Farm Workforce Modernization Act: A Primer

Agriculture is a multi-billion dollar industry in the United States. Like all significant industries, it is heavily impacted by federal policy. In recent years, a key focus of agricultural policy has been the availability of farm labor and fair treatment of farmworkers. Awareness of these issues grew during the pandemic when farmworkers were deemed essential workers. Nationally, there are efforts to stabilize our agricultural workforce while also providing much-needed reforms to support and protect farmworkers. One key effort currently underway is the Farm Workforce Modernization Act. If you're interested in learning more about the Act, read the simplified primer on the Farm Workforce Modernization Act below. As with any federal bill, it is multifaceted and complex - we have tried to provide both a birds-eye view of the bill and also to highlight key details. We look forward to using this space to provide periodic, timely updates about policy issues impacting farming and food systems.The Big PictureBackground:The Farm Workforce Modernization Act (HR 1603) is a bipartisan bill, initially proposed in 2019, that seeks to provide a path to legal citizenship for farmworkers and update the H2A temporary worker visa program. The bill was developed with input from United Farm Workers, the United Farm Workers Foundation, and Farmworker justice, along with agribusiness representatives. In 2021, it passed in the US House of Representatives with 247 votes in favor. As of now, the legislation is stalled in the Senate, though there remains a chance that the bill will pass this year.According to Rep. Abigail Spanberger of Virginia’s 7th district and one of the cosponsors of the bill, “In our one-on-one and direct conversations with me, Central Virginia farms, agribusinesses, and greenhouses have been clear that the existing H-2A program is in fundamental need of reforms. The Farm Workforce Modernization Act provides much-needed changes to our immigration system, including the H-2A program. In the face of the COVID-19 crisis, we need to focus on passing legislation that contributes to long-term economic security for the businesses that make our communities strong — and this legislation tackles many of the employment difficulties facing our district’s rural communities.”Key Goals of the Legislation: (1) Create a pathway to legalization for current unauthorized agricultural workers, including an eventual option to become a lawful permanent resident(2) Reform and modernize the existing H-2A temporary agricultural worker visa program(3) Require all agriculture employers to implement a reformed “E-Verify” program, an improved system for employers to verify the identity and authorization status of their employees. The Fine Print: What is the H2A program? H2A allows foreign workers to work on a temporary basis on U.S. farms that can demonstrate a difficulty hiring locally. The visa may last up to three years, at which point the farmworker must return to their country for at least three months. Unlike most visa programs, there is no limit on the number of H-2A visas that get issued in a given year. As the agricultural industry has struggled to employ U.S. workers in recent years, the H-2A program has seen its popularity skyrocket, growing fivefold according to USDA analysis. H2A workers are employed by farms of a range of sizes - while they are largely utilized on large farms, small farms have also found value in including H2A workers as part of their farm crew. The H-2A program also requires employers meet specific pay thresholds that vary by region. The goal of these thresholds is to avoid de-incentivizing the hiring of American workers.How does the Farm Workforce Modernization Act (FWMA) build upon and change the H2A visa program? The Farm Workforce Modernization Act creates an alternative to the H2A visa program, with the development of the Certified Agricultural Worker (CAW) visa program.CAW visas will be renewable, unlimited in number, and last 5.5 years. Unauthorized immigrants who have spent 180 days of the last two years under agricultural employment will be eligible for CAW visas. Additional H2A visas will become eligible for workers who did not meet the 180 day requirement but have worked at least 100 days over three years. Employees could apply from the US, and so could continue working in the United States while their applications are processed.There are a variety of protections in place for employees, employers, and dependents to ensure that applying for CAW does not negatively impact them. For example, employers won’t face penalties for past unauthorized workers who apply for CAW, and will not be penalized for continuing to employ an unauthorized worker who intends to apply. Children of CAW applicants also have protections in place from “aging out” once they hit 21.Finally, there is a green card option built into CAW - employees can apply for green card status after 8 years of CAW, or 4 years of CAW and 10 years of holding another agricultural work visa.Administrative updates will also be made to the H2A process under the bill. The employer application process will be streamlined, and wages will be stabilized. Workers would also receive new protections, including guaranteed paid labor for at least 75% of workdays in their contract, and employer-paid transportation and subsistence costs. In acknowledgment of increasingly dangerous heat levels, employers will also need to create a “Heat Illness Prevention Plan.” 20,000 year-long H2A visas will also be releasedConcerns with the FWMA:The bill has received some criticism from farmworker advocates, namely for how long it takes workers to receive citizenship, and the wage stabilization, which some feel could limit wage growth and disproportionately benefit farm businesses over farmworkers in the long run.