In 2022, agriculture and food related jobs accounted for approximately ten percent of employment in the United States. H-2A workers play an essential role in the agricultural workforce. The H-2A program allows employers to hire foreign workers to fill temporary agricultural jobs in the United States (“U.S.”) when there is a shortage in domestic labor. There has been a growing interest in amending the H-2A program through proposed legislation and the creation of a House of Representatives agricultural labor working group.
Background on the H-2A Program
H-2A is a visa program for temporary and seasonal agricultural workers authorized through the Immigration and Nationality Act (“INA”). The purpose of this program is to meet U.S. agricultural labor needs by allowing agricultural employers to employ temporary foreign workers. The program is managed by three federal agencies. The Department of Labor issues the H-2 labor certifications and ensures employers are complying with labor laws. U.S. Citizenship and Immigration Services, an agency within the Department of Homeland Security, oversees the H-2 petitions. The Department of State, through its consulates, issues visas to workers.
To qualify for the program, an employer must “offer a job that is of a temporary or seasonal nature, demonstrate that there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work, show that employing H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers, and submit a single valid temporary labor certification from the U.S. Department of Labor with the H-2A petition”. U.S Citizenship and Immigration Services, H-2A Temporary Agricultural Workers. Under the current program, the Department of State will only approve petitions for workers from a list of eligible countries. The list of eligible countries is posted in the Federal Register and is updated every year. The Secretary of Homeland Security can approve petitions for workers from countries not on the eligible list if “it is in the U.S. interest for the national to be the beneficiary of such a petition.”
Federal Legislation
During the 118th Congress, the House of Representatives and Senate introduced similar legislation that would affect foreign agricultural workers and the H-2A program. On June 23, 2023, Representative Zoe Lofgren of California, along with ten Democratic and five Republican co-sponsors, introduced H.R. 4319, also known as the Farm Workforce Modernization Act of 2023. This bill has been introduced in the House of Representatives multiple times over the past few years. Each time the bill has passed in the House of Representatives but failed to be considered in the Senate.
On March 22, 2024, Senator Michael Bennet of Colorado, along with eight Democratic co-sponsors, introduced S. 4069, also known as the Affordable and Secure Food Act of 2024. S. 4069 is the Senate’s version of the Farm Worker Modernization Act. This bill has been introduced in the Senate before but failed to make it out of committee. Both pieces of legislation would create a pathway to legal resident status for certified agricultural workers, reform the H-2A program, provide additional access to farmworker housing, add new provisions related to foreign labor recruiting, and require electronic verification for all agricultural employment.
Pathway to lawful resident status
The bills would create a new certified agricultural worker (“CAW”) status that principal aliens and their spouses and dependents can apply for. To be eligible for certified agricultural worker status, the applicant must:
- Have performed agricultural labor or services for at least 1,035 hours, or 180 work days, in the U.S. within the past two years;
- Be inadmissible, deportable, under a grant of deferred enforced departure, or have been paroled in the U.S.;
- Have been in the U.S. continuously from the time the bills were introduced until certified agricultural worker status is granted; and
- Not be ineligible for CAW status.
The bills outline several grounds for ineligibility including conviction for most felonies. Under the bills, CAW status would be valid for five and a half years from the date the application is approved.
Both bills would allow the Secretary of Homeland Security to convert a CAW, their spouse, and dependents to lawful permanent residents, also known as green card holders, if the CAW applies and meets two conditions. First, the CAW must have “performed agricultural labor or services for not less than 575 hours or 100 work days each year for at least [ten] years and for at least [four] years while in [CAW] status.” Second, the CAW must not have become ineligible for CAW status. The bill introduced in the House of Representatives would allow CAWs who have worked at least 575 hours or 100 work days for less than ten years to qualify for lawful permanent resident status if they work for at least eight years in CAW status. The bill introduced in the Senate does not have this provision.
Lastly, this section of the bills would direct the Secretary of Homeland Security to create a grant program that would provide eligible 501(c)(3) nonprofit organizations with funding to provide information to the public on the new CAW status and assist applicants with completing their applications.
