7//21/17 Immigration Update: Farmworkers, under Attack in Congress, Must Fight Back

This has been a very busy week on immigration. Although our blog focuses on this week’s Congressional attacks on farmworkers, we also want to note yesterday’s introduction of the DREAM Act in the Senate. More information is available here from United We Dream, including a call to continue speaking out to protect DACA, TPS and the entire immigrant community.

House Hearing on Agricultural Guestworkers

This week, farmworkers faced attacks on several fronts in the House of Representatives. On Wednesday, July 19th, the House Judiciary Committee’s subcommittee on Immigration and Border Security held a hearing entitled: “Agricultural Guestworkers: Meeting the Growing Needs of American Agriculture.” The witnesses included U.S. Rep. David Valadao (R-CA), two agricultural employers – Sarah Frey (CEO of Frey Farms) and Jon Wyss (owner of Gebbers Farms) – and Giev Kashkooli of the United Farm Workers (UFW). For those of you who don’t know, the majority party (currently the Republican Party) can typically invite 3 witnesses, while the minority party (currently the Democratic Party) gets only one witness.

Discussion of Goodlatte Agricultural Guestworker Proposal
During the hearing, Rep. Goodlatte (R-VA), the Chair of the Judiciary Committee, shared details about a bill he is drafting which will be similar to one he introduced and reported out of the Judiciary Committee in 2013. He said he plans some adjustments based on his conversations with agribusiness representatives (note that no farmworker voice was included in this process). Goodlatte stated that his program would enable “illegal farmworkers to participate legally in American agriculture” as guestworkers, but clarified that there would be no pathway to permanent legal status. Goodlatte’s description indicated that key H-2A program labor protections would be removed, as his program would strip out recruitment protections for US workers, free housing and transportation, and wage protections — or as he put it “unrealistic wage rates dreamt up by DOL bureaucrats.”

Goodlatte also seemed to indicate that he would remove government oversight, including by expanding the program to include year-round industries such as dairies and food processors, providing limited at-will employment subject to certain conditions (indicating this might be at-will for employers but not workers), and protecting employers from abusive lawsuits (with no mention of what workers facing abusive conditions might be able to do). Goodlatte’s brief description of his upcoming legislation is deeply troubling and we will be watching its development closely.

Rep. Goodlatte’s characterization of the H-2A program’s operation and rules was misleading. For example, Goodlatte criticized the H-2A wage rate as an artificially inflated wage rate, when in reality the program’s Adverse Effect Wage Rate (AEWR) is simply the average wage paid to nonsupervisory field and livestock workers in a survey of farmers by USDA. DOL then publishes these wage rates as the official H-2A AEWR. UFW’s Giev Kashkooli pointed this out in his testimony and also took on many of the other complaints and mischaracterizations of the H-2A program. As to the complaints of “frivolous litigation,” Kashkooli pointed out that litigation is important to protect farmworkers from abuses like those that took place at Fernandez Farms, including unlawful kickbacks, failure to provide free housing, multiple wage violations, and threats and coercion. Kashkooli also pushed back on complaints about government oversight and housing requirements by pointing to the recent G Farms investigation where the federal government found H-2A workers being housed in converted school buses in the Arizona summer.

Summary of Witness Testimony
The grower witnesses who testified at the hearing criticized the regulations, monitoring, and enforcement actions carried out by the various government agencies who manage the H-2A program, despite their own very successful use of the program. When questioned about how they would improve the program, the employer witnesses called for lowering wages through the elimination of the AEWR as well as the transfer of the program to the U.S. Department of Agriculture (USDA), among other changes aimed at “streamlining” the program.

In contrast, during his testimony, Mr. Kashkooli described the origin and importance of the protections in the program, as well as the need for a path to legal status for the farmworkers who toil in our fields, many of whom have been doing this work for decades and have become established in our communities. Mr. Kashkooli spoke about the importance of honoring those who do this important work. He praised the Agricultural Worker Program Act, which currently has over 50 House cosponsors. Later in his testimony, Mr. Kashkooli reiterated the importance of immigration reform for farmworkers to be able to choose their employer, leave an abusive employer if needed, and move freely around the country without fear.

Several other Members of Congress and witnesses spoke to the valuable role farmworkers play in our society. Reps. Buck and Valadao both praised the work of farmworkers, with Rep. Buck noting that “[l]abor is the lifeblood of the agricultural industry” and Valadao sharing his view that “[h]ard-working immigrant farmworkers are not only the back-bone of our agriculture industry, but they and their families are the heart and soul of many rural communities.” Ms. Frey shared that she views her workforce as farmers and family.

Given this shared recognition of the value farmworkers bring to our successful agricultural system and our rural communities, one is left to wonder why there is not also a shared recognition of the need to ensure these same workers have the ability to safely remain in their communities and contribute to our economy. Instead, Rep. Goodlatte and his colleagues, as well as the grower witnesses, propose to convert these aspiring Americans to temporary guestworkers who would be separated from their families and forced to return to what is now a foreign country for many of them. Rep. Zoe Lofgren (D-CA), the ranking member on the subcommittee, noted that 93% of farmworkers have been in the United States for at least 5 years, with 55% here over 15 years. A majority have children, many of whom are United States citizens.

