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April 2018, Volume 24, Number 2

Goodlatte H-2C; H-2B

Over 15,000 California farm jobs were certified to be filled with H-2A workers in FY17; the number of certifications is expected to top 20,000 in FY18. By one estimate, half of strawberry workers in the Salinas-Watsonsville area are H-2A workers.

Rep Bob Goodlatte's Agricultural Guestworker Act (HR 4092), approved by the House Judiciary Committee in October 2017, aims to give farmers easier access to guest workers. Goodlatte revised the bill in February 2018, and won the endorsement of the American Farm Bureau Federation, but not the California Farm Bureau Federation. Goodlatte, who was an immigration lawyer in Roanoke, Virginia before being elected to Congress in 1992, is retiring in 2018.

HR 4092 would allow up to 450,000 guest workers to be admitted each year, including 40,000 for meatpacking. The H-2C program would replace the H-2A program, and HR 4092 would allow the number of H-2C visas to rise by 10 percent in the next year if all visas were requested in the previous year. There could be a maximum 900,000 H-2C workers in the US at any one time.

Each H-2C visa would be valid for 24 months, and growers would have 24 months to enroll in E-Verify. Farm employers could obtain approval for their H-2C workers to return the following season before they left the US as their visas expired.

Employers of H-2C workers could offer year-round farm or farm-related jobs in dairies, food processing and meatpacking. They would attest to their need for guest workers after posting job vacancies with state workforce agencies and would have to hire qualified US workers until the date that their guest workers departed their home country for US jobs.

Employers of H-2C workers would not have to provide guest workers with free transportation to the US or housing while employed in the US. Employers would have to pay H-2C workers at least 115 percent of the federal or state minimum wage, or $8.34 an hour in states with the federal minimum wage of $7.25. H-2C guest workers would be able to switch to other employers after the E-Verify system to check the legal status of new hires is made mandatory for all employers.

Currently unauthorized workers would have to return to their countries of origin before re-entering the US legally with H-2C visas. However, they would have a year after enactment to satisfy this touch-back requirement, and could receive pre-approval for re-entry with the support of their current farm employer.

Farm worker advocates oppose HR 4092 because it would remove protections currently embodied in the H-2A program, such as employer-paid transportation and housing. Farmers oppose the 450,000 cap, saying that it would not provide them with enough workers. They also oppose mandatory E-Verify, fearing that they would be unable to rehire unauthorized workers and that there would not be enough visas for legal guest workers.

HR 4092 is included in the Securing America's Future Act (HR 4760), which House Speaker Paul Ryan has promised to bring to the floor when it has majority support among Republicans. HR 4760 would also require all employers to use E-Verify to check the legal status of new hires and make other changes to increase enforcement.

Los Angeles in March 2018 unveiled a 19-foot monument to the 1942-64 Bracero program at a new plaza near Olvera Street, at the corner of Cesar Chavez Avenue and Spring Street. Some 4.5 million Mexican Braceros were admitted over 22 years. Some returned year after year; about 1.5 million Mexicans were Braceros.

H-2B. A rider included in the omnibus government spending bill enacted in March 2018 allows DHS to raise the annual cap on H-2B visas above 66,000 for FY18 and exempt from this cap H-2B workers arriving to repair or restore property damaged by natural disasters after August 23, 2017. DOL and DHS are to determine which occupations qualify for exemptions from the cap, such as construction worker.

DOL certified 134,000 jobs to be filled with H-2B workers in FY17, when DOS issued 83,600 H-2B visas. The average hourly wage offered to H-2B workers in FY17 was $13 an hour. The leading occupations were landscaping and grounds-keeping workers, forest and conservation workers, and maids and housekeeping cleaners.

Employers requested 47,000 H-2B visas in March 2018 for the first 33,000 available for FY19, which begins October 1, 2018. There are 66,000 H-2B visas available, and they are released in two tranches. USCIS will use a lottery to determine which employers get H-2B visas for foreign workers who enter the US to fill seasonal nonfarm jobs.

For FY18, DHS made 15,000 additional H-2B visas available to businesses that could demonstrate "irreparable harm" without them. Some 13,500 of these additional 15,000 visas were issued.

J-1. A class action suit affecting 91,000 foreign au pairs was allowed to proceed in February 2018. Under the "cultural-exchange program," young women provide 45 hours of child care a week in exchange for $200 and housing and meals.

The suit alleges that the 15 sponsoring organizations designated by the US Department of State to link foreigners with US households conspired to set a uniform wage. Some sponsors advertise to US households that au pairs are cheaper than child care outside the home.