November 7, 2022

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The revisions to the H-2A visa program, which will take effect on November 14, are expected to make the program more difficult for the many agricultural employers who depend on it for foreign guest workers.

The increased demands of the revised program and its higher costs will have significant consequences. For example, farmers may stop using the program or give up on growing labor-intensive crops. If enough farmers decide not to grow labor-intensive crops, it could cause the United States to become dependent on food imports.

Michael Marsh, the president and CEO of the National Council of Agricultural Employers, shared concerns that production may end up shipped to the competition. As a result, his organization is considering filing a lawsuit against the new regulations.

Kate Tynan, the Senior Vice President of the Northwest Horticultural Council, voiced displeasure over the rule. She pointed out how it does not include the proposed revisions that she believed would have made the program more workable. Instead, the modifications did contain provisions that agricultural employers opposed. As a result, she emphasized her disappointment and belief that most of the new regulations will cause an increase in the regulatory and financial burden for employers.

Furthermore, Kate Tynan shared an example of the version proposed in 2019 by the US Department of Labor. This version would have allowed for increased flexibility for guest workers to arrive. For example, employers could have chosen a two-week window in which the guest worker could arrive instead of picking a specific date. This flexibility would have meant employers could adapt the arrival of guest workers to suit the weather. Unfortunately, this provision did not make it into the rule’s final version.

The original proposal would also have permitted farmers to submit one H-2A application for groups of workers arriving at different times. Unfortunately, like the flexibility in arrival times, this provision did not make the final cut. Therefore, employers must fill out an application for each group of workers arriving.

Also, the previously proposed version would have shortened the time farmers must hire domestic workers from halfway through the H-2A contract period to 30 days. However, because this provision did not make it into the final version, farmers must still hire domestic workers who want the job throughout half of the contract period, regardless of whether they are still needed.

In addition, the final rule does not include a two-week grace period for farmers to adjust their payroll systems to the new wage requirements.

The new regulations for the H-2A program may cause some employers to debate whether hiring H-2A workers is still worthwhile. But for those employers who hire regardless, it is necessary to consider the significant amount of paperwork to complete, such as Form I-9. This form often proves challenging due to ever-changing regulations. The best way to ensure accurate and completed Form I-9s is by using an electronic I-9 management system. This system will guide employers through the entire process and safely and securely store all forms and documentation.

Learn more about automating your employment eligibility verification and ensuring compliance with I-9 Compliance.

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