Editor’s note: This comment letter comes from the The Hamilton Project at the Brookings Institution. The Hamilton Project seeks to advance America’s promise of opportunity, prosperity, and growth. This comment was submitted to the Department of Homeland Security on November 11, 2023.
November 11, 2023
Dear Secretary Alejandro Mayorkas and Director Ur M. Jaddou,
Thank you for the opportunity to comment on the Department of Homeland Security’s (DHS) notice of proposed rulemaking (NPRM) “Modernizing H–2 Program Requirements, Oversight, and Worker Protections.” In this letter, we suggest four modifications and two additions to the proposed rule.
These recommendations are informed by two policy proposals released by The Hamilton Project (THP):
- “Renewing America, Revamping Immigration” by Jennifer Hunt (2022); and,
- “Rationalizing U.S. Immigration Policy: Reforms for Simplicity, Fairness, and Economic Growth” by Giovanni Peri (2012).
- Make year-round work easier.
- Reduce the number of petitions required of employers per year.
- Extend the labor certification timeframe for employers.
- Create a renewable seasonal visa.
- Create a reasonable pathway to citizenship.
We believe the new rules should aim to reduce administrative burdens and churn among workers and across employers. These changes would allow for long-term planning, increase predictability, and reduce costs for both employers and employees. With a longer-term employer-employee partnership, recruitment cycles would lengthen, and recruitment costs would diminish.
These changes complement DHS-proposed changes to the H–2A program. Specifically, reducing the mandatory period of absence and extending grace periods both improve efficiency and enhance worker protections (DHS section 8 CFR 214.2(h)(5)(viii)(B); DHS section 8 CFR 214.2(h)(5)(viii)(C)).
THP proposals have supported certain proposed modifications from DHS and the Department of Labor (DOL). For example, THP has proposed revising the Adverse Effect Wage Rate and making visas portable across employers (DOL 2023; DHS section 8 CFR 214.2(h)(2)(i)(D); Hunt 2022; Orrenius, Peri, and Zavodny 2013). Albeit through slightly different policies, both THP and the proposed rules also attempt to reduce illegal recruitment fees and expand immigration from countries other than Mexico (DOL 2023; DHS section 8 CFR 214.2(h)(5)(xi)(A); 8 CFR 214.2(h)(2)(ii); Hunt 2022).
1. Make year-round work easier.
To make year-round work easier, we suggest when a job requires more time than initially allocated for seasonal employees, employers should be able to extend contracts to a cumulative one year, rather than two weeks. We ask that the Department respond as part of the notice and comment process to the question of what the optimal extension time for seasonal employees is and why. We also ask the Department to address why there are not a certain number of visas allocated for year-round employees more generally.
The proposed rule states that if an employer wishes to extend work contracts beyond a given season, “a single H–2A petition may be extended for a period not to exceed 2 weeks without an additional approved labor certification if filed on behalf of one or more beneficiaries who will continue to be employed by the same employer that previously obtained an approved petition on the beneficiary’s behalf, so long as the employee continues to perform the same duties and will be employed for no longer than 2 weeks after the expiration of previously-approved H–2A petition (section 8 CFR 214.2(h)(5)(x))”.
Hunt (2022) suggests to “allocate a certain number of year-round temporary visas.” According to current law, there is no annual limit to the number of noncitizens who can be issued H–2A visas. However, employers must specify if they need seasonal work, which is “tied to a certain time of year by an event or pattern,” or temporary work, which is tied to a certain non-seasonal need and should not exceed one year (section 8 CFR 214.2(h)(5)(iv)(A)). Put differently, seasonal workers can only work two weeks past their given growing season, which in most instances, would not extend beyond six months.
Employers might not be able to predict the nature of their worker demand (seasonal or temporary) when applying for a visa. So, farmers who require extra help after a harvest for distribution, for example, should be able to retain their workforce for up to one year, implicitly changing the worker’s status from seasonal to temporary for a single season.
To maintain the temporality of the program, if employers would like to formally change the worker’s status from seasonal to temporary for the next season, they would need to file a petition to gain access to the extended limits of stay for temporary employees in the subsequent years.
2. Reduce the number of petitions required of employers.
To save time and resources, we suggest the DHS should increase the number of beneficiaries allowed per petition from 25 workers to at least 35 workers. We ask that the Department respond as part of the notice and comment process to the question of what the optimal number of beneficiaries allowed per petition is and why.
According to section 8 CFR 214.2(h)(2)(ii), “up to 25 named beneficiaries may be included in an H–1C, H–2A, H–2B, or H–3 petition if the beneficiaries will be performing the same service, or receiving the same training, for the same period, and in the same location. If more than 25 named beneficiaries are being petitioned for, an additional petition is required.”
Hunt (2022) suggests the DHS should reduce “the number of petitions an employer needs to make for a given season.”
