NDFC - This Week in Congress
GT Thompson’s DRAFT Immigration Reform Legislation
Extends H-2A to Dairy Farmers!
BACKGROUND: Based on the draft language provided, one of the most significant changes is that it appears to open the H-2A program to year-round agricultural employers, including dairy operations and other agricultural sectors with continuous labor needs. The key provision is found in the amendment to the Immigration and Nationality Act (INA) §101(a)(15)(H)(ii)(a), which defines the legal criteria for the H-2A nonimmigrant visa classification. It applies to foreign nationals seeking to enter the United States temporarily to perform temporary or seasonal agricultural labor or services:
• Current law:
o "...perform agricultural labor or services... of a temporary or seasonal nature..."
• Proposed language:
o "...perform agricultural labor or services... of a temporary nature..."
The draft then creates a new definition:
"The term 'temporary' means, for purposes of paragraph (15)(H)(ii)(a), work performed pursuant to a contract with a term of less than 350 days, without regard to the approved employer's underlying need or nature of the job." This is a major change.
What it means?
Under current H-2A rules, employers generally must demonstrate a seasonal or temporary need, which excludes most dairy operations because cows need to be milked year-round. Under this proposal:
• The job itself no longer has to be seasonal.
• The employer's underlying need can be permanent and year-round.
• The worker can be employed under a contract lasting up to 349 days.
• Employers could then seek subsequent employment periods for the same workers through the new renewal provisions.
The draft appears specifically designed to address long-standing concerns from:
• Dairy producers
• Livestock operations
• Aquaculture producers
• Poultry and meat processing employers
• Other agricultural sectors with year-round labor demands
Several clues point to this intent:
• Livestock operations are specifically referenced throughout the bill.
• The definition of agricultural labor is expanded significantly.
• New provisions allow for subsequent employment petitions.
• The bill includes a limited waiver for certain existing unauthorized agricultural workers to obtain H-2A status.
• H-2A workers can transfer between certified employers more easily.
ISSUE OF CONCERN:
The bill does not create a permanent agricultural guest worker visa. Workers would still be admitted as H-2A nonimmigrants and would still need to maintain temporary status. However, by defining "temporary" as a contract of less than 350 days regardless of whether the employer's need is permanent, the proposal effectively gives year-round agricultural employers access to the H-2A program for the first time.
