A look inside the complicated failure of the Farm Workforce Modernization Act.
A look inside the complicated failure of the Farm Workforce Modernization Act.
February 22, 2023
At the beginning of February, United Farm Workers (UFW) communications director Antonio De Loera-Brust was packing up his belongings to move from Washington, D.C., where he had been located for several years, back to California, where he grew up and UFW is based.
“There’s not going to be a lot for me to do in D.C,” he said, speaking about the year ahead.
It was a turn of events he hadn’t anticipated. Two months earlier, De Loera-Brust had helped orchestrate a policy push that many agree was the closest any group had ever come to passing a law that would have offered hundreds of thousands of farmworkers a pathway to legal status.
“Not only did my parents sacrifice a lot for me, but also for this nation. We are the reason why people have food on their tables and food on grocery store shelves.”
Between Thanksgiving and Christmas, dozens of workers from across the country stepped out of the fields and out of the shadows to meet with lawmakers in the nation’s capital. Representatives had already passed the Farm Workforce Modernization Act (FWMA) in the House multiple times, and all Democrats in the Senate were on board to add the bill to the omnibus package that was to be passed before the end of the session in late December. Senator Michael Bennet (D-Colorado) was in close negotiations with Senator Mike Crapo (R-Indiana) about securing the 10 Republican votes needed to overcome a filibuster.
In mid-December, Bennet made last-minute changes to pull Republicans along and introduced a new version dubbed the “Affordable and Secure Food Act.” To rally final support, he hosted a press conference. At the event, Marisela Juarez, who has worked in Georgia’s fruit and vegetable fields for 15 years without legal status, told her story on a stage shared with senators and CEOs representing the apple and potato industries.
Carlos Herrera Fabian, a student at Michigan State University, spoke about growing up as the son of farmworkers. As a toddler, he said, his mother could not access childcare programs because of her legal status. During hot Florida summers, she carried him into the fields and laid him under the trees while she picked oranges.
“Not only did my parents sacrifice a lot for me, but also for this nation,” he told the audience. “We are the reason why people have food on their tables and food on grocery store shelves. It’s not fair to get treated without dignity. That’s why I ask and urge you all to prioritize the legalization of farmworkers.”
Passage seemed imminent. Then, at the last moment, Crapo said the new version did not satisfy the GOP, and the bill was dead.
Most Americans stepped away from the news cycle over the holiday season and missed the whole thing. But for those working on these issues, it was a pivotal moment that demonstrated how politically complicated America’s relationship with undocumented farmworkers has become.
The legislation got as far as it did, and ultimately failed, because it represented a major compromise between farmworker advocates and the agricultural industry—two groups with very different needs. As a result, neither side liked the whole package very much. And from the get-go, there was fierce disagreement within groups on both sides.
UFW and Farmworker Justice fought hard for the bill and were devastated when it didn’t pass, while many other farmworker groups were vehemently opposed to the legislation and relieved by its defeat. Similarly, agricultural groups that are usually aligned diverged on the issue; advocates from Western Growers put a lot of energy into passing it, while the American Farm Bureau Federation (AFBF) opposed it.
Meanwhile, all of this was happening against the backdrop of a deep political divide over immigration. For instance, when President Biden mentioned immigration reform during his State of the Union address last month, some Republicans heckled him repeatedly, shouting, “Secure the border!”
Yet that rhetoric belies the reality: Without the immigrants who cross that border, America’s agricultural economy would cease to function, and the abundant, affordable food supply we are all used to would disappear. According to the latest data from the Department of Labor’s National Agricultural Workers Survey, about 70 percent of farmworkers were born in Mexico or Central America. Close to half lack legal status, and 85 percent are what the survey calls “settled,” meaning they don’t migrate in to work on farms temporarily but are permanent residents.
Those numbers don’t include workers in the livestock industry or the 275,000 guest workers who come to the U.S. every year through the H-2A program. And despite the many immigrants that have come here over time to work in agriculture, farmers still struggle to find enough workers to plant, tend, and pick their crops at the rates they’re willing to pay. Grower groups want to keep bringing in more guestworkers; farmworker groups want to secure the right to live and work in the U.S. for immigrants already here and those yet to arrive.
Now, farm groups worried about labor shortages and farmworker organizations fighting for legal rights are asking: What comes next? “This was incredibly, incredibly frustrating after a year and a half of back and forth,” said Andrew Walchuk, senior policy counsel and director of government relations for Farmworker Justice. “But I think we got so close because the desire and the will really are there.”
