While some members of Congress and agricultural groups have been working hard to pass an agricultural labor bill before the August recess, one agricultural group is thanking its members for killing it.
Tom Nassif, president and CEO of Western Growers, an association representing growers of more than half the produce in the U.S., sent an email to hundreds of his members July 13 thanking them for lobbying against the revised Ag and Legal Workforce Act of House Judiciary Chairman Robert Goodlatte, R-Va.
“We have been informed that the U.S. House of Representatives will NOT vote on legislation next week that would impose mandatory E-Verify (electronic verification of employment eligibility) with no fix for our existing workers,” Nassif wrote.
“Furthermore, our allies believe this legislation will likely not be voted before the August recess at all, due to our resolve. Those of you who took the time to call members of Congress made the difference. Let us never forget that when we act collectively, with a strong voice, we make real impact.
“It is our hope that through our strong collective voice, we can persuade the next Congress to get serious about an ag immigration fix that works for all farmers and all regions.”
House Speaker Paul Ryan, R-Wis., promised several members of Congress, including Rep. Dan Newhouse, R-Wash., to hold a vote on a stand-alone ag labor bill before the August recess, which starts July 27, in exchange for them not backing a maneuver last month that would have allowed votes on Democratic immigration bills.
Newhouse said the Ag and Legal Workforce Act, which he helped draft, will be introduced this week and that a vote will happen.
“It is disappointing that Tom Nassif, who just four years ago said immigration reform cannot wait, is now urging action to be delayed until next Congress,” Newhouse said. “His statement is certainly not helpful for this process and would cost growers a lot of money. Thankfully the speaker and majority leader have given their commitment to bring this bill to the floor and American farmers are very grateful.”
The bill provides that illegal immigrants who qualify for a new H-2C-visa guestworker program would obtain visas, then “touchout” to their country of origin or any other country and have up to a year to re-enter the U.S. as guestworkers.
Nassif said H-2C is an improvement over H-2A for growers using the guestworker program, but H-2C is not workable for many California growers who rely on domestic workers, many of whom are illegal.
“The bill would require all of those workers — and we could have 400,000 to 500,000 here in California — to stand up and say we are here illegally, so deport my spouse and convert me to a guestworker,” Nassif said. “Some of them have been here for decades. Our growers tell us that workers tell them they would rather continue living in the shadows than convert to H-2C. So we can’t support a bill that would cause us to lose our workforce.”
Nassif said he’s not asking for citizenship for illegals but legal status for them to transition to H-2C without returning to their country of origin.
Even if illegals paid a fine, legal status is amnesty in the view of too many in Congress, Nassif said.
Organizations whose members employ 70 percent of the workers affected are opposed to the bill’s present form, he said.
“We will work hard to make sure there is no vote until we get a new Congress. We don’t know which way Congress will go in the election (to which political party), but we are sure it can’t be any worse than it is now,” Nassif said.
Michael Marsh, president and CEO of the National Council for Agricultural Employers in Washington, D.C., said others share Western Growers’ concerns about E-Verify and that the larger business community outside agriculture, has been active in opposing E-Verify.
“Should all the many pieces of this legislation not work precisely and seamlessly — transition of existing workforce, the ridiculous visa cap, touchback requirement, imposition of E-Verify, timing, et cetera — the risk of exacerbating the existing agricultural workforce shortage only increases,” Marsh said.
“It’s not an easy fix. That’s why the involvement of our champions in the House (Newhouse and California Republicans Jeff Denham and David Valadao) has been so vital and appreciated. The fact that a handful of Agricultural Workforce Coalition members abandoned our unified voice doubtless complicated our champions’ efforts,” he said.
NCAE supports changes that have been made to the bill but has not taken a position being unsure if it’s the final version, Marsh said.
He fears the bill’s annual cap of 410,000 H-2C workers would result in a huge labor shortage if 50 to 70 percent of the 2 million agricultural workers estimated to be illegal left the country.
But the revised bill allows three-year visas. So 410,000 workers could come in the first year, another 410,000 the next and another 410,000 the third year for a total of 1.2 million.
The H-2A program, which has no cap, would be continued for one-year of transition into the H-2C program with H-2A workers not counted toward the H-2C cap, according to a Judiciary Committee summary of bill changes.
If the cap is reached in any year an automatic 10 percent escalator is activated and when 80 percent of those additional visas are granted the secretary of Agriculture may further increase the cap.
“You can’t get much better than that. In my opinion, the cap is a non-issue. The Democratic version of a cap would be extremely problematic for ag,” said Dan Fazio, director of the farm labor association WAFLA in Olympia that recruits thousands of H-2A workers annually for Washington growers.
Senate Democrats insisted on a much tighter cap of 112,333 in a bill that NCAE, Western Growers and most ag groups supported and that passed the Senate but failed in the House in 2013.
The U.S. Department of Labor approved 200,049 H-2A guestworkers for U.S. farms in fiscal year 2017, up 20.7 percent from 165,741 in 2016. That’s about 10 percent of the 2 million seasonal ag workers needed annually nationwide to assist 500,000 year-round ag workers.
“WAFLA enthusiastically supports the bill. It’s a fantastic bill and those who don’t like it probably don’t want a bill,” Fazio said.
“WAFLA members would prefer E-Verify not be part of the bill and that we only have fixes to the guestworker program. But we committed that we would not oppose E-Verify if given a workable guestworker program like this bill,” he said.
“People who have opposed this bill have made it better, but they are also running us out of time,” Fazio said.
Jim Bair, president and CEO of U.S. Apple Association, said there have been significant improvements to the bill but did not say whether U.S. Apple supports it.
Most dairy trade associations support the bill, said Leon Sequeira, a Kentucky labor attorney and former assistant secretary of labor under President George W. Bush.
The bill gives dairy workers H-2A eligibility until H-2C is fully in place, according to the Judiciary summary. Horse training and management also would be eligible for H-2C.
Under H-2A, employers could obtain workers for up to 10 months with employers deciding their length of stay. Under H-2C, workers could decide their length of stay for up to 36 months. A 60-day touchback is required after 36 months.
Farmers and workers would have limited liability protection for the knowledge workers disclose in H-2C petitions, including legal status and requisite time in ag work.
H-2C workers would be required to purchase catastrophic health insurance if the state they work in has catastrophic health insurance for which they are eligible. Otherwise, a portion of the worker’s wages would be escrowed and forfeited to the U.S. Treasury unless no catastrophic insurance is available in that state.
The bill would reduce growers’ costs by eliminating requirements that growers provide housing for workers, transportation between the work site and country of origin and by allowing a minimum wage of the federal minimum wage plus 20 percent or the state minimum wage, whichever is higher.