A farm labor bill that recently passed the House Judiciary Committee would be “catastrophic” to the agricultural construction and livestock industries, says a law firm specializing in providing H-2A-visa foreign guestworkers for agricultural construction.

But U.S. Rep. Dan Newhouse, R-Wash., a chief sponsor of the bill, says the law firm and other companies are exploiting a loophole in the law and should be using non-agricultural H-2B visas.

H-2A visas are intended for workers for agricultural production and the only allowance for agricultural construction was if it were on property owned by the employer doing the work, Newhouse said.

His bill continues that provision, but a challenge by an agricultural construction firm in 2008 led to a settlement with the U.S. Department of Labor and more companies using the provision to do agricultural construction on property they don’t own for the past decade.

Farmer, Farmer & Brown Law Firm, in Marietta, Ga., provides about 1,500 H-2A workers annually to mostly agricultural construction companies in 23 states including Washington and has offices in Georgia, Texas and Iowa.

Of 257,667 H-2A positions certified by the U.S. Department of Labor in 2019, probably 2,500 to 3,000 were in agricultural construction and mostly in building livestock confinements, said Kyle Farmer, co-founder of the law firm.

The Farm Workforce Modernization Act, H.R. 5038, introduced by Newhouse and Rep. Zoe Lofgren, D-Calif., Oct. 30, passed the Judiciary Committee, 18 to 12, on Nov. 21. The sponsors hope it passes the full House before the end of the year.

Seeking to ensure a legal and sufficient agricultural workforce, the bill provides renewable visas for agricultural workers in the country illegally, phases in mandatory E-verify (electronic verification of employment eligibility), amends the H-2A-visa agricultural foreign guestworker program and freezes the minimum wage of H-2A workers at 2019 levels through 2020.

There are good aspects of the bill but prohibiting agricultural construction from using H-2A is not one of them, Farmer said.

“We have years of experience in agricultural construction. We have advertised tens of thousands of open positions, hired hundreds of U.S. workers, and seen the struggles these employers go through to fill the positions to meet their contractual needs,” Farmer said, adding only H-2A workers and undocumented laborers fill the jobs.

Positions have been advertised at $1,500 per week and $21 an hour which is above the H-2A minimum wage and people don’t take the jobs, he said.

“U.S. workers do not want these jobs because they are remote, require extensive travel and are hard and dirty work. U.S. workers who do take them do not last,” he said.

The non-agricultural H-2B visa can’t be used because agricultural construction is agricultural in nature and there are not enough H-2B visas to fill the need because numbers are capped and full, he said.

Many agricultural construction companies use only H-2A workers and without the workers, the companies will not survive and the cost of livestock production will “dramatically increase,” Farmer said.

But Newhouse said construction companies, not in agricultural construction and not using H-2A workers, complain of a competitive disadvantage because they have to pay higher wages.

“This company,” he said referring to Farmer, Farmer & Brown, has previously used H-2B and it required higher wages.”

The bill is narrowly focused on ag labor but that does not mean that there are not issues in construction or hospitality or other industries related for foreign guestworkers, he said.

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