This article was originally published in Spanish through City Limits’ Una Ciudad sin Límites project. Read the Spanish version here/Lee la versión de Español aquí.

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On December 12, the House of Representatives passed the Farm Workforce Modernization Act with 260 votes in favor and the support of 23 Republicans. This bill could grant undocumented agricultural workers employment authorization.

This bill would benefit foreign workers who have not committed a serious crime and have worked in the U.S. agricultural sector at least 180 days over the past two years. 

Farmworkers who are granted Certified Agricultural Worker (CAW) status under the bill will be allowed to work. The bill would allow foreign farm workers to travel outside the United States and return. In addition, their spouses and their minor children would be eligible to become dependents with the same protections, including the right to work in the United States. This bill would allow workers to request five-year visas for themselves and their family. To renew the visa, workers would need to prove they’ve worked in agriculture for more than 100 hours per year.

This bill is commonly known as the “blue card” bill; in 2013 a bill with similar provisions was introduced by the so-called “gang of 8” congressmen. “If you tell farmworkers about the Farm Workforce Modernization Act of 2019, most of them won’t know what you’re talking about, but if you tell them about the ‘blue card bill’ then they will recognize it,” said Armando Elenes, secretary treasurer of United Farm Workers, who has also been in charge of organizing and developing workshops on this bill.

The bill, as it was passed, has three key points: 

1) It would create a path to legalization for current unauthorized farmworkers, including an eventual option to become a legal permanent resident (LPR).

2) The H-2A visa category for agricultural workers would be reformed.

3) It requires universal participation in the E-Verify program, a federal database designed to compare the information entered by an employer with the records available from the Social Security Administration (SSA) and the Department of Homeland Security (DHS) in order to ensure that workers applying for jobs are legally eligible for employment in the United States.

A tough year for farms

This bill comes at a crucial moment for the agricultural industry, since 2019 was a difficult year, especially for small farms. For example, the US-China Trade War brought down commodity prices. In addition, climate change did not make things easier and wildfires in several parts of the country damaged crop yield. 

In response, the government provided $16 billion in aid for farmers, but despite this, farm debt reached an all-time high. According to Time magazine, farm debt reached $416 billion last year, reflecting the fact that “more than half of all farmers have lost money every year since 2013.” As farmers have lost money, the nation has lost farms. More than 100,000 farms stopped operating between 2011 and 2018; 12,000 of those shut down between 2017 and 2018 alone. (This is the latest chapter of a long-term trend: From 1948 to 2015, 4 million farms disappeared.)

High numbers of unauthorized workers

According to Pew Research, in 2016 agriculture was “the job category with the highest share of unauthorized immigrants.” According to the American Farm Bureau Federation, the national agricultural industry in the United States needs about 2.4 million employees per year. If passed, this modernization bill could legalize some 325,000 immigrants currently working in agriculture who do not have legal status.

In New York State, according to Armando Elenes, “between 80,000 and 100,000 people could benefit from this law. About 95 percent of the workers who currently work in the agricultural sector in New York State are either undocumented or are “H-2A workers” or ‘Hs’ as they are called in Arizona.” (The H-2A program allows U.S. employers to bring in foreign workers to fill temporary farm jobs).

As several of the organizations contacted by City Limits pointed out, it is very difficult to know the exact number of farmworkers in New York State. NYS Department of Agriculture and Markets responded by email that it does not “does not maintain the statistics and data” on the number of undocumented workers in the state.

In New York State, Elenes explained that “the industry that hires the most undocumented workers is apple growing, followed by dairy —where work is not seasonal, neither temporary. Thirdly, there is vegetable farming, especially cabbage and potatoes, and then nurseries.”

Undocumented workers not only constitute a large share of the workforce in the agricultural sector, they also receive lower wages than workers with H2-A permits or U.S. citizens. Contrary to the belief that immigrants come to take jobs away from Americans, under H2-A the Department of Labor must “certify that there are not sufficient U.S. workers qualified and available to perform the labor involved in the petition and that the employment of the foreign worker will not have an adverse effect on the wages and working conditions of similarly employed U.S. workers, employers must demonstrate the need for a specific number of H-2A workers.”

Even the United States Department of Agriculture agrees that “one of the clearest indicators of the scarcity of farm labor is the fact that the number of H-2A positions requested and approved has increased fivefold in the past 13 years, from just over 48,000 positions certified in fiscal 2005 to nearly 243,000 in fiscal 2018.”

According to the United Farm Workers and Worker Justice Center of New York, the majority of H-2A workers are from Mexico, Guatemala, Jamaica, and Haiti. In 2019 alone, the Department of Labor reported that it reviewed 8,104 positions certified in New York, which corresponds to 3.1 percent of the national total. In New York State, H2-A workers receive an average of $13.25 per hour.

On the other hand, undocumented workers receive on average $10 to $11 per hour in New York State. Two or three dollars less could represent, at the end of a week, hundreds of dollars less and thousands of dollars at the end of a season. In Dunkirk, New York, farm workers say they do not work by hour but “earn $0.35 cents per pruned grape plant.” The work is completely dependent on the weather. “If it’s very cold we can’t work that much and we make less than $300, which is the normal weekly rate,” says an undocumented worker in Dunkirk.

