The Immigration Guy

The Farm Workforce Modernization Act is Bad for Immigration

October 12, 2022 Kyle Farmer Season 1 Episode 9
The Immigration Guy
The Farm Workforce Modernization Act is Bad for Immigration
Show Notes Transcript

Kyle sits down this week to share some facts on why the Farm Workforce Modernization Act would actually hinder current business based immigration programs. Listen for all the updates! 

We know, the immigration system is messy! It’s complicated and confusing, especially for those looking to gain a visa or hire foreign workers. Farmer Law PC’s Immigration Guy, Kyle Farmer, knows all of the tricks of the trade. The firm specializes in innovative immigration solutions, some of which you’ll get to hear about on this podcast. Tune in for commentary on immigration-related news and industry insights, and The Immigration Guy’s thoughts on much more!

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**The information provided on this podcast does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available are for general informational purposes only. Listeners of this podcast should contact their attorney to obtain advice with respect to any particular legal matter.  No reader, user, or browser of this site should act or refrain from acting on the basis of information on this site without first seeking legal advice from counsel in the relevant jurisdiction.  Only your individual attorney can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation.  Use of, and access to, this podcast or any of the links or resources contained within the description do not create an attorney-client relationship between the listener and Kyle Farmer. **

Produced & Edited By: Drew Tattam

Welcome back to the Immigration Guy Podcast. Happy freaking Wednesday. Since the last podcast, I had an ear infection in both my ears, and I learned a lot about this. I learned one that apparently adult men do get ear infections. I don't know how I got it, but I did learn that. Uh, it definitely, definitely has a lot of stigmas around ear infections for adult men.

I was accused of. That's so gross. I was accused of oozing, and my employees all requested that I wear a mask around my ears because they think that that is just the way to go, I guess. But today we're gonna be talking about not ear infection, so much as the Farm Workforce Modernization Act of 2021. Hey all, this is the immigration guy with Kyle Farmer.

This legislation keeps popping up. Uh, it popped up in 2019. It popped up again in 2021. Uh, and it's funny because I know that a lot of producers, um, a lot of people at agriculture in general, definitely a lot of associations are preaching that this legislation is somehow good for agriculture. Uh, I think that it takes just the smallest amount of in-depth knowledge to realize that this legislation is complete crap.

So, I don't know if there's a lot of people that are supporting it because they just want something to pass for H-2A and I, I don't know. if they're supporting it or because they're not actually reading it and analyzing the implications of it. Frankly, the Farm Workforce Modernization Act sucks. A, a lot of people love that opinion because they tend to be behind it because their associations told 'em to be, or their associations fed it to them as if it was some sort of savior of the H-2A program as far from that.

So, I wanted to talk about some of the aspects of the Farm Workforce Modernization Act that keep coming up and, and why it's so terrible. But, uh, so I guess first and foremost, it, it doesn't do anything. To combat the high cost of the H-2A program, uh, usually what you see is a one-year A- word freeze or something like that.

That's that's temporary and that's also a very minor benefit. It could just be made up for the following year. You're selling your soul for a one year. A- word or the A- word by the way, stands for adverse respective wage rate, which is currently the wage rate that all H-2A workers are paid in a given state, but a one-year freeze selling your soul for a one-year freeze on the A word is.

It's ridiculously shortsighted and really, it's definitely not worth it. It also does nothing to make the actual processing of the application easier, which is something that farmers talk about all the time. They want the H-2A process to be simple, but still is far from that government gets, government gets involved and, uh, they, they can't make much simple, but, uh, it, it doesn't do anything to provide for relief for the high cost of housing.

Although there were some, uh, some groups pushing for some things that would actually help that, and nothing made it into the bill. It, uh, it also establishes, uh, regularly is establishing the first ever H-2A visa cap, and it allocates only 20,000 visas per year-round work on farms, which, and 10,000 of those are specific to dairies, uh, which is far below what's needed for year-round workers.

First of all, the numerical cap on the H-2A program is one of the worst ideas conceivable. Uh, for a lot of reasons, one numerical caps on temporary and seasonal visas doesn't make logical sense. The purpose behind a cap is to, well, the, the supposed, uh, purpose behind a cap is to prevent so many people coming in that it adversely affects the US workforce.

But that doesn't make any sense because every year, regardless of if there's a cap or not, you have to look to see, and you have to prove in the application process that there is no harm being done to the US work. through the use of these abuses. So logically a numerical cap doesn't make any sense. Now, add on to that, the importance of agriculture and the importance of labor for agriculture, and it is a lot dumber, so it, it just doesn't make any sense. This bill tends to, whenever it comes up, it normally has some sort of H-2A cap, even if it's a really high cap. You, if you're not scared of the cap, just because it far exceeds the number of visas that are currently being filed for on H-2A applications.

