Farm Workforce Modernization Act Fails Small Farms, Farmworkers

Dear Rep. Lofgren:

The Community Alliance with Family Farmers (CAFF) is a California statewide organization that represents both farmers and non-farm Californians who support sustainable food and farming policies. We represent many small- and medium-scale family farms that produce a wide array of commodities, including labor-intensive diversified organic fruit and vegetable farms that usually sell in local markets. We also work with the National Sustainable Agriculture Coalition and the national Organic Farmers Association, both of which share some of our concerns.

We appreciate the effort that went into negotiating HR 5038 and recognize that it has some positive attributes. Unfortunately, we were not party to those negotiations and our concerns were not heard or addressed.  As a result, we must respectfully oppose this bill since it offers no future for the farmers we work with in California, including many farmers in your district. This bill as written would result in the further consolidation of farming in California and likely eliminate many of the small- and medium-scale family farms that provide local produce to restaurants and farmers’ markets in such places as Santa Clara County.

We applaud your attempt to legalize the existing undocumented farm labor force and provide a path to legal permanent residency. Having a work permit would be a great relief for those farm workers who qualified, as they currently live under the constant threat of deportation. We support the Certified Agricultural Worker visa, which would, like Senator Feinstein’s Blue Card, be given to the worker, be portable, include families, rely on the labor market to allocate workers, and allow workers to house, feed, and transport themselves.

The path to a green card for these workers seems overly long to us. The average age of farm workers in California is about 40; many are older than that and won’t be able to continue in demanding physical labor much longer. To require someone who can prove they have worked 100 days a year for nine years in agriculture to continue for another eight years appears arbitrary and punitive. The Blue Card bill contemplates three to five years and that seems much fairer.

But many current farm workers would not qualify for legalization, either because they did not meet the previous years’ work requirement or due to legal problems, even though the bill lowers some of the bars that exist. What happens to these workers? Since the bill would not apply E-verify to a farm’s existing workforce, they could continue to work for that farm (or farm labor contractor) as undocumented workers, but once E-verify was instituted, these continuing undocumented workers could not easily change employers. Alternatively, the bill suggests that they could become H-2A workers without leaving the country. But these workers are settled with their families in rural communities and it is unclear to us how that reality fits into the H-2A model, which requires that the employer provides housing.

The use of the H-2A program is our biggest objection to this bill. Apart from the legalization of the undocumented workers, everything in the bill is fit within the H-2A framework.  H-2A was created as a small program to provide seasonal workers to the East coast, and growers who use it there have adapted to its rules. The program has been rife with abuse, which has been documented in numerous reports, since the workers have few rights. Problems in the state of Washington recently reported by farm worker organizations have included no work breaks, unpaid wages, passports confiscated, transport not paid, housing inadequate, excessive hours of work, and no contract shown to workers.  In the absence of any rational immigration reform, its use has expanded ten-fold in recent years. On the West coast it is used by very large farming operations via farm labor contractors, who have taken over old motels and apartment buildings to comply with the law.

The family farms we work with are unable to use the H-2A program due to the housing requirement. Farmers in California tore down on-farm housing after the passage of the Migrant and Seasonal Agricultural Worker Protection Act in 1983, since much of the housing was non-conforming and a liability risk. It was generally agreed in the agricultural community that workers would be better off living in the rural towns rather than on farms, because they could walk to local businesses. The UFW in particular opposed on-farm housing, saying it gave farmers too much control over the workers. In fact, a recently passed farm worker housing bill in the California Legislature (AB 1783, Rivas) that the UFW sponsored, denies housing subsidies from the state to on-farm housing unless the housing is turned over to a non-profit, which is highly unlikely.  AB 1783 was signed by Governor Newsom in October and takes effect January 1, 2020. 

Farm workers in California are settled with their families in rural towns. HR 5038 assumes that all future farm labor will operate under the H-2A program and that farm employers will house them. There is nothing more expensive or contentious in California than housing. The H-2A model might work for a dairy that needs a few year-round workers, but it will not work for small- and medium-scale, labor-intensive fruit and vegetable farms that want to hire the workers directly. It is unlikely that the farms could obtain the permits to construct such housing on the farm or in local rural communities—especially given community opposition to large numbers of lone male farm workers—let alone afford to finance it. And the farmers frankly do not want to be in the landlord business. We see in HR 5038 money for rural housing, but we do not see how smaller farms could benefit from this.

Even the at-will pilot program in HR 5038 operates under H-2A. On the face of it this would appear to require every farm that wanted to employ such workers, for whatever length of time, to provide them with housing. Once again this would favor large farming operations that could afford housing or that can operate with farm labor contractors.

If the at-will pilot program were taken out of the confines of the H-2A program, if the number of workers in the pilot were expanded to 50-100,000 workers, and if the workers were given the work visa, as with the Certified Agricultural Worker visas, then there would be a future labor force that our farmers could access. Whether called Blue Card or Certified Agricultural Workers, simply extending the legalization program to new immigrant farm workers, giving the workers the visas rather than the employers, and getting the government out of the agricultural labor market, would be the best course for both workers and farmers. However, a ten-year path of farm work to a green card is excessive and should be cut to 5 or 6 years.

The 40,000 new green cards per year are intriguing, but, since they rely on employer sponsors, access to them would be uncertain for the workers. As the H-1B program has demonstrated, having the legal path to a green card is no guarantee of obtaining one, since employers must absorb the cost of applying.  We are uncertain whether the farmers we work with could afford to pursue these for their workers.

Finally, we cannot support mandatory E-verify until everyone is fully legal and smaller farms have access to an affordable future labor force. This bill would likely force many such farms to continue to rely on undocumented workers, if it didn’t force them out of business, and so E-verify is for us not a tenable proposal at this time.

We appreciate your efforts to forge a compromise, but after all the years of trying to pass immigration reform, we do not believe this is the appropriate moment, as many of the provisions of this bill demonstrate. We must oppose it unless it is amended to create a future flow program outside of H-2A. Otherwise it will create a labor market structure that will threaten the existence of our members. We would be willing to sit down with you and your staff to discuss our concerns about this bill at any time.

Sincerely,

David Runsten

Policy Director

Community Alliance with Family Farmers