Bills
| 3.23.22

Should a Merit-Based Visa be Established Specifically for the U.S. Agriculture Sector? (H.R. 5038)

Do you support or oppose this bill?

What is H.R. 5038?

(Updated May 13, 2020)

This bill — the Farm Workforce Modernization Act of 2019 — would provide a compromise solution for U.S. agriculture by making meaningful reforms to the H-2A agricultural guestworker program and creating a first-of-its-kind, merit-based visa program specifically designed for the U.S. agricultural sector. It contains provisions related to non-citizen farmworkers, including provisions establishing a certified agricultural worker (CAW) status and changing the H-2A temporary worker program, which are described in greater detail below. 

Under the bill, the Dept. of Homeland Security (DHS) could grant CAW status to an applying non-citizen who: 1) performed at least 1,035 hours of agricultural labor during the two-year period prior to October 30, 2019, 2) was inadmissible or deportable on that date, and 3) had been continuously present in the U.S. from that date until receiving CAW status. The bill would impose additional crime-related inadmissibility grounds on CAW applicants and makes some other grounds inapplicable. Once granted, CAW status would be valid for 5.5 years and may be extended. DHS could grant dependent status to the spouse or children of a principal non-citizen. A non-citizen with a pending application couldn’t be detained or removed by DHS and shall be authorized for employment until DHS makes a final decision on the application. 

A CAW non-citizen (and their dependents) would be able to apply for lawful permanent resident status after meeting various requirements, including performing at least 575 hours (or 100 work days) of agricultural labor for at least 10 years before this bill’s enactment and another four years after that; or for fewer than 10 years before this bill’s enactment and at least eight years after that.

Those with CAW or CAW dependent status would be considered lawfully present in the U.S. for all purposes. However, they would be ineligible for certain means-tested public benefits, tax benefits, and healthcare.

DHS would be charged with creating an electronic platform for 1) filing H-2A petitions, 2) facilitating the processing of H-2A cases, and 3) providing agencies a single tool for obtaining H-2A-related case information. Additionally, the Labor Secretary would be responsible for maintaining a national, publicly-accessible online job registry and database of all job orders submitted by H-2A employers.

This bill would also make various changes to the H-2A program, such as: 

  • Modifying the method for calculating and making adjustments to the H-2A worker minimum wage; 
  • Specifying how an employer may satisfy requirements that it attempted to recruit U.S. workers; 
  • Requiring H-2A employers to guarantee certain minimum work hours; and 
  • Making the program available for year-round agricultural work and reserving a visa allocation for the dairy industry. 

DHS would be responsible for establishing a pilot program allowing certain H-2A workers to apply for portable status, which gives the worker 60 days after leaving a position to secure new employment with a registered H-2A employer. It would also be responsible for establishing an electronic system based on the E-Verify Program for employers to verify an individual's identity and employment authorization. Employers hiring individuals for agricultural employment must use the system.

This bill would also permanently establish the Housing Preservation and Revitalization Program to provide financing assistance for rural rental housing and off-farm labor housing and rental assistance for qualified tenants of such housing. It would also authorize the Dept. of Agriculture to provide various assistance, including funding for insuring loans and grants for new farmworker housing, to the program.

To assess this bill’s effects, the Secretaries for Labor and Agriculture would be charged with making a determination as to whether it has an adverse effect on the domestic workforce in 2029.

Argument in favor

American agriculture is suffering due to a lack of labor, particularly due to the Trump administration’s crackdown on illegal immigration and a decline in the domestic agriculture workforce. It’s urgent for Congress to reform agriculture worker visas to enable American farmers to get the workers they need to stay operational. While this bill is imperfect, it’s an improvement on the status quo in terms of worker protections.

Argument opposed

This bill would potentially provide amnesty to millions of unauthorized immigrant farm workers who broke the law by entering the U.S. illegally. From farmers’ perspective, this bill fails to address certain issues that farmers care about, such as reducing labor costs. From farm workers’ perspective, this bill fails to provide meaningful reform and labor protections for farm workers.

Impact

U.S. agriculture industry; farms; farmers; farm workers; guest worker program for farm workers; and H-2A visas for farm workers.

