Jan. 24, 2023 – Wisconsin farms, like others around the nation, increasingly rely on the strenuous labor of immigrants and temporary guestworkers.

The economic, historical, and social factors that led to this dependence are complex.

The U.S. has a history of encouraging employers to invite temporary workers from Mexico and other countries during periods of labor shortages. Throughout the 1950s and early 1960s, Wisconsin employers participated in the Emergency Labor Farm Program of 1943, known as the Bracero Agreement, offering short-term labor contracts to Mexican citizens.

More recently, fierce economic competition has led to consolidation of farmland among fewer owners.¹ Wisconsin is now home to 64,100 agricultural farms and 6,483 milk cow dairy farm operations.² To thrive, owners have increased exports of Wisconsin’s agricultural and dairy products, contributing to growth in Wisconsin’s economy.³ Wisconsin’s dairy industry contributes $45.6 billion to the state’s economy.⁴

Fewer U.S. born citizens currently seek work in agricultural or dairy farms.⁵ While low wages are a factor, the challenges of farm work – including use of hazardous machinery and equipment, pesticide exposure, and unseasonable weather – also hamper recruitment efforts.

A Need for Reform

Reducing barriers to immigration would provide easier access to farm labor.

In 2022, Wisconsin’s agricultural industry hired more than 5,000 immigrant farmworkers, with a considerable number arriving via the temporary guestworker H-2A program.⁶ Of Wisconsin’s dairy workers, 40% are immigrants with 90% of them being undocumented, according to estimates.⁷

Several years ago, agricultural and dairy industry leaders began meeting with farmworker advocates to jointly call on Congress to pass immigration reform. Owners seek to staff farms with dependable workers and better predict labor costs. They desire to eliminate, or at least alter, an onerous system of government oversight that they assert hampers their ability to recruit workers.⁸

Undocumented farmworkers and those that were recruited on temporary H-2A visas share compelling personal reasons for immigration reform. Achieving permanent legal residency would provide them with a sense of security when residing in rural communities and while traveling. It would alleviate their fears of deportation and of accessing legal rights. Without legal residency status, workers are vulnerable to exploitation, including wage theft, workplace health and safety violations, and in extreme cases, labor trafficking.⁹

Currently, a guestworker’s presence in the country is tied to the employer who sponsors their H-2A visa, and they must return home for at least three months every three years.

Thousands of undocumented and H-2A farmworkers have labored on U.S. farms for decades. Most experienced unprecedented hardships during the 2020 pandemic when they were lauded as “essential workers.” A recent book,Milked: How an American Crisis Brought Together Midwestern Dairy Farmer and Mexican Workers by author and journalist Ruth Conniff, highlights close relationships that have developed among Wisconsin dairy workers and their employers. Conniff demonstrates that, while not all immigrant workers seek permanent U.S. residency, they do require a legal status that allows them to travel freely to see family members outside the U.S. without fear that they will be unable to return to their jobs.

H-2A Program Reform

The H-2A visa program is administered by three agencies: the U.S. Department of Labor, the U.S. Department of Homeland Security, and the U.S. Department of State. It allows agricultural farmers to recruit foreign workers for temporary farm labor (lasting less than one year) if the employer complies with the required rules and completes a certification process.

The employer must first demonstrate that there are no available U.S. workers for the position. They also must provide evidence that they are paying their employees the Adverse Effect Wage rate (prevailing wage in the region for similar work). The employer is required to provide employees with a disclosure statement and an employer agreement, and agree to provide housing and meals, and reimburse employees for transportation.¹⁰

Dairy owners have had challenges accessing the H2A program since it does not permit hiring for year-round labor.¹¹

It is important to note that in Wisconsin, employers of migrant farmworkers, including H-2A workers, must also abide by the migrant labor laws, Wis. Stat. sections 103.90 to 103.97, enforced by the Wisconsin Department of Workforce Development.

In November 2022, the U.S. Department of Labor (DOL) issued updated H-2A regulations, which take effect for employment starting on or after Feb. 13, 2023. The updates are intended to “strengthen protections for workers, modernize and simplify the H-2A application and temporary labor certification process, and ease regulatory burdens on employers.”¹²

U.S. DOL issued a chart that details the specific regulatory updates. Attorneys who assist employers with H-2A applications should be aware that if their clients run afoul of the H-2A rules, that attorneys are now subject to “debarment” based on their own conduct.

Farm Workforce Modernization Act

In 2019, representatives of owners and laborers joined together before Congressional leaders to advocate for the Farm Workforce Modernization Act, H.R. 1603, 117^th Cong.¹³

Upon passage, the bill would provide a path to legal residency for undocumented farmworkers. A first step is that they must show they have been actively employed as a farmworker for 180 days over the previous two years. Workers who pass a criminal background check and meet the work eligibility requirements would be able to apply to the U.S. Department of Homeland Security for a Certified Agricultural Worker (CAW) status. CAW status would be valid for 5.5 years and would be renewable.

Additionally, longtime farmworkers could adjust to lawful permanent resident status if they worked in agriculture for at least 10 years. Farmworkers who worked for less than 10 years would have to work an additional eight years before seeking permanent legal residency.¹⁴

H.R. 1603 would make further changes to the H-2A program, modifying the method of calculating wages and requiring employers to guarantee minimum work hours. It would also make the H-2A program available to dairy farmworkers. A pilot program would allow certain workers to apply for portable status, allowing them to seek a job with a different H-2A employer after 60 days. The Act mandates that employers utilize E-Verify, a web-based system for verifying worker eligibility.

