines a plan that would create a guest worker program to fulfill the labor needs in three sectors under the banner of a guest worker program. These sectors are agriculture, construction, and hospitality. Those who understand these sectors know that the labor demands cannot be satisfied by domestic labor alone. These industries need a reliable, predictable, and steady supply of workers with the flexibility to come and go as the growing/busy seasons dictate – from seasonal to year-round.
This proposal will focus on the agricultural sector but will work in similar ways for the construction and hospitality sectors.
Broadly, this proposal would accomplish three things.
- First, it creates a steady, reliable, and predictable workforce for our producers while giving a legal opportunity for the migrant to enter the country legally.
- Second, it would streamline and modernize the antiquated H-2A program and move the program from the Department of Labor to the Department of Agriculture.
- Third, it would create a program under the Department of Agriculture to give year-round agricultural employers access to prescreened migrant workers.
- All of the above will only work with border security and enforcement of our current immigration laws.
Reforms to the H-2A Program:
- Modifies the definition of “agriculture” to include agricultural operations that currently are not able to use the program.
- Modifies the petitioning process for producers who plan to bring in H-2A workers at different start dates throughout the year.
- Maintains the current seasonal structure of the H-2A program, including contractual employment and a work visa that is valid for up to 10 months, and dedicates that worker only to agriculture.
- Eliminates the Adverse Effect Wage Rate, allowing producers to pay either (1) 115% of the Federal minimum wage, (2) the State minimum wage, or (3) the wage being paid to others on the farm doing the same job.
- Implements a 10-month seasonal Guest Worker Identification Card (GWIC) that includes information, as deemed necessary by the Department of Homeland Security, for H-2A workers.
Process and Approval for Prescreened Year-Round Workers:
The legislation creates an Agricultural Guest Worker Program, hereby known as the “Program”. The Program will be administered by the U.S. Department of Agriculture (USDA). Department of Labor (DOL) would administer the programs for hospitality and construction. Individuals applying to the Program - “Applicants” - will be prescreened before entering the U.S. This applies to individuals only, not family members, with each Applicant being a minimum of 18 years old.
- Should an Employer not be able to find the necessary domestic labor after properly advertising per existing law, the guest worker pool can be accessed by the producer to find foreign labor easier and less costly than current methods of recruitment.
- The prescreening will be conducted by the Department of Homeland Security and the government of the Applicant’s home country. DHS will conduct a background check and a cross-check with domestic and international databases to verify the validity of the information presented.
- The host country will confirm the identity of the Applicant via official letter. In addition, that government will certify that the Applicant has not been involved in or convicted of gang activity, drug trafficking, criminal activity or violent crimes.
- Once the applicant passes the DHS background check(s), they must submit biological information, including CCT facial recognition, finger prints, retinal scans, DNA, and blood samples. The applicant’s information will then be placed into the Guest Worker Pool for future employment.
- Applicants become Participants 1) once USDA identifies a need within the U.S., 2) the individual is admitted into the U.S., and 3) receives the Guest Worker Identification Card (GWIC) for a 5-year period of time.
- If a Participant has provided false information at any point in the process, that Participant will be automatically removed from the Program and/or prohibited from reapplying to the Program for a period of 5 years.
Unauthorized Workers Present in the United States:
Unauthorized agricultural workers who are already present in the U.S. will have an opportunity to become eligible for the program.
Upon enactment of the legislation, the worker will have up to one-year to undergo the necessary background check(s) with the Department of Homeland Security (DHS) in order to become a Participant.
The Participant’s immediate family, if currently residing in the U.S., is protected from deportation unless an individual is, or has been, convicted of a felony. The immediate family of the Participant will have permission to stay in the country for the same 5-year period as the Participant, provided the the Participant does not commit a felony, requiring deportation.
Family members residing outside of the U.S. will not be permitted to enter the U.S. unless they individually apply and are accepted into the Program.
If a background check reveals an individual was convicted of an infraction of the law less than a felony, the Applicant will have a reasonable period to address the violation(s).
