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April 2021, Volume 27, Number 2

FWMA, H-2A; H-2B

The Farm Workforce Modernization Act (HR 1603) was approved by the House on a 247-174 vote in March 2021 with the support of 30 Republicans. Senators Michael Bennet (D-CO) and Mike Crapo (R-ID) promised to work on a Senate version of the FWMA.

The FWMA was approved by a vote of 260-165 by the House in December 2019, but not considered in the Senate.

The FWMA has three titles for legalization, H-2A streamlining, and E-Verify. Title 1 allows unauthorized farm workers to become Certified Agricultural Workers (CAWs) if they did at least 180 days of farm work over the past two years. CAW status could be extended indefinitely by continuing to do at least 100 days of farm work a year.

The spouses and children under 18 of CAW status holders would also receive work and residence visas and would not have to do farm work to maintain their status. CAW workers who were unauthorized in the US 10 or more years could become immigrants if they did at least 100 days of farm work of at least 7.75 hours a day for four years, while those with less than 10 years in the US would have to do eight more years of farm work to become immigrants.

Title 2 would streamline the H-2A program by making the application process and job ads electronic, introduce three-year visas and allow up to 20,000 H-2A workers to be employed in year-round dairy and other jobs, and add funding for rural housing. Adverse Effect Wage Rates would be set by job title, and AEWRs would be frozen for a year and then increases capped at 3.25 percent a year for the next nine years. A Portable Agricultural Worker (PAW) pilot program would allow up to 10,000 foreigners to change farm employers while they were in the US for three years, with PAW visa holders maintaining their status by not being unemployed more than 60 days, and more immigrant visas would be made available to employers who want to sponsor their employees for them.

Title 3 requires all farm employers to participate in E-Verify after legalization and H-2A changes are implemented.

The most recent NAWS data for 2015-16 reports that 49 percent of US non-H-2A crop workers are unauthorized, including 52 percent in the East; 34 percent in the Midwest; 57 percent in the northwest; 42 percent in the southeast; 28 percent in the southwest; and 60 percent in California.

H-2A. DOL issued 722 pages of final regulations on January 15, 2021 to implement the non-AEWR changes to H-2A regulations that were first laid out in proposed regulations on July 26, 2019. However, before they were published in the Federal Register, the new regulations were withdrawn by the Biden administration on January 20, 2021.

The regulations had several components. The streamlining provisions would have required H-2A applications to be filed electronically and allowed employer-provided housing to be certified for up to 24 months rather than annually. The expanding employer access provisions would have allowed work to begin up to 14 days after the employer?s need date, permit one application to specify different starting dates for H-2A workers, and allowed small employers to file jointly for H-2A workers and move them between their farms.

The modernizing prevailing wage survey provisions would have reduced the already few studies listed in the OFLC agricultural wage library by requiring larger samples and more statistical reliability without providing additional funding to conduct prevailing wage surveys. Instead, State Workforce Agencies could have allowed other state agencies or universities to conduct prevailing wage surveys.

The US blocked entries from South Africa in January 2021, drawing requests for exemptions from US employers who employ South Africans with H-2A visas, often to operate equipment during the northern hemisphere summer months.

Media reports suggest that some nonfarm firms that employ truck drivers to haul farm commodities are calling truck drivers agricultural equipment operators so that they can be paid the AEWR rather than the higher truck driving wage. DOL certified 15,396 jobs to be filled by agricultural equipment operators in FY20, including 2,288 jobs or 15 percent of all agricultural equipment operator jobs that required a commercial driver?s license.

Some 48 employers with truck in their name were certified to employ agricultural equipment operators, and 475 of these agricultural equipment operator jobs were certified to these 48 employers. Over a third or 149 of these agricultural equipment operator jobs with trucking firms required applicants to have a commercial driver?s license.