The Farm Workforce Modernization Act passed the U.S. House of Representatives in 2019 and 2021 with bipartisan support. (In 2019 it was H.R. 5038, 116th Cong.) As of December 2022, its provisions failed to garner support in the Senate to bring it to a vote.

U.S. Citizenship Act

Immigration advocates prefer passage of more widespread reform as proposed in the U.S. Citizenship Act of 2021, H.R. 1177, 117th Cong. This Act would create a path to citizenship for a broader group of undocumented individuals, including agricultural workers, and the workers would not be subject to requirements of proving farm labor. This bill has received significantly less support in Congress than the Farm Workforce Modernization Act.

Some farmworker advocates assert that the passage of the Farm Workforce Modernization Act would harm farmworkers, requiring them to be “indentured servants.” They are extremely concerned about capping wage increases. They also object to the requirement that all employers utilize E-Verify to verify their employee’s identity and authorization, complaining that system errors are likely to cause harm to workers.¹⁵

Most farmworker advocates, including Farmworker Justice, agreed to support H.R. 1603 with the goal of reducing workers’ vulnerability to exploitation and fear of retaliation if they assert their legal rights. Advocates provided testimony to Congress in support of the Farm Workforce Modernization Act as a “compromise” so that farmworkers could begin to take steps toward adjusting their legal status.¹⁶

An Update

On Jan. 13, 2023, the U.S. Department of Homeland Security (DHS) announced that it is enhancing processes to protect noncitizen labor trafficking victims and witnesses, utilizing a tool called deferred action.

DHS seeks to alleviate witness concerns over employer retaliation. While helpful, deferred action is a prosecutorial discretionary process that allows an individual to be free from deportation for a limited time – it does not provide a path to citizenship.

Conclusion: A Collective Stake

Consumers rely on farm owners and workers to supply the food we consume daily. The Wisconsin economy experiences tremendous benefits from its dairy and agricultural industries. We possess a collective stake in ensuring the health and stability of Wisconsin farms and farmworkers.

Thus, immigration reform will remain a critical economic and social imperative. The challenge remains to find ways to increase political support for necessary reform.

This article was originally published on the State Bar of Wisconsin’s Public Interest Law Section Blog. Visit the State Bar sections or the Public Interest Law Section webpages to learn more about the benefits of section membership.

Endnotes

¹ Ben Baker, “Go Big or Go Bankrupt: Wisconsin Farmers Face Daunting Challenges as Factory Farms Flourish,” The Badger Herald, Dec. 7, 2021.

²Wisconsin Agricultural Statistics, Wisconsin Department of Agriculture, Trade and Consumer Protection, Sept. 28, 2022.

³ Hope Kirwan, “Wisconsin Sets Record High for Agricultural Exports in 2021,” Wisconsin Public Radio, Feb. 15, 2022.

⁴Wisconsin Agricultural Statistics.

⁵(Infographic) The U.S. Farm Labor Shortage, AG American Lending, June 28, 2022. See also Summer Sewell, "‘It’s five years since a white person applied’: the immigrant workforce milking America’s cows​," The Guardian, July 25, 2021, about dairy farms in Monroe, Wisconsin.

⁶2022 Migrant and H-2A Worker Population Report, Wisconsin Department of Workforce Development Bureau of Job Service.

⁷ Jacob Kushner, “Immigrant Dairy Workers Transform a Rural Wisconsin Community,” Wisconsin Watch, July 11, 2010.

⁸Wisconsin and national dairy and ag leaders urge swift action to fix farm labor shortage, keep shelves stocked and lower food prices- latest events in multi-state national food security farm tour, American Business Immigration Coalition Action, Oct. 6, 2021.

⁹Labor Trafficking on Specific Temporary Work Visas Report: A Data Analysis 2018-2020, Polaris Project.

¹⁰ Sadikshya Nepal, Primer: Evolution of the H-2A Visa Program, Bipartisan Policy Center, Sept. 15, 2021.

¹¹ Julie Grace, “Wisconsin Dairy Navigates Gaps in Immigrant Labor Policy,” Wisconsin State Farmer, Aug. 24, 2018.

¹² 20 CFR 653 (2022), 20 CFR 655 (2022), 29 CFR 501 (2022), Temporary Agricultural Employment of H-2A Nonimmigrants in the United States, National Archives Federal Register, Oct. 12, 2022.

¹³ Press Release, Rep. Dan Newhouse, Bipartisan House Members Introduce Farm Workforce Modernization Act, Oct. 30, 2019.

¹⁴Fact Sheet: Farm Workforce Modernization Act, American Immigration Council, Aug. 27, 2021.

¹⁵ Myrna Martinez Nateras, “California orgs working with farmworkers oppose the Farm Workforce Modernization Act,” American Friends Service Committee, June 11, 2021.

¹⁶Testimony of Arturo S. Rodriguez on behalf of the United Farm Workers (UFW) and UFW Foundation Before the United States Senate Committee on the Judiciary Hearing on “Immigrant Farmworkers are Essential to Feeding America,” July 21, 2021.