For several hours on Nov. 20, the House Judiciary Committee conducted a markup of H.R. 5038, the Farm Workforce Modernization Act, touted as the latest bipartisan attempt to offer agricultural producers a solution to their labor issues.

The bill advanced out of committee by a vote of 18-12, but some of the shortcomings of the bill also were revealed, as identified by the ranking member of the committee and one of the largest agricultural groups, the American Farm Bureau Federation.

The bipartisan effort was negotiated over eight months with input from agricultural stakeholders and labor organizations and was introduced with the support of 26 Democrats and 23 Republicans. Reps. Zoe Lofgren (D., Cal.), one of the lead sponsors of the bill, directed the markup on Wednesday.

“Our bill offers stability for American farms by providing a path to legal status for farmworkers. In addition, the Farm Workforce Modernization Act addresses the nation’s future labor needs by modernizing an outdated system for temporary workers while ensuring fair wages and workplace conditions,” Lofgren said following the committee vote.

One of the components of the bill is a pathway to legal status, which was an important piece of the puzzle for many Democrats. The program establishes a program for agricultural workers -- as well as their spouses and minor children -- to earn legal status through continued agricultural employments. To qualify, they must show at least 180 days of agricultural employment over the last two years.

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House Judiciary Committee ranking member Doug Collins (R., Ga.) said it is unknown how many people will take advantage of this amnesty. “Estimates from groups like Farmworker Justice put the number of farm workers in the U.S. at 2.4 million, while other estimates reach as high as 2.7 million. Even at the very conservative estimate that 50% of farm workers are here illegally, well over a million-and-a-half people will get a path to citizenship, and because that 50% number is from a self-reported survey, we can expect the number of illegal workers is even higher than that,” he said.

The House proposal also modifies the H-2A program to provide what the bill's authors claim is “more flexibility for employers while ensuring critical protections for workers. The bill would focus on modifications to make the program more responsive and user friendly for employers.”

The agriculture industry has asked that Congress provide access to the H-2A program for all sectors of agriculture. While H.R. 5038 covers the dairy industry, it leaves out other important sectors like meat and poultry processing, forestry and aquaculture, Collins added in his comments during the markup. During attempts in 2018 led by former chairman Rep. Bob Goodlatte (R., Va.), the changes to year-round use of H-2A allowed the meat and poultry sectors to also be included. Collins, who represents a district where the poultry industry employs more than 16,000 people, said the exclusion of meat and poultry processors in the 2019 attempt is an “enormous problem.”

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The bill dedicates an additional 40,000 green cards per year for agricultural workers. Employers can use these visas to sponsor workers to fill unmet permanent agricultural labor needs. The bill also creates an option for H-2A workers to apply directly after completing 10 years of H-2A work in the U.S.

“H-2A users have asked for no cap on the program. Where H.R. 5038 does provide some visas for year-round work, it caps the number initially at the low rate of 20,000 per year and then reserves half of those for dairies. So, a measly 10,000 visas per year are provided for all other year-round agriculture needs. After that, the bill caps any increase at 12.5% — yet still reserves half for dairy,” Collins said.

The bill does establish a mandatory, nationwide E-Verify system for all agricultural employment, with a structured phase-in and guaranteed due process for authorized workers who are incorrectly rejected by the system.

American Farm Bureau Federation president Zippy Duvall said as it currently stands, the legislation advanced falls short of a long-term solution to farm labor shortages.

“Before the bill was introduced, modifications were made in response to concerns raised by our members,” Duvall said in a statement. “While welcome, these changes, unfortunately, fall short of assuring that American producers will be able to keep their farms going, and the committee [Wednesday] failed to adopt any amendments that would have improved the legislation for agricultural producers.”

The Farm Bureau said changes made to the Farm Workforce Modernization Act prior to its introduction improved farmers' ability to retain H-2A workers, took a small step toward protecting farmers from frivolous litigation and added a study to examine whether the H-2A program affects U.S. farmers’ ability to compete with foreign agricultural imports. The key amendments needed would ensure a fair and competitive wage rate and limitations on the use of federal courts to solve workplace grievances.

“We also know that once Congress passes legislation, no one will have an appetite to revisit the issue, and simply put, this bill’s approach is not yet good enough. We need a program that U.S. farmers and ranchers can afford and that allows them to remain competitive in the long term with foreign imports,” Duvall said.

Rep. Dan Newhouse (R., Wash.), who was involved in the 2018 efforts, said H.R. 5038 is an “excellent step forward for a bipartisan bill that will be a building block to improve and modernize America’s agriculture industry.” Newhouse added that he’s hopeful that the legislation will now move quickly to the House floor, and “I look forward to the continued opportunity to perfect the bill in the Senate.”

Tom Stenzel, president and chief executive officer of United Fresh Produce Assn., said the bill’s advancement was a testament to the tenacity of members of Congress. “It is imperative that the House act quickly to pass this legislation. This bipartisan bill is co-sponsored by nearly two dozen Republican members of Congress, demonstrating wide support. We believe a strong vote in the House will lead the way for the Senate to follow suit to finally address the labor crisis in American agriculture,” Stenzel said.