Farm Labor Survey. USDA asks a sample of farm employers to provide employment and earnings data for the week containing the 12th of January, April, July, and October. Farmers report data only for directly hired workers, that is, workers brought to farms by labor contractors and other nonfarm employers are excluded.

USDA collected data for January and April 2020 and then announced plans to cancel the FLS. A federal judge ordered USDA to conduct the survey, which it did early in 2021, collecting data for July and October 2020.

The FLS in the past reported three hourly earnings: for all hired workers, field workers, livestock workers, and field and livestock workers combined.

Beginning in 2015, the FLS began to report employment and earnings by SOC code, reporting that the 404,000 US crop workers (45-2092) in July 2015 earned an average $11.50 an hour. The FLS listed six SOC codes, including three with July 2015 employment of over 100,000, that is, crop workers, 404,000, animal workers, 194,000, and equipment operators, 152,000.

Farm employers in 2020 reported 568,000 workers in January and 777,000 in July, for an average employment of 698,000, with 75 (July) to 85 (January) percent of workers expected to be employed on the responding farm at least 150 days. The FLS has been reporting an annual average of about 700,000 directly hired farm workers.

Beginning in 2019, the FLS began to distinguish gross or pretax from base wages, which exclude bonuses and overtime pay and, for piece-rate workers, include only the minimum hourly guarantee rather than actual earnings. The annual average gross hourly earnings of field and livestock workers was $14.62 in 2020, up 4.5 percent from $13.99 in 2019, and the base wage was $14.44, with no such wage in 2019. The average gross hourly earnings of field and livestock workers combined in July 2020 were $14.85, and $14.73 for base wages.

The very small gaps between gross and base wages suggest that eight percent Social Security and Medicare taxes are offset by the low guaranteed wages of piece-rate workers, who are often guaranteed the minimum wage that is included in the base wage, but earn 15 to 25 percent more, which is included in the gross wage.

In July 2020, 12 percent of field and livestock workers were employed on field crop farms, 57 percent on other crop farms such as fruits and vegetables, and 31 percent on livestock, dairy, and poultry farms. Some 60 percent of all hired workers in July 2020 were on farms that had annual sales of $1 million or more, and 36 percent were on farms with more than 50 hired farm workers.

California had a total of 169,000 or 22 percent of all hired workers in July 2020 and 24 percent of the more than 150-day workers. The California gross wage of field and livestock workers combined in July 2020 was $16.29 and the base wage was $16.18, well above US levels. California, the Pacific states of Oregon and Washington, and the Northern Plains states of Kansas, Nebraska, North Dakota, and South Dakota had gross and base hourly wages for field and livestock workers combined above $16 in July 2020, while the southeastern states and Florida had gross and base hourly wages below $13.

The average annual gross wage for crop 45-2092 workers was $14.59, and the base $14.59, up 4.4 percent and 7.2 percent from the gross and base wages of $13.98 and $13.33 in 2019. In July 2020 the 346,000 US crop 45-2092 workers had an average gross $14.80 wage and a base $14.50 wage.

The October 2020 FLS includes a discussion of surveys and responses. In 2018, less than 11,000 farms were contacted and the response rate was below 55 percent, with over a third of respondents interviewed by telephone. In 2020, almost 35,000 farms were contacted, and the response rate dipped below 50 percent, with a third of respondents interviewed by telephone.

H-2B. The Trump administration in June 2020 blocked new entries of H-2B workers citing the high unemployment rate and the risks that guest workers could spread Covid. Employers complained that US workers did not want the jobs they offered, and President Biden allowed the guest worker entry ban on H-1B and H-2B workers to expire March 31, 2021.

Many summer resorts hire foreign students with J-1 visas. J-1 exchange visitors are expected to have a work-and-tourism experience while in the US, but in many cases J-1 visa holders are guest workers like H-2B workers, filling jobs that US workers shun because of low wages and job requirements. There are few requirements on employers who hire J-1 visa workers, who must be paid at least the minimum wage and provided with housing by their US employer.


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