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House Approves HR 5038, the Farm Workforce Modernization Act

December 20, 2019

The House approved HR 5038, the Farm Workforce Modernization Act (FWMA), by a vote of 260-165 in December 2019 to legalize currently unauthorized farm workers, streamline the H-2A program, and require farm employers to use E-Verify to check newly hired workers. Almost all Democrats supported the FWMA, while three fourths of Republicans opposed the bill.

The FWMA has three titles, Securing the Domestic Agricultural Workforce or legalizing currently unauthorized farm workers, Ensuring an Agricultural Workforce for the Future or revising the H-2A program, and Electronic Verification of Employment Eligibility or requiring farm employers to use E-Verify to check new hires.

Legalization

Unauthorized farm workers who did at least 180 days or 1,045 hours of farm work during the previous 24 months could apply for Certified Agricultural Worker (CAW) status or H-2A visas. Applying for CAW status would grant the farm worker and his/her dependents renewable 5.5 year work permits that are valid for employment in any industry. CAW application data are not to be used for immigration enforcement.

CAW work permits are renewable indefinitely as long as CAW status workers perform 100 days or 575 hours of farm work a year. Farm employers must give CAW workers documentation of their days worked.

CAW workers who were in the US at least ten years could apply for immigrant visas if they performed at least 100 days or 575 hours of farm work a year for four years; those in the US less than 10 years could apply for immigrant visas after eight more years of farm work. After the CAW legalization program is implemented, farm employers must use E-Verify to check the status of new hires.

There are currently 5,000 immigrant visas a year available to foreigners without college degrees who are sponsored by their employers. The FWMA would create 40,000 immigrant visas for farm workers who are sponsored by US employers or H-2A workers who worked at least 10 years in the US. H-2A workers who apply for immigrant visas, and who must wait in a backlog, would be allowed to stay in the US indefinitely while their applications are pending.

H-2A

The H-2A program would be modified to allow three year visas rather than the current maximum 10-month visa, with an exemption from the 10-month limit for sheepherders who may generally remain in the US for three years. H-2A workers who complete a contract with one farmer, but have time remaining on their three-year visas, could remain in the US up to 45 days to find a new employer who has been certified to hire H-2A workers.

Employers would attest to their need for H-2A workers and begin to recruit US workers, hiring any who apply until a third of the work contract is completed; labor contractors would continue hiring US workers until half of the contract is completed. Employers would not have to hire CAW status workers in preference to H-2A workers if the H-2A worker they want to hire was employed by the employer three of the past four years.

Recruiters of H-2A workers abroad would have to register with US embassies and promise not to charge the H-2A workers they recruit any fees, to provide honest information about the US job, and to post a bond.

Employers of H-2A workers must offer and pay the higher of the federal or state minimum wage, the prevailing wage, or the Adverse Effect Wage rate, which ranged from $11 to $15 an hour in 2019 based on employer responses to USDA’s Farm Labor Survey, which obtains employment and earnings data from farm employers. The average hourly earnings of non-supervisory crop and livestock workers are used to set the AEWR.

HR 5038 would incorporate changes to the AEWR proposed by DOL in July 2019 to allow employers to shift from one AEWR for all types of farm workers to specifying a job title for job to be filled by an H-2A worker, and paying the AEWR associated with that job title. This means that the AEWR for supervisors and equipment operators would generally rise, and the AEWRs for crop workers, who are over 90 percent of H-2A workers now, would decline slightly.

AEWRs for 2020 are based on the 2019 USDA Farm Labor Survey. HR 5038 would freeze 2020 AEWRs and allow maximum increases of 3.25 percent a year, or 4.25 percent if the AEWR is less than 110 percent of the federal or state minimum wage in a state. USDA and DOL would study the impact and need for AEWRs and recommend how to proceed from 2030, that is, they could decide that AEWRs are not needed.

Up to 20,000 year-round farm jobs could be filled by H-2A workers, with 10,000 reserved for dairy farms and the cap rising after three years if USDA and DOL agree that there is a need for more H-2A workers to fill year-round farm jobs. USDA and DOL would determine after 10 years whether a cap on the number of H-2A workers in year-round jobs is needed. Employers of year-round H-2A workers would have to provide family housing to their H-2A employees and a paid trip home for each worker once a year.

A new pilot program would grant 10,000 portable H-2A visas that would allow their recipients to move from one farm employer to another; both portable H-2A workers and US employers approved to hire them would register with the government online. After six years, DOL, DHS, and USDA must issue a report recommending what to do about portable H-2A visas.

E-Verify

Within 15 months of enactment of HR 5038, farm employers would have to submit work authorization data on newly hired workers to the E-Verify system operated by USCIS. Farm employers would not have to re-verify current employees. Under previous immigration reforms, farmers would have been among the last employers required to use E-Verify. If HR 5038 were enacted, they would be among the first employers required to use E-Verify.

Outlook

The fate of HR 5038 is uncertain, as variables ranging from the impeachment process to the US Supreme Court’s decision on DACA could affect prospects for approval by the Senate and President Trump. One scenario envisions the Senate making employer-friendly changes to HR 5038 and making legalization for unauthorized farm workers less generous, such as not granting work permits to family members of unauthorized farm workers who did not do farm work. If such changes were made, the Democrats who are the strongest supporters of HR 5038 may withdraw their support, limiting chances for enactment.

About half of US crop workers have been unauthorized since the late 1990s

The number of jobs DOL certified to be filled with H-2A workers quadrupled between FY05 and FY18