As lawmakers prepare to release legislative language for proposals that would allow an estimated 11.2 million undocumented immigrants to earn a path to citizenship, a small bipartisan group of senators is struggling to reach a deal for how to create a steady supply of labor for farmers and growers, threatening to undermine the newfound momentum for comprehensive reform.
Lawmakers agree that the roughly 1 million individuals currently working without legal status in the agricultural industry are essential to maintaining America’s food supply and should be able to achieve legal status through an expedited legalization process. But the parties remain deeply divided over how to treat future flows of farm workers. Four senators — Dianne Feinstein (D-CA), Orrin Hatch (R-UT), Marco Rubio (R-FL), and Michael Bennet (D-CO) — are currently involved in tense negotiations between growers and advocates for farm workers, represented by United Farm Workers of America. The talks, which hinge on the wages workers should earn and the number of new visas that should be issued, are close to a standstill, sources involved in the negotiations tell ThinkProgress, as the growers refuse to make concessions and are insisting on paying future farm workers less than they are earning now.
Under current law, growers can legally bring foreign agricultural workers into the United States under the H-2A visa program after making an active effort to recruit U.S. workers in areas of expected labor supply. Employers must pay the higher of the state or federal minimum wage, a local prevailing wage rate or the adverse effect wage rate (AEWR), a Reagan era formula based on the USDA Farm Labor Survey of the average wages of nonsupervisory field and livestock workers. Growers who import labor are prohibited from paying their agricultural workers less than the average of the wages in their region and are exempt from paying Social Security and Medicare taxes on H-2A compensation. As a result, foreign workers cost growers an average of 11 percent less than American workers.
Lax enforcement of H-2A standards, however, has allowed growers to routinely circumvent protections, including advertising requirements and the hiring of illegal international recruiters to import even cheaper labor from Mexico. Workers on H-2A visas, advocates say, are abused by employers, cheated out of pay, and lack basic labor protections like occupational safety standards. Farm workers are paid some of the lowest wages in the country and are more likely to live in poverty and lack basic access to health care than salary employees.
Groups representing farm workers argue that the H-2A system is rifle with abuse, while growers complain that red tape, mass delays, and overregulation serve as barriers to importing needed labor. Both sides have now agreed to establish a new visa program outside of the H-2A structure that would be included in a broader immigration reform deal — but are very far apart in the details of that plan.
Individuals involved in the negotiations say that growers are demanding wage standards that would amount to a significant reduction from the current AEWR formula, allowing employers to import cheap foreign labor while significantly undercutting American workers and lowering the earning potential of future streams of workers. Growers, whose opening offer would have paid workers just 10 percent above the federal minimum wage, have proposed numerous pay formulas, one person directly involved in the negotiations told ThinkProgress, but appear uninterested in compromising with labor groups. Kristi Boswell, Director of Congressional Relations at the American Farm Bureau — the organization representing growers — pushed back against that formulation, saying that while the discussions are “ongoing,” the growers’ proposals would “increase wages” for farmers and would better represent market conditions. The current AEWR average is $10.80, while grower proposals would pay workers less than $8.
“It must take incredible willpower for growers to utter the words ‘farmworkers are overpaid’ with a straight face,” Marshall Fitz, Director of Immigration Policy at the Center for American Progress, said. Farm workers “are the most difficult and physically demanding jobs in America and are performed by workers making barely above the minimum wage.”
A policy analyst close to the negotiations told ThinkProgress that growers may be refusing to give ground during Senate negotiations in hopes of securing a more favorable agreement in Republican-controlled House. But GOP senators taking part in the talks are growing frustrated, and immigration reform advocates fear that without a clear deal governing future flows of immigrants, comprehensive reform may be in trouble.
“Agribusiness lobby power has kept farm workers excluded from every major labor law for decades,” said Maria Machuca, spokeswoman for the Keene, California-based UFW, in an e-mail. “It would be a grievous mistake to allow agribusiness to use the debate over immigration reform to further reduce wages of the poorest workers in the country.”