Robert Velazquez is a law student at the University of Maryland Francis King Carey School of Law and is a guest contributor to this blog.
American agriculture is deeply reliant on foreign labor to meet market demands. Since the mid-20th century, the domestic supply of agricultural workers has continually shrunk causing farm employers to rely on temporary foreign workers on H-2A visas to supply the necessary labor to U.S. farms. The H-2A program requires farmers to engage in a complex, expensive, and time intensive administrative process to legally acquire foreign laborers to meet their needs. With roughly 10.5 million undocumented workers currently living in the U.S., who are unauthorized to work, there is a unique opportunity to address the need for labor by authorizing this population to work. Although not traditionally the jurisdiction of immigration policy, the farm bill presents an opportunity for Congress to address the needs of American farmers by creating a more stable labor pool by granting currently undocumented immigrants a path towards work authorization and residency. This approach could alleviate the dependency on foreign labor while allowing American farmers more workforce flexibility.
When farmers do not have an adequate workforce, produce sits in fields and goes rotten instead of going to market. This unfortunate reality can cost the U.S. up to $3.1 billion annually. This lack of product also has a large effect on produce-related services like shipping and transportation where it can cost up to $2.8 billion annually. This labor shortage puts not only American farmers at a competitive disadvantage with foreign producers but also many peripheral industries. Therefore, it is imperative from an economic perspective to enact common sense measures to authorize undocumented immigrants within America to fill these vacancies to keep American agriculture thriving.
Congress has previously raised the issue in the Farm Workforce Modernization Act. The bill would have granted farmworkers “certified agricultural worker” status, which would have allowed them to pursue a pathway towards legal residency. The bill gained bipartisan support because it balanced many interests of farmworker advocates and the agricultural industry. However, the bill failed to garner support from farmworker advocates because of the bill’s inclusion of E-verify for agricultural work, which poses a large barrier for undocumented individuals to gain work, and the inclusion of a timeline for permanent residency that would require an additional four to eight years in agricultural work depending on if the worker had been working on U.S. farms for more or less than ten years. Even though the bill died, it laid a foundation for a future bill that includes immediate legal status for undocumented farmworkers, a clear timeline and process for those interested in seeking permanent residency, and other substantial farmworker workplace protections. Additionally, FBLE proposes the elimination of agricultural worker exemptions from the Fair Labor Standards Act. This would allow farmworkers to be paid at a higher overtime rate for hours worked over forty hours a week. Adoption of these provisions would create stronger incentives to remain employed in agriculture while offering employers a stable workforce.
Under the farm bill, the Farm Workforce Modernization Act should be built upon to address the critical issue of agricultural labor shortages. More importantly, it should steer agriculture away from the H-2A program because there are less H-2A workers available than visas requested each year and that is evidence that more workers are needed. Therefore, inclusion of farmworker provisions in the farm bill would allow farmers to find the critical labor they need while offering legal status and opportunity for essential farmworkers who keep Americans fed. By creating a program that ensures a stable and long-term workforce, the American agricultural industry can thrive for generations to come.
The views and opinions expressed on the FBLE Blog are those of the authors and do not necessarily reflect the official policy or position of FBLE. While we review posts for accuracy, we cannot guarantee the reliability and completeness of any legal analysis presented; posts on this Blog do not constitute legal advice. If you discover an error, please reach out to contact@farmbilllaw.org.
