Sen. Feinstein's New Bill to Shield Farmworkers From Deportation, Though Imperfect, Deserves to Be Passed

Farmworkers and agricultural businesses are at ground zero of our broken immigration system. The majority of the estimated 2.5 million farmworkers are undocumented immigrants. The Trump administration’s highly publicized deportations have harmed farmworker families and threaten agricultural businesses. In response, Sen. Dianne Feinstein (D-CA) has introduced a bill that deserves to be enacted: the Agricultural Worker Program Act of 2017.

As an experienced legislator from the nation’s most successful agricultural state, Sen. Feinstein is seeking to address legitimate needs while threading the needle of the complicated politics of immigration. In 2013, she was a lead negotiator of a bipartisan, labor-management compromise on agricultural workers that was included in the Senate’s comprehensive immigration reform bill. The House Republican leadership declined to bring the Senate bill to a vote.

We don’t know if Congress feels a greater sense of urgency to pass reasonable immigration reform in response to increased immigration enforcement. President Trump’s position is unpredictable: He issues vitriolic statements about immigrants, ramps up immigration enforcement, criticizes guestworker programs, uses guestworker programs in his businesses, and promises to help farmers overcome government-caused burdens. 

Agricultural businesses have become vocal about their fear of losing experienced workers; deported farmworkers would be difficult to replace. Members of Congress are also hearing that farmworkers and their children are living in fear of arrest, deportation and the break-up of their families.  

Sen. Feinstein’s proposal has four co-sponsors thus far—all Democrats—based in large part on agricultural-worker provisions in the Senate’s 2013 bill. Rep. Luis Gutierrez (D-IL) announced Tuesday that he would introduce the bill in the House within weeks, probably with some co-sponsors.

As in any compromise, the Senate bill has shortcomings. The bill would allow many undocumented farmworkers to earn legal immigration status in a two-step process. In the first step, an undocumented farmworker could apply for and receive a “blue card” representing a temporary immigration status and employment authorization. An applicant for a blue card would have to show a certain amount of recent U.S. agricultural work experience and meet several immigration eligibility rules.  

In the second step, the blue card holder could earn a “green card”—lawful permanent resident status. To earn a green card and remain in the country, the farmworker would need to perform a substantial (but doable) number of days of agricultural work annually over three to five years. However, during that time, the farmworker could work in any occupation and for any employer.

The undocumented spouse and minor children of a blue-card farmworker would be entitled to temporary immigration status (subject to immigration eligibility requirements). They could obtain green cards at the same time the farmworker obtains permanent immigration status.

Agricultural employers would not be penalized for their employment of the formerly undocumented farmworkers who obtained blue cards. Farmworkers, however, would pay certain fees and fines.

This bill, unlike the 2013 Senate compromise, would not alter the H-2A agricultural guestworker program. The H-2A program allows employers to request permission to hire foreign citizens on temporary visas. To demonstrate a labor shortage, the employer must recruit U.S. workers and offer special minimum wages and benefits. Recently, as more growers have applied, the program has expanded rapidly to more than 165,000 approved jobs. The law does not limit the number of H-2A visas per year.

Some agribusiness associations are demanding changes to the H-2A program, which they criticize as burdensome and costly. The H-2A program is inherently unfair to U.S. and foreign workers and rife with abuses. If this nation needs additional agricultural workers from abroad, they should be given the opportunity for an immigration status, not only a guestworker visa. Sen. Feinstein’s bill would leave this and other issues to be addressed later in comprehensive immigration legislation.   

Under the circumstances, the bill’s requirements for obtaining legal immigration status are acceptable. The prospective agricultural-work requirement, however, is a significant shortcoming. While in practice the number of days required is reasonable for most farmworkers, in principle the requirement is troubling.  

The bill essentially obligates aspiring Americans to labor for three to five years in agriculture, where many of the jobs are low-paid, dangerous and poorly regulated. Several hundred thousand farmworkers will be desperate to achieve the requisite days of agricultural work. The workers’ dependence likely will undermine their bargaining power and encourage unscrupulous employers to exploit workers by threatening to withhold proof of employment. While there are protections in the bill against such abuse, the larger question is whether the prospective work requirement is consistent with our values.

Some agricultural employers argue that a prospective work requirement is necessary because newly legalized farmworkers will leave agriculture if not forced to stay. In this free-market economy, however, employers should attract and retain labor by improving wages and modernizing labor relations. Of course, some members of Congress simply want these farmworkers deported. Aiming for a solution that Congress actually would pass requires concessions.  

The Agricultural Worker Program Act of 2017 deserves support. The Trump administration’s immigrant enforcement creates an urgent need to fix the broken immigration system. The bill would establish a reasonable program to grant legal status to deserving undocumented farmworkers and their family members and help stabilize the farm labor force. It would benefit workers, farmers, consumers and the nation.