H-2 Laws are Changing!

Kyle is solo this week! He talks about a proposed rule change for dependents of H-2 visas, some changes to the H-2A process, and his thoughts on the rail strike and much more! Don't miss out on Kyle's expertise and opinions this week!
 
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Produced & Edited By: Drew Tattam

Transcript

How to y'all and welcome back to the Immigration Guy Podcast. Happy freaking Wednesday. Hey y'all, this is the immigration guy with Kyle Farmer.

We're gonna talk today about just a couple of things that are going., uh, some ideas that are floating around. And then yeah, may we will get into some livestock producers benefiting from H-2 programs and, uh, the, the, some of the potential implications that some of these rule changes have and all that stuff on, on livestock producers themselves.

But yeah. Anyways, so let, we'll just go ahead and dive into it and then at, at the end of course is when we'll do all the fun stuff. So we'll go through the things that I find interesting. Most people don't find interesting. and then we'll get into the things that most people find more interesting, which is just the random topics of conversation.

Uh, but anyways, there was a bipartisan immigration legislation introduced recently called the H-4 Work Authorization Act. This is actually kind of an interesting idea, which is that the intent behind the bill is to automatically convey work authorization for H-4 Visa holders. So, for those that don’t, there are certain visas, uh, H-2A, H-2B, H-1B and H-3 visas, uh, where the beneficiary of the v of the visa can also bring their family members or their wife, uh, and there, their kids, assuming their kids are the appropriate age, but, and not married.

But they can, they can bring their, their dependent. Uh, and it's, it's a really interesting. Because the idea is to convey work authorization to these people automatically with their H-4 visa, and it's, it's a bipartisan bill and from a congresswoman in, in Georgia and a, and a separate congresswoman in Florida.

It's interesting because, you know, this is something that actually comes up all the time whenever I'm talking to people and they'll, they'll ask me, okay. Can a H-2A worker, H-2B worker, H one B, or, or a H three worker, whoever I'm, I'm talking to, uh, can they bring up their family? And the answer is, of course, yes.

Uh, they can on an H-4 Visa, but then the next question, every single time, so I, I hardly even get asked it anymore because I just preemptively answer it, but, uh, is well, can their spouse work? Uh, the answer to that is no. Their right now, their, their spouse can't work on an H-4 Visa. And so, it's an interesting idea.

I, I would also wonder if it would include, I haven't read the full bill, but, uh, it would be interesting if it would also include TN visa workers. Uh, Spouses or TD visa holders if they would be eligible for work authorization. I, I think that that would be more beneficial than H-4 visas, uh, especially for H-2A and H-2B because of the generally temporary or, or for the seasonal nature of it.

And so that you would think that maybe the TD visa workers where they're here year-round, a lot of times they bring their. that would be more beneficial. And I don't understand why you wanna just include them in here as, as well. Some of the, one of the problems I suppose with this legislation is, and, and one thing that you should always remember whenever you're talking about non-immigrant visas, non-immigrant visas are not designed to lower the labor costs on employers.

They're designed to allow employers to use non-immigrant labor because US workers are not available to fill whatever the role is. And one potential consequence of this is you might have employers, let's say it's an H-2A employer. under petitioning for the number of workers that are actually needed because they think, ah, well, whenever my worker's, husband or wife gets up here, I'll just put them to work too.

And the, the problem with that is it would improperly advertise the number of available positions, uh, which theoretically could hurt the US workforce, uh, if they're not properly petition or not. Requesting the, the appropriate number of workers. So that could be one potential issue with it. Now, one thing that is kind of interesting though is it doesn't limit the work authorization as far as I've seen to work in a particular Industry. So, an H-2A worker comes in and the H-2A worker is limited in that they are performing an agricultural labor service, but their spouse, theoretically C, could come in and, and work in any industry, which I think is interesting also, uh, because in a way it could be great because they could be coming in to perform nonagricultural work and wherever.

Areas that's hurting for labor, and it'd be a good way to offset the labor, the labor costs. The only thing that kind of persuades me that it may not be such a great idea is., it's not testing the domestic labor market if you're just automatically conveying work authorization to H-4 visa holders. And if you're not testing the labor market, how do you ensure you are not adversely affecting the US workforce?

And the, the, the problem with that is obviously you, you never want adversely to affect the US workforce. But the other one is it gives more fuel to the. To the people that are adamant that numerical caps make logical sense when in reality, I don't think that numerical caps make any logical sense for non-immigrant visas, particularly those where you test the labor market annually to demonstrate that there are not enough available US workers and but if this were to go through, you wouldn't be doing that for the H-4 people.

