02.11.10

Leahy To Introduce Bill To Fix Labor Department’s Exemption Of Dairy Farms From Visa Program For Seasonal Workers

WASHINGTON – Senator Patrick Leahy (D-Vt.) on Thursday said he will introduce legislation to address the U.S. Department of Labor’s new rules that exclude the dairy industry from eligibility for certification in the seasonal agricultural worker program, called H-2A visas.

“I am deeply disappointed with the Department of Labor’s final rule on H-2A agricultural workers,” said Leahy.  “This rule falls short, leaving dairy farms in the lurch.  With the dairy industry reeling in Vermont and across the nation, the final rule continues to exclude the dairy industry from lawfully hiring seasonal foreign workers when needed.  The agency claims that because dairy workers are needed year-round, they do not fit the ‘temporary or seasonal’ definition of an H-2A worker.  Nonetheless, the Department continues to allow certain other year-round agricultural workers access to the program and has added H-2A coverage to logging workers in this final rule.  This exemption is unreasonable and inexplicable, especially when the final rule itself observes that ‘Congress clearly gave the Secretary [of Labor] authority to define agricultural labor and services through regulation.’  They have punted this issue away, and now Congress has even more of an obligation to step in to fix it, as difficult as doing that may be.”

In its new rules on seasonal agricultural workers released Thursday, the Labor Department said it has “no legal authority” to include the entire dairy industry in the H-2A visa program.  The H-2A program allows farmers to lawfully hire foreign workers when needed, to help keep American farms productive.  Dairy farmers have been unable to take advantage of the H-2A visa program due to the year-round nature of dairy farming.

Leahy, chairman of the Senate Judiciary Committee and the most senior member of the Senate Committee on Agriculture, Nutrition, and Forestry, said Thursday that he will introduce legislation to make explicit that dairy workers are eligible to work under the H-2A program.  The bill will also provide that this unique class of workers be eligible to remain in the United States for an initial period of one year and be eligible for additional one-year periods, as approved by the U.S. Citizenship and Immigration Services.  Under Leahy’s proposed legislation, workers will be able to petition to become lawful permanent residents after three consecutive one-year periods.

“This bill will make explicit in law that dairy farms can use the H-2A program, ensuring that dairy farmers in Vermont and throughout the nation can find the labor they need to stay in business, meeting the needs of their communities and the nation’s families,” said Leahy.  

Leahy has led efforts to include dairy workers in the H-2A visa program.  Last October he submitted comments to the Department of Labor in its rulemaking process for this rule, urging the Department to make full use of its authority and extend H-2A visas to dairy workers.  In 2006 and 2007 Leahy authored and included legislation to fix the H-2A dairy exemption in the Senate’s comprehensive immigration bills to alleviate the inequity caused by the Department of Labor’s interpretation of law.  He is a leading sponsor of the bill he and Senator Dianne Feinstein (D-Calif.) and others have introduced – the AgJOBS bill -- which offers a comprehensive overhaul of the H-2A visa program and which includes Leahy’s provision to fix the dairy exemption.  Feinstein and Leahy reintroduced their bill last year.

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(fyi – Department of Labor notice is below, for reference) 

Today, the Department of Labor published in the Federal Register a Final Rule regarding the labor certification process required under the H-2A temporary agricultural worker program.  This Final Rule amends regulatory changes to the program introduced in December 2008. Under the Immigration and Nationality Act, the Department of Labor must ensure that U.S. workers are provided access to the jobs, and that both U.S. and foreign workers are provided with appropriate worker protections.   This Final Rule reflects the Administration’s commitment to providing fair wages and strong labor protections for all workers.

On September 4, 2009 the Department published in the Federal Register a Notice of Proposed Rulemaking to amend the 2008 regulations.  The comment period was initially planned to end on October 5, 2009 but was extended to October 20, 2009.  The Department received approximately 7,000 comments on this rule. Among many other provisions, this rule:

  • increases access to job opportunities for U.S. workers by increasing coordination with state workforce agencies
  • provides transparency by creating a national electronic job registry where job orders will be posted by the Department
  • raises wages for foreign workers by reinstating the use of USDA wage surveys and
  • increases oversight and enforcement powers to ensure that the worker protection requirements of the H-2A program are enforced.

We have provided a fact sheet summarizing the Final Rule, as well as a document with many of the questions and answers concerning this rulemaking. You can find the text of the Final Rule by going to the following link:

http://www.federalregister.gov/OFRUpload/OFRData/2010-02731_PI.pdf.

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Press Contact

David Carle: 202-224-3693