Bipartisan Bill Proposes Legalizing Foreign Farmworkers, Requiring E-Verify

Compromise legislation also proposes raft of H-2A visa reforms

Roy Maurer By Roy Maurer November 11, 2019
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​Update: The House Judiciary Committee approved the legislation on Nov. 21. Some Republicans and the American Farm Bureau Federation are opposing it. The bill is considered a longshot in the Senate.

A bipartisan bill recently introduced in the House of Representatives would offer legal status to hundreds of thousands of undocumented foreign national farmworkers and require the use of E‑Verify among agriculture employers.

The Farm Workforce Modernization Act would also make a number of reforms to the H-2A visa program for temporary agricultural workers, changing how wages are determined and adding new, three-year temporary visas and additional green cards to meet year-round labor needs.

Currently, the H-2A program allows agricultural employers to hire foreign guest workers for temporary or seasonal jobs up to one year at a time.

"Farmworkers across the country are living and working with uncertainty and fear," said Rep. Zoe Lofgren, D-Calif., one of the bill's original co-sponsors. "About half or more of our farmworkers in America lack documentation, and … we've had substantial input from the ag sector that there's concern they'll lose their workforce entirely. This plan will allow the undocumented farm workforce to gain lawful status and to live stable lives, [and it] … addresses the nation's future labor needs by modernizing an outdated system for temporary workers while ensuring fair wages and workplace conditions."

Lofgren believes that the bill's bipartisan support gives it a better chance of passage. Forty-five Congress members from both sides of the aisle have signed on to co-sponsor the legislation.

It also has the support of labor and employer groups and the U.S. Chamber of Commerce.

"This bill addresses many of the issues the fresh-produce industry has been advocating for over the last two decades, including a pathway to legalization for the current workforce and significant reforms to the H-2A program," said Robert Guenther, senior vice president of public policy for the United Fresh Produce Association.

"We wanted to legalize our existing workforce," said Tom Nassif, president and CEO of Western Growers, a trade group representing family farmers in California and the Southwest. "We've taken huge hits on trade, and it's time something was done on immigration because our labor situation is unsustainable."

The Farm Workforce Modernization Act represents the most significant effort to reform legal immigration since the 2013 comprehensive reform bill in the Senate, said David Bier, an immigration policy analyst at the Cato Institute, a think tank in Washington, D.C. Bier said he expects the proposal to pass the House on a broad bipartisan vote before Thanksgiving.

"This legislation will significantly reduce the illegal market in farm labor and provide a reliable legal supply of workers for farms going forward," he said. "It improves the legal migration process significantly, aligns incentives for workers to comply with the law, and expands eligibility for farmers and workers to participate in the legal system."

[SHRM members-only toolkit: Understanding and Obtaining U.S. Employment Visas]

The Bill's Provisions

The legalization program would require applicants to show at least 180 days of agricultural employment over the last two years to receive new five-year visas, renewable by working at least 100 days in agriculture each year. Workers could earn legal permanent-resident status if they meet a tenure requirement related to the amount of time spent working in agriculture for a certain amount of years after the bill's enactment.

There are up to about 325,000 immigrants currently working in agriculture who do not have legal status, according to the Pew Research Center. The majority of farmworkers in the U.S. are in California, where it's estimated that between 60 percent to 75 percent of them are undocumented. The average age of legal farmworkers is also increasing, leaving the industry in need of younger labor-pool entrants.

To provide more relief to farm employers seeking year-round labor, the bill creates temporary three-year visas for agricultural work and an additional 40,000 green cards for workers in agriculture and horticulture. H-2A workers could apply directly for a green card, without needing employer sponsorship, after working 10 years in the U.S.

"Current law only allows for just 5,000 green cards for non-college grads," Bier said. "These new green cards … would go a long way to create a way for permanent farmworkers to receive permanent legal status. This creates a very strong incentive for H-2A workers not to overstay and to comply with the law."

Reforms to the H-2A program include many ideas borrowed from the Trump administration's proposed regulatory changes, including:

  • Changing the way wages are calculated. Currently, the wage rate farm employers are required to use relies on estimates that inflate the wages for most H-2A workers by lumping in higher-skilled equipment operators with farm laborers, Bier said. The legislative change would raise the wages for more-skilled positions and lower it for the general farm laborers.
  • Enabling employers to file a job posting electronically rather than in newspaper advertisements.
  • Putting in place a single filing process and online portal to file petitions. "Currently, employers have to file separate applications for job orders with state workforce agencies, labor certifications with the Department of Labor, and H-2A visa petitions with the Department of Homeland Security, sending in duplicative information that is verified and reviewed multiple times by different agencies," Bier said.
  • Allowing employers to file a single petition for various labor needs instead of multiple petitions for different types of workers.
  • Tripling government funding for farmworker housing costs.
  • Requiring mediation before lawsuits from farmworkers are filed.

The last section of the bill creates a phased-in E-Verify system made mandatory for the agricultural sector only.

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