Reform of H-2A program
Both bills include a section that would overhaul the H-2A program. First, the bills would direct the Secretary of Homeland Security to create an electronic H-2A platform for employers to file petitions to hire H-2A workers. Additionally, this platform would provide a system for the agencies that work with the H-2A program to communicate with employers. The bills would also direct the Secretary of Labor to maintain a publicly accessible, searchable, online database of job orders submitted by H-2A employers.
Next, the bills would freeze the adverse effect wage rate (“AEWR”), which is the minimum wage that employers must pay H-2A workers, at the AEWR rate that was on the day each bill was introduced. The bills would also impose a yearly cap on an increase to the AEWR. The rates could increase at most 3.25 percent each year from 2025 through 2033. For more information on the recent legal challenge to the Department of Labor’s methodology for determining the AEWR, click here.
Next, the bills would require employers who hire H-2A workers to implement and maintain a heat illness prevention plan that includes heat illness prevention procedures, training, access to water and shade, breaks, and emergency response procedures. To assist employers in implementing a heat illness prevention plan, the bills would direct the Secretary of Labor to publish a template heat illness prevention plan that employers can choose whether to use or not. For more information on heat safety proposals introduced at the state and federal level, click here and here.
Next, the bills would open the H-2A program up to year-round jobs, such as jobs in the dairy industry. The number of visas issued for jobs that are not temporary or seasonal in nature would be capped at 20,000 per year for the first three fiscal years and then at a fixed number to be determined by the Secretaries of Agriculture, Labor, and Homeland Security for subsequent fiscal years. The bills would allocate a subsection of those visas for specified industries.
Other Provisions
Both bills include other provisions related to increasing access to farmworker housing, foreign labor recruiting, and requiring electronic verification for agricultural employers. The bills include additional funding for loans and grants under the Farm Labor Housing program, which provides financial assistance for on and off farm housing projects. The bills also give the United States Department of Agriculture (“USDA”) the authority to restructure loans issued under the Farm Labor Housing program by reducing or eliminating interest on the loans, deferring payments, subordinating, reducing, or reamortizing loan debt, or providing other financial assistance. Both bills would require the Secretaries of Labor, State, and Homeland Security to coordinate to create an electronic platform for the registration of foreign labor recruiters, which are defined as “any person who performs [a] foreign labor recruiting activity in exchange for money or other valuable consideration paid or promised to be paid, to recruit individuals to work as nonimmigrant workers [in agriculture].” Lastly, the bills would require all agricultural employers to use an electronic verification system created by the Secretary of Homeland Security to determine employment eligibility. The system would include identity verification tools to reduce identity theft and social security number misuse.
House of Representatives Working Group
In 2023, the House of Representatives Committee on Agriculture formed a bipartisan Agricultural Labor Working Group led by Representatives Rick Crawford of Arkansas and Don Davis of North Carolina. This working group released a final report of their recommendations in March 2024. Many of the policy recommendations of the working group were adopted with unanimous support and other policy recommendations were adopted with majority support. Additionally, several of the policy recommendations are similar to provisions of the bills described above. For example, the working group adopted a policy recommendation to create a streamlined electronic platform for the H-2A application process. The working group also recommended that the H-2A program be available to year-round industries, such as dairy production and ranching. These policy recommendations may influence future legislation and agency rulemaking.
Conclusion
The bills introduced in the Senate and House of Representatives, as well as the policy recommendations of the Agricultural Labor Working Group, are similar and contain provisions related to the H-2A program and the agricultural workforce as a whole. H.R. 4319 was referred to the House Committees on the Judiciary, Ways and Means, Education and the Workforce, and Financial Services. S. 4069 was referred to the Senate Committee on Finance.
To read H.R. 4319, the Farm Worker Modernization Act of 2023, click here.
To read S.4069, the Affordable and Secure Food Act of 2024, click here.
To read the Immigration and Nationality Act, click here.
To read an NALC article on the recent Department of Labor and Department of Homeland Security H-2A rules, click here.
For more NALC resources on Agricultural Labor, click here.