Substantive H-2A Amendment Added to Appropriations Bill

During his questioning, Rep. Conyers (D-MI) mentioned the H-2A related appropriations amendment that was sneakily added by the House Appropriations Committee to the Department of Homeland Security (DHS) spending bill the day before (Tuesday, July 18). Kashkooli shared that he was “stunned” to learn of the amendment, criticizing the substantive legislating on the H-2A program in the appropriations process as well the harm this would bring to farmworkers. He pointed to the many dangerous conditions in dairy work, including the two recent deaths of farmworkers in manure pit drownings.

Farmworker Justice also learned of this sneak amendment just shortly before it was offered, and is strongly opposed to both the process and substance of the amendment. This effort to change the scope of the H-2A program through an amendment on the appropriations bill was led by Rep. Newhouse (R-WA), with the support of Representatives Cuellar (D-TX) and Aguilar (D-CA). Rep. DeLauro (D-CT) spoke out against the amendment, noting the substantive and procedural problems with the amendment and the opposition of Farmworker Justice, the UFW, AFL-CIO and UFWC.

The amendment would allow agricultural employers to petition for H-2A workers for year-round agricultural work without regard to whether those jobs are temporary or seasonal, as is currently required under the H-2A program. The H-2A program is limited in scope to temporary and seasonal jobs because those jobs may be more challenging to fill given their short-term nature. As Ms. Frey, one of the hearing witnesses, noted in response to a question by Rep. Goodlatte, the H-2A program is important for seasonal and temporary work, not year-round employment because “… if we were able to offer year-round employment, that would be very different and we’d be able to fill those positions, I believe, with American workers.” Importantly, enlarging the scope of the H-2A program to include year-round jobs does nothing to address the roughly one million current farmworkers who are undocumented and face the threat of detection and deportation.

We have an experienced workforce willing to do this difficult and dangerous work that just needs to be given the opportunity to earn legal immigration status in order to do so without fear. It makes little sense to allow employers to hire H-2A workers without addressing the need to legalize the current undocumented farmworkers already doing this work.

Importance of Agricultural Worker Program Act

The solution to the agricultural industry’s reliance on immigrant workers must be to respect the contributions and humanity of those workers. The Agricultural Worker Program Act (H.R. 2690, S. 1034), introduced in the House by Rep. Gutierrez (D-IL) and in the Senate by Sen. Feinstein (D-CA) would do that by providing an opportunity to move forward a positive and workable solution in Congress that will meet the needs of workers, agricultural employers, and our food system.

The bill’s approach is the right one, because we know from decades of experience that a guestworker system is inherently flawed and not an appropriate solution. Yet, there is an unprecedented expansion in the H-2A program; there is no cap on the number of H-2A visas per year and many more employers are applying. We are deeply concerned about this expansion: both for our domestic labor force which may be losing access to needed farm jobs, and for H-2A workers, who are vulnerable to exploitation due to their dependent status on their employer and other structural program flaws. America is a nation of immigrants, not guestworkers. We must respect the humanity of farmworkers and treat them as we would treat others who contribute to our nation’s success, offering them the opportunity to be permanent members of our society and the communities they help build.

Press Conference Supporting the Agricultural Worker Program Act

Rep. Gutierrez (D-IL) is a member of the Judiciary Committee’s subcommittee on Immigration and was also present at the hearing on agricultural guestworkers, where he lifted up the hard work and contributions of these workers and urged Congress to support his proposal. The day before the hearing (Tuesday, July 18th), Rep. Gutierrez held a press conference with five of the bill’s cosponsors from the state of California – Reps. Zoe Lofgren, Judy Chu, Jimmy Panetta, Salud Carbajal and Jim Costa – UFW Political Director Giev Kashkooli and Greisa Martinez, Advocacy Director of United We Dream, all of whom highlighted the importance of this legislation. The press conference was held outside the Capitol building in almost 100-degree heat, to highlight just how grueling farm work can be. During the press conference, the speakers called for those who harvest the fruits and vegetables in the blazing heat for our dinner tables to be given a seat at the table with a path to legal immigration status.

New H-2A Legislation: Guestworker-Only Approach

Also this week: Three Members of Congress, Senator Rand Paul (R-KY), Senator Jon Tester (D-MT), and Representative Trent Kelly (R-MS), introduced the “Paperwork Reduction for Farmers Act.” Farmworker Justice is still analyzing the legislation but did see that in addition to addressing application procedures for the H-2A program, the bill enlarges the scope of the program to include year-round livestock workers (including dairy and poultry) and equine workers. We oppose the bill and will share an analysis of this legislation shortly.

To view the full hearing on agricultural guestworkers, please click here.

To view the full press conference on the Agricultural Worker Program Act, please click here.

For a brief article summarizing the H-2A appropriations amendment, please click here.