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October 2022, Volume 28, Number 4

H-2A: FWMA

Employer associations and worker advocates in summer 2022 called on the Senate to approve the Farm Workforce Modernization Act, HR 1603. The FWMA was approved by the House in 2019 and 2021, but has not yet received a vote in the Senate, where Michael Bennet (D-CO) and Mike Crapo (R-ID) are leading the effort to revise and enact a version of the FWMA.

Proponents of the FWMA say that legalization and H-2A reform could slow food price inflation, while opponents including the AFBF object to a provision of the FWMA that would extend the Migrant and Seasonal Agricultural Worker Protection Act to H-2A workers. Many Republicans are reluctant to support any type of legalization until unauthorized migration over the Mexico-US border is under control.

The FWMA would make unauthorized farm workers who did at least 180 days of farm work over the past five years Certified Agricultural Workers. CAWs would receive 5.5 year renewable work permits that allow them to live and work anywhere in the US.

In order to maintain CAW status, CAWs would have to do at least 100 days of farm work a year. After four or eight years of 100 day farm work a year, CAWs and their spouses and children could apply for immigrant visas.

The H-2A program would change by allowing H-2A workers to fill up to 20,000 year-round farm jobs and grant workers three-year visas, so that dairies and other animal agriculture operations could employ H-2A workers. The Adverse Effect Wage Rate would be frozen, and annual increases and decreases limited while USDA and DOL study the need for an AEWR. H-2A workers would be protected by the Migrant and Seasonal Agricultural Worker Protection Act.

Once CAW legalization and the H-2A changes are implemented, farm employers would have to verify newly hired workers using E-Verify.

A House hearing in July 2022 focused on abuses of H-2A and H-2B workers. Worker advocates cited the Operation Blooming Onion case in Georgia, where H-2A workers were forced to work for low wages, while employer advocates emphasized that most farm employers treat H-2A workers well.

Overlook Harvesting, a central FL FLC that harvests citrus and other commodities with H-2A workers, was denied certification for 302 H-2As to harvest citrus between November 2021 and May 2022 because DOL found that Overlook’s need for labor was not temporary or seasonal, since Overlook employed H-2A workers year-round via multiple applications and from several entities, including Central Florida Labor Services and JJT Services, the latter formed by the spouses of the three Bently brothers who formed Overlook and CFLS to provide 60 H-2A workers to nursery Marian Gardens.

Overlook argued that it would no longer provide H-2A nursery workers to Marian Gardens, which has a year-round need for labor, and that it should be allowed to hire citrus harvesters despite trying to hire H-2A workers to fill year-round nursery jobs. Overlook argued that ambiguity in H-2A regulations encouraged the development of a business model that aimed to provide workers year-round via several FLC businesses.

Overlook has 15 to 20 year-round workers and up to 1,000 H-2A workers, and employs H-2A workers continuously via multiple businesses and applications. The ALJ agreed with OFLC that Overlook did not have a seasonal or temporary need for H-2A workers, and upheld the denial of one of Overlook’s applications. In response, DOL on September 26, 2022 issued a call for comments on how applications from FLCs who serve multiple clients with H-2A workers year-round should be treated.

Virginia-based Maslabor led by Ed Silva merged with Georgia-based AgWorks H-2A led by Dan Bremer in July 2022, creating a firm that arranges for the entry of 60,000 H-2A and H-2B workers a year.

USDA announced a $65 million pilot program to streamline the H-2A program while enhancing protections for farm workers. The UFW submitted an unsolicited proposal offering USDA “technical support” for the streamlining, which drew criticism from Republicans.


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