Well, then you should take a look at historical filing data to see how much it's increased every year for, I don't know, the last 12 or 15 years, something like that. It's just gone. It's been a really exploding form of visa, and so you can put a numerical cap on it. That numerical cap eventually will be difficult.

Uh, to get workers under. So numerical cap on H-2A is just a terrible idea. And the allocation of only 20,000 visas for year-round work on farms is so ridiculously low. I mean, that and 10,000 of 'em go into dairies. Uh, it would, and there is a need for this. There's a need for temporary or seasonal workers on year-round farms, you know.

Hog producers, cattle producers, dairies, Turkey producers, uh, egg producers, broiler producers. Greenhouses. The, you know, a lot of these are not necessarily seasonal, so they're year-round, so they don't have a great option for, for foreign labor, and there does need to be an option for those guys for sure.

But allocating only 20,000 visas for that purpose is laughable, and ineffective and useless. So, whenever I see that in the bill and I'm just that, that doesn't even scratch the surface to be useful. So, I, I want to look at that and say, oh, well hey, 20,000 is better than the nothing we have now, cuz it's really not that much better.

You know, you, there's a need for hundreds of thousands of people in that particular realm and year-round agricultural work, hundreds of thousands of people, and you put 20,000 visas on there. Yeah. So maybe you are making it 10% better, maybe. For the people that actually need it. It's definitely, definitely not worth it, especially because you're sacrificing so much by allowing this legislation to go through.

So, and then this is, uh, this is also an aspect of it, but you have to know just a little bit about the history of amnesty and the United States, but farms with year-round, with a year-round workforce, will have workers legalized by this legislation, and then these workers would inevitably leave agriculture.

Uh, and that would exacerbate that need, that would again far exceed the 20,000 available visas. So, all those people that would get naturalized through this bill that are working on a dairy Now, if history taught us anything like it did in the early nineties, whenever we did this exact same thing, and then all those people.

Not all of 'em, but a huge percentage of those people ended up leaving agriculture, the, the, as soon as they could. It left a big hole in the labor. In the labor force. So, you, and then the only thing to backfill, that's 20,000 visas. No, that's not gonna do enough. That's not gonna do even close enough. It's a, it's an embarrassment, and I alluded to this a second ago, but whenever you have mass amnesty bills in agriculture, at least last time this happened, and the Immigration Reform Act of 1986, there was a ma, it was a mass amnesty bill for farm workers, and this immediately led to a mass exodus of those farm workers. So, you know, at the time of the Immigration Reform Act in 1986, by 1990, so just four years later, 35% of labor and agriculture had gained status through what was what was called the SAS program. By 95, more than 15% of those people left agriculture. But today those workers make up less than 10% of the workforce in agriculture.

Uh, so, and, and that also by the way, doesn't even include livestock farms such as dairies, swine, and, and the, and poultry confinements. Uh, and if, if you, that number's figured to be somewhere around 700,000 people at least, uh, according to rural migration news. Uh, and that was as of 2011. So, you, you have a mass exodus on farms.

You've got a numerical cap on bringing in H-2A labor. I don't know exactly what you're supposed to do with that enormous gap of labor. One of the reasons it's so bad is just because of the implications. You give a amnesty to a bunch of people that are in agriculture. What you're likely to see is those people will then leave agriculture and the employers spend a lot of time, money, and energy, people, and that is really, really not good, especially when the alternative is a, is not viable because the cap's getting hit so quickly. Last time there was an amnesty bill like this, the, the, the, the SAS program and it led to a mass exodus. What ended up happening was those farms backfilled that labor void through the use of undocumented labor.

Uh, but what this bill would do, at least every version that we've seen so far has mandatory e-verify for agricultural employers. So, it would take away that option. And if it do… If you don't abide by it, you would be under extreme scrutiny. So, uh, and, and there was kind of something similar. You know, the, the idea during the Immigration Reform Act of 1986 was pretty similar, where it was, okay, well let's naturalize these people, but then let's punish and impose penalties if you knowingly hire undocumented workers. Well, demonstrating someone knowingly hired undocumented workers is a really high burden. You know what's not a high burden? Demonstrating someone did not use e-verify whenever they should have. And so, they're lessening that burden for themselves significantly.