Cost of H.R. 5038

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Sponsoring Rep. Zoe Lofgren (D-CA) introduced this bill to provide a compromise immigration solution for American agriculture: 

“The men and women who work America’s farms feed the nation. But, farmworkers across the country are living and working with uncertainty and fear, contributing to the destabilization of farms across the nation. Our bill offers stability for American farms by providing a path to legal status for farmworkers. In addition, the Farm Workforce Modernization Act addresses the nation’s future labor needs by modernizing an outdated system for temporary workers, while ensuring fair wages and workplace conditions.”

Original cosponsor Rep. Dan Newhouse (R-WA) adds: 

“When I speak to farmers and ranchers across the country, labor is often their number one concern. Our nation’s agriculture industry is diverse and flourishing, but producers are in desperate need of a legal and reliable workforce. As a third-generation farmer, I understand the invaluable contributions made by farmworkers to American agriculture, and we must modernize our guestworker program to work for farmers, ranchers, and farmworkers in the 21st Century.  The Farm Workforce Modernization Act offers a strong, bipartisan workforce solution to provide certainty to both farm owners and workers through an accessible, employment-based program. This bill is the solution our agricultural industry needs.”

United Farmworkers supports this bill, which it argues is needed to meaningfully improve immigrant field laborers’ lives. Arturo S. Rodriguez, President Emeritus of United Farmworkers & Spokesperson of UFW Foundation, says:

“After months of negotiations, the UFW and UFW Foundation are enthusiastic about passing legislation that honors all farm workers who feed America by creating a way for undocumented workers to apply for legal status and a roadmap to earn citizenship in the future without compromising farm workers’ existing wages and legal protections. Understanding that compromise is required to meaningfully improve the lives of immigrant field laborers, it is our hope this will be the first time the House of Representatives, under the leadership of either party, will approve an agricultural immigration bill.”

Western Growers supports this bill, which it believes will provide reliable labor to the American agriculture industry through both the retention of experienced workers and a steady flow of guest workers: 

“The Farm Workforce Modernization Act addresses two critical needs for American agriculture – to retain existing, experienced workers and to ensure a reliable future flow of guest workers. Furthermore, after a satisfactory transition period, the bill includes E-Verify for agricultural employers, demonstrating the commitment our industry has made toward a long-term labor solution. The introduction of this bill, which is the product of many months of dedicated work and careful negotiation between legislators, staff, and key stakeholders, constitutes an agreement that few thought was possible… The Farm Workforce Modernization Act has the resounding support of the agriculture community, and contains principles that have historically received backing on both sides of the aisle. We, along with our Congressional champions and partners in the Agriculture Workforce Coalition, commit ourselves to moving the Farm Workforce Modernization Act forward this legislative session.”

After this bill’s committee passage, Western Growers president and CEO Tom Nassif said in a statement: 

“Throughout the U.S., agriculture is experiencing a critical shortage of labor that jeopardizes our ability to continue producing an abundant, safe and affordable domestic food supply. Securing a reliable and skilled workforce is critical to the future viability of America’s family farms. By protecting existing, experienced farm workers, and streamlining the agricultural guest worker program to provide a more accessible, predictable and flexible future flow of labor, the Farm Workforce Modernization Act contains real solutions to the labor crisis facing the industry. This bipartisan bill, which has 29 Democratic and 23 Republican co-sponsors, has been carefully crafted through a series of difficult stakeholder-driven negotiations, and has garnered the widespread support of nearly 300 agricultural organizations across the country, as well as the U.S. Chamber of Commerce and farm worker unions. While the Farm Workforce Modernization Act is not perfect, we remain committed to working through the legislative process to address our outstanding concerns, and encourage to Speaker to bring this bill before the House floor for a vote as soon as possible.”

In a joint letter to House Speaker Nancy Pelosi (D-CA) and Minority Leader Kevin McCarthy (R-CA), over 300 agriculture groups expressed support for this bill. They wrote: 

“As foreign producers take advantage of our labor shortage and gain market share, America will export not only our food production but also thousands of these farm-dependent jobs. Securing a reliable and skilled workforce is essential, not only for the agriculture industry but for the U.S. economy as a whole… The House must pass legislation that preserves agriculture’s experienced workforce by allowing current farm workers to earn legal status. For future needs, legislation must include an agricultural worker visa program that provides access to a legal and reliable workforce moving forward.”

