Visa Lawyer Blog
The House of Representatives recently made a bold move that could give undocumented farmworkers a pathway to permanent residence.
Yesterday, December 11, 2019, by a vote of 260-165, the House passed the Farm Workforce Modernization Act, a progressive bill that if approved by the Senate, would create several exciting opportunities for undocumented farmworkers as well as U.S. employers.
What does the Bill propose?
The bill would allow existing agricultural workers in the United States to legalize their status through continued agricultural employment and contribution to the United States economy.
Which workers would be eligible for Permanent Resident Status?
Earned Pathway to Legalization
- Individuals who have worked in agriculture in the U.S. for at least 10 years before enactment of the bill, must continue to work for at least 4 more years in agriculture on Certified Agricultural Worker (CAW) status before being eligible to apply for permanent residence OR
- Individuals who have worked in agriculture in the U.S. for less than 10 years, must work at least 8 more years in agriculture on CAW status before being eligible to apply for permanent residence
- Applicants who qualify based on one of these criteria would be required to pay a $1,000 fine
In addition, the bill would:
- Create a new temporary worker visa program for current unauthorized farmworkers called Certified Agricultural Worker (CAW) status. CAW visas would be renewable and five-and-a-half years in length. The number of CAW visas would be uncapped.
- Establish eligibility requirements of the CAW visa.Unauthorized immigrants who have spent at least 180 days of the last two years in agricultural employment would be eligible for the Certified Agricultural Worker Visa.
- With few exceptions, applicants must meet existing work visa admissibility requirements to be eligible and must pass a criminal background check.
- Felons and those who have been convicted of multiple misdemeanors (two or more offenses of moral turpitude or three offenses in general) would not be eligible.
- DHS would accept applications only for 18 months after the bill goes into effect (with an option for DHS to extend for an additional year).
- Concerning the unauthorized farmworkers who have not worked enough days to qualify, additional H-2A visas would be made available for those who have worked for a lower threshold of at least 100 days over the last three years. Employees would not have to apply from their home country to receive these additional H-2As, so they would be able to continue working as their petition is processed.
Streamlining the H-2A program
The bill would also ease the process for U.S. employers seeking to hire new foreign labor through the H-2A visa program in several important ways:
- Single Portal for Filing. Employers would now have a single filing process through an online portal, through which DHS, DOL, and State Workforce Agencies (SWAs) can process simultaneously (rather than sequentially in three different steps). This streamlining reduces costs and processing time for growers.
- Single Petition for Staggered Needs. Employers would now be able to file one petition reflecting staggered labor needs. For example, under the current program, if an employer needs 5 workers for tilling, another 10 workers for planting, and another 10 for harvesting, the employer must file 3 different petitions. This bill streamlines the process by allowing employers to file one petition for the whole season.
- Streamlined Recruiting. Employers would now be required to simply file a job posting on an electronic registry, rather than filing newspaper print advertisements.
- Wage Reform. The bill reforms H-2A wages to better reflect real-world wages, while protecting against sudden wage increases that disrupt employer planning and operations:
More Granular Wages. Rather than one wage determination for all farm labor, the bill adopts a proposal from the Trump Administration’s proposed H-2A rule to disaggregate wages for various agricultural occupations (e.g., crop workers, livestock workers, machine operators, graders and sorters, etc). This will ensure that wage requirements better reflect the real-world wages paid to specific types of workers. Some workers would see higher wages (machine operators), while others would see lower wages (crop workers, which account for the majority of incoming H-2A workers).
Limiting Wage Fluctuations. To prevent wage fluctuations, the bill limits wage increases/decreases, thus providing more stability and predictability for employers. Wages are governed as follows:
- i. 2020: One-year wage freeze—wages will not increase in 2020.
- ii. 2021-2029: Wages could not decrease by more than 1.5% or increase by more than 3.25%.
- Exception: If the resulting wage is less than 110% of the Federal or state minimum wage, then the wage could go up by up to an additional percent.
- iii. 2030 and Beyond: Current wage structure (AEWR) goes away and the Secretaries of Ag and Labor will determine a new wage structure through rule making.
Limiting Mid-Contract Wage Increases. Wage requirements would now apply for the duration of the contract, rather than potentially fluctuating mid-contract.
What happens next?
The bill is now heading to the Senate, where it has a high chance of passing due to overwhelming bipartisan support. We encourage our readers to contact their representatives to ensure this bills passage.
To learn more about the ways you can help get this bill approved, please click here.