Legislators first introduced the FWMA in 2019, but the pandemic gave it new momentum. Since 2020, farmers have faced more acute labor shortages; at the same time, COVID-19 turned the public’s attention to the people who faced the threat of infection and death day after day to continue feeding Americans working from home.
“During the pandemic, they called farmworkers ‘essential,’ but they didn’t give us any security. All the things that citizens receive, we don’t have access to,” says Marta Espinosa.
“It was an anti-immigrant, racist proposal . . . that didn’t benefit our community.”
Espinosa came to the U.S. from Chihuahua, Mexico, more than 20 years ago. In Colorado, she plants and harvests tomatoes, onions, cucumbers, peppers, watermelons, and pumpkins, among other crops. And in December, she went to D.C. with UFW. In meetings, she said, her message to Colorado’s senators and representatives was clear. “That we are here, we are putting food on tables, we are paying taxes, we are contributing to the economy,” she said. “For some of us, for 20, 30 years, we have been doing this without rights, without security. That’s wrong. We need a reform. We need support and legalization.”
The FWMA might have provided that for workers like Espinosa. First, it would have established a program through which some undocumented immigrants could have applied for a temporary “certified agricultural worker” status that would have allowed them to travel within and outside of the U.S. Then, workers could have embarked on a pathway toward permanent residency by working an additional four to eight years in agriculture, depending on whether they had been working on U.S. farms for more than or less than 10 years.
Many farmworker groups found that timeline unacceptable and offensive. A worker who had already been milking cows in the U.S. for nine years, for example, would have had to work another eight before they would become eligible for residency, after a total of 17 years.
“We don’t want to wait anymore,” said Luis Jiménez, a co-founder of the advocacy organization Alianza Agrícola who has worked on dairy farms in Western New York since he came to the U.S. from Mexico more than 18 years ago. “It was an anti-immigrant, racist proposal . . . that didn’t benefit our community.”
Jiménez and others were vehemently opposed to the fact that the bill included a provision that would have made a program called E-verify mandatory for agricultural employers. E-verify is an automated system that allows employers to check the legal status of their workers. Currently, it’s voluntary.
Had the bill passed, Fabiola Ortiz Valdez said, farmers could have been compelled to begin using E-verify right away, which might have activated immigration enforcement in turn. Meanwhile, the application process would have likely taken time to implement, and workers could have been put at risk of deportation in the interim. (As written, the legislation would not have required farmers to begin using E-Verify until at least six years after the law was implemented.)
“The ability to get free from that constant threat of deportation was critical for the farmworkers and farmworker groups we talked to.”
“This legislation was presented as immigration reform, but for us, it’s a deportation law, because nobody’s going to get status the next day,” said Ortiz Valdez, a lead organizer for the Food Chain Workers’ Alliance, which counts several farmworker organizations among its members. “And it’s not just that. It was also a dangerous precedent to set for other industries.”
Alianza Agrícola, Food Chain Workers’ Alliance, and other groups were also opposed to provisions in the law that would have expanded the H-2A guest worker program, which binds workers to their employers and has led to many exploitative and abusive situations in the past. Most importantly, it would have frozen H-2A wages in a way that farm groups estimated would have left farmworkers unprotected against inflation and cost-of-living increases—but would have saved farmers billions of dollars in the coming years.
Those savings were a big reason why nearly 250 groups that represent diverse sectors of the agricultural industry—ranging from the California Olive Oil Council to Dairy Farmers of America to the Florida Fruit and Vegetable Association—signed on to the push to get the bill through in December.
“We have an existing workforce, some of whom may not have accurate documents, and for those folks, we need to make sure . . . they are able to stay in the U.S.,” said Dennis Nuxoll, vice president of federal government affairs for Western Growers, which represents fruit, vegetable, and nut farmers across the western U.S. “But the average farmworker today in the United States is about 45 years old, and that workforce is aging. So, we anticipate that we will need to transition toward more and more guest workers as part of our workforce. As a consequence, we want to institute reforms to make the guest worker program run more efficiently and more effectively.”
Nuxoll said Western Growers was working closely with lawmakers to push for the bill’s passage, and when Bennet introduced the new version on December 15, it included an increase in the number of year-round H-2A visas that would have been authorized. While the H-2A program was set up for seasonal farm work, farm groups—especially in the dairy sector—had been pushing for the program to allow farmers to bring in year-round workers.
Meanwhile, long-time residents working on dairy farms, like Jiménez, saw that provision as a direct attempt to replace them with guest workers. “That would have put the workers who are already here in a very vulnerable position,” Ortiz Valdez said.
