By: Shawn Harkins
On a drive through Central California this summer, I was enticed to stop off the road for some freshly caught catfish. Stopping in, I sat at the bar and sat next to a slightly disheveled Fred Flintstone doppelganger. Not wanting to be a stranger in these strange times that we currently find ourselves in, I decided to strike up a conversation. He told me that his name was Rafferty, and that he was a local almond farmer in the area. In between a scintillating set of details about a recent “Criminal Minds” binge watch that he’d found interesting, the discussion shifted to agriculture, in particular whether or not the labor shortage currently gripping the country was affecting Rafferty’s operations.
Rafferty initially claimed that while he was a victim, he was also a well-connected one, and told me that the local House representative in the area had given him some good news recently in the form of a reform package being worked through Congress. He told me that, “help would be on the way soon.” Rafferty also claimed that this would eliminate the red tape and give him some “much needed clarity” for the future. Not wanting to be a complete luddite, I decided to do some research on this topic.
On March 18 of this year, the House of Representatives passed H.R. 1603, better known as the Farmworker Modernization Act of 2021 (hereafter, the “FMWA”). [i] The Act would provide a myriad of benefits to both farmworkers and their employers, such as streamlining the H-2A temporary agricultural worker program[ii], providing a path to legal immigration status for undocumented farmworkers (and their families)[iii], and would also require all agricultural employers to electronically verify the employment eligibility of their workers.[iv] In many ways, this is complimentary to a rule passed by the DHS from last year which extends the H-2A program, allowing for an extension of guest worker visas.[v]
The bill has led to a conglomerate of support for its passage in the Senate. This includes the CATO Institute, who suggests that the FMWA improves the legal migration process, which offers a great amount of incentives for legal compliance, and broadly expands eligibility for both producers and workers. [vi] Joining in its advocacy is FWD.us, a pro-immigration group which supports a pathway to citizenship for the United States’ undocumented workers. [vii]They also highlight a survey conducted by Global Strategy Group that indicates there is a strong majority support a citizenship pathway for undocumented immigrants.[viii] This bill also receives support from labor groups such as Farmworker Justice and the United Farmworkers.[ix]
There are a number of benefits to the bill, especially in regard to legal status. The agricultural worker who has worked at an agricultural facility for the last six months during the last two years, would be eligible to apply for “Certified Agricultural Worker status.” [x] This status would last five and a half years and would allow an opportunity for extension.[xi] Additionally, undocumented workers who have worked on a farm for the last ten years would only need to work for four more in order to gain lawful permanent residency.[xii]
While the FMWA does have its fair share of support, it also faces opposition on several fronts. The American Friends Service Committee, for instance, opposes the bill because they argue it will exclude farmworkers from the process,[xiii] does not provide for health and safety oversight by producers,[xiv] and also takes aim at the H-2A and E-Verify provisions, indicating that they exploit farmworkers[xv] and target mostly individuals of Hispanic origin.[xvi]They are joined in their opposition by several other groups, including the California Institute for Rural Studies, Dignity Campaign, and the Food Chain Workers Alliance. [xvii] Others, such as Representative Jody Hice from Georgia, join in, indicating that it would only invite more migrants to the United States. [xviii]
Americans often experience a dichotomy, albeit very unknowingly. We often want to be able to experience cheap produce while shopping the aisles of Ralph’s or Kroger, jostling for affordability like crabs in a bucket. At the same time, we are seemingly intent to cup our ears and ignore how that sausage is actually made. As a result, the country has an overexploited working class of farmworkers, often grossly underpaid and stripped of their dignity on a variety of levels.
While the FWMA isn’t necessarily the fix-it-all that some of its proponents may overstate, nor the doomsday bill that its opponents gnash their teeth over, it nonetheless represents a large shift forward from the murkiness that this shadow economy often operates in. A pathway to legal status alone makes it a bill worth moving forward with – more than a million undocumented workers would be able to utilize this path towards legal status, and eventually citizenship,[xix] a win in itself. While some groups will unnecessarily split hairs and hope for a perfect bill, there is often room for compromise, which this bill represents.
It’s time that the Senate gets their act together and recognize the sacrifices that countless individuals have made in the name of cheap convenience. It may not be a perfect solution, but it’s definitely a step in the right direction, and it’s time to pass this legislation.
[i] Farmworker Modernization Act of 2021, H.R. 1603 117th Cong. (2021).
[ii] Id. § 201.
[iii] Id. § 101.
[iv] Id. § 301.
[v] Temporary Changes to Requirements Affecting H-2A Nonimmigrants Due To the COVID-19 National Emergency: Partial Extension of Certain Flexibilities, 85 Fed. Reg. 51304 (Aug. 20, 2020).
[vi] David J. Bier, Bipartisan Bill Increases Legal Migration & Legalizes Farmworkers, CATO AT LIBERTY, (Oct. 30, 2019, 4:22 P.M.), https://www.cato.org/blog/bipartisan-bill-increases-legal-migration-legalizes-farmworkers[ https://perma.cc/2PX3-AJPS].
[vii] FWD.us, FWD.us Statement: Farm Workforce Modernization Act (H.R. 1603) Passes With Strong Bipartisan Support, FWS.US (Mar. 18, 2021), https://www.fwd.us/news/fwd-us-statement-farm-workforce-modernization-act-h-r-1603-passes-with-strong-bipartisan-support/ [https://perma.cc/A8MG-42RX].
[viii] Id.
[ix] Alexandra Hall, Nearly Half a Million California Farmworkers Could Gain Legal Status Under New Bill, KQED (Mar. 26, 2021), https://www.kqed.org/news/11866519/nearly-half-a-million-california-farmworkers-could-gain-legal-status-under-new-bill [https://perma.cc/939W-YPKJ].
[x] Id.
[xi] Id.
[xii] Id.
[xiii] Myrna Martinez Nateras, California orgs working with farmworkers oppose the Farmworker Modernization Act, AFSC (Jun. 11, 2021), https://www.afsc.org/story/california-orgs-working-farmworkers-oppose-farm-workforce-modernization-act [https://perma.cc/3CFS-Q85L].
[xiv] Id.
[xv] Id.
[xvi] Id.
[xvii] Id.
[xviii] Hall, supra note 9.
[xix] Id.