The Farm Workforce Modernization Act allows employers to hire migrant farmworkers with H-2A temporary visas for year-round jobs: Impacts are unknown and other wage-setting formulas should be considered

My last blog post described in detail how the Farm Workforce Modernization Act (FWMA)—a bipartisan piece of legislation in the House of Representatives that would legalize unauthorized immigrant farmworkers, make major reforms and expansions to the H-2A temporary work visa program, and require farm employers to use E-Verify—included an updated H-2A wage rule that could lower wages for migrant farmworkers. I also called on the House of Representatives to further assess the impacts of that the FWMA could have on the farm labor market by holding public hearings in the relevant committees of jurisdiction with expert testimony before voting on the bill. One of the other major provisions in the bill that also desperately needs a closer look is the FWMA’s proposal to allow H-2A jobs—which currently must only offer temporary or seasonal work—to become eligible for year-round agricultural occupations.

A look at annual average employment in in the Bureau of Labor Statistics’ (BLS) Quarterly Census of Employment and Wages (QCEW) data set shows there were just over 419,000 jobs in greenhouse and nursery production (155,000) and animal production and aquaculture (264,000), which represent the major year-round occupational categories in agriculture. Farm employers have been clamoring for years for Congress to allow them to hire temporary H-2A workers for many of these 419,000 permanent, year-round jobs, especially on dairies. Since they haven’t had the requisite support to pass legislation that would accomplish this, members of Congress have attempted multiple times to circumvent the regular legislative process by pushing to make the change through legislative riders on annual omnibus appropriations bills.

The FWMA contains provisions to make H-2A year round: For the first three years after enactment, 20,000 three-year H-2A visas per year would be made available for year-round agricultural jobs—meaning 60,000 after three years—with half allocated for the dairy industry. Although the maximum allowed number of year-round H-2A jobs seems relatively small at first, the number could rise rapidly—in years four through 10, the cap could increase by 12.5% per year—and after the tenth year, the cap could be eliminated.

Using a problematic temporary work visa program where workers are virtually indentured to their employers in order to fill permanent, year-round jobs should give pause to all members of Congress—it makes no sense, unless the goal is to keep workers employed in permanent jobs from having equal rights and fair pay. If migrant workers are filling true labor shortages in permanent, year-round jobs, then those workers should always get permanent immigrant visas that put them on a path to citizenship.

One of the most important provisions in the FWMA is the creation of a new pool of 40,000 permanent immigrant visas (green cards) for H-2A workers that would be added to the employment-based third preference (EB-3) category for “unskilled” labor. However, migrant farmworkers can only become eligible for these visas after working at least 100 days per year for a decade in a temporary H-2A status. That’s far too long; legislation that truly values the contributions of migrant farmworkers should either allow them to begin their permanent agricultural jobs with green cards in hand, or to allow them to become eligible for green cards after one year in H-2A status.

Potential exists for significant disruption and changes to wage rates in year-round agriculture occupations like dairy, poultry, mushrooms, greenhouses, and hog farming if the FWMA becomes law. What will happen to recruitment, wage structures, and benefit packages after H-2A workers account for one-seventh of workers in year-round farm jobs after just three years (60,000 out of 419,000)—and a much larger share soon after? I’ve pointed out before that using the current H-2A Adverse Effect Wage Rate (AEWR)—the minimum wage paid to most H-2A workers—to set wages for year-round agricultural jobs could potentially lower wages compared to the current wage rates reported for those jobs in the QCEW. In general, the QCEW is a more reliable data set with more industry-specific detail for year-round agricultural occupations and should be considered for setting wage rates for year-round H-2A jobs. Did the FWMA’s drafters consider this? Perhaps expert testimony in a public hearing could help them assess the pros and cons.