IMMIGRATION CLIENT ALERT: Congress Seeks to Reform Agricultural Worker Visas

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For nearly two decades, Capitol Hill has debated ways to provide a stable workforce for American farmers through immigration reform.  Proposals have largely targeted reforms to the H-2A nonimmigrant visa program, which gives an unlimited number of visas to foreign agricultural workers who wish to perform seasonal or temporary agricultural work in the U.S.  Currently, 50 to 80 percent of agricultural workers are thought to be working without proper work authorization.

 

Problems with the Current Program

 

Process: The current H-2A program requires growers to advertise positions for agricultural laborers domestically, and to hire any and all U.S. takers, before seeking visas to fill vacancies with workers from abroad.  Growers argue the program is cumbersome and expensive to use, and places too many requirements on employers.  Most agree that this has led growers to resort to employing undocumented workers.  Growers also argue that the amount of time it takes to identify U.S. workers has led to a system that is slow to respond to the quick changes in weather that dictates harvest seasons, or to situations when U.S. workers quit their posts on a farm within days of starting.

 

Worker Rights: Growers have also felt strained by the requirements that they provide housing, transportation and workers’ compensation for these workers.  Conversely, farm workers have argued that growers take advantage of undocumented workers by paying artificially low wages.  Farm workers also argue that they do not have proper organizing rights and have accused employers of exploitation, either in wages paid or the conditions of housing, food and restricted mobility.

 

Flexibility:  Growers argue that a new system must not take a one-size-fits-all approach.  While a dairy farmer requires a steady stream of agricultural workers year-round, a fruit or vegetable grower may require workers for only weeks or months at a time on short notice. 

 

In the Shadows:  Unaware of the limited legal rights they do have, and hesitant to reach out to law enforcement to report crimes for fear of deportation, farm workers and their advocates argue that agricultural workers often suffer in the shadows of society. They also argue that agricultural workers are performing labor critical to our food supply, and should not be left vulnerable to exploitation.

 

U.S. Jobs: Some argue that having an agricultural worker system steals jobs from those unemployed in the U.S., and drives down U.S. wages.  They claim the current system is not truly aimed at helping U.S. workers find jobs, and that positions are not advertised well enough to truly offer U.S. workers the chance to fill the positions, making it easier for employers to hire undocumented workers and drive down wages.  However, most growers insist that U.S. workers do not want these jobs.

 

Finding a Balance Moving Forward

 

Policymakers are attempting to address the millions of undocumented workers in the U.S. and allow for a future flow of temporary agricultural workers, while streamlining process and enforcement.

 

Current Workers:  While some Members and public officials have voiced opposition to a path to citizenship for undocumented immigrants, most support providing some form of legal status for those already in the U.S.  Some do support a path to citizenship for those who have been working in the U.S. agricultural industry for an extended period of time, and proposals for this path often mirror similar proposals in the immigration debate (requiring the worker pay back taxes, learn English, and wait for a visa at the back of the line). 

 

Future Workers:  To address the future flow of workers, some growers who need a steady year-round flow of labor (like dairy farmers) advocate that workers be tied to a single employer by contract.  These growers are concerned that if current workers are not tied contractually to one employer, they will leave agricultural work for other jobs that are less arduous.  However, other growers, like some fruit and vegetable producers, argue that immigrants should be provided a visa with the portability required to travel to where they are needed. 

 

Farm workers claim that without legal status and portability, they will be left vulnerable to employer exploitation.  Labor groups push the need for portability and assert that the free market will address wages once poorly-treated workers can walk away from bad conditions.  Labor groups are also pushing for temporary agricultural workers to have overtime pay, good working conditions, and the right to collectively bargain.

 

Process and Enforcement:  Most in the debate agree that the cumbersome process burdening the current H-2A program must be streamlined and easier for growers to find a stable, legal workforce.  However, there is disagreement over how hard employers should be required to look for a U.S. worker before seeking work abroad.  Many Members also argue that an agricultural visa program must combat fraud.  Some suggest that E-Verify can be improved to fit the agricultural system to help verify that social security numbers are not duplicated or that the numbers of the deceased are not fraudulently used.  Others argue that biometrics or a bond system can help ensure temporary workers leave the country on time.

 

On the Hill

As the political momentum to pass a comprehensive immigration reform bill has heightened in both the House of Representatives and the Senate, both sides of the aisle seek reform of the agricultural worker program.

 

Senate:  In the Senate, Senators Dianne Feinstein (D-CA) and Marco Rubio (R-FL) have led negotiations between labor/farm worker groups and grower groups to seek a solution on legislation.  However, if negotiations fail, the Senators have made clear that they plan to move forward with drafting an agricultural worker portion of the comprehensive Senate legislation.  The Group of 8 working on a comprehensive bill—including Senators Bennet (D-CO) and Rubio, but also Senators Charles Schumer (D-NY), Richard Durbin (D-IL), Robert Menendez (D-NJ), John McCain (R-AZ), Lindsey Graham (R-SC), and Jeff Flake (R-AZ)—are reportedly aiming to unveil their bill as early as the second week of April. 

 

House:  The House Judiciary Committee Subcommittee on Immigration and Border Security recently held a hearing on agricultural labor and guest worker programs.  Most Members at the hearing were optimistic about the possibility for agriculture-related immigration reform, and all agreed that the current H-2A program is overly burdensome and requires reform.  The testimony in the hearing presented a variety of suggested fixes, many of which are outlined above and will likely appear in legislation.  Judiciary Committee Chairman Bob Goodlatte (R-VA) suggested during the hearing that the H-2A program be reformed apart from other areas of immigration, and be used as a template for reform that takes a piecemeal approach.  Other Members, like Representative Sheila Jackson-Lee (D-TX), argued that the agricultural program is too connected to other areas of reform to be addressed separately.

 

Speaker of the House John Boehner (R-OH) is reporting that the House bipartisan group working on immigration reform is very near to an agreement. We have indications they will also likely introduce their bill in early April.  The group—including Representatives Mario Diaz-Balart (R-FL), Sam Johnson (R-TX), John Carter (R-TX), Raul Labrador (R-ID), Xavier Becerra (D-CA), Luis Gutierrez (D-IL), Zoe Lofgren (D-CA), and John Yarmuth (D-KY)—has not yet revealed the details of its plans for agricultural workers.

 

More Information

Addressing the undocumented agricultural workers currently in the U.S. and the labor needs of the U.S. farmers will be necessary in creating a workable, comprehensive immigration reform law.  We would be pleased to share more information on how Patton Boggs LLP can help you stay on top of this reform process and ensure your company’s needs are represented in the final legislative language. Contact Kristin Wells (202-457-6422 kwells@pattonboggs.com) or Shaoul Aslan (202-457-6095 saslan@pattonboggs.com).