On November 20, 2019, the House Judiciary Committee passed the Farm Workforce Modernization Act (H.R. 5038) along party lines, with 18 Democrats supporting the bill and 12 Republicans opposing it. The House is expected to take up the bill as soon as the week of December 9, 2019. Agricultural producers have long expressed concern about labor shortages and have sought changes to the H-2A temporary agricultural worker program.
This new proposed legislation, however, is first and foremost an illegal immigration bill. Instead of simply reforming the legal immigration system to address agricultural labor, the bill allows existing illegal immigrants working in agriculture to get legal status and a pathway to citizenship. As such, the bill is a clear-cut example of amnesty.
While there are numerous issues covered in the legislation, this Issue Brief is focused solely on the amnesty aspect of the bill.
Overview of Certified Agricultural Worker Status
Right from the outset, the legislative text establishes the amnesty process for illegal immigrants working in agriculture, creating something called “certified agricultural worker status.”
Eligibility. This program is specifically designed for illegal agricultural workers. In fact, aliens are only eligible if they are “inadmissible or deportable from the United States” on the day the legislation was introduced (November 12, 2019). There are two very narrow exceptions to this requirement: aliens whose removal has been deferred under what is called deferred enforced departure (this currently only applies to nationals from Liberia) and nationals of a small number of countries who have temporary protected status because of harmful conditions in their countries. Unless aliens can meet these requirements, they are not eligible for certified agricultural worker status—including farmworkers legally in the United States under the H-2A program or those seeking to come into the country through the H-2A program.
In addition, the aliens must also have worked at least 1,035 hours (or 180 work days) in agriculture during the two-year period preceding introduction of the bill and have been continuously present in the United States from the date of the bill’s introduction until granted certified agricultural worker status. An alien otherwise meeting these requirements could be ineligible for some limited reasons, such as felony offenses.
The legislation would not merely cover the workers themselves. The spouses and children of aliens granted certified agricultural worker status could be granted what is called “certified agricultural dependent status.”
Length of Status and Extensions. Certified agricultural workers and their spouses and children can stay in the country for five and one-half years. They can also receive indefinite extensions for additional five-and-one-half-year periods. In order to be granted an extension, the certified agricultural worker is required to have worked in agricultural labor or services for at least 575 hours (or 100 work days) in each of the five preceding years.
Pathway to Citizenship. The legislation creates a means for certified agricultural workers (and their spouses and children) to become lawful permanent residents. Under existing law, a lawful permanent resident is an individual who has secured a “green card” to live permanently in the United States and can generally become a citizen after five years.
To become a lawful permanent resident, the alien must have performed agricultural work for at least 575 hours (or 100 work days) each year for at least 10 years prior to enactment of the law and for at least four years as a certified agricultural worker. Alternatively, if aliens do not meet the 10-year requirement, they would need to work for at least eight years as a certified agricultural worker. The four-year and eight-year work requirements are in addition to any previous agricultural work prior to enactment of the law.
Problems with the New Certified Agricultural Worker Status
The new certified agricultural worker status would reward individuals who have come into the country illegally to work in agriculture—and also reward those agricultural producers who have employed these illegal workers. The legislation is a clear signal that there is little reason to follow the law or work within the legal immigration system. It incentivizes aliens and farmers to ignore the legal immigration system in the future if it best serves their needs.
This amnesty provision is so extreme that it does not simply allow the illegal immigrants to become part of the current H-2A program like legal immigrants working in agriculture. It goes even further by giving them a new status and path to citizenship that agricultural workers legally in the country would not be afforded. Quite simply, current agricultural workers who want to live and work in the United States would be better off if they are illegal immigrants as opposed to legal immigrants.
There is also nothing that could do more harm to legal immigration than this amnesty that threatens the legal immigration system’s legitimacy and reason for existing. Future legal immigration reforms would be far less effective than they otherwise would be since aliens and employers would know that end-runs around the law would not just be ignored—they might even be rewarded.
The sheer scope of this proposed amnesty would be massive. According to the latest National Agricultural Worker Survey data (fiscal years 2015–2016), an astonishing 49 percent of farmworkers are illegally in the United States. Some estimates are as high as 70 percent. The total number of illegal immigrants working in agriculture is not clear, but it is likely at least 1.5 million people—and possibly much higher.
The legislation would therefore be granting amnesty to millions of workers, and that does not even include their spouses and children. Also, as many of these agricultural workers move to lawful permanent resident status and then to citizenship, there is no reason to think they would simply continue to work as farmworkers. This amnesty plan, which allegedly exists in part to help farmers with their labor needs, would likely have only a limited short-term benefit to farmers as existing workers move off the farm. This movement away from the farm is precisely what happened when the United States granted amnesty to over 1 million agricultural workers in 1986.
Congress should not support immigration policies that condone ignoring the very immigration laws that it has enacted. The U.S. would be sending a message that the nation’s immigration laws should be no obstacle to those who want to come to the U.S. illegally and those who want to employ these individuals.
The Heritage Foundation’s “An Agenda for Immigration Reform,” published earlier this year argued that “the government should pursue a measured set of approaches to a wide variety of immigration issues, but in all events, it should exclude amnesty for aliens unlawfully in the United States.” Congress should follow this important advice.
There should be a thoughtful discussion and debate about legal immigration reform, including labor issues within the agricultural sector. The agricultural sector already has the H-2A temporary worker program to fill positions of a temporary or seasonal nature. This program, which places no limit on the number of visas that can be issued, is just a new iteration in long-standing U.S. policy to create temporary worker programs to help meet agricultural labor needs.
There may be problems with this program, but those problems along with many other immigration questions should be discussed within the context of reforming the legal pathways for aliens to enter the United States. The solution is to solve the problems with our laws, not to pass an amnesty law that would bless the actions of aliens and agricultural employers who have ignored the law altogether.
Daren Bakst is Senior Research Fellow in Agricultural Policy in the Thomas A. Roe Institute for Economic Policy Studies, of the Institute for Economic Freedom, at The Heritage Foundation.