by Tamara Scully
The U.S. House of Representatives passed the Farm Workforce Modernization Act on Dec. 11, 2019. The bill now heads to the Senate, where proponents are hopeful that the bipartisan support the bill received in the House will be replicated. The bill, designed to stabilize today’s agricultural workforce and provide for future needs, provides fair wages and working conditions to immigrant farmworkers as well as a path to legal status.
David Runsten, agricultural economist and policy director for the Community Alliance with Family Farmers, a non-profit focused on building resilient family farms, communities and ecosystems, explained what immigration reform over the decades has looked like, what the Farm Workforce Modernization Act (FWMA) entails and why changes to immigrant farm labor laws are desperately needed today. Runsten spoke in a recent webinar presented by the Organic Farmers Association.
It’s estimated that over 50% of farmworkers are undocumented today. The failure of many migrant farmworker programs to tackle serious ag workforce issues over the past eight decades has led to the need for reform today, and often has left farmers without a legal workforce – and workers and farmers alike without stability.
During World War II and continuing into the 1960s, the Bracero Program was a joint U.S.-Mexico agreement that allowed 450,000 Mexican workers (at its 1956 peak) into the U.S. to harvest sugar beets, cotton and produce. It was managed by grower organizations, was riddled with abusive practices and thrown further into disarray after harvesting of many of the crops was mechanized. It also contributed to patterns of illegal immigration still seen today, Runsten said.
Also implemented in the 1940s, the H-2 Program was designed specifically for Caribbean immigrants and East Coast farmers. In 1986, the H-2A and H-2B programs designated different requirements for ag and non-ag workers, with no cap put on the number of ag workers (unlike the annual cap for the H-2B program).
The typical number of H-2A visas granted each season had remained at about 30,000. It skyrocketed to 300,000 as the government scrutiny of illegal immigrants working on farms has escalated over the past few years.
“It’s become the main source of labor for a lot of farming in the USA,” Runsten said of the H-2A Program.
Most H-2A workers today are young males from Mexico, along with some workers from Central America and the Caribbean. These workers are attached to one employer, who “owns” their visa. They cannot change jobs at will, they cannot bring their families and they do not have any path to citizenship.
The Immigration Reform and Control Act of 1986 attempted to curtail the use of undocumented immigrants in agriculture by granting over one million Special Agricultural Workers green cards and legalizing undocumented workers already in the U.S. The Replacement Agricultural Worker (RAW) Program was intended to prevent future shortages of ag labor by granting three years of temporary immigrant status to those working 90 days of agricultural work each year, at which time they could then apply for a green card. But RAW was cancelled in the early 1990s when it was found there was not a shortage of workers. This was the last significant attempt to address immigrant ag workforce needs, Runsten said.
Immigrants and Agriculture Today
The FWMA would legalize undocumented agricultural workers by creating the Certified Agricultural Workers (CAW) visa program. Workers who can prove they’ve worked in farming for at least 180 days over the past two years, and have no felonies and no more than two misdemeanor offenses, would be eligible to apply. For those who are not eligible for CAW at the time of enactment, five years of 100 days per year work in agriculture following the enactment of the bill would be required.
Those who qualified for CAW can apply for a green card if they’ve worked in agriculture for 100 days per year for 10 years after the bill’s enactment, or have worked 100 days per year for eight years under CAW. In addition, income taxes must have been paid when working with a CAW visa. Green cards would not be limited in number for those in the program.
The CAW visa would be renewable every five years as applicants work 100 days in agriculture each year. Workers’ families would be able to stay in the U.S. as well. This visa does not qualify the holder for any government subsidies under the Affordable Care Act or other means-tested assistance program.
“This would probably legalize a significant number of farmworkers,” Runsten said. “They are going to be seen as taking priority over H2-A. If a CAW worker applied for the job, you would have to hire that worker.”
Current undocumented workers who have worked for 100 days in agriculture for the three years prior to bill enactment, but who do not qualify for CAW, would be eligible for H2-A status without leaving the country. Their employer would need to apply. Employers could not be charged with immigration violations by presenting the undocumented employees’ records for consideration.
The FWMA would also include other H2-A reforms. The Adverse Effect Wage Rate would be modified to reflect different categories of farmwork. Wages would be frozen for 2020, and wage increases limited in future years. H2-A reforms would allow for 20,000 year-round workers each of the first three years, with the government to set numbers for following years.
The dairy industry would be entitled to claim up to 50% of the H2-A year-round workers. Visas would be issued for three years and would allow workers to travel to their home countries. Housing must be provided by the farmer, plus one annual trip back home. After three years, these workers must remain outside the U.S. for a minimum of 45 days before being eligible to reenter the H2-A program. H2-A workers would also be protected by the Migrant and Seasonal Agricultural Workers Program.
Included in the bill is an H2-A portable visa six-year pilot program, giving seasonal H2-A workers the ability to move from farm to farm at will, without filing a petition. This would initially be limited to 10,000 workers. These workers could work for any farm employer at will, and that work would count toward eventual legal residency as long as they work 100 days in agriculture each year for 10 years under the H2-A program.
All new hires would need to be run through the E-Verify program, although current workforce laborers would not. More funding for rural housing programs is also included in the FWMA.
Runsten is hopeful these reforms will stabilize the workforce, particularly for organic farmers who require more intensive hand labor and for whom the current H2-A program is often too expensive. A stable farm workforce will benefit all farmers as well as the workers and their families.
“Because farmworkers have been getting older and older, figuring out how we are going to have a future flow of farmworkers seems to me to be the central question,” Runsten said.