Is ag workforce reform possible?
Thursday, December 12, 2019
Posted by: Aaron Stauffacher
By Aaron Stauffacher, assoc. director of government affairs for Edge
To many, reforming the ag workforce visa system seems like a pie in the sky. A successful effort to create a visa usable for dairy farmers and modernize the current ag visa programs has eluded the dairy and ag communities for decades. So long, that some have lost confidence that lawmakers will ever make these much-needed changes.
To get anything done legislatively, the political stars have to align perfectly. It must be the perfect point in time made up of the right champions, supportive coalitions and, ultimately, a flawless compromise to earn the approval of both congressional chambers and the president.
Last fall, the congressional session ended with a major ag labor effort stalled in the House of Representatives marking one of the closest opportunities we have had to address our workforce challenges. The AG and Legal Workforce Act passed committee, but a combination of a few unsupportive voices and the impending midterm elections killed the chance for a vote on floor even though the measure had 112 co-sponsors.
The efforts ultimately died as the lead champion, Rep. Bob Goodlatte, R-Va., retired and the House flipped from Republican to Democrat in the midterms. The new Congress brought on a divided government in an increasingly partisan climate making the prospects of meaningful conversations slim.
With the Democrats taking charge of the House, Zoe Lofgren, D-Calif., essentially became the gatekeeper on this issue as she is the chair of the Subcommittee on Immigration and Citizenship of the Judiciary Committee. Fortunately, she understood the need for ag labor reform, but she also recognized today’s political climate. She joined forces with Rep. Dan Newhouse, R-Wash., to bring together stakeholders from agriculture as well as farm worker labor groups to hash out a proposal that would appeal to all interested parties. The Agriculture Workforce Coalition (AWC), of which is Edge is a member, represented the array of ag groups in the talks.
After months of conversations and negotiations, the Farm Workforce Modernization Act, H.R. 5038,(originally H.R. 4916) was finally introduced in the House in late October. In short, H.R. 5038, provides a process to retain existing employees and a pathway to recruit new workers for our dairies. The bill gained the support of 62 total cosponsors which is divided among party lines with 37 Democrats and 25 Republicans — a crucial component to give this proposal the legs to move forward.
Upon introduction the legislation, the agriculture community jumped to support it. Over 300 ag organizations and food companies signed a joint letter to House leadership signifying the bill’s importance. However, the letter did specify that “the bill does include a few provisions that raise significant concerns for the agricultural community. . .” that should not be overlooked.
Remember that the House is Democratically controlled so the bill must have had labor-oriented provisions to garner the support necessary for approval. Even though certain items in the bill are not ideal, the ag community worked to move this compromise proposal through the House so concerns can be addressed later in the legislative process.
This bill is so broadly supported because it strategically contains components that appeal to different constituencies. To oversimplify, it includes items that Democrats want, provisions that Republicans desire, and, notably, elements that President Trump would find attractive.
H.R. 5038 can be broken down into three titles. The first, crucial to dairy, is the ability for existing workers to earn legalized status, not to be confused with citizenship. The bill creates a “certified agricultural worker” (CAW) visa for existing employees who are not in the U.S. legally if they can prove a recent history working in agriculture and pass criminal background check requirements. The bill protects employers who aid their employees in the CAW application process.
The CAW status allows for a five-year work authorization which is renewable upon expiration. CAW employees’ dependent spouses and minor children will be given status as well. After working under the CAW designation for a set number of years, there is a process for the worker to become eligible for lawful permanent residence.
The second title is the modernization of the current H-2A ag labor visa, which more importantly represents the pathway to recruit new employees for dairy farmers. While there are mixed feelings in the dairy community, this bill would allow for dairy to use the H-2A in a new three-year visa category available for year-round work. Unfortunately, H.R. 5038 fails to make many of the changes to the H-2A program that current H-2A employers find undesirable. Even more so, the bill caps the allowable number of three-year visas for dairy for the first several years among some other provisions ag employers wished away.
On the other hand, the bill does make one vital update to the H-2A program worth noting, by limiting the ability to the mandatory minimum wage to substantially increase year-to-year. In summary, while dairy would have a never-before practical pathway to recruit new workers, the ag community will be working to alter this section more favorably toward ag employers.
The third title is mandatory E-Verify for agriculture. No doubt E-Verify is concerning, but its inclusion is viewed as a must for any ag workforce fix to be taken seriously. A positive, however, is a favorable compliance period that doesn’t start until after the 18-month CAW application period for workers to become CAW compliant. The phase-in period then ranges from six months for larger employers up to 15 months for smaller employers.
The Farm Workforce Modernization Act just passed the House with a bipartisan vote of 260-165. House passage marks a significant step forward towards ag labor reform but it still is a long way from the finish line. After passing the House, the conversation moves to the Republican Senate where positive changes will be sought but a companion bill must be first introduced. Ultimately at the end of the day, the bill must earn the support of President Trump.
Even though it must clear a lot of obstacles to become law, the Farm Workforce Modernization Act is the best opportunity to accomplish a labor solution for dairy farmers in the foreseeable future. Your input will continue to be important as the bill moves through the legislative process.
For more information about the Farm Workforce Modernization Act, H.R. 5038, visit voiceofmilk.com or reach out to our government affairs team.