American agricultural employers have long utilized foreign workers on a temporary basis, regarding them as an important labor resource. At the same time, the relatively low wages and acceptance of often difficult working conditions by such workers have caused them to be viewed as an economic threat to domestic American workers.
To mitigate any “adverse effect” for the domestic workforce, a system of wage floors has been developed that applies, variously, both to alien and citizen workers — the adverse effect wage rate (AEWR). Under this system, a guest worker must be paid either the AEWR, the state or federal minimum wage, or the locally prevailing wage for his or her occupation, whichever is higher.
Farmers and ranchers have long experienced difficulty in obtaining workers who are willing and able to work on farms and in fields. The current system does not work for all of agriculture. Wisconsin Farm Bureau, along with American Farm Bureau, are seeking an approach to ensure a legal and reliable long-term workforce that enables agriculture to remain competitive.
The current border situation has led to a renewed push to reform the immigration process. The expiration of Title 42 has led to an influx of migrants from Central America seeking asylum, a legal process through which individuals fearing persecution in their home countries can request protection and recognition as refugees in another. Title 42 was put in place during the Trump Administration and allowed U.S. officials to turn away migrants who came to the U.S. – Mexico border on the groups of preventing the spread of COVID-19. This has led to border state Governors taking matters into their own hands and busing migrants to Democrat controlled northern states. New York City has declared an emergency, unable to deal with their arrival. Chicago is the latest city to ask for additional federal resources to help manage the influx.
The current Administration is allowing additional asylum seekers to stay in the country with a new app. In February, the Biden administration announced that migrants seeking asylum would now be required to use the app to book appointments online with an immigration officer before they can make an asylum claim psychically at the border. There was a Congressional hearing on border security last month where Homeland Security Secretary Alejandro Mayorkas was questioned about the app. Some Congressional members believe the app is being used as an open door for migrants to enter with no follow up from federal officials on missed appointments.
House leadership has prioritized a border security package in the 118th Congress. Hence, H.R. 2 contains a suite of border security enhancement and enforcement measures that include, but are not limited to, increased border personnel, asylum reform measures, discontinuation of catch-and-release policy, improved DHS transparency regarding illegal crossings, and investments in technology along U.S. borders. The House passed H.R. 2 but it has no chance of moving forward in the Senate.
Mandatory e-Verify for all industries was included in this package, to be phased in by employer size over two years. A three-year delay is permitted for agriculture. Also included is a repeal of the 2022 H-2A Program rule and the 2023 H-2A AEWR rule, as well as a congressional directive to complete an agriculture workforce study. All of these provisions are ill-suited to help farmers and ranchers grapple with the effects of mandatory e-Verify. Wisconsin Farm Bureau supports increased boarder security but additional steps need to be taken to address employment issues before instituting e-Verify.
Requiring agricultural employers to use e-Verify without assuring that a workable guest worker program is in place could have a significant, negative impact on U.S. farm production.
WFBF will continue to advocate for significant improvements to the H-2A guestworker program to secure program access for year-round producers like dairy and address the outdated AEWR formula, reforms that have been consistently urged by farmers for decades. Without these vital solutions, this provision will harm many labor-dependent family farms across the U.S. and the consumers who rely upon them.
Tyler Wenzlaff
Tyler Wenzlaff serves as WFBF’s director of governmental relations focusing on federal issues.
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