Farmworker Immigration Update 4/8/2013

Momentum for immigration reform is building in Congress, including a road map to immigration status and citizenship for undocumented workers. The widely publicized “Gang of 8” Senators seems to be nearing an agreement on an immigration bill, although no compromise regarding agriculture has yet occurred. The “Gang of 8” comprehensive immigration reform bill is expected to include a section addressing immigration reform in agriculture. Senators Feinstein (D-Ca), Rubio (R-Fl), Bennet (D-Co) and Hatch (R-Ut) have been leading discussions with agricultural employer associations and farmworkers, led by the United Farm Workers, to reach an agreement regarding immigration policy changes for agriculture. Because of the ongoing nature of the conversations, the details of these discussions remain confidential. But, as discussed in more detail below, media reports show that agribusiness is seeking to use immigration reform as a vehicle for reducing farmworker wages. We do not know whether an agreement will be reached; nor do we know the action Senators would take if the farmworkers and employers cannot agree.

The recent agreement between the AFL-CIO and the Chamber of Commerce on a new visa program for lesser skilled workers addressed an important piece of immigration reform and helped continue the momentum for a bill. For details about the new “future flow” mechanism, click here. The Senate “Gang of 8” is expected to release their bill in mid-April. The bill will go to the Senate Judiciary Committee, chaired by Sen. Leahy, for a hearing and a “mark-up” to amend and vote on the bill. If the bill passes out of the Judiciary committee, it will proceed to a debate and vote by the full Senate. Separate discussions are occurring in the House of Representatives; their outcome is uncertain at this time. Action in the House would likely occur after the Senate vote, although there are reports that the House “gang of 8” is close to completing their bill. Farmworker Justice’s priorities on immigration reform appear on our website. 

Recent news stories and opinion pieces have highlighted agriculture in the upcoming debate, including the history of growers holding up immigration reform with demands for bigger, less-regulated guestworker programs. Grower hints of the demands they may seek from immigration reform are surfacing in the media: “[p]olitically, immigration’s a heavy lift,” … “agriculture is going to be the pivot point for the decisions a lot of members make.” In that Bloomberg Businessweek article, the UFW notes that the “[a]gribusiness lobby power has kept farm workers excluded from every major labor law for decades. It would be a grievous mistake to allow agribusiness to use the debate over immigration reform to further reduce wages of the poorest workers in the country.”

Farmworker Justice believes immigration reform is critically important to helping farmworkers and their families improve their lives. Our top priority is a roadmap to citizenship for the 11 million undocumented people, including the agricultural workers who cultivate and harvest our food. In recent media, however, growers appear to be noncommittal on that point, even as they recognize the need to maintain their current workforce: “[w]e propose a work authorization that requires a commitment to work in agriculture for a set period of time…. [w]hether that turns into a pathway to citizenship or some other form of legal status is a political question that will be decided at a much higher level than ours, frankly.”

While agribusiness may be reticent to commit its political power to a roadmap to immigration status and citizenship, they are using their political muscle to seek lower wage rates and a high number of visas in a future flow program. Growers complain that the wage rates for farmworkers in the current guestworker program are artificially high (see the Center for American Progress’s blog on farmworker wages). Yet the current H-2A wage rate, the adverse effect wage rate (AEWR), is the regional average hourly wage rate for nonsupervisory field and livestock workers, as reported by growers through the Department of Agriculture’s Farm Labor Survey. This wage rate formula was put in place during the Reagan Administration and at the time, cut H-2A wages by about 20%. The AEWR is intended to prevent wage depression due to the impact on wages of vulnerable foreign workers who are unable to bargain for wages and US workers who can be deemed unavailable for work if they seek wages higher than the minimum required under the program. Farmworkers are among the nation’s poorest workers. With a poverty rate that is nearly double that of other workers, wage protections for farmworkers in any future worker program are critically important and a reduction in farmworker wages must not be the cost of immigration reform.

A debate has developed regarding a visa “cap,” or limit on the number of workers from abroad that growers may add to the agricultural workforce. Some agribusiness representatives “stress that what may work for general business should not be seen as appropriate or relevant for ag,” and that agriculture should have a “need-based mechanism for determining caps as well as an emergency procedure for employers with unmet need.” While the current H-2A program is uncapped, it does include economic disincentives and oversight designed to prevent growers from overrecruiting workers. If employers are successful in their desire to remove or reduce such features, nothing other than a cap would prevent growers from bringing in an oversupply of workers at little to no cost to themselves. The impact on the hundreds of thousands of current documented farmworkers and any newly-documented farmworkers (we estimate there are roughly 1 million) would be job loss and lowered wages and working conditions.

Some growers are pushing to place any future worker program in the Department of Agriculture, rather than the Department of Labor, where the H-2A and other guestworker programs are housed. The Department of Labor has a long history and expertise in operating guestworker programs, and in enforcing labor rights such as those in the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act. The USDA lacks expertise in these areas. It also lacks an infrastructure for such responsibilities, which would make the cost of shifting them unduly prohibitive and duplicative. Any future worker program should remain with the DOL. As we’ve said before, DOL’s enforcement of workers’ rights under the H-2A program must continue to improve. In addition, the international labor recruitment system must be reformed to stop abuses that result in guestworkers arriving indebted and effectively indentured.

Farmworker Justice will continue to support the efforts of the UFW and other farmworker organizations to reach an agreement on immigration reform that meets the needs of farmworkers and our nation’s food security. Farmworker Justice believes immigration reform must present an opportunity for farmworkers to improve their wages and working conditions, which will in turn attract and retain workers, stabilizing the workforce. For today’s and tomorrow’s farmworkers, an accessible roadmap to immigration status and citizenship, economic freedom and strong labor protections are essential to these goals.