The fix for ag’s labor woes? Farm bill would legalize workers, help producers

TWIN FALLS — Idaho dairies rely almost exclusively on foreign-born labor since few domestic workers are willing to take jobs in agriculture. But dairy farmers aren’t eligible to hire through one of the few available legal avenues, and, to stay in business, they must rely on workers with ambiguous legal status.

The system creates high turnover costs and a general sense of uncertainty for dairy farmers, said Willie Bokma, who owns a dairy in Twin Falls County.

“We have a stressful enough life as farmers and especially as dairy farmers,” Bokma said. “We can’t afford to have an irregular workforce.”

There’s hope, though, that this could change. The Farm Workforce Modernization Act of 2019 would provide a path to legal status for unauthorized agricultural workers already working in the U.S. and reform a guest worker program to allow more employers to hire more workers legally.

Idaho Dairymen’s Association CEO Rick Naerebout said the bill is crucial for the Gem State and goes a long way toward solving the biggest issue in agriculture: a stable and legal workforce.

“It is something that is much needed,” Naerebout said, “not just in Idaho, but in America.”

After more than a decade of work, the bill recently passed the U.S. House of Representatives with bipartisan support, including a push from Rep. Mike Simpson, R-Idaho, who cosponsored the bill.

“We need to solve this problem,” Simpson said. “This may be the most important bill affecting agriculture that’s passed in the House in the last 20 years.”

The bill still awaits an uncertain Senate vote, but it’s path so far is already a rare instance of bipartisan agreement on immigration.

Decades of labor difficulties
In 1986, Congress passed the Immigration Reform and Control Act, providing amnesty for more than 1.1 million farmworkers and imposing the first federal sanctions on employers who knowingly hired unauthorized workers.

But the Immigration Reform and Control Act didn’t offer farmers a system to hire foreign labor. Many agricultural workers who gained amnesty soon left agriculture and were replaced by undocumented workers.

Unauthorized workers now make up about half of the 1.8 million workers in agriculture. That number has held steady for nearly three decades, according to the U.S. Department of Labor.

Policy changes and several other factors have slowed Mexico-U.S. migration in the past decade. That, plus low unemployment for domestic workers, has led to an aging and depleted agriculture workforce. And with a crackdown on illegal workers by President Donald Trump threatening those who remain, farmers are left scrambling for a solution.

The farm bill moving through Congress would allow those who have worked in agriculture for six months to receive five-year renewable visas for as long as they remain in agriculture. It would also create a voluntary option to earn lawful permanent resident status if the worker pays a $1,000 fine, and works either four and eight more years in agriculture, depending on their work experience.

Simpson said that provision is intended to create a gradual process for legalization that would allow farmers to hire new workers to replace those who will likely leave agriculture after a few years.

Those who are supporting major industry should be able to participate in society without fear of being waylaid while traveling to see family, he said.

Bokma said these changes are necessary for ensuring a future workforce and creating a moral living condition for workers.

“We would like to maintain a stable workforce,” he said, “and we would also like to make sure they’re properly taken care of.”

The need for year-round help
In addition to gradual legalization, the bill attempts to side-step the consequences of amnesty given in 1986 by updating a temporary guest worker visa program, known as H-2A, that offers a legal avenue to hire labor.

There were about 242,762 certified H-2A workers in 2018, nearly triple the number since 2012, according to the Department of Labor. The program makes up about 10% of the agriculture workforce.

But the program has more than 200 requirements for employers and workers, and a request for job approval requires three separate submissions to three separate federal agencies. Farmers have long complained that the program is overly burdensome and bureaucratic, and creates high compliance costs that lower productivity.

Naerebout said the farm bill would streamline the application process. There would be one online form, and workers would only have to apply once every three years, instead of annually. It would also eliminate other restrictions, such as a requirement to run job postings in the newspaper.

