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Bipartisan House Labor Bill to Legalize Ag Workers Introduced; Senate Bill Expected

The “Farm Workforce Modernization Act” was introduced in the House this week by 44 bipartisan members, a bill designed to address the increasing shortages of legal ag workers in the U.S. and to “provide a compromise solution for American agriculture” by reinventing the H-2A seasonal ag worker visa program, providing a path to legal status for workers now in the U.S., capping worker wages and creating a first-ever “merit-based visa program specifically designed” for the ag sector.

The “Farm Workforce Modernization Act” was introduced in the House this week by 44 bipartisan members, a bill designed to address the increasing shortages of legal ag workers in the U.S. and to “provide a compromise solution for American agriculture” by reinventing the H-2A seasonal ag worker visa program, providing a path to legal status for workers now in the U.S., capping worker wages and creating a first-ever “merit-based visa program specifically designed” for the ag sector, according to the bill's lead author Rep. Zoe Lofgren (D, CA), chair of the Judiciary Committee's subcommittee on immigration policy and enforcement.

The bill faces an uphill battle due to its attempt to grant eventual legal status to ag workers now in the country illegally, an issue that riles conservative GOP members. Also, there is no word from the White House on where it stands on the bill.

“We made a good bill. This is a good faith effort, it's a good product and good progress,” said Lofgren at a press conference to unveil the new legislation this week. “It's not over yet. For those of you with us from the beginning, we need you to stick with us.”

She said she's working with Judiciary Committee Chair Jerry Nadler (D, NY) to set a date for a markup. Lofgren said she's also talked with several senators about the bill. Sen. Dianne Feinstein (D, CA) says she supports the House effort and has committed to moving the bill through the Senate.

The bill comes after months of negotiation led by Lofgren and Rep. Dan Newhouse (R, WA) with agricultural employers and labor groups. Supporting the bill are the National Milk Producers Federation (NMPF), the United Farm Workers (UFW), the National Council of Farmer Cooperatives (NCFC), the National Turkey Federation (NTF), the North American Meat Institute (NAMI) and nearly 250 others farm organizations across the country, including the National Farmers Union (NFU). However, the American Farm Bureau Federation (AFBF) hasn't signed on to the bill yet.

The bill requires workers and their spouses and minor children, who are seeking “certification” as legal ag workers, to demonstrate at least 180 days of ag employment in the previous two years, and if successful, those workers receive a renewable five-year ag visa. To renew, a worker must have worked at least 100 days in each year. Ag workers who don't meet the criteria can apply for a straight H-2A visa.

The visa options also allow for a non-binding right to earn a “legal permanent resident (LPR)” card. To get LPR, the applicant pays a $1,000 fine and have two work options: If a laborer has worked in ag for at least 10 years before the bill is enacted, that worker must work four more years in ag before they can apply for LPR status; if a worker has worked in ag for less than 10 years, they must work an additional eight more years to be eligible to apply for LPR.

The legislation also takes on the need for year-round labor needs, a demand of the dairy industry, by dedicating 40,000 more green cards per year to ag workers. The bill also creates an option for H-2A visa holders to apply for a green card directly after completing 10 years of visa work in the U.S. Included also is a new, capped program for employers who need temporary workers on a year-round basis to use a new capped program under which USDA and DOL could increase visa caps if market conditions warrant, with visa available to both dairy and non-dairy operations.
Also established is an ag-only employer mandate to use E-Verify for all ag employment verifications, and the system would be phased in. Also, guaranteed due process for workers incorrectly rejected by the system is included.

Other improvements sought by the bill include a new single portal for employers to file for visas online, and which the Departments of Homeland Security (DHS) and Labor, and the state workforce agencies (SWAs) can process simultaneously. Processing time should be cut to 60 days, Lofgren said. Employers can file a single petition for so-called “staggered needs,” i.e. one petition could be filed for varying numbers of workers needed for different tasks. Employers can also file single job postings on a single website.

The bill also tackles wage reform so H-2A visa holders' salaries “better reflect real-world wages” by being set based on specific job functions as opposed to a single flat rate paid to all visa holders. The authors and supporters understand this could translate to lower wages for crop workers and higher wages for machine operators, for instance. Employers are protected against sudden wage spikes, with 2020 wages frozen at 2019 levels, and for 2021-2029, wages could not drop by more than 1.5% or increase by more than 3.25%.

Also addressed are improvements in farmworker housing while lowering employer costs to provide the housing, and reducing the need for litigation by expanding existing federal worker protection laws to include H-2A holders and requiring mediation before lawsuits are filed.

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