Episode 82: C’est La Visa! Paris Olympics and H-2A insights

This episode of the BAL Immigration Report is brought to you by BAL, the corporate immigration law firm that powers human achievement through immigration expertise, people-centered client services and innovative technology. Learn more at BAL.com.

In this week’s episode, we examine the American Immigration Council’s recent H-2A report, discuss the recently enacted Farmworker’s Protection Rule and provide an overview of the Biden administration’s Spring regulatory agenda.

Also, as we prepare for the Olympics opening ceremony in Paris next week, a member of the U.S. Olympic and Paralympic Committee shares what it takes to get Team USA to the games.

From Dallas, Texas, I’m Rebecca Sanabria.

Spotlight

The American Immigration Council, a litigation advocacy branch of the American Immigration Lawyers Association, published a recent report on The Expanding Role of H-2A Workers in U.S. Agriculture.

In response to the report, Ashley Foret-Dees, a BAL partner in the Houston office, shared how new regulations and compliance challenges will impact employers who start to rely more on the H-2A program.

Ashley: What the report leaves out is taking a look at what employers are doing. You know what employers have to do to comply with the program, such as provide water stations, for example.

It doesn’t really talk about the extensive compliance regulations that an H-2A farm worker and employer are under. So, I think that would be a great addition to this report to understand the extensive compliance that an H-2A farm worker owner, farm owner or manager is under in order to comply with the program, because we do have a substantial amount of people in the United States working under this program. And those employers are held to very high standards and compliance.

H-2A employers really are faced with a lot of compliance regulations and it is a complicated program to be in for a small employer.

Employers are under heightened regulations. They have federal, state and local regulations to comply with with this program and in agriculture in general.

And on top of that, regulations that have to do with the visa. So, you know, one of the things this report doesn’t talk about is when an employee does come in the U.S. to work in a southern U.S. state that is very hot in the summer. What are those regulations? What compliances does the employer have? What responsibilities does the employer have to help those workers? What does the compliance look like? Providing water, providing shade.

Rebecca: Foret-Dees touches on the compliance regulations H-2A employers will face under the new Farmworker Protection Rule which aims to improve protections for temporary agricultural workers in the U.S. and empower workers to advocate for themselves regarding their working conditions.

I’ve worked with H-2A employers for 15 years and many do want to comply with the regulations. And they want to have a successful season, a successful harvest, a successful planting season, for example. And so we are still helping our employers understand the farmworker protection rule.

It will go into effect for employers who file in the H-2A program. It goes into effect for those filings that will be filed at the end of August. And so that affects most employers with a November start date of 2024 and beyond.

So, employers that have H-2A workers in the country right now, the summer of 2024, are not quite under this new regulation. So, we are trying to chat with our employers and make sure they understand the new heightened compliance regulations.

Rebecca: To address the labor shortage problem discussed in the report, Foret-Dees offers several suggestions.

The AIC American Immigration Council H-2 report makes a conclusion to say that we should develop comprehensive policy solutions to address labor shortages. First, I do believe that keeping the H-2A agricultural program cap exempt is a great way to address those shortages because we don’t limit the number of agricultural workers coming into the United States. Another thing we could look at as well is looking at the visas that are related to agriculture. And increasing those caps for those industries.
A third thing we could look at is there are many farm workers under the H-2A visa that enter the country for, you know, every year for the planting season or for the growth season. And an employer might want to sponsor that person for permanent residency or green card.

The wait lists for those green cards, that permanent residency is lengthy. And so that would be a great change to policy and change to regulation, where if we are sponsoring someone for a permanent position in the agricultural realm, such as a farm manager. Let’s look at ways to add additional visa numbers for those types of positions so that an employee may then finally immigrate to the United States permanently with their family and get into these positions of farm management and year-round farm work. For example, that a lot of our aging farm population needs.

I think something that we can do to update our policy solutions and address labor shortages is to recognize that there’s another H-2 category. The H-2B category is for technically non-agricultural workers.

However, many employers in the agricultural space that produce our seafood, that process our plants, that drive our agricultural commodities around the country and deliver them. Those employers use a different program, H-2B. That program is capped. And so, looking at that program, increasing that cap would absolutely help.

Rebecca: For more insights on H-2 visas and how they can provide a non-political solution to the labor shortage, read Ashley Foret Dees and Jeff Joseph’s article, “A Humane and Economic Solution to the U.S.-Mexican Border Situation: H-2 Visas,” on Law360.com.

The 2024 Summer Olympics are a week away.

In the spirit of this international event, over the next few weeks we’ll be including Olympic-themed segments with an immigration focus.

This week, we kick off the series with a segment called C’est La Visa where we learn what it takes to get TEAM USA’s coaches and athletes to the Olympics.

Listen in as Gabriel Castro, head of BAL’s sports and entertainment practice, speaks with David Francis about his linchpin role with the U.S. Olympic and Paralympic Committee.

Gabriel: David, thank you so much for joining us today. What is it you’re doing for the Olympics? What does that mean in a day-to-day basis?

David: I engage with a lot of federal government stakeholders, so various agencies. For me specifically, I do a lot of work with Department of Homeland Security and the State Department.

We engage with the White House on several issues and there’s a lot of policy issues that we deal with Congress. My role is focused on advocating for our interests, which is finding, hopefully getting policies that can help streamline processes where we can bring more sporting events to the United States. We can make it a friendlier environment to bring athletes and coaches to the US for competitions.