The bill would address the H-2A minimum wage, known as the Adverse Effect Wage Rate, which attempts to ensure foreign laborers aren’t so inexpensive that they deprive domestic workers of jobs. But wages are significantly higher than minimum wage (Idaho’s AEWR was nearly double minimum wage in 2019), and annual wage increases fluctuate between 1% and 6%, making budgets unstable for employers.

Wage increases would be capped at 3.25% for 10 years

Naerebout said that won’t have much of an impact on Idaho dairymen, who are already paying well above the current $13.48 Adverse Effect Wage Rate.

“You can’t go down on Blue Lakes and find any entry-level job that pays you $13.48,” Naerabout said. “That’s just not a wage rate that you find on main street businesses.”

The bill would also increase the amount of affordable housing and transportation available to workers.

Big deal for dairy

Farmers with year-round operations, mostly animal farmers, are not eligible to hire under the current H-2A system. While the animal farming industry makes up about 31% of farm employment, it only receives about 4% of H-2A jobs, and those jobs are for exemptions in sheep and goat herding that could be eliminated in 2020.

The dairy industry wants access to more year-round workers. Idaho’s dairy industry, the third largest in America, has had difficulty finding labor.

The Idaho Dairymen’s Association estimates that up to 90% of the 8,100 on-dairy jobs in the state are filled with foreign-born laborers. Employers don’t know who is actually authorized to work and who isn’t, Naerebout said.

“If it looks like a real document, (employers are) required to take it at its face value,” Naerebout said. “They’re not allowed to discriminate in their hiring practices based on what they think may or may not be real documentation.”

The only caveat is that there still might not be enough visas. The current version of the bill caps the number of year-round visas at 20,000 per year, and dedicates 10,000 of those to dairies. If dairy farmers use all 30,000 of those visas for the first three years, then the numbers can increase by 12.5%.

Big compromises

The bill had bipartisan support in the House, and more than 300 agricultural groups representing both farmers and workers signed-on in support. It’s widely been labeled a compromise.

Simpson said the bill goes a long way toward finding a solution, but there are parts that would have been different had Republicans held the House. Republicans and employers specifically did not want to cap H-2A visas for year-round workers at 20,000, he said.

Workers groups have pushed against using the H-2A at all. Ramos Torres is the president of Familias Unidas, a Washington state agriculture workers group that opposed the bill. In a statement, he said the H-2A program contributes to the exploitation of workers.

He also said implementation of the E-Verify system to track legal status of workers — an important piece for conservatives — was a “non-starter,” and added that it could make it easier for Immigration and Customs Enforcement to raid work sites and monitor workers.

Some conservative groups, like the Federation for American Immigration Reform, have opposed the bill as a “naked attempt at mass amnesty” that would “solidify an entire industry’s reliance on cheap foreign labor.”

Naerebout pushed back and stressed that the bill is not amnesty.

“It’s earned legalization,” he said, “and that’s key.”

It’s unclear if a Republican-held Senate would agree to compromises made in the House. Only 34 of 163 House Republicans voted for the bill, mostly from western, agriculture-dependent states.

Simpson said he’s worked with the other body and expects a push to take place in January. If the Senate does make changes, they should reflect the will of House Democrats, who would have to approve them, he said.

In a statement, Sen. Mike Crapo, R-Idaho, who serves on the committee where the bill will be introduced, said he is engaged in an immigration working group to get reform through the Senate.

“I commend the work of Simpson to address this long standing issue and for his and (Rep. Russ) Fulcher’s support in getting it approved in the House,” Crapo said. “I look forward to working with my colleagues on the Senate Judiciary Committee to advance the bill in the Senate.”

The bill would also need to be signed by Trump, who has released his own H-2A reform proposal that does not include many of the concessions made by House Republicans.

Idaho is fortunate to have politicians that understand agriculture is the backbone of the state’s economy, Naerebout said.

“That’s how our system is supposed to work,” Naerebout said. “It’s supposed to be a system of compromise. It’s supposed to be a system of reaching across the aisle.”

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