Recent Federal Policy Changes Agricultural Employers Need to Know

Brandon originally presented this topic in a webinar and discussion hosted by The National Agricultural Law Center.

Recent government moves could have major impacts on the agriculture industry. Businesses who employ farm workers need to keep an eye on these evolving areas of law to avoid penalties for noncompliance and take advantage of opportunities to fill employment gaps.

Immigration Policies

The agricultural industry heavily relies on immigrant labor, both documented and undocumented. Immigration policy reforms and finding a path to legal status for undocumented agricultural workers are ongoing concerns. The H-2A visa program is a guest-labor program that allows agricultural employers to hire foreign workers for seasonal or temporary agricultural jobs when there is a shortage of available domestic workers.

Workplace Discrimination Protections

Agricultural workers, especially migrant and seasonal laborers, now have broader workplace protections and may be more inclined to allege discrimination based on their ethnicity, national origin or immigration status. Some of the most significant employee-focused worker protections to impact employers in years have recently been proposed at the federal level, including plans to:

1. Strengthen the existing prohibition on, and consequences for, charging certain fees to H–2A and H–2B workers.
2. Institute certain mandatory and discretionary bars to approval of an H–2A or H–2B petition as a new program integrity measure and a deterrent to petitioners that have committed labor law violations or abused the H–2 programs.
3. Provide H–2A and H–2B workers with “whistleblower protection” comparable to the protection currently offered to H–1B workers to protect workers who report their employers for program violations.
4. Clarify requirements for petitioners and employers to consent to, and fully comply with, USCIS compliance reviews and inspections and explain USCIS’ authority to deny or revoke a petition if USCIS cannot verify information related to the petition, including where such inability is due to lack of cooperation from a petitioner or an employer during a site visit or other compliance review.
5. Impose the same responsibilities on H–2A employers as H–2B employers for reasonable costs of return transportation for the beneficiary when a petition is revoked.
6. Offer greater flexibility to H–2A and H–2B workers, including:
   • Adjustments to the existing admission periods before and after the validity dates of an approved petition to give H–2 workers up to 10 days before the petition’s validity period and up to 30 days after the petition expires to enter or exit the U.S.
   • An extended 60-day grace period following revocation of an approved petition for workers to seek new qualifying employment or prepare for departure from the U.S. without violating their nonimmigrant status or accruing unlawful presence.
   • A new grace period for up to 60 days during which an H–2 worker can cease working for their petitioner while maintaining H–2 status to account for other situations in which a worker may unexpectedly need to stop working or wish to seek new employment.
   • Permanent portability—the ability to begin new employment upon the proper filing of an extension-of-stay petition rather than only upon its approval.
   • Clarification that H–2 workers cannot fail to maintain their H–2 status solely on the basis of taking certain steps toward becoming lawful permanent residents of the U.S.
   • Removal of the phrase “abscondment,” “abscond,” and its variations to emphasize that the mere fact of leaving employment does not constitute a basis for assuming wrongdoing by the worker.

Updated Form I-9

U.S. Citizenship and Immigration Services (USCIS) released a new streamlined Form I-9 that went into use Aug. 1, 2023.

The U.S. Department of Homeland Security (DHS) also issued a final rule that created a framework under which employers can implement alternative document examination procedures, such as remote document examination. DHS confirmed that only employers that use E-Verify who are in good standing may continue to conduct verifications electronically after Aug. 1, 2023. The new rule sets the stage for permanent remote examinations to become a reality for all employers.

Wage Methodology Changes

The Final Rule that went into effect on March 30, 2023, led to increases in the wages that must be paid to agricultural workers who complete a combination of duties that arguably fall outside of the standard six agricultural occupations.

Most H-2A job opportunities will be classifiable in one or more of the SOC codes associated with the field and livestock workers (combined) category (“the Big Six”) and will be subject to the Farm Labor Survey (FLS)-based Adverse Effect Wage Rates (AEWR). The FLS field and livestock workers (combined) category includes workers who, among many other duties, “plant, tend, pack, and harvest field crops, fruits, vegetables, nursery and greenhouse crops, or other crops” or “tend livestock, milk cows, or care for poultry,” including those who “operate farm machinery while engaged in these activities.” The current SOC codes and titles associated with these workers are:

1. 45-2041 Graders and Sorters, Agricultural Products
2. 45-2091 Agricultural Equipment Operators
3. 45-2092 Farmworkers and Laborers, Crop, Nursery and Greenhouse
4. 45-2093 Farmworkers, Farm, Ranch, and Aquacultural Animals
5. 53-7064 Packers and Packagers, Hand
6. 45- 2099 Agricultural Workers – Other

Theoretically, this rule should not increase wages paid to the majority of seasonal workers who support the nation’s food-supply chain, but many other agricultural occupations include a combination of duties and overlap with various occupations in construction, trucking and supervisory roles. Agricultural employers who participate in the H-2A guest-labor program should review their job classifications to determine whether additional wages are due and owing under the new AEWR methodology. Under the change, the FLS from the U.S. Department of Agriculture is no longer an authoritative source of data that the DOL must consider when determining agricultural labor wages. Instead, the government will use the Bureau of Labor Statistics’ Occupational Employment and Wages Survey (OEWS) to calculate wages for occupations that include a combination of duties outside the standard six agricultural occupations. OEWS wages are almost always significantly higher than agricultural wages, so employers must become more vigilant when classifying and paying employees to avoid backpay liability.   

Please contact Brandon Davis or any member of Phelps’ Labor and Employment team with questions or for advice and guidance.