Dear Secretary Perez and Administrator Rodriguez,
We are writing with regard to the serious issues now occurring with the administration of the H-2A agricultural worker program, which are creating a growing number of delays in the timely processing of applications and visa petitions. This breakdown is impacting growers and ranchers who are trying to hire workers in time for the harvest and threatening millions of dollars in perishable agricultural products.
America’s farmers and ranchers face continuing and growing labor shortages needed to produce the crops that our nation relies upon. While some segments of the agricultural industry have been able to continue to increase productivity through mechanization, there remain major segments of our agricultural economy that require human labor.
As the instability in the labor force grows, so does the use of the H-2A seasonal temporary worker program. While we acknowledge the need for broader improvements to our legal immigration system and temporary visa program, the H-2A program is the sole legal visa program available to production agriculture although it is limited to labor of a “temporary or seasonal nature.” Although still accounting for less than 10 percent of all seasonal farm workers, employment of H-2A workers has nearly tripled in the past five years. Growth in the H-2A program has occurred despite extreme regulatory hurdles, government inefficiencies, and high costs.
The need for a legal and reliable work force is so great that farmers use this program despite these concerns. Unfortunately, regulatory roadblocks create even more complexity. For the past two years, H-2A employers have experienced unacceptable delays in the processing of labor certifications, visa petitions, and interviews for final border crossing and arrival on farms and ranches. Already this spring, farmers from all across the country are seeing significant delays at the U.S. Department of Labor (DOL) and the U.S. Citizenship and Immigration Service (USCIS). Unfortunately, it is also clear that DOL is at times not following the statutory requirement prescribed in law to respond to applications 30 days prior to the farmer’s date of need. These delays are devastating to growers and ranchers that cannot wait to plant, tend, and harvest. DOL must comply with the law, and the failure to comply is unacceptable. This trend leaves growers fearful of a major break-down in the system when peak demand for H-2A workers hits beginning in June.
We fully support efforts to ensure that both employers and employees comply with the statutory requirements of the H-2A program. We believe there are significant measures that the three agencies involved could, and should, put into place that do not require legislation or even a major regulatory change. Implementing these measures could significantly improve the situation for growers and ranchers while the agencies continue to fulfill their duties to protect the rights of domestic workers and provide for our homeland security.
For example, DOL’s Office of Foreign Labor Certification (OFLC) has a policy that is not supported by current regulations which requires all workers requested in any single petition be brought onto the job on the start date of the petition. Under the current delays experienced by growers at both the OFLC and USCIS, there is no opportunity to receive these workers by the date they are actually needed. Growers must be given the opportunity to provide a start date that is earlier than the actual anticipated start date as a “grace period” in an effort to better manage the administrative delays.
In addition, the Validation Instrument for Business Enterprises (VIBE) program, as it is currently administered, is inappropriate for the H-2A program. VIBE mandates an annual subscription to Dunn & Bradstreet which is an additional expense for growers. It is highly unusual for family farms to subscribe to Dun & Bradstreet except to comply with VIBE.
A number of employers have been receiving Notices of Deficiencies (DOL) or Requests for Further Evidence (USCIS) related to proving that agriculture is in fact seasonal in nature. These notices create an unnecessary and untimely delay in the process. Your agencies must recognize that agriculture is inherently seasonal, and analysts in your agencies should be instructed to take all steps possible not to delay the process, especially considering current conditions.
In view of the current situation, we urge that the three agencies expeditiously process agricultural employers’ H-2A applications where possible. Our farms, our economies, and the livelihoods of our constituents depend upon timely application processing and visa issuance in advance of farmers’ dates of need. We look forward to your response and your plans to increase the efficiency of the H-2A program to supply the agriculture sector with much-needed labor. We look forward to your timely response.