Modernizing H-2 Program Requirements, Oversight, and Worker Protections

Dear Secretary Mayorkas: The Northwest Horticultural Council (NHC) writes today to provide comment regarding the U.S. Department of Homeland Security's (DHS) proposed rule entitled "Modernizing H-2 Program Requirements, Oversight, and Worker Protections," published in the U.S. Federal Register on September 20, 2023, under DHS Docket No. USCIS-2023-0012. The NHC is a trade association that represents the growers, packers, and shippers of apples, pears, and cherries on federal, as well as international trade, policy and regulatory issues. Our growers produce approximately 70 percent of the apples (supplying 80 percent of the U.S. fresh market), 84 percent of the fresh pears, and 73 percent of the fresh sweet cherries grown in the United States. The NHC represents growers with farms of all sizes. With many current workers reaching retirement age and few new domestic workers entering the workforce, more and more growers have turned to the H-2A program to secure the workforce they need to grow and harvest their crops – in spite of paying a wage that is 19 percent or more above the state minimum wage, plus the substantial costs of providing benefits like housing and transportation. The number of H-2A workers brought to Washington state alone increased by a third in just one year, from nearly 18,800 in 2017 to approximately 25,000 in 2018. The number has continued to rise substantially even through the COVID-19 pandemic, with approximately 30,000 worker positions being filled in 2021, a reported 34,661 in 2022, and a reported 38,664 in 2023. In Oregon, the number of H-2A workers jumped by one-third between 2018 and 2021. Numbers are also increasing in Idaho. Unfortunately, during this same period in which use of the H-2A program has grown so substantially, we have seen multi-generation family farmers lose their operations at an alarming rate, causing unprecedented consolidation within the industry. With labor constituting 60-70 percent of a grower's input costs, the single biggest contributor to these growers losing their farms is the significant, non-market-based increases to the cost of labor driven by the terms and conditions of the H-2A program. Making the H-2A program more accessible and workable for growers of all sizes is paramount to halting this trend. Treating workers with dignity and respect is critical to retaining a knowledgeable and productive workforce. It is telling that the vast majority of H-2A employers in the Pacific Northwest tree fruit industry report seeing 90 percent or more of their workers continue to return to the same employer year-after-year. Of those that do not return, it is often because that worker has made enough money to invest in a business at home and therefore no longer needs to work away from their families for much of the year. The NHC recognizes the need for rigorous enforcement of the existing requirements of the H-2A program regarding protection of workers. Our organization has advocated with Congress to increase funds for states for this purpose through the Office of Foreign Labor Certification's (OFLC) state grants program. We believe that bad actors who are violating the terms and conditions of the program should be punished. However, the NHC is concerned that this rule goes too far in imposing extreme penalties – to the point of preventing access to the program, which is a death knell for farms that are unable to secure the workforce they need domestically to grow and harvest their crops – on good actors who are attempting to navigate an extremely complex program. While some of the provisions in this proposed rule are positive changes to the program, the NHC encourages DHS to reevaluate aspects of this proposed rule to better focus extreme penalties like debarment, or denial or revocation of an H-2A petition, on bad actors who are knowingly and willingly violating the terms and conditions of the H-2A program in a manner that jeopardizes the health and safety…

Dear Chief Nimick, The Northwest Horticultural Council (NHC) writes today to respectfully request a 60-day extension of the comment period for the proposed rule entitled Modernizing H-2 Program Requirements, Oversight, and Worker Protections (RIN 1615-C76; DHS Docket No. USCIS–2023–0012; CIS No. 2740-23) that was published in the U.S. Federal Register by the U.S. Department of Homeland Security (DHS) on September 20, 2023. The NHC is a trade association that represents the growers, packers, and shippers of apples, pears, and cherries in Washington, Oregon, and Idaho on federal policy and regulatory issues and matters related to international trade. Our growers produce approximately 70 percent of the apples (supplying 80 percent of the U.S. fresh market), 84 percent of the fresh pears, and 73 percent of the fresh sweet cherries grown in the United States. The NHC contends that an extension of the comment period is necessary to analyze the full impact of the proposed changes. Many of our members are currently in harvest, which extensively limits our ability to provide meaningful feedback to DHS on behalf of impacted employers. Due to the nature of the proposal, we also think it is imperative growers themselves have ample opportunity to review and provide substantive comment. In addition, this identical stakeholder group is affected by multiple recent administrative actions that impact their ability to provide meaningful input in the prescribed comment period. The comments for this proposed rule are currently due November 20, 2023. Only a few days earlier, on November 14, comments are due for the DOL rulemaking titled "Improving Protections for Workers in Temporary Agricultural Employment in the United States" (RIN 1205-AC12, ETA-2023-0003). Also, USDA published its Notice of Funding Opportunity for the Farm Labor Stabilization and Protection Pilot Program (FLSP) with a deadline of November 28, 2023. Each of these actions requires significant stakeholder attention and we do not believe the overlapping 60 days will provide ample opportunity for substantive review and comment. We appreciate your consideration of this request. As discussed above, we believe that an extension of the comment periods is necessary to analyze the full scope of this broad package and to make comments based on a comprehensive view of the impact that this rule will have on farm businesses. Sincerely, NORTHWEST HORTICULTURAL COUNCIL