Member Article

On March 18, 2021, the U.S. House of Representatives passed the Farm Workforce Modernization Act of 2021 (HR 1603) (FWMA).¹ The proposed FWMA would streamline the H-2A temporary agricultural worker program, providing a path to legal immigration status for undocumented farmworkers and their family members. The FWMA would also require all agricultural employers to electronically verify the employment eligibility of their workers.

Visa and LPR Rights

Qualified farmworkers could apply for “Certified Agricultural Worker” status, which would grant the farmworker temporary legal status for a period of up to five and a half years.²

Who could qualify for Certified Agricultural Worker Status?

• Must have worked in U.S. agriculture at least 180 days in the past two years
• Must be an undocumented immigrant in the U.S. on the date of bill introduction (March 3, 2021)
• Must have been “continuously present” in the U.S. from March 3, 2021, until CAW status is granted
• Must not have criminal convictions (except for certain waived immigration barriers)
• Must pass security and law enforcement background checks
  
  

Farmworkers with CAW status could obtain five-year renewable visas if they work at least 100 days in the agricultural sector each year.³ Section 218(i)(3)(B) of the FWMA reserves 50% of the allocated visas for employers filing petitions for workers in the dairy industry. It will be interesting to see if this allocation is included in the final version of the law if approved.

Farmworkers would also be able to obtain LPR (green card) status if they worked in agriculture for at least ten years and finish four more years of farm work.⁴ People with less than ten years would need work for eight more years.⁵

E-Verify Compliance

The FWMA would require agricultural employers to confirm the legal status of their workers using the federal government’s E-Verify program.⁶ E-Verify is a web-based tool administered by the Department of Human Services and the Social Security Administration where employers can document the eligibility of their employees to work in the United States. Currently, E-Verify is a voluntary program, except for (a) employers with federal contracts containing the Federal Acquisition Regulation E-Verify clause and (b) employers in states that mandate E-Verify compliance. The proposed legislation would create a mandatory obligation for all agricultural employers nationwide to use the E-Verify system. Farmworker advocates hesitate to support the passage of the current FWMA because of the potential challenges the mandatory E-Verify requirement creates for agricultural employers.

Procedural Status

This is the second time that the House of Representatives has passed a version of the FWMA. In 2019, the Senate, under Republican control, did not consider the adoption of the then-proposed legislation. The FWMA is currently under consideration by several committees of the Senate. With the Senate now under Democratic control, consideration is more likely, but its passage remains uncertain. President Biden signaled his support for the FWMA on March 18, 2021, the date of passage by the House.

¹https://www.congress.gov/bill/117th-congress/house-bill/1603/text

² Section 102(a)(3)

³ Section 103(a)(1)(A)

⁴ Section 111(a)(1)(A)(i)

⁵ Section 111(a)(1)(A)(ii)

⁶ Section 274E