CATA - The Farmworkers Support Committee, a nonprofit organization founded by migrant farmworkers to advocate for better working and living conditions for farm workers, opposes this bill, as it believes it doesn’t provide enough protections for farm workers. It objects to three key parts of this bill, namely: 1) the limited pathway to immigration status it provides, which is only available to some farmworkers; 2) the expansion of the H-2A program without better worker protection guarantees in its structure; and 3) the mandatory use of E-Verify, which CATA believes would “cause chaos in rural communities” and further displace and discriminate against farm workers. Given these concerns, CATA says: 

“After conversations with CATA members, CATA has decided to oppose the [Farm Workforce Modernization Act of 2019] as proposed. This bill, divided into three sections, holds the potential to drastically alter the current agricultural labor force, creating a vulnerable workforce of mostly non-citizen, temporary workers that employers can easily control. This proposed bill does not include the right to organize for farmworkers, does not provide for any job security, and ties farmworkers ability to qualify for a legal immigration status to an obligation to keep working in agricultural for many years to come…  CATA’s values have always led us to commit our support to piecemeal immigration reform legislation only if it meant those who qualify could benefit without penalizing other members of our community. There was a broad agreement across our organizational membership that this bill did not meet that criteria. We agree that the H-2A program needs to be revised with stronger worker protections and that providing a path to a legal immigration status for farmworkers is a step in the right direction, but not at the expense of other farmworkers and the immigrant community. We understand that considerable effort was put into negotiating these reforms, however, they come up short for CATA and its membership.”

Likewise, Familias Unidas por la Justicia argues that this bill is a “Trojan horse for beleagured farm workers” that “provides, at best, temporary status indefinitely.” In a statement, it says: 

“We see that big concessions have been made, ones that are against our principles in organizing and human rights. We will not give up the right nor will we accept agreements that give more power to growers. We deserve something better, and we will not bargain our means of living for an exploitative and racist system that will become more permanent. We support the ability and rights of workers to negotiate in their own name. Familias Unidas por la Justicia and our members will continue the struggle for farmworkers in solidarity with all the workers of the world. We, therefore, do not in good conscience support the Farm Workforce Modernization Act of 2019.”

In this bill’s markup in the House Judiciary Committee, Republican members offered a number of amendments that were voted down by large margins, with all Democratic committee members opposing the amendments. The amendments were focused on such as wages, the legalization program, and workers’ access to legal remedies, and reducing other key worker protections. Reps. Lofgren, Jerry Nadler (D-NY), and Jamie Raskin (D-MD) offered strong arguments against the Republican amendments.

Ranking Member Doug Collins (R-GA) said this bill doesn’t do enough to help farmers. He also criticized its provisions that benefit unauthorized workers (this was a crucial issue for Democrats in crafting the bill), saying “This bill opens the door to a massive giveaway”. Collins also contended that there’s no way to know how many people would be put on a pathway to citizenship under this bill, said it shortchanges meat and poultry producers, and took issue with its failure to provide long-term stability for wage rate determinations.

In response to Rep. Collins’ complaints, Rep. Lofgren defended the path to legal status for existing workers, arguing that it’s only right for people who have worked in the U.S. in agriculture to have a path to legal status.

To Rep. Collins’ final point, Dan Fazio, executive director of farm labor association Wafla (the largest provider of H-2A visa guest workers in the West), says this bill doesn’t do enough to rein in rising labor and housing costs. In a letter, Fasio wrote that Wafla “strongly opposes” this bill due to its inability to lead to a “workable future flow” of workers for labor-intensive agriculture. In a November 18, 2019, email to Wafla members, Fazio also called this bill “mean-spirited and anti-farmer” due to issues such as the bill sponsors’ refusal to add a provision allowing farmers to charge foreign workers for housing. In his email, Fazio wrote: 

“How is it fair that a farmer who petitions workers for H-2A visas must provide free housing while a landscape company bringing workers in to mow lawns in King County, Wash., can charge workers who are here with an H-2B visa?” 

