WHY THE SECURING AMERICA’S FUTURE ACT, 2.0 WON’T FIX THE FARM LABOR CRISIS

AREA OF CONCERN #1: CURRENT WORKFORCE The proposed single solution, a new H-2C program, will not provide a workable solution for our current workforce. While the SAF Act 2.0 does make a number of improvements that agriculture has been asking for over the past several months, it continues to lack provisions for an effective, stable transition in which we can be confident the current workforce will participate.

SAF Act Provisions Why Ag Is Concerned Offers experienced, unauthorized agricultural workers At least half of the ~2 million farm workers hired the ability to participate in the H-2C guest worker each year lack proper status. Requiring initial program. This allows them to attain legal work status departure from the U.S. will lead to chaos for H-2C and the ability to travel to and from the . users and non-users alike, despite proposals for a “pre-certification” process addressing employer Requires unauthorized agricultural workers to eligibility. The average term of of the temporarily leave the U.S. in order to join the H-2C workforce exceeds 14 years. It is unlikely that program, which they must do within the first 12 months married falsely documented farm workers will of enactment of the final rules implementing the Act. voluntarily elect to join a program that increases the chances their immediate family will be deported. Once they are in the H-2C program, seasonal workers Production ag needs a stabilization period which will are required to depart the country every 24 months and allow current experienced workers to apply and be go through the visa process again. issued in the U.S. some form of work authorization. With more than one million unauthorized workers to process, we believe the transition time should be significantly longer than 12 months. Additionally, we believe there should be some level of protection for immediate family in the U.S. We believe these incentives will encourage unauthorized workers to enter the H-2C program, as opposed to the aggressive deportation and employer penalties envisioned by the SAF Act.

Touchback: Experienced, unauthorized agricultural Forcing one million or more long-tenured workers who agree to participate can get pre-certified experienced workers to depart the U.S., leave to join H-2C. After becoming pre-certified to join H-2C, a behind jobs and families, and enter the pool of worker will be issued a document authorizing travel, and temporary visa holders who must be processed can re-enter the U.S. without processing through a every two years or more through limited agency consulate. The worker must then touchback outside of capacity at American consulates abroad, is a recipe the U.S. within 12 months. for the permanent loss of many of our farmers’ most critically-important workers.

Provides for a 24-month visa with a minimum A minimum cumulative 45 days out of country is not cumulative 45 days out of country. conducive to ensuring our experienced workers return and continue to enhance the competitiveness of U.S. agriculture.

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AREA OF CONCERN #2: CAP ON VISAS The arbitrary cap on 450,000 workers (40,000 of which are allocated for meat and poultry processing workers) on the number of H-2C visas presents great uncertainty about whether a cap will be sufficient to accommodate actual workforce needs. If the cap is hit, it will arbitrarily limit American farmers’ ability to produce food to meet growing domestic and international .

SAF Act Provisions Why Ag Is Concerned Any previously unauthorized farmworkers (more than If conservatively there is a 10% attrition of the one million workers) who participate in the H- 2C current workforce due to attrition (e.g., aging out of program will never count against the annual cap. the workforce, etc.), those workers will need to be replaced by workers who do count against the cap.

H-2A workers (nearly 200,000 workers) who return to Any cap relief resulting from returning H-2A workers their employers as H-2C workers will not count toward being exempt would be short-lived. The only current this annual visa limit either. H-2A workers who would be exempt are those that return to the same employer, which is significantly less than 100%. Studies show that 80% of H-2A workers return each year – this suggests that in as little as five years, that relief disappears. In addition, if the H-2C program is more attractive to workers, then foreign workers enrolled in H-2A can and will easily switch to that program.

Each year, a whole new allocation of visas becomes The cap for Year One is 450,000, of which 40,000 are available regardless of how many H-2C workers remain reserved for processing plants. That leaves 410,000 in the U.S. This means that the actual total of H-2C workers. Since visas are up to 24 months, in Year Two workers can be two or more times greater than the 820,000 workers would be available (assuming the numerical limit in a given year (i.e. not less than 900,000 10% escalator referenced below.) However, the SAF in the second year and thereafter). Act also mandates E-Verify within two years. If a significant portion of our existing workforce is unavailable to agriculture because they haven’t signed up for the H-2C program, we will be trading one labor shortage for another once E-Verify is implemented. If many or all of our existing unauthorized workers (more than one million) reject participation in the H-2C program, then they will be replaced with no more than 820,000 new workers, which does nothing to resolve our labor shortages.

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SAF Act Provisions Why Ag Is Concerned The SAF Act contains an automatic escalator. If the The 10% automatic escalator is not an “instant maximum number of visas is exhausted in a given year, emergency safety valve.” It is an escalator that does up to 10% more visas will be added automatically. With not cover the losses cost by attrition (if 10% of the this instant emergency safety valve, the number of existing workforce population are lost by attrition, available visas can grow year after year to accommodate that is roughly 100,000 workers lost per year). What new workers. This is because each year’s total visa is needed is an emergency provision that allocation becomes the baseline for the next year. automatically kicks in in the event the number of petitions exceeds the cap (e.g., by 20%), then the cap is temporarily removed to address the immediate labor shortage.

A significantly higher baseline cap would greatly reduce, potentially even eliminate, the concerns over an adequate workforce. Additionally, we need to have an emergency escalator in place to handle potential continued labor shortages.

AREA OF CONCERN #3: AT-WILL EMPLOYMENT

SAF Act Provisions Why Ag Is Concerned Under the at-will employment provisions, workers who There are no clear and workable provisions for complete the job for which they were petitioned may employers and employees who would prefer a more work in an at-will status for the duration of their work flexible at-will employment option (i.e. allowing authorization period. The SAF Act requires the portability for workers who wish to transition from Department of Homeland Security to implement one agricultural job to another). It is not clear that technology within 24 months after enactment to DHS can implement the technology within 24 months. support at-will employment.

AREA OF CONCERN #4: MANDATORY E-VERIFY

SAF Act Provisions Why Ag Is Concerned The implementation of the E-Verify requirement for Even at 24 months, farmers will not have enough time agricultural employers is 24 months after enactment of to prepare for mandatory E-Verify. The industry the bill. needs a longer runway to implementation of the program.

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