In New York, farmworkers with an H2-A permit are entitled to a 30-minute, unpaid lunch period if their workday or shift is longer than six hours. If they work a long shift that begins before 11am and goes past 7pm, employers must provide an additional 20-minute meal period for dinner. For undocumented workers, as described by José, “the day normally begins at 5 am and ends at about 6:30 pm or 7 pm. There is an unpaid lunch break and the time must be punched on a card.”

Undocumented workers working in New York State come mostly from Mexico and Central America. For example, at the dairy where José works there are 20 employees; 15 of them are undocumented, all from Mexico. None of them have an H2-A visa. 

At a dairy in the town of Wyoming, N.Y., the situation is identical: There are no workers with H2-A visas, says an undocumented worker who did not want to be identified. “We are 19 Mexicans working in the fields, all undocumented, and eight Americans who drive the tractors.”

A lack of protections

As for their living conditions, according to Elenes, undocumented workers in New York “live close to the dairies and often depend on someone to give them a ride to work.” 

“In the case of those who work in agriculture, a large number of undocumented workers live in homes located inside the fields. Most of them are men,” Elenes adds. “They all live under the same roof. Personal privacy is very difficult. In New York you only have a 30-minute, unpaid break per day. Imagine working all day and only having 30 minutes to take a break.”

José (a pseudonym to protect his identity for fear of retaliation) works at a dairy in Perry, N.Y., and says his “employer sometimes pays him two or three hours less than what he worked. And you don’t fight because you want to keep working.”

In addition, undocumented workers are often reluctant to demand to be paid regularly, or to be paid as agreed, or to be paid overtime, and are unlikely to complain about working conditions because of the fear that they will be reported by their employers to ICE. 

As Larisa Jacobson, co-director of the Soul Fire Farm community farm, says “the United States has a long history of denying protections to farm workers ranging from slavery, sharecroppers, and braceros to the H2-A-visa worker”.

Some advocates believe the new federal bill perpetuates those problems.

“It’s still like servitude. This bill favors the employer,” says Emma Kreyche, director of outreach and education at the Worker Justice Center of New York, an organization that opposes the law.

Much of the criticism of this bill focuses on the lack of freedoms that farm workers would have. “For example, if a worker gets certified and then has an accident at work or is injured, then is he/she out? Farming is a dangerous work and has little safety measures and this bill does not protect worker rights,” says Kreyche.

The Alianza Nacional de Campesinas, an organization of women farmworkers in the United States, has expressed concern about the bill’s potential impact. “Undocumented farmworkers would have to wait many years for the opportunity to apply for lawful permanent residency, further exacerbating gender disparities within the immigration system that restrict, constrain or exclude women from legalization,” it says in a statement.

Some also oppose the mandated use of E-Verify, an employment eligibility verification tool. Organizations such as the Food Chain Workers Alliance, a coalition of organizations with workers along the food chain, have said that “for most employers, E-Verify is voluntary and currently, there are no entire industries that are required under law to use E-Verify.” In addition, this organization “opposes the collection of data that could one day be used to criminalize workers.”  

State law being felt

While discussions about the new federal law continue, some farm owners in New York have began to implement new state legislation (the Farm Workers Bill) before it officially went into effect in January.

Anecdotally, it appears some farm owners have reduced the number of working hours for undocumented workers.

For example, what worries José most now is that his employer, claiming to be following the state law passed in July, has significantly reduced the number of working hours from what used to be 72 or 75 hours per week to a maximum of 55 hours per week, so as not to pay overtime.

Under New York’s new state farmworker law, overtime must be paid at twice the regular pay rate and to any worker who exceeds 60 hours per week. According to farm workers, farmers simply increased the number of undocumented workers they employed to pick up the extra hours.

“For at least a month, my employer has cut six hours of work for workers to avoid paying overtime and raised the pay by a dollar,” says the farmworker in Wyoming, N.Y.

“For those who have family here the change gives them more time to be with family, but for those who don’t have family here, like me,” says the worker in Wyoming, “the change is very bad because I just came to work hard and then, go back to Mexico.”

The situation has changed so much that José says that after two years of work at the dairy, he is thinking of switching to construction because his salary was reduced by more than $100 per week.

A third worker at a different farm said he has seen hours cut, too, and Elenes says he has heard reports of similar changes. However, Emma Kreyche of the Worker Justice Center of New York says it is too early to assess the law’s impact.

“New Yorkers have been fighting to see this Farm Workers Bill passed for decades,” Sen. Jessica Ramos, who sponsored the measure, told City Limits in a statement. “Given that it was just recently implemented, it’s expected that there might be some kinks to fix and we are more than willing to work with all stakeholders on the issue to correct them. We want farm workers to prosper and moreover, make sure that New York’s robust agricultural industry prospers.”

Bill’s fate uncertain

It is still too early to know how New York state law and this national bill would interact. It’s also unclear if the bill passed by the House stands any chance in the Senate. It is opposed by the American Farm Bureau Federation, which said in a statement: “We will turn our attention to the Senate where we hope legislation is crafted that provides long-term solutions to the farm labor crisis. Farmers need meaningful reform that addresses the concerns of both workers and growers.”

Among worker advocates, opponents of the bill say the proposed law does not go far enough. On the other hand, Farmworker Justice president Bruce Goldstein wrote that “The status quo for farm workers under our dysfunctional immigration system is unacceptable and this bill is a responsible path forward.” 

Elenes sums it up this way: “As I say to the workers in the workshops, we dreamed of brand new Cadillac but they gave us a Chevy, so do you take it or leave it and get nothing?”