Jorge, who recently arrived from Mexico and asked that his last name not be used, works in the milking parlor of a dairy farm in northern Buffalo County. Jorge is among the estimated 51 percent of all dairy workers nationwide who are immigrants.

A replacement of the current H-2A visa system is currently under review in the U.S. House of Representatives.

The new act, dubbed the AG Act, looks to replace the H-2A visa system with a new agricultural guestworker program labeled H-2C. Instead of amending the current H-2A program, senior council for the House Judiciary Committee, Stephanie Gadbois, said that the current judiciary chairman, Bob Goodlatte, wanted to scrap the outdated program altogether.

AG Act stands for the Agricultural Guestworker Act. It currently resides inside of the large immigration reform bill called the Securing America’s Future Act. It is because of this, Gadbois said, that the AG Act is getting any traction at all.

“With the introduction of the Securing America’s Future Act, we have an opportunity to fix America’s broken immigration system, which is why Chairman Goodlatte fought to get the text of his AG Act included,” she said.

The discussion of immigration and guestworker reform was held at the annual Central Plains Dairy Expo in Sioux Falls, South Dakota, March 28. Hosted by the American Dairy Coalition, the event focused mainly on immigration reform as it relates to the dairy industry.

Gadbois, who has worked on the current AG Act with chairman Goodlatte, spoke on the changes H-2C would make for dairy starting with longer visa times.

“H-2C would streamline your access to reliable workers and allow employers to fix their year-round labor needs,” she said.

The H-2C program would allow dairy workers to stay in the United States for 36 months on their first visa and 24 months on all subsequent visas. However, workers who are in the United States must complete periodic “touchbacks,” which means a worker must leave the United States for a set period of time before returning, although they don’t have to go back to their home country, just somewhere not within the U.S. borders.

“The periodic touchback requirement ensures that workers don’t become permanent non-residents here in the United States because they aren’t maintaining any ties outside the United States,” Gadbois said.

Overall, visa workers must touchback for a twelfth the amount of time they spend in the country or 45 total days, whichever is less. In an effort to dispel any confusion about the touchback, Gadbois said that the touchback can be accrued over time and trips can be made throughout the visa period would count towards that touchback period.

To make matters a tad more complicated, Gadbois said, workers also must complete an “initial touchback” after the applications have been filed by the employer.

“I hate using the term touchback because it gets confused with the periodic touchback, but it just means a worker must step foot outside the United States and reenter to be a part of the program,” she said.

Gadbois said a worker could even simply walk into Canada for an hour and return and it would satisfy the initial touchback.

The H-2C system is also more flexible for workers, as the visa would allow for workers to gain drivers licenses, as well as stay on a set wage. Gadbois said that under the current H-2A system, a fairly complex wage structure was set up by the Department of Labor. The H-2C system does away with that system and the baseline becomes minimum wage plus 15 percent.

In addition to those two major changes, Gadbois said the new visa system wouldn’t bar the workers from working toward citizenship.

Because of confusion surrounding the new E-Verify system that is being put in place to track guestworkers in the United States, Gadbois said that the H-2C system would not force employers to adopt the E-Verify system until the program is fully understood after six months.

The real crux of the changes brought on by H-2C comes from the new cap on the amount of visas issued per year, although Gadbois said they intentionally designed it to be borderline unlimited.

Under the proposed system, H-2C visas would be capped at 450,000 visas per year. 40,000 of those visas would be reserved for the meat and poultry packing industries, but even with just 410,000 visas to spread across all other agriculture sectors, Gadbois doesn’t see a scenario where the cap will be hit.

“All of the previously unauthorized workers in the United States that transition to the legal H-2C program will actually never count toward the cap as long as they remain working in agriculture,” Gadbois said.

In addition, she said that all current H-2A and H-2B workers living in the United States will not count towards the cap at any time, as long as they remain working under their current employer. In addition to these stipulations, the cap includes a 10 percent “escalator” that raises the cap limit should it be hit on any given year.

“Each year, you get a whole new allocation of H-2C visas regardless of who remains in the United States,” she said. “That means that in any given year you can expect the number to be two or three times greater than the numerical limit in that year.”

Because of these many multipliers to the initial 410,000 cap number, Gadbois said their system will allow for a steady supply of legal workers without too many hoops to jump through.

At the end of the session, several audience members asked questions regarding hope for the legislation, and Gadbois said that it is ultimately up to the fate of the Securing America’s Future Act, as she believes the AG Act would have no hope outside of that legislation.

“We don’t need to pass identical legislation in the House and the Senate in order to move forward,” she said. “I would foresee us meeting together to work out differences.”

The Securing America’s Future Act was introduced to the House Jan. 10 and hasn’t had action taken since then, although Gadbois said that they hope for the bill to be discussed as soon as possible given that chairman Goodlatte will be retiring at the end of the year.

Reach Reporter Jager Robinson at 605-335-7300, email or follow on Twitter @Jager_Robinson.


Jager is a repoter for Tri-State Neighbor, covering South Dakota, southwestern Minnsota, northwestern Iowa and northeastern Nebraska.