Agricultural leaders have welcomed the introduction of the Securing Agriculture’s Workforce Act, or SAWA, a bill that reforms the H-2A guest worker program by eliminating seasonal restrictions and creating a unified employer portal.
However, labor experts warn that severe capacity bottlenecks across federal agencies could quickly undo the bill’s benefits for the fresh produce sector.
John Hollay, president and CEO of the National Council of Agricultural Employers, says growers have doubled participation in the H-2A visa program in the past five years. Recent regulatory shifts, including the Department of Labor’s interim final rule, drove much of that growth.
But as SAWA expands eligibility for new commodities, there will likely be an increase in application volumes. Hollay emphasizes that participating agencies must support the steady flow of applications to prevent backlogs.
“If you don’t change the structure, everybody’s going to get the same poor solution,” he says.
Consular Bottlenecks Threaten Perishable Crops
Tom Bortnyk, senior vice president and general counsel of másLabor, says U.S. State Department officials have scrutinized H-2A applications more heavily during consular interviews, particularly when job descriptions include any driving duties.
“If you’re driving anything, now we have this added background check and driving record and licensing,” he says.
There has also been an increased direct outreach to growers to verify contracts from farm labor contractors. Bortnyk says growers often don’t know the minute details of a farm labor contractor’s application, as often it covers several growers in one application.
“We saw a lot of turmoil and a lot of heartache and consternation and pain, to where I personally know more than one grower who faced sort of six-figure losses as a result of late workers,” he says. “The workers didn’t show up on time because they were stuck at the consular level, they were struggling to find a timely appointment, and we got all the approvals on time. There was no reason for those workers to be late other than the issues we saw at the State Department.”
Bortnyk says, as an example, he heard of one farm labor contractor that 8 out of every 10 workers would be held up for an indefinite period at the consulate. One client, he says, had workers arrive two weeks late due to a consulate hold.
“In agriculture, it’s a situation where every day counts, every day matters, and it’s an industry where, quite literally, the crops are rotting in the field, and that adds up to real money,” he says.
Bortnyk says it isn’t the increased scrutiny that’s the issue; it’s the staffing needed to fulfill the scrutiny without delays — and that’s happening while the worker is at the consulate appointment. This halt on that worker’s visa for an indefinite period makes for just another thing for workers, employers and the industry to navigate.
“It becomes a problem when that creates a new bottleneck that the State Department or whoever is doing the vetting is not capable of handling,” he says.
Funding Deficits and Cross-Program Competition
Hollay says that while the Labor Department has indicated it prioritizes H-2A processing over other visa categories, “to prioritize H-2A, even that in and of itself is not enough for H-2A in its current structure.”
Another wrinkle is that H-2A applicants must fight for consular processing slots against other guest worker programs. Bortnyk points out that Congress allocates 66,000 H-2B non-agricultural visas annually, and roughly 33,000 of those workers compete directly with H-2A agricultural laborers in the spring for the same consular appointment slots.
Proposed updates to the Department of Homeland Security’s appropriations, including cap exemptions for certified seasonal employers who have used the H-2B program consistently for five years, will likely drive the number of H-2B applicants even higher.
“You’re now going to have more H-2B workers than ever before, again competing for those same consular slots,” Bortnyk says. “It’s an important detail that we think of these two programs as separate, and they are. They serve different constituents. They are separate programs, but there’s a lot of overlap in terms of how these government agencies are resourced. And we shouldn’t lose sight of that by just focusing on sort of one program or the other.”
Peak Surges and Fee Allocation
Application surges during peak windows create another vulnerability. While visa processing may run smoothly during off-peak months, heavy application volumes quickly trigger backlogs.
“What you might even hear now is, ‘Most recently we’ve seen no challenges with getting workers at this consulate,’” Hollay says. “It’s because no one’s trying to bring in workers, nor has anyone historically been bringing in workers [at this time].”
Hollay notes that for the H-2A program to function, the departments of Labor, Homeland Security and State must dynamically scale staffing to match seasonal demands.
Federal fiscal rules prevent agencies from using filing fees to solve staffing shortages directly. Though the Labor Department previously collected H-2A application fees, federal law diverted those fees to the general Treasury rather than funding the agency’s operational staff, prompting the department to pause fee collections.
“We have these resource structures that could potentially be in place and be utilized to surge staffing when it’s needed, but they don’t have the ability to actually cap and access and control those funds,” Hollay says.
“If there are dedicated resources and a reconfiguration of dedicated resources that could give the H-2A program the fiscal structure that it needs, not only for today, but for tomorrow, we think we would all be in a better place,” he adds. “But the reality is Brian [Pasternak, the administrator of the Office of Foreign Labor Certification,] ends up fighting tooth and nail for dollars that fall far below what his need is.”
SAWA Strengths and Omissions
While SAWA introduces significant updates, experts caution the bill fails to address operational capacity.
“Had the bill come out and said, ‘We’re going to allocate X resources to the State Department to better manage this,’ that’s potentially a solution,” Bortnyk says. “It didn’t quite do that. What it did do is say, ‘We’re going to sort of codify the visa waiver program,’ which is good. That’s certainly helpful, but that’s already sort of in place. So, you have to say, ‘What else can you give us?’”
Lawmakers point to visa portability as a possible pressure valve, allowing H-2A workers already in the U.S. to transfer between employers. These domestic transfers would reduce the need for consular appointments, though Bortnyk expects worker transfers to remain small relative to overall demand.
“The idea [is] that if you can have enhanced portability to make it easier to facilitate those in-country transfers, you take some of the pressure off the State Department because there’s just fewer workers in theory applying for a visa,” he says. “I tend to think the proportion of in-country workers is still going to be relatively insignificant compared to ... the existing worker volume needing visas at the consulate.”
SAWA establishes an electronic unified portal and authorizes three-year labor certifications, which will reduce paperwork for growers and agencies. Industry experts say, however, streamlining paperwork does not solve processing delays downstream at consulates.
Expanding Commodities
By eliminating the seasonal requirements, SAWA opens the H-2A program to year-round agricultural production, including dairy, mushrooms, controlled environment agriculture and meat processing. Industry insiders warn that incorporating new industries could create new challenges for federal screeners who lack familiarity with these newer commodities.
Hollay says that under SAWA, a worker could complete a 350-day contract and seamlessly transition to a new role, but if system delays prevent a smooth transition, those workers risk losing work authorization.
“That’s obviously what the bill is intending to avoid,” he says. “In the current structure now, that’s what the universe we have in the program is facing.”
Hollay also says the agencies will likely face challenges in predicting regional and seasonal surges for staffing.
“They just haven’t figured out a way to have the system be reflected,” he says of staffing forecasting. “You add new industries and you lose that even more.”
The Bottom Line for Employers
As SAWA advances through Congress, ag labor advocates stress that lawmakers must pair policy reform with operational execution.
“Are the agencies doing everything they can to make sure the interim final rule is implemented as intended?” Hollay says.
He points out that the Labor Department has been transparent in getting ahead of potential issues, adding: “Why aren’t the other agencies taking these steps?”
Bortnyk says there’s a lot of good in the SAWA legislation, but “the devil’s in the details” and the industry needs to “be mindful of the logistics of: How is this all going to work? How are we actually going to make this happen if it were to become law?”