De Loera-Brust at UFW and Walchuk at Farmworker Justice agree that many of those provisions were bad for farmworkers, but they chose what they saw as a pragmatic approach. Because they could see no political pathway to get legislation through without the support of grower groups, the trade-offs would be worth what they saw as a transformative change for workers. They both also pointed to other, less discussed parts of the bill they saw as beneficial for workers, such as increased heat stress protections and updates to H-2A recruitment rules.
“There were pieces of it that we did not like, but it did achieve that goal of getting a real firm status and a path to citizenship for hundreds of thousands of farmworkers who have been living and working in the U.S. for decades,” Walchuk said. “The ability to get free from that constant threat of deportation was critical for the farmworkers and farmworker groups we talked to. In the end, this was a compromise.”
Still, those compromises were not enough. In addition to the general anti-immigrant sentiment that has intensified within the Republican party over the last several years, “I think the fault really lies with some of the grower groups, specifically the American Farm Bureau Federation,” De Loera-Brust said. “They were holding out for more.”
Since its introduction years earlier, agriculture’s most powerful lobbying organization had opposed the FWMA. In an email, John Walt Boatright, the director of government affairs for AFBF, said the organization was engaged with senators Bennet and Crapo leading up to the introduction of Bennet’s revised bill in mid-December.
“Growers are going to continue to feel like they don’t have to negotiate with us and they can just go around us and get the parts they like without any parts they don’t.”
“The cap on year-round ag workers was dismally low and not reflective of our labor market needs,” Boatright said. “It codified a flawed wage structure, which has outrun inflation by 50 percent. It also unjustly expanded legal risk for law-abiding family farms.” (That last point is in reference to a provision in the bill that would have extended a legal right to sue over workplace violations to H-2A workers.) When presented with Bennet’s revised version, Boatright said, the AFBF’s leadership felt it still “did not meet the magnitude of the nation’s ag labor crisis.”
In an op-ed published in January, Crapo echoed many of those exact sentiments in explaining why he got cold feet. “The main sticking points were over providing a viable pipeline for future farmworkers by establishing a robust number of year-round [H-2A] visas and providing adequate employer protections to ensure the changes to federal law would not expose Idaho farm families to excessive litigation,” he wrote.
For their part, Boatright said AFBF is already working with the new Congress on farm labor reform. “We are actively educating new lawmakers on the labor challenges that our farm families have persistently faced and engaging with congressional leaders to urge action,” he said.
Now, the group could attempt to push for H-2A changes alone without granting any legal pathway to the workers already here. But Nuxoll at Western Growers said that tactic has been tried before and has always failed, and the makeup of the current Senate would surely stop it in the near future.
“Growers are going to continue to feel like they don’t have to negotiate with us and they can just go around us and get the parts they like without any parts they don’t,” said UFW’s De Loera-Brust, who is planning to continue building worker power on the ground back in California. “Whether it’s in Congress or in the fields, we’re going to just keep demonstrating that workers actually do have power and that any sort of future solution to America’s agricultural labor shortage, or whatever they’re calling it now, is going to require the participation of farmworkers.”
The bill’s supporters insist that the takeaway from what happened in December is not that compromise is impossible, but that it got them closer than anyone has ever gotten before.
Ortiz Valdez says he understands where workers like Espinosa are coming from. “We understand that there were many workers that wanted this, that folks were fighting hard to pass this because they truly believed it was the best we could do and it was better than nothing,” she said.
In Western New York, where Jiménez works, she said, the northern border is a looming presence and workers live in constant fear of border patrol agents. That makes them vulnerable to exploitation at the hands of employers.
But the workers she talks to aren’t interested in trade-offs. “This was going to be one more barrier for workers to get what they truly deserve,” she said. “We don’t see the bill not passing as, ‘Yay, what a victory!’ We see it as dodging something really dangerous for our communities.” Legal status at the federal level for farmworkers may not be politically viable at the moment, she said, but groups like Alianza Agrícola have had major success at the state level, securing drivers’ licenses, the right to organize, and overtime pay for workers.
In the end, no group, even with shared interests, is homogenous. Disagreements within the ranks could signal a growing, diverse movement, made up of farmworkers and allies alike.
“We all agree that our collective health depends on the well-being of the people that have been working to feed our communities,” Ortiz Valdez said. De Loera-Brust and UFW’s members say the failure of the FWMA means that those people could have gotten some relief and instead got nothing.
But Valdez sees it differently: “They don’t deserve crumbs.”
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