Reports of Increased Scrutiny For H-2A Employees At The Consulate

Some employers are reporting that H-2A employees who worked through the H-2A program in the past are now being denied entry due to failure to report an illegal entry over a decade ago. We have heard reports that the U.S. Consulate in Mexico has made some changes in its evaluation process of H-2A visa applications. Apparently, the Consulate is looking further back into each H-2A employee’s history to determine whether the individual has ever made illegal entry into the U.S. It is critical for employers to work with a knowledgeable team to ensure the experience at the Consulate goes smoothly. This is just a quick warning to be prepared for further vetting processes being implemented upon non-immigrant visa applicants. If you have questions about H-2 visa consular processing, you can find more information on the website for the U.S. Embassy & Consulates in Mexico here.

DACA Remains in Limbo For Now  

 By: Rebecca Hause-Schultz

On September 5, 2017, the Deferred Action for Childhood Arrivals program or “DACA” program was terminated by President Trump and is set to begin winding down on March 5. You can read more about the DACA phase-out here. A bipartisan group of senators have been working on legislation to preserve DACA, while also addressing several other immigration issues.  However, President Trump recently voiced concerns regarding the proposed legislation, and it is not clear if legislation addressing DACA will be passed.  

The Department of Labor (“DOL”) is set to once again raise the standard for minimum wage rates for H-2A workers in California. Federal regulations require that the minimum wage for H-2A employees is the highest of (1) the Adverse Effect Wage Rate (“AEWR”), (2) the prevailing hourly or piece rate, (3) the agreed upon collective bargaining wage rate, if applicable, or (4) the state or federal minimum wage.

On Wednesday, Rep. Bob Goodlatte’s Agricultural Guestworker Act (“AG Act”) passed the House Judiciary Committee. The two-day hearing was full of passionate argument on all sides, but ended in a close vote of 17-16.  We previously reported on some of the details of this proposed H-2C program here, but the passed AG Act contains several notable changes: 

Last March, the United States Department of Justice (“DOJ”) launched an investigation against the Washington Potato Co. (“the Company”) in response to claims the Company violated federal immigration law by asking work-authorized non-U.S. citizens at its vegetable processing plant to present specific documents (e.g., employment authorization records or green cards) to verify their work eligibility, but did not ask U.S. citizens to provide similar documentation.   

The Immigration and Nationality Act’s (“INA”) anti-discrimination provision prohibits employers from demanding that employees submit different or unnecessary documents based on the employee’s citizenship, immigration status, or national origin. This means, when an employer requests documents for Form I-9 purposes, the employer may not ask for any specific or additional documents.  Employees must be allowed to provide acceptable documents.

On October 2, 2017, House Judiciary Committee Chairman Bob Goodlatte (R-Va.) introduced a new proposed year-round agricultural guestworker program (“the AG Act”) which aims to replace the current H-2A federal guestworker program as we previously reported here.

The AG Act proposes to replace the H-2A program with what will be called H-2C which will be administered and enforced by the United States Department of Agriculture (“USDA”). The AG Act aims to consolidate all food-related agricultural guestworkers under one system. All of the current H-2A and H-2B workers are included, in addition to groups that were not previously included, such as dairy and fishery workers.

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