March 13, 2023
BY ELECTRONIC SUBMISSION
Carol Cribbs
Deputy Chief Financial Officer
U.S. Citizenship and Immigration Services
Department of Homeland Security
5900 Capital Gateway Drive
Camp Springs, MD 20746
In re: DHS Docket No. USCIS–2021–0010
RIN 1615-AC68
U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements
[Federal Register 88:2, p.402ff]
Dear Deputy Cribbs:
We appreciate this opportunity to submit comments in response to the U.S. Citizenship and Immigration Services (USCIS) Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements posted in the Federal Register January 4, 2023. We have grave concerns and object to the fees contained in this proposal. We also object to funding the asylum program by taxing users of the H-2A Temporary Agricultural Worker Program.
Since 1929, NCFC has been the voice of America’s farmer-owned cooperatives. NCFC members include regional and national cooperatives, which in turn consist of nearly 2,000 local farmer-owned cooperatives across the country. Farmer cooperatives – businesses owned, governed, and controlled by farmers and ranchers – are an important part of the success of America’s agricultural supply chain.
NCFC has an extremely diverse membership, which we view as one of our sources of strength – our members span the country, supply nearly every agricultural input imaginable, drive innovation, develop new technologies, provide credit and related financial services, and market a wide range of commodities and value-added products. This breadth of diversity means that farmer co-ops span the entire food and agriculture supply chain from the farm gate all the way to the grocery store aisle.
General Comment
The U.S. employed 2.4 million agricultural workers on America’s farms and ranches in 2017, according to the USDA’s Census of Agriculture. The next Census is underway this year and will provide updated data. We expect the results to continue to show that too few domestic workers are applying for available agricultural positions, and given the relatively low unemployment rate, that H-2A workers are a lynchpin protecting American agricultural employers from having crops rot in the fields.
The H-2A program is a critical part of national security as a country that is unable to feed itself is at considerable risk.
U.S. farmers and ranchers face challenging times in the global marketplace. The relative cost of agricultural production outside our borders hinders U.S. competitiveness. Consequently, more than half (65%) of the fresh fruit and a third (35%) of the fresh vegetables consumed in America are produced in other countries per USDA.
The chart below presents data through 2018. If the data for 2019 through 2021 were added, it would reflect an explosion in food imports. These are due in no small part to burdens and costs imposed on farmers by the Temporary H-2A Agricultural Employment Program. This proposed rule would amplify these costs and exacerbate the flight of food production to foreign competitors.
Even though American agriculture overall is unparalleled, the lack of a domestic agricultural workforce willing to plant, harvest, and cultivate crops has forced American farmers and ranchers to augment their labor needs with temporary foreign workers under the H-2A program. Of course, relatively low U.S. unemployment likewise spurs the shortage of domestic workers interested in short term seasonal labor.
The H-2A program, like many government programs, is not simple to navigate. Some of the regulations and the costs associated with them deter or prevent farmers and ranchers from participating. However, as difficult as the program is to work with, many agricultural employers have no other choice but to use the program so that their legacy family operations do not shutter.
American farmers and ranchers often point to the added costs participation in the program imposes on their operations. Agricultural operators and competitors in Canada and Mexico (the sources of much of America’s imported food) face much lower costs for agricultural labor than we do in our swath of North America.
The significant added costs for H-2A Temporary Agricultural Workers proposed in this rulemaking further jeopardizes the sustainability of U.S. farms and ranches as will be discussed below.
The Proposed Fees are an Undue Hardship and Burden on America’s Farmers
Presently, the U. S. Citizenship and Immigration Services (USCIS) fee for an I-129 petition for H-2A Temporary Agricultural Workers (H-2As) is $460. This fee applies to petitions for both named and unnamed beneficiaries.
The proposed fees contained in this regulation would increase the cost of each petition dramatically and add a new $600 “Asylum Program Fee” to each petition as well. By limiting each petition for named beneficiaries to 25 individuals, the proposed regulation would also “penalize” employers who have developed longstanding, positive relationships with workers who participate in the program annually and returned to the same farming operations. These costs are further compounded when workers are transferred to a new contract or perhaps due to unforeseen weather conditions such as floods, hurricanes, drought, torrential rains, untimely freezes, or excessive heat, an employer seeks to extend a worker’s stay.
