By Preston Huennekens | FAIR Take | October 2019

Representatives Zoe Lofgren (D-CA), Dan Newhouse (R-WA), Jimmy Panetta (D-CA), Mike Simpson (R-ID), Doug LaMalfa (R-CA), and Mario Diaz-Balart (R-FL-25) recently introduced the Farm Workforce Modernization Act (FWMA). This bill will amnesty over 1.5 million illegal alien farmworkers, expand the H-2A program, add 40,000 green cards to the EB-3 category, and mandate E-Verify across the agriculture sector.

Additionally, despite its flashy name, this bill does nothing to modernize the agricultural workforce. Instead of encouraging the adoption of time- and cost-saving technology, this bill focuses on amnestying millions of alien farmworkers and giving them a path to citizenship.

Farmworker Amnesty

The bill creates a new immigration status titled Certified Agricultural Worker (CAW). Illegal Aliens are eligible for CAW if they worked in agriculture for at least 180 days in the past two years. Successful applicants earn a renewable 5-year work visa renewable as long as they continue to work in agriculture. There are over 3 million farmworkers in the United States, and researchers estimate that anywhere from 50 to 70 percent of this workforce is illegal. This means that anywhere from 1.5 to 2.1 million aliens are eligible for this amnesty.

Further, for a two year period after enactment, the bill shields CAW-eligible aliens from deportation. It even suspends active removal proceedings against aliens who are tentatively eligible for CAW— including those who do not apply for CAW benefit from its amnesty initially.

CAW workers can eventually apply for green cards through an archaic system that resembles indentured servitude. Aliens who worked in agriculture for at least 10 year before the bill’s enactment must work under CAW status for at least 4 additional years before applying for a green card. Alternatively, aliens who worked for less than 10 years before enactment must work at least 8 more years under CAW status. Currently, it is unclear how aliens would prove their length of employment and presents the opportunity for widespread fraud. Instead of enshrining a renewable nonimmigrant visa or transitioning these workers to H-2A, this bill gives them a path to citizenship. This will encourage further illegal immigration as aliens outside the country try to benefit from legalization.

H-2A Changes

The H-2A program is an uncapped visa that permits American farmers to hire available seasonal workers. The program has a number of flaws, but still gives the agriculture industry an unlimited supply of guest workers. Big agriculture ignores the program because it is still cheaper and easier to hire illegal aliens instead of enrolling in the H-2A program. Without aggressive and punitive sanctions on noncompliant employers, expanding interior immigration enforcement, and simplifying the use of the H-2A, this will remain the status quo.

This program does not address these issues with the H-2A. Instead, it creates two pilot programs with minor tweaks. First, it allocates 20,000 capped H-2A visas for use year-round, half of which must go to dairy farmers, a group currently excluded from accessing H-2A workers because it is not seasonal work. After 10 years, Congress could choose to eliminate the cap for year-round, making the H-2A visa a de facto year-round program.

Green card expansion

The bill adds 40,000 additional EB-3 green cards, allowing H-2A workers to apply for legal permanent residency after 10 years of H-2A status. H-2A workers generally cannot adjust their status and apply for legal permanent residency. With these visas, the H-2A program could become a new pipeline for unskilled migrants to become American citizens. Activist groups will try to expand the number of visas well beyond 40,000 annually in the future.

E-Verify

The bill claims that it will implement E-Verify (or a permanent, but different, electronic verification system) across the agricultural sector. It will phase in over a period of time and only applies to the agriculture industry. This is a bad bargain for E-Verify supporters. Instead of restricting its use to one industry, Congress must make E-Verify mandatory for all private and public employers, with a phase-in period for agriculture.

Conclusion

The Farm Workforce Modernization Act is a naked attempt at amnesty. This bill would amnesty over 1 million illegal aliens and encourage further illegal immigration. Further, the bill would place the amnestied aliens in a strange indentured servitude limbo period, tying them to agriculture for years using a restricted work permit and promising a path to citizenship.

For these reasons, FAIR opposes the bill and will work to stop its progress in the House of Representatives.