September 24, 2019

Adele Gagliardi, Administrator
Office of Policy Development and Research, Employment and Training Administration
U.S. Department of Labor
200 Constitution Avenue NW
Room N–5641
Washington, DC 20210

RE:  DOL Docket No. ETA-2019-0007, Temporary Agricultural Employment of H-2A Nonimmigrants

Dear Administrator Gagliardi:

On behalf of the American Horse Council (AHC), which serves as the umbrella advocacy group for the $122 billion U.S. horse industry, I urge you to adopt measures that will provide flexibility for the cumbersome H-2A Temporary Agriculture Employment program.   According to a 2017 economic impact study, the U.S. horse industry supports nearly one million American jobs.  As a key pillar of the agriculture economy, the equine sector has experienced chronic labor shortages in recent years.  This is especially true during “busy” seasons when the demand for services related to the care and feeding of horses begins to spike at breeding farms, horseracing facilities, horse shows and other operations.   To bridge the gap between labor demand and worker supply, the horse industry relies on two major guest worker visa programs, specifically the H-2A and H-2B programs.  Unfortunately, piles of red tape and ambiguous work requirements, especially those related to the H-2A program, delay the issuance of timely visas and prevent the horse industry from hiring the workers it needs.  That said, the horse industry is leaving no stone unturned to recruit and train U.S. workers.  To illustrate the industry’s commitment to provide jobs for U.S. citizens, AHC is collecting data from the membership to lay the groundwork for an equine sector professional certification program.

With respect to the Department of Labor’s (DOL) proposal, as a general matter, the industry supports mandatory electronic filing and signatures to the extent that they create efficiencies within the agency and expedite the processing of applications.  AHC also supports implementation of the “30-day rule,” which will help create legal certainty within the scope of contracts entered into with guest workers.  With respect to proposed changes to regulatory definitions, AHC believes that DOL should expand its definition of “agricultural labor and services” to include “activities related to the care and feeding of horses.”  The regulatory clarification will give members of the horse industry the option to participate in a guest worker visa program that does not operate under the restrictions of a statutory cap, which has been a major challenge associated with the H-2B program.  Outlined below are key problems associated with the H-2A guest worker visas, and possible solutions arising from the DOL proposal to streamline aspects of the program.

Background – DOL’s H-2A Program Poses Many Regulatory Barriers that Hinder Labor Demands

Livestock and other agriculture groups regularly describe the current H-2A program as “expensive, flawed and plagued with red tape.”  Members of the horse industry – like other agriculture groups that use the H-2A and H-2B programs – claim that H-2B, a program not known for its simplicity, outlines the more efficient process for recruiting and hiring foreign guest workers.  Specifically, members of the equine sector often cite the following challenges associated with the current H-2A program:

  • H-2A employers must pay wages higher than those that prevail in their region;
  • H-2A mandates employer-provided housing for guest workers, which creates financial burdens that disproportionately impact smaller operations;
  • H-2A mandates employer-provided transportation, imposing financial burdens on employers recruiting workers from distant countries;
  • H-2A does not require arbitration for possible labor disputes, exposing employers to litigation outlasting the tenure of a guest worker.
  • H-2A mandates workers’ compensation insurance.
  • DOL’s Temporary Labor Certification Form 9142 runs 29-pages in length, not including addendums and supporting documentation. This is only one form of many that employers must file throughout the process.
  • H-2A also requires that employers continue to attempt to recruit domestic workers using the “50 percent rule,” or for a period equal to half the tenure of the guest worker’s contract, creating uncertainty.
  • And unlike legislative proposals that have been moving in Congress that would reform guest worker programs, the H-2A program regulatory definitions as written do not specifically address activities related to the care and feeding of horses.

DOL’s H-2A Program – Some Proposed Solutions

DOL’s notice published on July 26, 2019 proposes some changes to the H-2A program that would create incentives for broader participation within the equine sector (See:  84 Federal Register (FR) 3618).  AHC requests that DOL’s final rule reflect the following comments:

  • Definition of Agricultural Labor – DOL proposes to include “reforestation and pine straw activities” within the H-2A program’s definition of agricultural labor (See Code of Federal Regulations (CFR) Part 655, Subpart B, Temporary Employment of Agricultural Workers). Because current regulatory definitions do not specify activities related to the care and feeding of equines, attempted utilization of the H-2A visa program by employers located at horseracing facilities, horse shows, breeding farms and other agricultural operations creates regulatory uncertainty.  AHC urges DOL to expand the definition of “agricultural labor” to include “activities related to the care and feeding of horses.”  As livestock, horses require care and feeding, no matter where they are located.  The H-2A program should therefore apply to agriculture jobs in the equine sector including grooms, stable hands, exercise riders and general caretakers.  Although DOL has not specifically mentioned “the care and feeding of horses” within the context of the proposal, this definition is consistent with those included in federal legislation that would reform the nation’s guest worker visa programs.  However, by supporting a definition of “agricultural labor” to include the care and feeding of horses within the context of H-2A, the horse industry would not endorse subsequent restrictions to participate in the H-2B visa program.  Unlike other sectors, the horse industry is not endorsing a wholesale transfer from the H-2B to the H-2A program.  The diverse nature of the industry’s operations requires the option to participate in diverse visa programs.
  • Replacing the “Fifty Percent” Rule – Current rules require an employer to continue to recruit domestic workers during the first half, or 50 percent, of the tenure of an H-2A visa-holder. For guest workers entering into contracts that last for four months or more, the mandate can last for 60 days or longer, creating business uncertainty.  The equine sector supports DOL’s proposal to limit the “recruitment period” to the first 30 days following the beginning of the contract period.
  • Mandatory Electronic Filing – The proposal identifies issues arising from Form 9142 and related submissions to illustrate proposed efficiencies. DOL states that more than 94 percent of employers already file electronically, and that the majority of the remaining filers provide valid email addresses for follow-up correspondence.  The horse industry agrees with DOL’s claim that electronic filing will reduce processing times, and more timely corrections and clarifications than those made on paper applications.  Although DOL acknowledges that a handful of employers might not have easy access to electronic filing services, the horse industry supports DOL’s proposal to continue to accept paper filings from employers that demonstrate they have limited computer and Internet access.
  • Mandatory Electronic Signatures – Again, the horse industry agrees with the agency’s assertion that mandated acceptance of electronic signatures will reduce processing times and create efficiencies. AHC, in conjunction with partners at the U.S. Chamber of Commerce, has met with officials from DOL, who have underscored challenges arising from limited staff resources within the agency. By mandating electronic filing and acceptance of electronic signatures, and phasing out paper filings, agency staff can process a larger volume of certifications within a shorter timeframe.

Thank you for the opportunity to comment on proposed changes to the H-2A Temporary Agriculture Employment program.  If you would like more information related to these comments, or information and statistics related to the equine sector, please contact me at 202-296-4031 or bbrendle@horsecouncil.org.

Best regards,

Bryan Brendle

Director, Policy and Legislative Affairs

American Horse Council