The following examples of these significant costs will use round numbers for simplicity and illustration. An employer who has had the same 100 farmworkers working on his operation for the last 10 years files a petition to have the workers return in the coming season. The source country for these workers is not presently on the approved country list.
The proposed new fees for these same named 100 workers would increase from the present cost of $460 to $6,760 (new $1,090 I-129 fee plus $600 asylum fee = $1,690 multiplied by 4 petitions). This stunning 1,470% increase in fees ($6,760/$460 = 14.6956) is a cost the agricultural employer will never be able to recover. Both economists and politicians have long recognized that farmers are price takers, not price makers. This is why President John F. Kennedy famously quipped, “the farmer is the only man in our economy who buys everything at retail, sells everything at wholesale, and pays the freight both ways.” The cost of this exorbitant fee increase will fall entirely on the farmers’ shoulders.
Let’s further assume that this same employer experiences a weather disaster such as a hurricane and needs to extend his 100 workers for another few weeks. The present fee for this extension petition is $460. The total new fee for this extension is an additional $6,760 (new $1,090 I-129 fee plus $600 asylum fee = $1,690 multiplied by 4 petitions).
An employer who is petitioning for 100 unnamed beneficiaries under the H-2A program would similarly have a fee of $460 for filing the I-129. Under the proposed fee structure, this employer’s fee would jump to $1,130 (new $530 I-129 fee plus $600 asylum fee = $1,130). This fee increase is similarly devastating to this employer, although not as dramatic as a petition for named beneficiaries, as their fee increases by 246% ($1,130/$460 = 2.4565).
One of the unintended consequences of this regulation is that it perversely adds additional fees for returning workers who have been previously vetted by USCIS rather than to those of an employer who recruits new unnamed workers not previously vetted.
Last fiscal year, 44% of the H-2A jobs that were certified by the Department of Labor’s Office of Foreign Labor Certification (DOL OFLC) were for Farm Labor Contractors (FLCs). The expanded use of FLCs in U.S. agriculture is likely to continue to grow. More and more small family operations, who do not have the capital, housing, and/or human resource expertise, to recruit, transport, house, and feed H-2As, are turning to FLCs to participate in the program. However, they still must have workers in order for their businesses to survive and perhaps be passed along to the next generation.
These fees negatively impact FLCs as well as the FLC’s clients.
Suppose an FLC files a petition for 100 unnamed H-2A workers. The new fee for this petition would be $1,130 (new $530 I-129 fee plus $600 asylum fee = $1,130).
After conclusion of the initial contract, the FLC moves on to the next client and a new contract with the same workers. The FLC’s new fees to move these workers onto the next contract is $6,760 (new $1,090 I-129 fee plus $600 asylum fee = $1,690 multiplied by 4 petitions).
Again, it would be more economically sound for an FLC to send workers already in the U.S. back to their countries of origin and recruit 100 new unnamed beneficiaries. Such an absurd policy outcome would seem to be one that the government would wish to avoid.
The National Council of Farmer Cooperatives objects to the fees contained in this proposal.
Agricultural Employers Should Not be Taxed to Pay the Cost of an Asylum Program
Every American should be proud of the fact that individuals leaving under oppressive or violent regimes see this country as a beacon of liberty and opportunity. America’s farmers and ranchers have long been at the forefront of supplying humanitarian aid and relief to those in need around the globe. However, taxing agricultural employers to fund the government programs that provide shelter for asylum seekers, who may never work on a farm, is placing the burden for these worthy efforts on a sector that can least afford it. The costs for any asylum program should be appropriated by alternative means.
The National Council of Farmer Cooperatives objects to funding the asylum program by taxing users of the H-2A Temporary Agricultural Worker Program.
We appreciate the opportunity to comment on this rulemaking and encourage that it be rejected in its entirety as it relates to agricultural employers.
Sincerely,
Chuck Conner
President & CEO