3. Extend the labor certification time frame for employers.
We suggest employers without violations in the previous five years should be able to receive a three-year labor certification rather than a single-year certification. We ask that the Department respond as part of the notice and comment process to the time over which an employer without violations could be certified.
Currently, “an H–2A petition must be filed on the form prescribed by USCIS with a single valid temporary agricultural labor certification” (section 8 CFR 214.2(h)(5)(i)(A)). If an employer would like to renew their certification, “the petitioner shall file an amended or new petition, with fee, with the Service Center where the original petition was filed to reflect any material changes in the terms and conditions of employment or training, or the alien’s eligibility as specified in the original approved petition” (section 8 CFR 214.2(h)(2)(i)(E)).
Hunt argues DHS should “allow employers without violations in the previous five years to receive labor certification to hire H–2As for three years rather than one. Employers would still be required to submit a job order. In this way, in combination with the three-year visa validity, workers and employers who wish to work together for three years would be able to plan this in advance and would be less tempted to have an unauthorized employment relationship (Martin 2022).”
1. Extend the timeframe to rehire seasonal workers.
We suggest farm workers should have access to a temporary visa renewable indefinitely. We ask that the Department respond as part of the notice and comment process to why there is no renewability feature for seasonal workers and, if implemented, what the optimal number of years for automatic renewal would be.
To our knowledge, there is no opportunity for seasonal H–2A visa beneficiaries to renew their visa over long periods of time.
According to Hunt (2022), “farm workers who have worked at least 180 days in agriculture over the last two years should be legalized with the issue of a temporary visa renewable indefinitely.” This renewability feature would maintain the temporality of the H–2A program because these visas are distributed to beneficiaries who work in the U.S. during a specific season, which is typically less than six months out of every year.
2. Create a reasonable pathway to citizenship.
We suggest the creation of a pathway to citizenship within the H–2A program for farm workers. We ask that the Department respond as part of the notice and comment process to why the DHS partially addresses the barriers to citizenship created by H–2A visa participation but does not further incentivize citizenship.
The proposed rule states that “under proposed 8 CFR 214.2(h)(16)(ii), the fact that DOL has approved a permanent labor certification, or that an immigrant visa petition was filed by or on behalf of a beneficiary, or that the beneficiary has applied to adjust to lawful permanent resident status or for an immigrant visa would not, by itself, be a violation of H–2 status or show an intent to abandon a foreign residence. Such fact, standing alone, would not constitute a basis for denying an H–2A or H–2B petition or the beneficiary’s admission in H–2A or H–2B status, or a petition to change status or extend status.”
Peri (2012) suggested a different approach that would establish a clear pathway to citizenship, while embedding incentives to return to the worker’s country of origin if they so choose. Peri (2012) describes a H–2A framework where “new immigrants receive a provisional visa to work for an initial period during which they may earn their right to permanent residence by having a continuous and productive working career and by paying taxes. In addition, posting a bond that is funded by putting a part of the immigrant’s wage in an escrow account and is forfeited if the immigrant becomes a resident could provide immigrants with an incentive to return to their country of origin after temporary employment.”
Thank you again for your time and consideration. We look forward to seeing the Department’s responses to this comment.
Associate Director, The Hamilton Project
Fellow, Economic Studies Program
The Brookings Institution
Research Assistant, The Hamilton Project
Economic Studies Program
The Brookings Institution
Department of Homeland Security (DHS). 2023. “Modernizing H–2 Program Requirements, Oversight, and Worker Protections.” Federal Register 2023-20123, USCIS-2023-0012 (September 20, 2023): 65040-65108. Federal Register :: Modernizing H-2 Program Requirements, Oversight, and Worker Protections.
Department of Labor (DOL). 2023. “Improving Protections for Workers in Temporary Agricultural Employment in the United States.” Federal Register 2023-19852, ETA-2023-0003 (September 15, 2023): 63750-63832. Federal Register :: Improving Protections for Workers in Temporary Agricultural Employment in the United States.
Hunt, Jennifer. 2022. “Renewing America, Revamping Immigration.” Policy Proposal, The Hamilton Project, Brookings Institution, Washington, DC. Renewing America, Revamping Immigration – The Hamilton Project.
Martin, Philip L. 2022. “A Look at H-2A Growth and Reform in 2021 and 2022.” Wilson Center, Washington, DC. A Look at H-2A Growth and Reform in 2021 and 2022 | Wilson Center.
Orrenius, Pia, Giovanni Peri, Madeline Zavodny. 2013. “Overhauling the Temporary Work Visa System.” Policy Proposal, The Hamilton Project, Brookings Institution, Washington, DC. Overhauling the Temporary Work Visa System – The Hamilton Project.
Peri, Giovanni. 2012. “Rationalizing U.S. Immigration Policy: Reforms for Simplicity, Fairness, and Economic Growth.” Policy Proposal, The Hamilton Project, Brookings Institution, Washington, DC. Rationalizing U.S. Immigration Policy: Reforms for Simplicity, Fairness, and Economic Growth – The Hamilton Project.