For those speculating how U.S. immigration policy will change under the new Biden administration, Leon Sequeira says to expect the opposite from the last four years. 

Whether those changes happen through comprehensive immigration reform or more targeted legislation, however, remains to be seen. 

Sequeira, an attorney and former assistant secretary of labor under President George W. Bush, discussed what that ultimately means for farms and seasonal agricultural employers during a presentation at the Wafla H-2A Workforce Virtual Summit on Jan. 13. 

Wafla is a farm labor association based in Olympia, Wash., and the country’s third-largest recruiter of temporary agricultural guestworkers through the H-2A visa program. 

As President-elect Joe Biden prepares to take office Jan. 20, Sequeira said the administration will likely look to overhaul the immigration system it inherits from President Donald Trump.

Among the priorities, Sequeira said Biden wants to end the Trump administration’s restrictions for asylum-seekers, stop construction of the border wall with Mexico and reverse Trump’s broad interpretation of the “public charge” rule, denying visas to immigrants likely to depend on government benefits. 

Biden has also said he will send comprehensive immigration reform to Congress on day one, which would include a path to U.S. citizenship and permanent protections the Deferred Action for Childhood Arrivals, or DACA, program. 

But realistically, Sequeira said, Congress is already likely to have its hands full in the first 100 days of the Biden administration. Between confirming Cabinet appointments, considering another $1 trillion in coronavirus relief and now a trial in the Senate after Trump was impeached in the House for a second time, there is a lot on lawmakers’ plates.  

“It’s safe to say there a whole lot of plans for the Biden agenda,” Sequeira said. “It’s not clear how they are going to arrange all these trains trying to arrive at the station.”  

While Biden’s vision for immigration reform will certainly include include a path to citizenship and DACA, the question remains whether the slim Democratic majorities in the House and Senate will also want to tackle meaningful H-2A reform, Sequeira said. 

“As is always the case with immigration legislation, the real issue is timing and politics,” he said. “This is an infinitely complex policy problem.”

Congress could otherwise decide to address H-2A in a separate bill. In that case, Sequeira said the House is likely to revive the Farm Workforce Modernization Act.

“That bill was very controversial, and not universally embraced by agriculture,” Sequeira said. “Some groups did offer some tepid support for it, but others, including American Farm Bureau Federation, said they would not support it.”

Any bill would need significant Republican support in the Senate, which Sequeira said could help moderate proposals and bring them closer to the political middle.

“To me, it really comes down to whether the Democrats want a sensible solution to this problem,” he said.

On Jan. 15, the Labor Department announced it had finalized a rule overhauling the H-2A program, including streamlining and modernizing the visa process by mandating electronic filing of job orders and applications.

The rule also allows employers to stagger the entry of workers into the country over a 120-day period, and provides flexibility to file a single application for different dates of need instead of multiple applications. 

The Labor Department says the rule will be published in the Federal Register “at a later date,” though Sequeira said it is not likely to go into effect after Biden takes office.

One part of the H-2A proposal that was previously carved out and passed on its own was a two-year minimum wage freeze for H-2A workers — known as the Adverse Effect Wage Rate, or AEWR. That was later overturned by a federal judge in California. 

The AEWR is calculated each year based on USDA data to keep wages of foreign workers high enough that they don’t adversely affect wages and employment of domestic workers. Agricultural groups have argued the AEWR has instead artificially increased wages higher than the rate of inflation, excessively raising costs for growers. 

The United Farm Workers union successfully sued to block the rule in December. Sequiera said the Labor Department should publish new AEWRs in mid-February, using the same methodology as years past. 

The wage rate for Oregon and Washington in 2020 was $15.83 per hour, and could climb even higher in 2021, Sequiera said. Farmers should not expect that to change quickly. 

“The only thing I can say is regulatory changes, of course, take time,” he said. “We won’t see major changes to the H-2A program in the first month, or two, or even three.”