HOUSE PASSES BILL TO PROVIDE AGRICULTURAL VISA

HOUSE PASSES BILL TO PROVIDE AGRICULTURAL VISA

Yesterday, the House passed the Farm Workforce Modernization Act which would establish a new program for agricultural workers in the United States  – similar to DACA – which would allow workers employed on a continuing basis in agriculture to obtain legal status. The status would be as a “Certified Agricultural Worker” (CAW).  The visa would be for three years and could be renewed. Spouses and minor children would obtain status too.

Additionally, this bill streamlines and simplifies the H-2A program to make the program more attractive for employers and employees.

The program has an annual cap, but the cap could be increased upon request of the Secretaries of Agriculture and Labor.

The bill passed with a bipartisan vote of 260-165. Even though it was supported by significant numbers of Democrats and Republicans, it is not clear if it can pass in the Senate or whether Donald Trump would sign it into law.

Can winery workers get a visa ?

By Christopher Kerosky, Esq.

This article was published in this month’s Immigration Stories column in the  Sonoma County Gazette: https://www.sonomacountygazette.com/sonoma-county-news/immigrant-stories-can-winery-workers-get-a-visa-february-2019

All of us see the workers in the fields tending the vineyards throughout the year as we drive our beautiful Sonoma County roads.  You may wonder: can a person working in those fields get a green card by way of their job at the winery? The answer might surprise you.

Yes, if you are a winemaker.

The federal government has a special visa for temporary foreign professionals hired by a U.S. employer, known as the H-1b.   The H-1B visa is frequently used to hire IT professionals in Silicon Valley or elsewhere; it also works for winemakers (and their assistant winemakers). 

The application period for the H-1b visa starts on April 1^st.  Because there is a limited annual quota (65,000) of H-1 visas for the entire country and because there is high demand for these visas, the allotment of these visas has been used up  immediately after April 1^st for the last 5 years.  Last year, over 200,000 people applied in the first few days of April.  The government has to hold a lottery every year to decide which 65,000 envelopes they were going to open; the other 135,000 applications were sent back. 

Even for the highly-paid and highly educated, the visa system is basically broken.

Employment at a winery can be a basis for permanent residence for enologists, if they prove that no qualified American wants that job.  There is a complicated process known as PERM, whereby the winery must advertise and recruit for the position and prove to the government that no qualified U.S. citizen responded to the job opportunity.  An H-1b visa can allow a winemaking professional to stay and work legally in this country while they apply for a green card. 

But persons are eligible for an H-1b only for "specialty occupations”.  Generally speaking, that means jobs requiring a college degree.  No degree, no H-1b visa.

Maybe, if you’re an intern or trainee.

There are certain internship opportunities for foreign workers.  The requirements are fairly stringent but if a winery offers training to a college graduate or a current student studying winemaking, the foreign national may be eligible for what is known as a J-1 visas.

The J-1 internship or trainee visa application must be filed by an employer with an approved training program in winemaking or related skills.  The visas are typically valid for 6-18 months only.  An independent agency – paid by the applicant-- checks to make sure the training program is legitimate and processes the paperwork. 

The visa is not available for what the government considers “unskilled workers” and persons here without documents are ineligible.

No, if you are a field worker.

What about all the other winery workers like those who tend the vineyards or pick the grapes?  In short, no path to a green card exists for them and temporary visas are extremely limited.

There are some field workers who can qualify for an agricultural worker visa known as an H-2a.  But these visas are granted to groups of workers after an employer has shown that there is shortage of farm workers available in their geographic area.  There is a rather long, cumbersome process to apply for the visa, involving proving a labor shortage in a procedure with the U.S. Department of Labor.  If eligibility is shown, the worker is granted a visa for one year, and the employer must renew the visa every year by showing a continuing labor need.

Most importantly, those farm workers who are already here illegally need not apply.  They are not eligible. 

Frequently in my work as an immigration lawyer, I have to inform willing employers of this little-known fact about our immigration laws: there simply is no way for an undocumented worker to obtain legal status through employment.