Similarly, National Council of Agricultural Employers president and CEO Michael Marsh agrees that this bill doesn’t reduce labor costs enough and cites concerns about housing costs. However, Marsh believes that this bill can be amended — if not in the House, then in the Senate.

The Federation for American Immigration Reform (FAIR) opposes this bill as “massive farmworker amnesty”: 

“This bill will amnesty over 1.5 million illegal alien farmworkers, expand the H-2A program, add 40,000 green cards to the EB-3 category, and mandate E-Verify across the agriculture sector. Additionally, despite its flashy name, this bill does nothing to modernize the agricultural workforce. Instead of encouraging the adoption of time- and cost-saving technology, this bill focuses on amnestying millions of alien farmworkers and giving them a path to citizenship… The Farm Workforce Modernization Act is a naked attempt at amnesty. This bill would amnesty over 1 million illegal aliens and encourage further illegal immigration. Further, the bill would place the amnestied aliens in a strange indentured servitude limbo period, tying them to agriculture for years using a restricted work permit and promising a path to citizenship. For these reasons, FAIR opposes the bill and will work to stop its progress in the House of Representatives.”

The White House hasn’t commented on this bill yet.

This legislation passed the House Judiciary Committee by an 18-12 party-line vote with all Democrats present voting in favor. It has the support of 53 bipartisan House cosponsors, including 28 Democrats and 25 Republicans.

A number of farmworker and agriculture groups support this legislation. They include Farmworker Justice, United Farmworkers, National Milk Producers Federation (NMPF), the National Coalition of Farm Cooperatives, the National Council of Agricultural Employers (NCAE), United Fresh, California Farm Bureau Federation (CFBF), AmericanHort, National Council of Farmer Cooperatives (NCFC), U.S. Apple Association, and others. The United States Conference of Catholic Bishops (USCCB) also supports this legislation.

David Bier, a policy analyst at the Cato Institute, says Republicans — particularly those with large agricultural interests in their constituencies — may vote for this bill if no other alternatives appear. “Unless there is another place for Republicans to land, it’s going to be very attractive to dozens of House Republicans to vote for this bill,” he observes. “Right now, there isn’t an alternative. They’ll either vote with the farmers or against them.”

Past efforts to pass farm labor reform, including a Republican proposal in 2018, have died after getting entangled in broader immigration reform legislation. Consequently, Congress hasn’t passed agriculture labor reform legislation in 30 years.


Of Note: New American Economy — which supports this bill — finds that supporting immigrant farm workers would have a range of benefits. Primarily, it would fill crucial gaps in the agricultural labor force that aren’t met by U.S.-born workers (from 2002-2014, the number of full-time field and crop workers dropped by at least 146,000 people, or more than 20%, creating a major labor shortage on U.S. farms). It would also bolster America’s ability to produce labor-intensive fruits, vegetables, and tree nuts, adding $3.1 billion to the economy’s annual output. This $3.1 billion in additional farm product would expand related non-farm industries (such as trucking, marketing, and equipment), adding another $2.8 billion in added spending on related services and creating over 41,000 non-farm jobs each year.

The U.S. agricultural industry has relied on immigrant labor for decades, dating back to the Bracero Program in the 1940s, which allowed millions of Mexicans to enter the U.S. as farm workers. In the 1990s, there was another large influx of unauthorized workers before a slowdown that began around 2008 and left agricultural employers unable to replace an aging workforce.

The H-2A visa, which allows U.S. employers or U.S. agents that meet specific regulatory requirements to bring non-citizens to the U.S. to fill temporary agricultural jobs, is the current visa used to bring agricultural guest workers to the U.S. These visas are granted for up to a year, and can be renewed in increments of up to a year, up to a maximum stay of three years. After a person has held H-2A nonimmigrant status for thee years, they have to depart and remain outside the U.S. for an uninterrupted period of at least three months before seeking readmission as a H-2A nonimmigrant. 

The H-2A program’s use has risen from 139,832 visas in 2015 to 257,667 in 2019. By comparison, the program only issued 11,000 visas in 1996. In 2017, about 55% of H-2A workers were found in only five states: North Carolina, Washington State, Florida, Georgia and California


Media:

Summary by Lorelei Yang

(Photo Credit: iStockphoto.com / NNehring)