USDA / Lance Cheung
The Farm Workforce Modernization Act reveals a growing rift, as competing visions emerge about what compromises are worth striking to secure legal status.
Last Thursday, Congress voted to pass a consequential bill that could provide undocumented farm workers with a pathway to citizenship. If passed in the Senate and signed into law, the Farm Workforce Modernization Act (FWMA) would allow people who have “performed agricultural labor or services” without being authorized to work in the U.S. to immediately apply for temporary legal status.
The FWMA was one of two immigration-related proposals passed by the House last week, and it comes as Democrats aim to make good on pre-pandemic promises to overhaul the system writ large. The bill passed 247-174, with 30 Republicans in favor and one Democrat opposed. For the roughly 1 million undocumented agricultural workers currently working here, the vote portends an immediate future free from fear of deportation and the ability to travel between the U.S. and their home countries.
If passed, the act would legalize a large portion of the farm workforce—almost half of whom aren’t authorized to work in the U.S.—but the path to permanent residency will be anything but swift. Those who have worked on a farm for at least 180 days in the past two years will first apply for temporary “certified agricultural worker status,” which can be renewed in five-year increments. After performing an additional eight years of agricultural work they’ll become eligible to apply for permanent legal status.
“There could be extended periods of time where workers were only getting paid in cash or under the table, where it would be hard to document those things. That could cause a barrier to even apply for the program.”
The bill was considered a win by some of the nation’s most prominent labor groups, including United Farm Workers of America (UFW), founded by César Chávez and the sector’s largest labor union, and Farmworker Justice, a legal advocacy organization that successfully challenged numerous efforts to freeze worker wages during President Trump’s tenure.
But it also reveals a growing rift among farm workers and their advocates, as competing visions emerge about what compromises are worth striking to secure legal status, and which would leave farm workers worse off in the years to come.
“We can do way better than this and we should be doing way better than this,” said Ildi Carlisle-Cummins, executive director of the California Institute for Rural Studies, which conducts research on fair labor practices in farming. She pointed out that the bill mirrors a proposal the House passed two years ago, and argued that any farm labor proposals put forth during Biden’s term should be more compassionate toward workers. “What we have in front of us moving fast is the same old thing,” she said.
A number of grassroots organizing networks expressed specific disappointment about the requisite eight years of additional farm work included in the bill, saying it failed to recognize the years some workers have already put in. Though workers who can prove they worked in the industry for 10 years prior to the bill’s enactment would need only to work another four years before they could apply to become a permanent resident, advocates say the requirement is a barrier that may ultimately limit the number of people who stand to benefit.
“People like me who have been here for [almost] 20 years—their bodies are tired.”
For one thing, it can be difficult to gather evidence of a work history. “Sometimes there’s no formal contract between workers and the grower, that’s common throughout farm work,” said Edgar Franks, political director at Familias Unidas por La Justicia, a farmworker union based in Washington state. He added that many farmers hire via handshake agreement, making accurate records of work history scant: “There could be extended periods of time where workers were only getting paid in cash or under the table, where it would be hard to document those things. That could cause a barrier to even apply for the program.”
Some farm workers oppose the eight-year requirement, too, pointing out that their work is too physically taxing to sustain for more than a decade.
“People like me who have been here for [almost] 20 years—their bodies are tired,” said Luis Jimenez, a farm worker based in upstate New York and president of Alianza Agrícola, an advocacy organization that works in the region. At age 36, Jimenez has worked in agriculture for 17 years. He wants to see legislation that provides a pathway to citizenship on a more expedited timeline—one that reflects the years he and his fellow workers have already put in.
Proponents of the FWMA are aware of opposition from farm workers like Jimenez, but argue that the bill as written provides both a realistic process for obtaining legal status, and the immediate ability to travel in and out of the country again. (Most undocumented workers don’t travel abroad for fear they’ll be forbidden to return.)
But more importantly for them is legal status right away, so they can go back [to their home countries] and see their families.”
“This takes into consideration the work that farm workers have done and gives them that path to citizenship that’s so desired,” said Armando Elenes, secretary treasurer of United Farm Workers. “But more importantly for them is legal status right away, so they can go back [to their home countries] and see their families.”
Another point of contention is the bill’s expansion of the H-2A program, which allows farmers to hire foreign-born workers for temporary agricultural jobs. It’s a program farm operators rely on heavily to make up for the shortfall in U.S.-born workers who are willing to do the difficult work that seasonal agricultural jobs present. It’s also got something of a checkered history.
H-2A employers are currently required to pay wages above state and federal minimums and provide housing, food, and transportation for their temporary workers. But the program has been dogged in recent years by numerous allegations of exploitation, including wage theft, supplying low-quality meals, and offering poor working and living conditions.
“[The bill] trades away the potential rights of workers who are in the country now for the future rights of workers who will be brought in, imported from Mexico under the control of large agricultural employers and whose lives are just entirely controlled by those employers,” said Carlisle-Cummins.
“I’d rather fight for something I believe in and lose, than pass something that’s going to be hurtful.”
Still, the expansion is seen as a critical concession for farm employers. As written, the proposal would streamline and simplify the visa process by requiring that the Department of Homeland Security (DHS) and the Department of Labor (DOL) establish a one-stop online portal farm employers can use to secure them. So, while providing undocumented workers with a path to legal status, the bill would also expand the H-2A program to meet farmers’ labor needs.
Another nod to farmers that troubles worker advocates: the FWMA would freeze current H-2A wages where they are through the end of 2022, then limit annual increases to a maximum of 3.25 percent. Right now, wages for seasonal farm workers range between $11.81 and $16.34 an hour, depending on the state. But opponents of this proposal on both sides of the aisle have argued that employers are more likely to hire a seasonal H-2A worker they can pay at $11.81 an hour than they are a full-time, U.S.-born worker who might demand more—and that, they say, drives wages down for all farm workers.
Elenes of UFW said that, given the divided Senate, this bill is the most legitimate path to legal status available for farm workers right now. In other words, don’t let perfect be the enemy of good. Though there’s no word yet on the bill’s chances in the upper chamber, Politico has reported that a bipartisan group of senators, including 10 Republicans, has been in recent talks about how to come together on issues like immigration.
“There’s always going to be some type of give and take that you have to take into consideration,” Elenes said. “We could have put together a proposal of all our dreams, and it would’ve gotten nowhere.”
A standalone bill that provides legal status to farm workers without the expansion of the H-2A program for employers is likely to face insurmountable odds in 2021. So, advocates may have to budge on disagreeable provisions now in order to score the longer range wins they want.
“They’re tied together because of political support,” said Daniel Costa, director of immigration law and policy research at the Economic Policy Institute. “If you just propose legalization for farmworkers, how many Republican votes do you get? Probably zero.”
But farm workers and advocates point out that they are not a monolith; their legislative priorities do vary. For Franks, of Familias Unidas por La Justicia, the FWMA might be a realistic answer, but it’s not the right one.
“If it’s going to be a hard thing to pass, then why not fight for what we really believe in?” he said. “I’d rather fight for something I believe in and lose, than pass something that’s going to be hurtful.”
