Bills
| 3.23.22

Should a Merit-Based Visa be Established Specifically for the U.S. Agriculture Sector? (H.R. 1603)

Do you support or oppose this bill?

What is H.R. 1603?

(Updated August 12, 2021)

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. 


Securing the Domestic Agricultural Workforce

Under the bill, the Dept. of Homeland Security (DHS) could grant CAW status to an applying non-citizen who worked at least 180 days in agriculture over the last two years. CAW status could be renewed indefinitely with continued farm work (at least 100 days per year). Applicants, including spouses and children, would be required to undergo background checks and pass strict criminal and national security bars. Long-term workers and who want to stay would be able to earn a path to a green card by paying a $1,000 fine and engaging in additional agricultural work:

  • Workers with 10 years of agricultural work prior to this bill’s enactment would be required to complete four additional years of agricultural work; and
  • Workers with fewer than 10 years of agricultural work prior to this bill’s enactment would be required to complete eight additional rolls of agricultural work.


Ensuring an Agricultural Workforce for the Future

This bill would reform the H-2A temporary agricultural workforce program to give employers more flexibility while also ensuring critical protections for workers. To streamline the H-2A visa process, this bill would:

  • Consolidate the H-2A filing process through an electronic platform in which all agencies can concurrently perform their adjudicatory responsibilities;
  • Allow most employers to provide a single petition for staggered seasonal labor needs;
  • Transition recruitment from newspaper advertisements to electronic job postings; and
  • Reduce costs associated with visa processing by giving H-2A workers three-year visas.

To reform H-2A wages to better reflect real-world wages and protect against sudden wage increases that disrupt employer planning and operations, this bill would:

  • Disaggregate wages for various agricultural operations (e.g., crop workers, livestock workers, machine operators, etc.);
  • Freeze wages for one year and cap wage fluctuations for most of the U.S. at 3.25% for the next nine years;
  • Authorize rulemaking to establish new wage standards after year 10; and
  • Eliminate mid-contract wage fluctuations.

To accommodate the need for workers in year-round agriculture, this bill would:

  • Provide up to 20,000 H-2A visas a year (for three years) for dairy and other year-round agricultural employers;
  • Allow the year-round H-2A cap to increase or decrease annually thereafter based on labor metrics or increase based on an emergency determination of a significant labor shortage and give the Secretary of Labor and Secretary of Agriculture the authority to determine whether to establish a numerical cap after 10 years; and
  • Increase the number of green cars available for employer sponsorship while creating a way for workers to self-petition for green cards after 10 years of H-2A service.

This bill would also establish a Portable Agricultural Worker (PAW) pilot program to facilitate the free movement and employment of up to 10,000 H-2A workers with registered agricultural employers. Registered employers would be able to employ individuals with PAW status without needing to file petitions first.

This legislation would also improve the availability of farmworker housing and lower employer costs associated with housing by:

  • Preserving existing housing stock, including by adopting the Strategy and Investment in Rural Housing Preservation Act, which authorizes $1 billion to rehabilitate housing that is aging out of USDA incentives programs;
  • Incentivizing new housing by increasing funding for USDA section 514 and 516 rural housing loan and grant programs, as well as funding for the section 521 rental assistance program;
  • Increasing the USDA per-project loan limitation; and
  • Granting operating subsidies to 514/516 property owners who house H-2A workers.

This legislation would also adopt prior compromises to expand the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) to cover H-2A workers (therefore reducing the need for litigation and effectively requiring mediation to resolve differences). Finally, it would establish a program to register and provide oversight over foreign labor recruiters engaged in the recruitment of workers for the H-2A program.


Electronic Verification of the Agricultural Workforce

This section of the bill would establish a mandatory nationwide E-Verify program for all agricultural employment, phased in after all legalization and H-2A reforms have been implemented. This program would include necessary due process protections for authorized workers who the system incorrectly rejects.

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. 1603

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Sponsoring Rep. Zoe Lofgren (D-CA) reintroduced this legislation from the 116th Congress to create a workforce solution for the United States’ agriculture industry by providing stability, predictability and fairness to this sector’s employees 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 agricultural sector:

“The men and women who work America’s farms feed the nation. But many of them do so while living and working in a state of uncertainty and fear, which has only been heightened by the COVID-19 pandemic. Stabilizing the workforce will protect the future of our farms and our food supply. The Farm Workforce Modernization Act accomplishes this by providing a path to legal status for farmworkers and updating and streamlining the H-2A temporary worker visa program while ensuring fair wages and working conditions for all workers. I look forward to working with my colleagues on both sides of the aisle and in both Houses of Congress to get this bipartisan legislation that serves the best interests of our country to the President’s desk.”

In the previous session of Congress, Rep. Lofgren said: 

“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.”

Lead Republican cosponsor Rep. Dan Newhouse (R-WA), who also cosponsored this legislation in the 116th Congress, adds:

“‘American agriculture is desperately in need of a legal, reliable workforce. The Farm Workforce Modernization Act is a solution – negotiated in good faith by agriculture groups, labor representatives, and Members on both sides of the aisle – that will do just that,” said Rep. Dan Newhouse. “As one of only a few farmers in Congress, I understand the invaluable contributions our producers and farmworkers make to our nation’s unparalleled agriculture industry. Bringing our agriculture labor program into the 21st century is absolutely critical as we work to recover from the impacts of the pandemic and ensure a stable food supply chain in the United States. We must act now to provide certainty to farmers, ranchers, and farmworkers across the country.”

The United Fresh Product Association supports this legislation in the current session of Congress. Its President and CEO, Tom Stenzel, says this bill: 

“(I)s a testament to the efforts of the agriculture industry and our friends in labor and of course to the bipartisan members of Congress who are supporting this legislation. There remains work to be done to address our industry’s labor challenges, but this bill is an integral first step towards achieving our ultimate goal. United Fresh Produce Association and its members have pushed for this reform for many years, and we look forward to working with Congress and the administration to make it a reality.”

United Farmworkers supported this bill in the 116th Congress, arguing that it is needed to meaningfully improve immigrant field laborers’ lives. Arturo S. Rodriguez, President Emeritus of United Farmworkers & Spokesperson of UFW Foundation, said:

“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 supported this bill in the 116th Congress out of the belief that it 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 in the 116th Congress, 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) during the 116th Congress, 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, opposed this bill in the 116th Congress, as it believed that it doesn’t provide enough protections for farm workers. It objected 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 said: 

“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 argued during the 116th Congress that this bill is a “Trojan horse for beleaguered farm workers” that “provides, at best, temporary status indefinitely.” In a statement, it said: 

“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 last Congress, 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?” 

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.”

This legislation has 21 bipartisan cosponsors, including 11 Republicans and 10 Democrats, in the 117th Congress. In the 116th Congress, this legislation passed the House by a 260-165 vote with the support of 62 bipartisan cosponsors, including 37 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)