Once an Applicant passes the background check, a one-time $2,500 fee will be required. The Applicant will then become a Participant in the Program once employment is started. A fine of $2,000 will be assessed for entering the country illegally.
- If an Applicant does not pass the background check, he or she will not be eligible for the Program at that time and will have 3 months to resolve their legal challenges.
- Immediate family members in the same household of the Participant who are already present in the U.S. will be eligible to receive H-4 status so long as the Participant remains in the Program. This will allow a family member to work in the same field as the Participant.
- This only applies to spouses and children under the age of eighteen brought into the country illegally.
- Once a child of illegal status turns eighteen, he or she will have the opportunity to apply for the Program or return to their country of origin and can re-enter legally back into the United States.
- If a spouse or child wishes to work in a different industry they must apply for that specific program and be a minimum of 18 years of age.
Guest Worker Identification Card:(GWIC)
- Once an Applicant passes the background check(s), is admitted to the Program, and is selected for a job at an agricultural employer in the U.S. the Participant will receive an identification card referred to as the Guest Worker Identification Card (GWIC) that verifies their status as a Participant in the Program.
- The GWIC shall include a 15-digit/numerical identification number that shall be used for tax withholdings and for verifying a guest worker’s employment approval to work in the agriculture, hospitality, or construction sectors only. The initials AG will be imbedded in the GWIC designating approval for an individual to work in the agriculture sector, with hospitality will be HP, and construction will be CS.
- The identification card shall include a photograph on the front, and information that the DHS deems necessary for irrefutable identification such as finger prints, retinal scans, DNA, blood type, and facial recognition, embedded in a smart chip.
- For the Agriculture Guest Worker Program, the Secretary of Agriculture shall ensure the integrity of the GWIC, including restrictions on the amount of replacement cards a Participant will be able to receive. The proposal is for one replacement in a 5-year period.
- Again, family members residing outside of the U.S. will not be permitted to enter the U.S. unless they are accepted into the Program and are a minimum of 18 years old.
- DOL will issue HP and CS GWIC.
Required Quarterly Check-In at a Federal Office or Place of Employment:
- The Participant will be required to check in at the closest, or most convenient, Federal Office (i.e. Post Office) within the first 72 hours of entering the U.S. or place of employment via E-Verify if available with a GWIC reader.
- The Participant must also check-in within seven days of each quarter of the calendar year via the E-Verify system at a federal office or place of employment.
- Participants may alternatively check-in at the place of employment which will be required to have a GWIC reader or use the current E-verify system.
- The United States Postal Service (USPS) shall reserve space for a digital station where a Participant can scan his or her GWIC to fulfill this requirement. The same chip reader as the E-Verify program will be used for uniformity.
- There will be funds authorizing the USPS to fulfill this requirement that will come from the Program fee ($2,500.00) proposed per 5 years.
- Should a Participant fail to check in, the Employer shall be notified both in writing and electronically, and the Participant will be required to contact USDA within seven days to explain the occurrence.
- Should a Participant fail to check in at a Federal Office or an Employer for two consecutive quarters, the Participant will be removed from the Program, ineligible to reapply to the Program for one-year and must return to his or her home country.
- To regain eligibility for the Program, the Participant must reapply to the Program after a one-year period.
Agricultural Guest Worker Housing for Year-Round Employment:
- Employers will not be required to provide housing for year-round agricultural workers.
- Should an Employer choose to offer housing, the Employer would be permitted to do so and charge a reasonable fee.
- The optional housing provided by the Employer shall not be subject to additional regulations by USDA but must meet Federal, State, and Local building and fire codes.
Agricultural Guest Worker Transportation:
- An Employer of year-round agricultural guest workers will not be required to provide transportation for Participants.
- H-2A requirements will remain the same.
- However, an Employer would be permitted to provide transportation for Participants and charge a reasonable fee for the transportation. The transportation must meet local law requirements and have the required State and vehicular insurance.
Wages for Year-Round Agricultural Workers:
- Employers will be required to offer Participants either:
- State or local minimum wage
- 115% of the Federal minimum wage
- The average wage level paid by the Employer to all other individual employees doing like kind work
Visa Length for Year-Round Agricultural Workers:
- A Participant’s visa will be valid for five years, with renewal available six months prior to expiration (fifty-four months).
