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Farm Workforce Modernization Act

November 21, 2019 in Agriculture Labor Agriculture News Employment Immigration US Immigration Law

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Background

On October 30, 2019, Congresswoman Lofgren (D. CA), introduced H.R. 4916, also known as the Farm Workforce Modernization Act (The Bill). The Bill is being touted as a desperately needed bill that reforms the H-2A Visa Program. While there are good aspects to The Bill, the reality is it would have catastrophic consequences to the livestock industry and would either . (1) put thousands of U.S. workers out of business or (2) force an entire industry to revert back to using an undocumented labor force.

This blog will explore the good, the bad, and the downright ugly of the Farm Workforce Modernization Act.

The Good

There are many aspects to the Farm Workforce Modernization Act that are good for the agricultural industry and for immigrants willing to perform agricultural work. The best parts of the bill feature the following:

(1) A pathway to citizenship for certified Agricultural Workers;

(2) Applies a cap to Adverse Effective Wage Rate (AEWR) increases;

(3) Fills year-round labor needs for certain employers that are currently unable to participate in the H-2A program.

The Bill authorizes certain certified agricultural workers legal status if the worker meets certain, specified requirements. We will not dive too deeply into the legal jargon of the requirements, but the requirements do not seem overly burdensome or restrictive. Similar to other pathways to citizenship, certain applicants will be barred, such as those that have committed felony offenses or offenses of moral turpitude. Regardless, granting a pathway to citizenship for agricultural workers is a good thing because this industry struggles so much to find a legal, reliable labor force.

The Bill caps the increase to the AEWR, which has recently skyrocketed to unsustainable levels. The USDA conducted a study, which shows the wage rate increases of farmworkers in the U.S. The AEWR is meant to keep wages of foreign workers from depressing the wage rate of similarly employed U.S. workers. We have extensive experience with filing H-2A applications, and we can tell you, beyond a shadow of doubt, the wage rate is not what keeps U.S. workers from applying for these positions. We have advertised at substantially higher wage rates and still have not received interest from U.S. applicants. The fact is, U.S. workers do not want these jobs because these jobs are remote, require extensive travel, are hard and are dirty.

Further, the cost of production of agricultural goods is expensive here and our agricultural industry is not just competing domestically, but rather internationally. So, when we require our agricultural producers to pay astonishingly high wage rates to H-2A workers, we are damaging their business because they are competing with producers that pay substantially lower wage rates, such as those in Mexico. Not only does the AEWR need to be capped because U.S. workers do not want these jobs, but also because increases hurt the U.S. agricultural industries’ability to compete with international farmers.

The Bill will fill the year-round labor needs of industries that currently cannot benefit from the H-2A program. Currently, the H-2A regulations require an occupation to be “seasonal” or “temporary”. The main issue with the seasonal or temporary requirement of the H-2A program is it leaves out other producers, such as dairies, that are in desperate need of year-round help.

The Bill addresses this issue by allowing producers to bring in year-round help on a 3-year visa.

The Bad

The main “bad” aspect of The Bill is it has a numerical cap on both the temporary 3-year visas and the green cards.

The Bill offers an avenue through which year-round producers, such as dairies, may have access to a legal workforce. However, both the temporary 3-year visas and the green cards are capped annually. We understand the argument behind numerical caps. However, the reality is, numerical caps make no sense. Numerical caps have made good, valuable, and needed visa programs, such as the H-2B and H-1B visa, essentially useless because they do not provide a consistent, reliable labor force to companies that need them. Further, you are required, as part of the application process, to show the job would not hurt American workers. As such, if you have to prove the job would not hurt American workers before being certified, what good is a numerical cap? The reality is numerical caps are nothing more than a blind political bargaining chip that only makes sense to the clueless.

The Downright Ugly

There is one aspect of The Bill that would prove to be so bad that this bill would be catastrophic to an entire sector of agriculture. The Bill, buried deep in the fine print, would deprive H-2A Construction Companies of their right to bring up H-2A visa workers to perform agricultural construction.

We have years of experience in agricultural construction. We have advertised tens of thousands of open positions, hired hundreds of U.S. workers, and seen the struggles these employers go through to fill the positions to meet their contractual needs. We can tell you, without question, there are only two types of agricultural construction workers: (1) H-2A visa workers and (2) undocumented laborers.

The Bill explicitly prohibits agricultural construction companies from bringing up H-2A workers unless they own the farm on which the construction work is being performed. The implications for this are absolutely massive. This would hurt the livestock industry because it would:

(1) Force agricultural construction companies to use illegal labor;

(2) Only benefit employers currently utilizing illegal labor;

(3) Eliminate the construction companies solely reliant on the H-2A visa program; and

(4) Greatly increase the cost of livestock production.

We have advertised jobs for $1,500.00/week. We have advertised positions for $21+/hour. We have seen the same recruitment efforts fail on these higher-paying jobs just the same as the jobs paid at the AEWR. The fact of the matter is, U.S. workers do not want these positions. The U.S.

who are willing to take these positions do not last. Over the years and thousands of positions filled by H-2A workers, we have seen only a handful of U.S. workers stick with a work contract through completion. By taking away access to H-2A workers, what options to agricultural construction companies have? They can’t use H-2B because that program is broken. Enough applications are filed to meet the H-2B cap within minutes of the cap opening. There is a low success rate on H-2B companies’ ability to acquire a labor force through that program. There are no U.S. workers willing to take these positions at any wage rate. The only alternative is an illegal labor force. Congress nonchalantly throwing in that clause in the middle of the bill shows how embarrassingly ill-informed our lawmakers are. By virtue of the reality of the existing job market, this bill would force agricultural construction companies to revert back to using an illegal labor force.

The only companies that benefit from this bill are those currently willing to break the law and use an illegal labor force. After all, because of their unwillingness to abide by the law, their illegal labor force would be unaffected by this change. This would greatly increase the demand for these companies, which, in turn, would result in more money in their pockets.

There are currently thousands of U.S. jobs that rely on the agricultural construction company’s ability to hire H-2A laborers. These jobs include but are not limited to, truck drivers, bookkeepers, accountants, lawyers, CFOs, COOs, project managers, housing coordinators, logics managers, and equipment operators. These jobs are supported because as of now the construction companies can bring in H-2A workers to perform the labor. You take that away, so go the jobs of these thousands of U.S. workers.

Companies that use the H-2A program to bring in agricultural construction workers rarely have undocumented workers as well. These companies have become accustomed to the reliability, predictability, and benefits of the H-2A program. These companies’ entire labor force depends solely on H-2A workers. If you take away the labor force, you take away the company. The companies would not survive this change. Lastly, the cost of livestock production would dramatically increase. It is simple supply and demand. The supply of labor would drop drastically, the demand even being the same, would increase the cost of building a livestock confinement facility.

Conclusion

The Bill has many good aspects. It would alleviate the labor concerns of the dairy industry, albeit temporary because of the cap, and allow for a more useable program. However, the cost of Congress arbitrarily choosing to sacrifice the agricultural construction industry greatly outweighs any of the benefits of the program. It is imperative that you reach out to our firm at (512) 894-2128 to discuss our options or you may contact me directly at Kyle@ffbfirm.com.

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