The House of Representatives passed the Farm Workforce Modernization Act (H.R. 5038) last month. The House bill made some improvements to the H‑2A program, which allows farmers to hire foreign guest workers, but it incorporated into the statute the current regulatory requirement in 8 C.F.R. § 214.2(h)(5)(viii)(C)) that an H‑2A worker may not live in the United States continuously for more than 3 years. The Senate should not copy this mistake.
This provision makes no sense from an economic or security perspective. It imposes costly, needless turnover on U.S. farmers, and by forcing out workers, it unnecessarily creates many more opportunities for visa violations. These arguments actually apply even more forcefully under the bill because it expands the H‑2A program to include year‐round jobs, unlike the current seasonal jobs that by their nature have a defined end date.
The economic argument against an arbitrary time requirement is simple: losing workers who are creating economic value imposes economic inefficiencies on employers. Turnover has costs associated with lost productivity when the position is unfilled, recruiting and hiring a replacement, training the new hire, and lost productivity from the employee learning the position.
...The H‑2A touchback has no benefit for U.S. security either. Every time the law requires a legal temporary worker to return home, it creates the risk (and incentive) for a visa violation. The more required departures, the more visa overstays, and the more immigrants living illegally in the country. The touchback requirement imposes additional overstay risk in two ways: first, it forces out an existing worker, and second, it triggers the entry of a new worker who may or may not be as law‐abiding as the one who exits.
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