So, it would be adding definitely some, some fuel to that fire. One other potential. Issue that could arise is it may promote abscond of workers because then the worker gets here, the worker's spouse gets here, kids get here, and a lot of times, no, not a lot of times, but occasionally workers will just leave.

And if you have your whole family here, I think that that kind of promotes. The likelihood of abscond from these visas, and that's not good. It's not good for employers. It's not good for our immigration laws. It's not good for our enforcement agencies. It's not good for the workforce. And so, abscond, it's really, really bad.

So, I'm weary of anything that would promote abscond it. But the idea that an H-4 Visa holder could be conveyed to work authorization, I could see how there would be validity in that. I mean, I, it, it could be very interesting and maybe the potential benefit there would be that in certain areas where they can demonstrate that.

The addition of a more labor is not gonna adversely affect the, the US workforce. Maybe there, maybe there's something to it. So anyways, I just thought that was kind of an interesting bill. Uh, likelihood of it passing is virtually non-existent. So, I want to get too worked up about it. I just don't see anything immigration wise passing right now or, or really in the near term, especially, anything like that.

Anything that's beneficial to H-4 Visa holders, I'm, I'm not gonna write home about how excited I am about that because I don't think it's gonna happen. So, another thing to talk about is the recent rule change, which was effective on November 14th, 2022. There were some interesting changes in there.

Nothing that's just like earth shattering or, or, or just absolutely wild. Although I think that there is gonna, A rule change in the relatively near future that kind of falls in, in that realm with the proposed changes to how they calculate the adverse effective wage rate or, or the prevailing wage for a particular occupation.

That one has not passed yet, or has not been finalized yet, but this other rule has, and this other rule had some interesting provisions in it as well. Some of the big ones where they implemented new surety bond requirements. This was par. This is parti particularly impactful for farm labor contractors because a farm labor contractor is the one that's required to get, uh, surety bond.

And so, the bonding. requirements went, went way up. Uh, and it's on like a scale now, so it's just, it's tougher. Uh, and then the enforcement mechanism, if you under bond, your, your application is, uh, potential debarment. So, it's a serious issue. Uh, but I know that that's one thing that some advocacy groups are going after the Department of Labor for, but it was, it's certain certainly Interesting. Uh, and, and it's, it's really, I, I get why they did it. The, the surety bond requirement for farm labor contractors. What the purpose of it is, is it a, basically acts as insurance. So should the farm labor contractor, let's say not pay all the wages to the workers and Department of Labor sues the farm labor contractor or Back wages and fines against the farm labor contractor. The farm labor contractor won't, wouldn't be able to just say, oh, I'm bankrupting this company. Uh, instead the Department of Labor can what, what's what they call the surety bond. So, they can call the surety bond, uh, too. Ensure that at least that amount of money is given to the workers.

And so, by increasing the amount of the surety bond requirements, it increases the protection for the workers. Uh, the problem is, is it adversely affects the, the employer because it costs a lot more money. And so now it's just, it makes it. Significantly more expensive, uh, to engage in the H-2A program because of the surety bond requirement.

And there's other things that they're doing that's making it a lot more expensive. Now, this one hasn't been finalized yet, but it's just an example. They're trying to increase the, the visa fees, the embassy fees from $190 a person to 300 something dollars a person. So again, it's just increasing the cost to the employer substantially.

I don't know. I imagine they will blame inflation for that one or something, and it's, it's hard to imagine why they would increase it that much, but Inflation is pretty wild. They also, this was also one of the things in the proposed rule change that I think it's gonna have significant implications whenever you take it in conjunction with the additional, uh, final rule as it relates to the wages.

The Department of Labor removed this provision in the regulations that allow for. Employers to appeal notices of deficiency. So historically, what you could do if you had a notice of deficiency issued, if you wanted to work out the notice of deficiency before a judge or Department of Labor lawyers, hopefully to settle with them and get the case back to the Department of Labor, one thing that you would have to do is you would have to appeal the notice of deficiency.

and this was, this was always an option for people historically, but this rule change has changed that to where now you can't appeal a notice of deficiency. Instead, you actually have to appeal the denial of an application. And why this matter is because the. New wage rate methodology that they're going to be using to determine the appropriate wage rate for people in construction occupations, for example, or, or trucking.

A lot of times people would want to be able to challenge the SOC code. Which is the code that's assigned by the State Workforce Agency through the notice of deficiency, instead of deliberately having the application denied and then fighting it out, and so it makes your application a lot riskier whenever they removed that provision.

It makes your fighting the SOC code significantly riskier because you risk a denial and having to refile the application starting from scratch. That is a pretty real problem because particularly in in construction for example, I don't have a ton of confidence in how the state workforce agencies are going to assign the appropriate SOC code.

