The Senate is heading to the August recess and into the fall campaign season with little sign of a deal on farm labor reforms that would expand the H-2A visa program and provide a path to legal status for existing workers.

Sens. Mike Crapo, R-Idaho, and Michael Bennet, D-Colo., have been working for months to get an agreement on the House-passed Farm Workforce Modernization Act. However, they have yet to resolve the biggest sticking point, a provision opposed by the American Farm Bureau Federation that would allow H-2A workers to sue U.S. employers.

It’s also unclear how a bill legalizing undocumented workers could get the 10 GOP votes necessary to pass the Senate in an election year, assuming no Democratic opposition.

“The senators are talking, but the window is tight,” said Michael Marsh, president and CEO of the National Council of Agricultural Employers.

The House-passed bill is supported by many major ag groups, including the Western Growers Association, the National Council of Farmer Cooperatives, and the National Milk Producers Federation, but AFBF has raised concerns about several provisions, including one that would cover H-2A workers under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). The Farm Bureau argues that provision would open farms to frivolous lawsuits.

MSPA is "the last sticking point and something those (Senate) offices are going to have to hash out," said Sara Neagu-Reed, director of advocacy and government affairs for AmericanHort, which represents greenhouse growers.

AFBF originally negotiated the MSPA in 1986, and “it is badly in need of reform,” Marsh said. “No business wants to be frivolously harassed by plaintiffs’ bar on relatively minor issues that should easily be resolved through mediation.”

Sara-Neagu-Reed-2.jpgSara Neagu-Reed, AmericanHort

Neagu-Reed said Bennet and Crapo have worked through several issues but have divulged few details on how they’ve been resolved. “I understand that there's been over 30 changes that have been made to the bill, and they are beyond quote-unquote tweaks,” she said.

Allison Crittenden, a government affairs director for AFBF, noted her organization has raised concerns with several issues in the House-passed bill in addition to MSPA, including the caps on year-around visas.

"It’s important the Senate continues these bipartisan discussions to ensure a Senate ag labor solution does not include provisions that would harm American farmers and ranchers. There is a sense of urgency from Farm Bureau and other agricultural stakeholders to finally accomplish ag labor reform. However, it’s also critically important the legislation that is put forward in the Senate addresses these issues in a substantive manner," Crittenden said. 

A key Republican senator on the issue, Thom Tillis of North Carolina, had stopped talking about the issue some time ago. A Tillis aide accused Democrats of “walking away” from the talks.

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Immigration issues remain as difficult as ever for Congress to deal with. Heading into the election, many GOP lawmakers have headed to the border to highlight the illegal crossings. At a Senate Judiciary Committee hearing in 2021, Republicans characterized the bill's worker legalization provisions as “amnesty.”

Supporters of the Farm Workforce Modernization Act are trying to use inflation concerns to get backing for the bill. To make the case, they cite a report by researchers at Texas A&M International University in Laredo, Texas, who say increases in migration and H-2A workers are associated with lower inflation rates. “This would suggest a stable agricultural workforce is good for the U.S. economy,” the researchers say.

At a recent Capitol Hill news conference, Rep. Dan Newhouse, the Washington Republican who was the lead GOP member on the House-passed version of the bill, urged the Senate to pass the bill, saying it would “combat the rising cost of food.”

“This is truly a crisis in our industry. … The struggle to find workers is real,” he said.

The bill would streamline the H-2A application process while allowing some visa holders to work year-round, rather than just seasonally, and would reform the process for setting the regionally based minimum wage rates that farms are required to pay. Farms also would be required to start using the E-Verify system to ensure that new hires are eligible to work in the United States. 

The House approved the measure 247-174 in March 2021 with 30 Republican votes. 

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