- Should a Participant’s visa expire, he or she will be required to return to his or her country of origin.
- There will be no touchback requirement for either unauthorized Applicants to the Program or Participants applying for an extension of the Program.
- Yearly touchbacks will be required after an H-2A visa permit-holder’s 10-month permit expires before a new permit can be issued.
- Caps will not exist for the Program. The amount of Participants will be based on need.
- The USDA will identify domestic market need and will determine the number Participants the Program requires. After specific harvest season, Employers will be required to report the number of total workers used in the current year and the anticipated need in the next growing season.
- Year-round Employers will be mandated to report by the end of the fiscal year - September 31st. The USDA will then fill up to 90% of the requested slots with Participants.
Health Care for H-2A and Year-Round Agricultural Workers:
- Requires Participants to obtain at least catastrophic health insurance coverage and has the right to utilize group health plans. Participants must be enrolled in a health plan within 21 days of receiving a visa and maintain the insurance while enrolled in the Program. Participants will be allowed to access community health care clinics.
- The Participant or Employer has the option to pay for additional healthcare coverage. This coverage is subject to all State and Federal regulations and protections and should be at a fair and equitable price.
- Participants will not be treated as citizens of the United States or an alien lawfully present in the United States for purposes of section 1312(f)(3) of the Patient Protection and Affordable Care Act.
- FICA and FUTA taxes will be required to be taken out of Particpants pay by the Employer and paid into a Guest Worker tax account to be paid into the Social Security and Medicare fund. This is because Participants are here in a voluntarily, non-permanent capacity with all appropriate taxes going to shore up existing programs.
- Social Security and Medicare benefits will not accumulate for the Participant during their time in the Program.
- Participants may be subject to mandatory binding arbitration and mediation of any grievance relating to the employment relationship, but the Employer would be required to notify the Participant of these conditions at the time of the job offer.
- Participants are not permitted to bring civil actions for damages against their Employers (nor any attorneys/individuals on behalf of the Participant) unless the Participant’s request has been made to a Federal Mediation and Conciliation Service 90 days prior to bringing action.
- Employers are not required to pay a Participant should the Participant abandon his or her employment.
- Employers would be required to notify the USDA within 72 hours after the Employer learns of a Participant abandoning employment. The USDA is then required to send this information to DHS via the E-verify system.
Redefines Agricultural Labor:
Redefines ‘agricultural labor or services’ to include:
- Ag labor as the Secretary of Agriculture determines
- Ag labor as defined in section 3121(g) of IRC of 1986
- Ag labor as defined in section 3(f) of the FLSA of 1938
- Handling, planting, drying, packing, packaging, processing, freezing, or grading prior to delivery for storage of any agricultural or horticultural commodity in its unmanufactured state up to the point it is to be sold to a warehouse for wholesale distribution
- Activities required for the preparation, processing, or manufacturing of a product of agriculture, or fish or shellfish, for further distribution
- Forestry-related activities up to the point of wholesale to a distribution facility
- Aquaculture activities up to the point of wholesale distribution. Serving prepared food from a distributor to the public is not permitted.
- Activities related to the breeding, management, training, and racing of equines
- For labor involving meat or poultry processing, the term ‘agricultural labor or services’ only includes the killing of animals and the breakdown of their carcasses up to the point of wholesale distribution, collection, cleaning, grading, and packaging of eggs to the point of wholesale distribution
Mandatory National E-Verify:
- After passage of this legislation, and all rules have been promulgated, mandatory national E-Verify will go into effect.
- Employers will be required to use the Federal Government E-Verify System. Failure to do so will incur a $2500 fine per Participant employed outside of the E-Verify System. With repeat offensives subjecting the Employer to increased fines and a possible prison sentence.
Hospitality - HS and Construction - CS Workers:
Additional legislation will be introduced to create similar programs under the H-2B Program. These programs will remain and be administered under the H2-B Program.