Nothing gets to state workforce agencies. It's just that there's an actual process for this in other forms of immigration that have appeal options. To where you can appeal the SOC code assignment. And so, putting this burden from the Department of Labor on the State Workforce agency and expecting the state workforce agencies to work consistently from state to state, which makes a big difference in terms of the overall cost.

I think that that's very unlikely to happen, and so what you would want to be able to do is appeal the notice of deficiency so that you can work it out with a Department of Labor lawyer. Then you know what your SOC code assignment is going forward, and you can project your cost regardless of the state on that basis, or you can get a judge to tell you what the SOC code is after looking at your actual job.

And so that would've been way better. But now they removed that ability in this new rule change, which I, I think was obviously deliberate. They didn't want a whole bunch of people appealing deficiency notices because of the wage rate assignment, uh, which is the, the next rule, cuz it would. Congest, the, the courts.

And so now employers are gonna have to weigh if that's worth it to them. And so, it's an important addition to the, the final rules that I don't think that people are actually realizing is significant. But it is significant. So that's just something else to be aware of. I'm not gonna go too much into detail about this, uh, but some of the other stuff that it did is it updated the definition of joint employment.

I don't, uh, deal with a whole bunch of joint employers and so, you know that. Not overly impactful for, for my clients, at least as of now. And so, yeah, that, that was one of the other big things that people were worked up about. Uh, and our, our clients weren't that worked up about that because it didn't impact them, but it has impacted a lot of other people.

This segment. Brought to you by Drew Berry is reactions to newspaper titles. Yeah, I'm back. Feels good. Yo, welcome back, drew. Wow, it's been a long time. All right. Just as a reminder, I have not read any of these articles. I have no idea what Drew's gonna ask me about. So, what you're getting right now is what we call in the business raw footage.

Okay. I wanna start off big. Let's go. Scientists increasingly calling to dim the sun. 

Absolutely not. Can, is there a world? This is, I, I do remember this. Like I remember Bill Gates talking about at one point, like creating a dust atmosphere. Yeah. To protect against the, the sun monster. And I really adamantly disagree.

With interfering with the sun. If that goes wrong, you can't take out your vacuum cleaner and fix that dust problem. That is the most ridiculous thing I ever heard in my life. Now, if you wanna block out the sun for 30 minutes or so with a big balloon that we can move or pop, I might be, I might be more inclined logistically.

Does that work? Nope. Logistically, does it work? block the sun. This is the stupidest. Absolutely not. Apparently in October, the White House announced a five-year research plan to study solar geoengineering. 

Wow. That sounds super descriptive. They also say the idea of quote, shooting untold dollars’ worth of particles into the stratosphere.

Yeah. Baby. No, I don't wanna shoot untold number of anything into the Stratos. Okay. It feels like that's something we should be pretty cautious about. 

Okay. Now we have a little, a little riddle, if you will. A little tongue twister. Absolutely. That's actually a science article. And tell me how this works.

DNA showed a mother was also her daughter's uncle. 

Okay. We got a little bit of combination here in terms of gender roles is what it sounds like. Oh, you think you. A biological man that I identify as a woman that adopted a child who he acts Wait, wait. Daughter's uncle. Daughter's uncle. So, you got, uncle you've got is also her mother.

Well, uncle and mother. You have to have some gender role confusion here. That's, unless we're conflating the term uncle, I don't know. Okay, so you've got, okay, uncle and mother.

This is gonna start a new saying called, well ain't you just an uncle's mother? Okay, so you've got a mother. This is mom, this is child. Also, by the way, I'm also you. Nope. Don't make any sense., 

Do you wanna know the answer? Yes. Break it to me. They started the article off with another, another. Mind bender.

Hit me with it. How can a paternity test suggest a mother is also her daughter's father? 

Can women give a Y chromosome? No, they don't have a Y chromosome to give. No, they've got two X's. Unless they had two X's and a Y. But I, but I, I thought that women with two X's and a Y were infertile. I might have made that part up though.

You know, we're all about baking it up. . . Okay. It says quote when the jeans of a vanished twin brother live on in the mother's DNA. 

Ew, dude, I'm still confused. A vanished. Yes. Okay. So, she had, there are about 20 confirmed cases of this documented. Well, she's got a twin brother and she had a baby. But the similarities in their DNA, in a, made the paternity test think that it was also the, the uncle.

So, she doesn't have a Y chromosome? No. Also, she's not actually the uncle. This is what we call fake news. God, it gets you every time, but it was very click Beatty and I appreciate that. For one, that's on a science under the science category. Hey, they sell advertisers too. Okay. I guess that's true. 

