What immigration reform could do for ag and what could hold it back

Because farmers and ranchers have had difficulty finding U.S. citizens willing and able to perform the tough, seasonal and often transient jobs of planting and harvesting crops and managing livestock, they have grown increasingly dependent of foreign workers.

The current system to bring legal guest workers to the U.S. is called the H-2A temporary agricultural program (http://www.dol.gov/whd/regs/compliance/whdfs26.pdf). It establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature. Before the U.S. Citizenship and Immigration Services (USCIS)(http://www.uscis.gov/) can approve an employer’s petition for such workers, the employer must file an application with the Department of Labor stating that there are not sufficient workers who are able, willing, qualified, and available, and that the employment of foreign workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

The program has grave problems.

A potential user of the H-2A program must anticipate far in advance how many workers will be needed during a particular time frame and guarantee that a certain amount of work will be available. Employers must provide housing food (or kitchen privileges), transportation and take care of the cost of transporting workers from their hometowns to the U.S. work sites and back. Extensive record-keeping is requires as are other obligations.

Employers say the H-2A program is expensive, bureaucratically complex and fraught with difficult interactions with the Department of Labor. In addition, a user survey found that 72 percent of H-2A workers arrived on average 22 days late for the job. In many cases, that means a lost crop.

Immigration reform was a main focus of FFVA’s summer board of directors meeting on May 31. FFVA members got a look at the details of pending legislation as well as a rundown of efforts by FFVA for successful passage of bills that will meet specialty crop agriculture’s needs.

“There has been a flurry of activity in Washington, particularly in the past few weeks,” said Kam Quarles, legislative director for McDermott, Will and Emory in his update to the board. The Senate Judiciary Committee recently passed its version of a comprehensive immigration reform package put together by the so-called Gang of Eight. The bill includes provisions for agriculture that legalize current experienced workers who are already here and a new, easier-to-use visa program for guest workers. The bill has the support of the Agriculture Workforce Coalition, of which FFVA is a founding member, as well as the United Farm Workers.

Quarles and Mike Carlton, FFVA’s director of labor relations, expressed hope that the Senate would make immigration its priority business for the balance of June and would have passed its version by the July 4th recess. “The imperative of a big bipartisan vote coming out of the Senate should create some momentum as the House takes up the bill,” Quarles said

On the House side, a bill has been introduced by Rep. Bob Goodlatte (R-Va.) in that chamber’s Judiciary Committee, and a more complete package is expected to surface soon in the House by its own Gang of Eight, which includes Florida Rep. Mario Diaz Balart.

What can agriculture gain from immigration reform?

The Agricultural Workforce Coalition supports the Senate’s two-pronged approach. First, an ag worker program for earned status adjustment would be established. It would involve a new Blue Card Status for existing workers conditional on certain criteria:

  • A worker must have performed ag employment in the U.S. for not fewer than 575 hours or 100 days during the 2-year period ending Dec. 31, 2012
  • No felony conviction or three or more misdemeanors.
  • They must pay a processing fee and a $100 fine
  • Status expires eight years after the date the regulations are published

The spouse or child of Blue Card holders would also be able to apply for the Blue Card status. Workers and family would be able to apply for Permanent Resident Status (‘Green Card’) if they work 150 days in agriculture in three of the next five years or 100 days in ag in five of the next seven years, pay back taxes and a $400 fine and remain crime free. The program would be administered by USDA rather than the Department of Labor. Employers must register to participate.

In addition, a program would be established to bring in non-immigrant workers. This program would replace the H-2A program after one year. The program proposed in the Senate has two visa categories: the At-Will portable visa and the Contract-Based visa. At-Will visa employees would be free to move from employer to employer without any contractual commitment and Contract Visa employees would agree to commit to work for an employer for a fixed period of time, giving both parties increased stability where it is mutually preferred. The visa term is for three years with one renewal offered. Minimum wages required would range from $9.64 to $11.87 an hour with guaranteed increases. Housing or housing allowance would be offered to At-Will workers, but for Contract Visa workers, housing allowance would only be allowed if the state’s governor certifies that sufficient housing is available.

So what could go wrong?

In the words of Sen. Marco Rubio (R-Fla.), one of the ‘Gang of Eight’ crafting the Senate bill, “One of the things we’ve learned … is how little confidence people have that the federal government will enforce the law,” he told Fox News June 4. The Senate bill is on the floor and is expected to be taken up within days. It needs 60 yes votes to pass.

In addition to Republican dissatisfaction that enforcement of border security would not be tough enough, critics want to reject giving newly legalized immigrants any federal, state or local aid or tax breaks, even after they earn a green card. Other objections to various possible amendments could put the brakes on reform. Those amendments might include bringing in gay partners, siblings and/or others in on family reunification visas.

As of this article’s deadline, hopes remain, as do doubts.


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