Fate of two farmworker bills in limbo at year’s end

With food costs increasing and the need for more farmworkers on the rise, two federal bills aimed at lowering costs for consumers and easing strains on farmers await approval in Congress.

H.R. 1603, better known as the Farm Workforce Modernization Act (FWMA), passed the U.S. House of Representatives in March 2021 with bipartisan support. It stalled in the Senate amid debate over a provision to create a path to legal permanent residency for undocumented farmworkers already working in the U.S. With the legislation’s fate unknown, one of the bill’s biggest proponents has unveiled a separate but similar bill aimed at revising the agricultural visa system and offering migrant farmworkers a path to permanent residency.

During a Dec. 15 press conference, Sen. Michael Bennet, a Democrat from Colorado, introduced plans for a bill titled the Affordable and Secure Food Act (ASFA). The proposed legislation, according to Bennet, seeks to lower food prices for American families, secure the country’s food supply and provide farmworkers “with certainty” by making changes to the existing H-2A visa program.

“The cost of farm labor has gone up nearly 50%, much more than other workers in the economy, and if we don’t give growers certainty, we’re going to see a lot of them go out of business entirely,” Bennet said. “At the same time, we have hundreds of thousands of undocumented workers living in the shadows in this economy. And these are people who are working every single day to feed the American people.”

Notably absent from Bennet’s press conference was Idaho Republican Sen. Michael Crapo, who had been working with Bennet for nearly a year on the Senate version of the Farm Workforce Modernization Act. Without a Republican backer in the Senate, Bennet’s bill could face tough opposition in the divided chamber. Democrats currently hold 47 of the 100 seats, although three independent Senators caucus with Democrats. Bills need at least 60 votes to move forward.

Rachel Skaar, a spokesperson for Bennet, said that Bennet and Crapo “reached a point where they couldn’t make progress on the FWMA together anymore, so Bennet moved forward with introducing the Affordable and Secure Food Act.”

While the fate of FWMA remains unknown, Rep. Mike Simpson, an Idaho Republican who co-sponsored the original legislation in the House, has not given up on the idea of the Senate passing the bill.

“Time for debating this issue has run out, but luckily the pieces are already in place to solve the problem,” Simpson said in a statement. “For several years, I’ve worked with a coalition of Idaho producers and others to find a legislative solution to the critical workforce shortage that is crippling the American agriculture industry. The product of this collaborative work is the Farm Workforce Modernization Act.”

Simpson placed the blame for the bill’s lack of progress in the Senate on politicians who fear political fall-out from the immigration aspects of the legislation. He said he remains a “strong advocate for securing our borders,” but Simpson said this is not a border security problem but rather a food supply issue that’s quickly becoming a crisis.

“The American people want their elected officials to have the political courage to tackle these problems, not just hone their political brands,” he said. “By crafting a thoughtful compromise, we’ve found a solution that has the support of over 250 agriculture industry groups. Now the Senate just needs to act by passing the FWMA.”

Simpson expressed support for the ASFA in a Dec. 19 press release: “The ongoing farm workforce crisis is hindering agricultural production and contributing to food price inflation. We must address this now, so our producers can continue to grow, feed, clothe and fuel our nation. The ‘Affordable and Secure Food Act’ is a step in the right direction for Idaho agriculture, and for Idaho consumers, so we are asking the U.S. Senate to include the language in the year-end spending bill. As consumers across Idaho and the nation worry about the rising cost of food, Idaho farmers and producers know the worst is yet to come. The time to help prevent significant labor cost increases for those who put food on our tables by reforming our agriculture immigration system is now. The pieces are in place and the U.S. Senate must act.”

Food Producers of Idaho, Idaho Dairymen’s Association, Idaho Cattle Association, Idaho Grain Producers Association, Snake River Sugarbeet Growers Association, Amalgamated Sugar Company, Idaho Potato Commission, Idaho Wool Growers Association, Idaho Hop Growers Association, Idaho Water Users Association, Idaho-Oregon Fruit and Vegetable Association and Idaho Bankers Association were included in the press release as supporters.

Opposition to the bill

Although the Farm Workforce Modernization Act has bipartisan support in Congress and the backing of some major stakeholders, such as the United Farm Workers labor union, others oppose the legislation.

Sean Ellis, a spokesman for the Idaho Farm Bureau Federation, Idaho’s largest general farm organization, said that IFBF’s parent organization — the American Farm Bureau Federation — is pushing for change on the national level. However, AFBF does not support the bill as written.

“IFBF and AFBF certainly support addressing the issue of reform to our nation’s immigration and guest worker program but it’s equally important that we get it right,” Ellis said. “For that reason, we cannot support this bill in its current form.”

One sticking point for the IFBF is the bill’s codification of the U.S. Department of Labor’s farm labor survey, which Ellis said was backed by “flawed methodology.”

“The survey is used to establish wage rates for agricultural guest workers that we believe are not fair and competitive and do not reflect the realities in local markets,” Ellis said. “Farm Bureau supports a solution that meets today’s demands for farms and ranches from day one, both seasonal and year-round, which the current proposal does not do.”

Visa reform

Both the Farm Workforce Modernization Act and the Affordable and Secure Food Act center on reforms to the country’s agricultural H-2A visa program. The current visa program is designed to help American farmers fill labor gaps by hiring workers from other countries to perform temporary or seasonal agricultural work.

FWMA calls for the administration of an electronic verification system patterned on the existing E–Verify program. Another key provision seeks to streamline the H-2A visa process, first by making visas valid for three years, which backers of the bill say would allow non-seasonal agriculture businesses to attract more workers.

The bill would make more affordable housing available to farmworkers, and change how wages are calculated for H-2A workers by setting different wages for workers in different agricultural operations. It would also create the Portable Agricultural Worker pilot program that would allow up to 10,000 H-2A workers to move freely between jobs with different employers.

An agricultural worker in the U.S. on an H-2A visa could obtain legal permanent residency in the country provided they meet several criteria, such as performing agricultural work for at least 100 work days per year for four years. This would apply to those who have worked in agriculture for 10 years or more prior to enactment of the bill; eight years for those who have worked in agriculture for fewer than 10 years prior to enactment. Workers would also have to pay an application fee, along with a $1,000 fine.

Bennet’s proposal would establish a new certified agricultural worker status for current farmworkers who have worked in agricultural labor or services in the U.S. for at least two years. It too would create a mandatory E-Verify system for farmworkers nationwide. The pathway to legal permanent residency would be similar to the original proposal and would allow farmworkers who’ve worked 120 work days in agriculture in the U.S. for 10 years to obtain legal permanent residency. Those who qualify would have to pay a $750 “penalty” fee.

“It establishes legal protections and a pathway for undocumented workers to apply for a green card,” Bennet said. “That’s not amnesty. That’s a recognition that anybody who’s spent decades working to feed America should have the opportunity to apply for lawful status.”

Bennet said his plan would also benefit farmers by saving $23 billion over the next 12 years. The fate of either bill is unknown though as we tick off the final days of the 117th Congress. The 118th Congress begins on Jan. 3.

Bennet’s announcement could be seen as a sign that the Farm Workforce Modernization Act will likely not go to a vote by the end of the year, but the Affordable and Secure Food Act could see a similar outcome unless Bennet can gain the support of some Republican Senators.

“There’s no reason that we shouldn’t get this done,” Bennet said. “And we all know what’s going to happen if we don’t: More farmers and ranchers are going to go out of business. More farmworkers will remain in the shadows living with fear and uncertainty in the country they feed every single day with the sweat of their labor. And more families will have to make impossible choices between groceries and the rent, medicine or school supplies for their kids.”