Gabriel: What does it look like when we’re sending our Team USA abroad?

David: It’s a very complex process. There’s the moving people and things in and out of a country. So right now, our games operations team is engaging in doing all of the. We just did our packout, we call it our packout, where we have to get all the equipment onto our cargo ships, send it over to France. That process starts really early.

For me specifically, I work with the U.S. embassies in the host country. They have an office, what they call the Olympic and Paralympic Coordination Office. Within that, there are people from the State Department who are specifically assigned to managing everything related to the games.

My role is to make sure that State is aligned with the USOPC. We’re unique in the sense that we’re going to bring 650 athletes on the Olympic side with a support staff of 1,200 individuals. On the Paralympic side, we’ll bring a team between 250 and 275 athletes, and then another 500 support staff.

The other part of what I do, which is a little bit more visible, is we manage the White House presidential delegations that attend the games.

If you think of when you’re watching the opening ceremony, you look up and the camera will pan to the dignitary section. You’ll see heads of state and other dignitaries sitting in a stand of honor. My team here, we manage that process.

Gabriel: Tell us a little bit about where your work crosses over with immigration, whether it’s either here in the U.S. or over there. What types of immigration issues are you seeing?

David: Often, we’ll have, just from a basic fundamental perspective, we have a lot of foreign coaches who coach for Team USA. We have natural visa, work visa issues. We have a lot of coaches who are on O-1 visas. We do a lot of work in that space here.

One of the more interesting areas is, as we approach the games, we have foreign national athletes who compete for Team USA because they’re green card holders. As the games approach, they may recognize that they’re within three months of naturalization. That deadline will fall after the games begin.

We get questions about, can they expedite their citizenship so that they can be eligible for the Olympic Games? You can compete for Team USA in international competitions as a green card holder. In a lot of sports, it’s all determined by the International Federation. When it comes to the Olympic Games or the Paralympic Games, you have to be an actual citizen and have a passport.

Gabriel: If they request expedited processing on their citizenship, is that commonly approved?

David: Actually, no. The question will come in, I’m going to be four months short. Because I’m an athlete, is there a national interest expedite process? There is, technically. It is known as a private immigration bill. You have to find a member of Congress to sponsor that bill, and then it has to pass both chambers.

What we’ve learned, and having gone through this exercise at least three or four times in the last six years, is that there is no appetite in Congress for private immigration bills. In fact, this happened one time in 2006 for an athlete who was actually granted expedited citizenship. The House Judiciary Committee was so upset with the fact that this process was used for athletic purposes, that they wrote it into their committee rules that private immigration bills cannot be used for the purposes of competing at the Olympic or Paralympic Games.

Gabriel: Right. I remember researching that issue and running into the same result for a water polo player a few years back.

David: We always have interesting cases that pop up at the Games sometimes with coaches. I mentioned we have a lot of foreign national coaches on O-1 visas.

Occasionally, they’ll get stuck in countries, not realizing that they needed to re-validate their visas. This is their first time traveling since their O-1 expired. It’s a little bit of a fire drill when they arrive at the airport and realize, oh, I cannot board my flight.

Gabriel: Is it common in the host city of the Olympics for that consulate to start getting very busy and making it much more difficult for visa appointments to come by? For the general public, of course, not the people with the exceptions.

David: It depends on where it is. For example, I know that the U.S. Embassy in Paris has had a little bit of an uptick in visas. It’s not for an obvious reason. It’s because Tahiti is hosting surfing. For a lot of the world to get to Tahiti, they have to go through the United States. I think it’s a good travel route. I think there’s just more available flights.

We actually flagged that for the consular section. They were able to set aside appointments specifically for athletes and staff who are going to be competing in surfing, so that they can transit through the United States to get to Tahiti.

We have a good relationship with the consular section at the embassies. It’s part of the reason why we prepare in advance, so that we can solve those issues quickly. It matters because sometimes these coaches, what most people don’t realize is the Olympics or the Paralympics happen, and then right afterward, they’re off to their next competition.

It’s important that we have the ability for our coaches and our athletes to be able to travel around the world.

Top immigration news  

And now, the top immigration news of the week.

According to the recent publication of the Spring 2024 regulatory agenda, the Biden administration has the H-1B modernization rule and adjustment of status proposal targeted for publication by the end of 2024.

The next step toward Schedule A reform, in which the Department of Labor will complete analysis of public comments, is expected to occur in August.

And final action on modernizing H-2 programs that concern seasonal and temporary workers is targeted for November 2024.

BAL continues to monitor progress on the regulatory agenda and will provide clients with updates on individual regulations as they move through the rulemaking process.

Find all of our news at BAL.com/news. Follow us on X at @BAL_Immigration. And sign up to receive daily immigration updates in your inbox at BAL.com/newsletter.

We’ll be back next week with more insights from the world of corporate immigration.

I’m Rebecca Sanabria. Thanks for listening.

Copyright

The BAL Immigration Report is provided by BAL. Copyright 2024 Berry Appleman & Leiden LLP. All rights reserved. Digital redistribution to the public is permitted only with express written permission of Berry Appleman & Leiden LLP. This report does not constitute legal advice or create an attorney-client relationship. Visit bal.com for more information.