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CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced immigration law for over 25 years.   He graduated from University of California, Berkeley Law School and was a former counsel for the U.S. Department of Justice in Washington D.C. 

Mr. Kerosky has been recognized as one of the top lawyers in Northern California for 10 years by “Super Lawyers” Magazine.  See www.superlawyers.com. 

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WARNING: The above is a summary discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.

Obtaining a visa for foreign-born workers

[This article was published in the Sonoma County Gazette, July issue. https://www.sonomacountygazette.com/sonoma-county-news/immigrant-stories-by-christopher-kerosky-july-2018.  Thanks to Liliana Gallelli, who cowrote this article]

The federal government has long had a sort of “don’t ask, don’t tell” policy toward much of our economy here – vineyards, other agriculture, restaurants, hotels, among others.  It goes something like this: we won’t ask if your workers are legally here and please don’t tell us, or we’ll have to deport them and your industry won’t have workers to hire.    

Now, Sonoma Count is suffering from an ever-growing shortage in labor.  Contributing factors are low interest rates leading to an increase in business development and a tight housing market, made worse by the fires.  Draconian immigration policies have further worsened the situation.    

Unknown to many employers, a guest-worker visa program exists to supposedly help fill the gap in business personnel needs.  One such visa is the H2 visa--H2A for agricultural workers, and H2B for temporary, nonagricultural jobs.  But the bureaucracy an employer is required to navigate and the costs of the process are too daunting for most.

The H-2B temporary non-agricultural program allows U.S. employers to bring foreign nonimmigrant workers to the United States to fill temporary nonagricultural jobs.

This visa is a highly technical process that involves multiple state and federal government agencies, including State Workforce Agencies, the U.S. Department of Labor, the U.S. Department of Homeland Security, and the U.S. Department of State.

  

While there are numerous reports that businesses throughout the nation are being hurt by the inability to count on a labor force, H2 visas are capped at only 66,000 per year  (33,000 for workers required during April 1 – September 30, and 33,000 for October 1 – March 31). In fiscal year 2018, U.S. Citizenship and Immigration Services (“ USCIS”), received approximately 2,700 H-2B petitions requesting approximately 47,000 workers, which is more than the number of H-2B visas available. As a result, USCIS, conducted a lottery February 28 to randomly select enough petitions to meet the cap. 

Despite the Trump Administration’s focus on “Buy American, Hire American”, U.S. businesses depend on immigrant workers.  After strong lobbying by companies ranging from tech to Maine lobster, The Secretary of Homeland Security, in consultation with the Secretary of Labor, decided to increase the numerical limitation on H–2B nonimmigrant visas to authorize the issuance of up to an additional 15,000 through the end of Fiscal Year (FY) 2018.

Temporary worker visas usually are contingent on the employer’s showing that it tried to locate and hire U.S. workers but was unable to do so.  This includes obtaining the requisite prevailing wage  determination from the US Department of Labor.   Thus, before requesting H-2B classification from the U.S. Citizenship and Immigration Services (USCIS), the employer must apply for and receive a temporary labor certification for H-2B workers from the U.S. Department of Labor (DOL).

In order to receive an H-2B temporary labor certification, the employer must establish that:

§  There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.

§  The employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

§  Its need for the prospective worker's services or labor is temporary. With the exception of a one-time occurrence need that could last up to three (3) years, temporary need will not be approved for longer than 10 months. The employer's need is considered temporary if it is a(n):1) a one-time occurrence, 2) seasonal need, 3) peakload need, or 3) intermittent need 

Embarking on the H2 visa also requires an economic commitment:  Filing fees payable to the government, reimbursement of visa fees, recruiting, transportation from their hometown to the job site prior to employment, and back again when the employment period is over, housing etc.  Best estimates on costs alone: $8,000 to $10,000 per worker. 

Oh, and by the way, no persons who are already here without status are eligible.  You need to find appropriate workers in Mexico or some other country and they are not getting a visa if they’ve been here illegally.

This is just another example of why our immigration laws need reform.