We're heading into space.

Hell yeah, we are. Are you familiar with Orion? Oh, oh oh, Ryan Auto Parks. 

Yes. That one. No, the recent, um, space mission super field rocket Jet, 

No. Who conducted the space mission? It appears to be NASA. Way to go. Nasa. Yeah. It's my heroes. Um, NASA also has a sweet logo, by the way. They do. I love NASA's logo.

Can we get a Farmer Law logo like that? 

Is that our designers copyright suck compared to that guy. 

Well, we just cut the font. You could download it. 

You think so? Yeah. NASA font. 

Okay. So, Orion flew far beyond the moon and returns an instantly iconic photo, and it is pretty iconic. What? See if I do say so myself.

I see it. Okay. First of all, they're just rubbing the fact that this logo is cool in my face. That is sweet. Yeah. Okay. Y'all gotta Google this photo by Eric Burger. Eric Burger. Not too many. This was called one name, Eric Carter. This is called the O’Ryan. I guess you can probably Google Orion picture by Eric Burger and see this.

This is pretty freaking wild, but I don't believe it because the earth is round. Oh, and everyone knows the earth is flat. 

Now we're moving on to no path forward. Biden calls on Congress to avert the rail. Strike Thoughts on rail strike? 

Uh, well the implications of rail strike. really, really bad. Like the, especially before Christmas, before the, the holiday season, it would be terrible cause it would cause more supply chain issues and so No, that would, that would certainly suck.

Yeah. I, I don't, I don't know, I, I don't have like, super strong opinions about this because I don't know that much about it. All I know is that it would really suck and so, uh, yeah. And enjoy Christmas the old-fashioned way if that happens. Well, I mean, everyone's already done their shopping. Did you see that?

Like Cyber Monday and Black Friday sales were like higher than ever. Well, it's 

because they thought everything was gonna cost 10% more in December.?. No, I did not see that, but I believe it because we're shopping. I bought billions of dollars. 

Yeah. What'd you buy? I bought, uh, some workout equipment, like not anything cool. Knee sleeves and hand protection stuff, and that's not equipment. Those are accessories and a jump rope. Fun. I just got a jump rope too. Did you? What kind? 

Yeah. Uh, MX 3000. I don't know. Do they have names? Yes, they have names. They have. What kind did you get? A rogue. It's called Rogue, yeah. Is the manufacturer, I think it's called like a speed 2.0.

Is it weight? No. Have you ever used a way to jump rope? Yeah. It's hard. Yeah, dude, your arms get so tired. It's wild. But this one is made for speed. Jump roping. Have you ever seen people do speed jump roping competitions? No. My favorite thing on the internet is speed jump roping competitions. You gotta see this.

All right. Jump roping competition. Watch this guy. This is his own world record. Watch this guy. Watch this. Watch this. No one can do this. Look at 'em all bent over. No way. and someone's over there counting this. They're like, this guy had, this is just.

This is a sport that I could never do. Look at him. They have a certain amount of time. Yes, they've got one minute and so I, or maybe 30 seconds. Yeah. 228 jumps in 30 seconds. Come on. You gotta Google that one too. His form looks really bad. His, no, his form is pristine. They put him in slow motion and he's still jumping a rope 10 times faster than I would jump rope.

That guy's amazing. He's, you're gonna need a chiropractor for the rest of your life if you do that. Oh, his posture's terrible. Yeah. No form is excellent. Posture's terrible. Yeah. Yeah. No, that guy's, I think he's in rough shape now. 

All right. I think we're at time. If you wanna wrap us up. Thank you so much for listening to this installment of The Immigration Guy, and I love you so much.

So, tune in next time. Howdy. Goodnight. Thank y'all for listening to the Immigration Guy Podcast. We really appreciate it. You can find us on our website. Go to www.farmerlawpc.com. You can find me on LinkedIn and Twitter. Just search at Kyle Farmer FLPC. You can find our law firm on Twitter, Instagram, YouTube.

All you have to do is search for a Farmer Law PC. Go ahead and subscribe to download all the episodes of our podcast. You can download 'em and listen to 'em whenever and wherever you want. Uh, we'll be releasing new episodes every Wednesday on Spotify, Apple Music, Stitcher, which is apparently a real thing.

Amazon Music, Google, and wherever else you get your podcast. This is not legal advice, so any information that you get from this podcast should not be taken. If you are looking for legal advice, you should consult with a competent attorney for advice regarding your individual situation. Uh, if you wanna schedule a consultation, just go ahead, and use the link in the description of this episode.

Thank you.