1. Temporary and Seasonal Labor and Other Issues

2. Topics
H-2A and H-2B Foreign Labor Certification Programs: The advantages and challenges of foreign labor certification
Syngenta Corn Case
Drift Cases

3. Seasonal Workers: Governing Law
Immigration and Nationality Act of 1965, as amended (INA).
U.S. Dept. of Labor provides certification to employers of conditions forcing them to hire foreign workers in order to bridge qualified and skilled labor gap in certain business areas.
U.S. Customs and Immigration Service oversees applications for foreign workers.

4. Overall Process
Employer files a temporary labor certification (TLC) with the Department of Labor
After receiving approval of TLC, employer files worker petition with USCIS.
Foreign workers apply for visas at U.S. consulate in their home country.

5. Agriculture: H-2A
H-2A Certification for Temporary or Seasonal Agricultural Work.
No annual cap on total number of H-2A workers
Qualifying criteria:
Anticipated shortage within local workforce.
Work must be of a “temporary or seasonal nature”: less than one year
Successful completion of application process and job advertising requirements.

6. H-2A (Continued)
Workforce stability, should be your goal. It isn’t a way to get “cheap” labor.
DOL assigns a prevailing wage rate for the region (Arkansas 2016: $10.69/h)
Application process is onerous and time consuming.
Process is at a minimum 45 days from date of need. Start earlier than that in application preparation

7. H-2A (Cont.) Other Requirements
Must attempt to recruit local workforce (newspaper, radio, etc.)
Must provide workers comp insurance or equivalent.
Must require free housing
Provide adequate kitchen facilities or meals (may charge for meals)

8. Non-Agriculture: H-2B
66,000 annual cap on total number of H-2A workers
Qualifying criteria:
Anticipated shortage within local workforce.
Work must be of a “temporary or seasonal nature”: less than one year
Successful completion of application process and job advertising requirements.
Non-agriculture (landscaping, food processing, etc.)

9. H-2B (Continued) At least 120 days to complete.
Application must not be filed more than 90 days and not less than 75 days prior to date when workers are needed
Like H-2A, Employer must attempt to recruit local workforce prior to DOL application.
Process is long and cumbersome.

10. Seasonal Worker visas – challenges
A sampling of required forms:
DOL has held up applications to make a determination on whether or not production agriculture is seasonal
Applications not submitted as early as possible
Worker issues

11. Other Issues
New Administration – committed to an aggressive stance on illegal immigration issues. How will this impact legal immigration?
Divided Congress on legal immigration
Some want to streamline and improve legal immigration
Others want to restrict seasonal and other immigrant labor.

12. Syngenta Corn Lawsuit Update:
In November of 2013, China began rejecting U.S. corn shipments because they found the MIR162 genetic trait, found in Syngenta Agrisure Viptera and Agrisure Duracade.
The trait had been previously approved in the U.S. but had not yet been approved in China.
The lawsuit alleges that Syngenta knowingly sold seed prior to approval by China, a major export market for corn.
Plaintiff farmers claim $5-7 Billion in damages.
A U.S. District Court Judge approved a motion to certify the litigation as a class action in September of this year.
The case will proceed to trial in mid-2017.

13. Dicamba Related Legal Issues
Largest grower in Missouri has filed suit against Monsanto.
Claims Monsanto is responsible for wide-spread crop damage caused by off-label use of herbicides.
Xtend crops were approved in 2015, but new version of dicamba (XtendiMax) wasn’t approved by EPA until November.
Creates difficulty for farmers of non-gmo soybeans and other crops near Xtend fields.

14. Dicamba related (cont.)
Some farmers claim that introduction of Xtend and approval of accompanying herbicide will force them to grow Xtend as an insurance policy against future crop damage.
AR Plant Board significantly restricted use for 2017
Issue is far from settled. Expect more discussion and the potential for additional lawsuits.

15. Questions?