So, what it would do is it would take away that option for people, uh, not, not a, not exactly a legal option, but. It would take away the option or expose employers to significant liability if they did hire undocumented workers. Now, not that you're supposed to anyways, but it would, uh, certainly impose some additional liability on those people.

And I would imagine with that you would also. End up seeing because it's so easy to prove, you would end up seeing additional scrutiny on these guys for their workforce. You're gonna see more Department of Labor investigations. You're gonna see more Department of Justice investigations cuz everything's so easy for them to prove if you did this.

Now, the another big aspect of this bill that's really bad, is it increased exposure to litigation for employers. This bill is basically just a plaintiff lawyer's dream. Uh, it increased the ability of workers to exploit their employers through false allegations. Uh, H-2A workers will get taxpayer-funded lawyers to sue for any alleged employment violation, not just H-2A violations.

That's a big deal. They'd be able to look at any alleged violation employment. Not just H-2A and they would have taxpayer-funded lawyers to then go after their employers. It's unbelievable. Another huge aspect about it that, that I particularly didn't like was it randomly and arbitrarily, specifically excluded construction occupations from the, from the, the bill.

Uh, and th… This was, Consistent with both the Farm Workforce Modernization Act of 2019 and of 2021, it just specifically removes agricultural construction from the use of H-2A pieces. And of course, that would force companies into using the H-2B program, which also has a really competitive cap. So, it'd make this bill not only would make the H-2A program worse, it would also make the H-2B program worse.

It would make green card filings worse. It would make just running a farm. It's pretty, pretty remarkable. And there's thousands of people, by the way, that rely on agricultural construction and the, these, these agricultural construction workers, they, they create, you know, they, they're performing jobs that are really good for them.

They love the work and allows 'em to be here legally and to send money back home to their families. Uh, but it also helps create hundreds and hundreds of jobs for Americans that, that Americans really want. Your HR staff, your accountants, your your lawyers, obviously your, your bookkeepers, your project managers, your supervisors, your estimators, your sales. All these jobs are created because these agricultural construction companies can lean on the use of the H-2A program to fill their labor needs. But if this bill passed, that would certainly go away. So, the, the last thing I'll say about this is I, I don't find the Farm Workforce Modernization Act likely to pass anytime soon.

Uh, there's just too much division right now. Uh, it, it, I could see how it was passing the house. Uh, especially if the Republicans end up winning the house again in November. I really don't think it'll pass the house because it's a mass amnesty bill. And we all know that the Republicans are against mass amnesty bills.

Uh, generally, of course, you could probably coerce a lot of Republicans into supporting a mass amnesty bill as they did with the Farm Workforce Modernization Act. Maybe not even coerced, but just, uh, convince them to support this in the first place, uh, because they maybe thought it helped their farmers or they, uh, just didn't care.

I think. That makes a lot of sense. But I, I think it's very unlikely to pass, even if it did pass the house, it, it would fail in the Senate again. It failed in the Senate in 2021. You just can't get the support that you need for it, uh, because the Republicans of the Democrats are so different. In terms of their immigration priorities.

Of course, the Republicans really don't want amnesty bills, and some Republicans just don't like immigration to begin at all, uh, which is really dumb and short-sighted too. But, and then of course, the Democrats, a lot of them do not like a lot of this type of business-based immigration. Uh, they, they think that it conflicts with their political interests.

So, it's, uh, it's uh, it's unlikely I would say that you would see. This bill passed anytime soon, but it is something to keep an eye on because you really want to make sure that if you see this bill coming up that you, you write into your congressman and you, you, you tell him or her that you would, you really don't support this bill because it's gonna have a really devastating impact on agriculture and as we know, feeding your people is an extremely important national security interest. And, uh, anytime the government gets involved with us feeding our people, it seems to make it worse. So, uh, this is just, uh, just not a good bill and I'll, I'll obviously keep people updated if, uh, another variation of this bill comes out and I'll look to see if it's any better if it's modeled after this bill, though I don't have much hope.

But that's basically all I have to say about the Farm Workforce Modernization Act. 

We have Drew here, also known as Drew Barry by her family. Drew Barry has made it to the stage. And Drew, can you explain the game that we're playing? Okay. So, game we've played before. This is gonna be news, article titles, and then we're gonna get your reaction on it.

One of them, I am going to provide more context because I think we just need to talk about all of it. Yes. Okay, perfect. Japan and if I do say myself, the whole human race. Is This is a big deal. Yeah. Is under siege. Oh no. By marauding monkeys, more than 50 individuals have been attacked by a group of roaming monkeys in and around the southern Japanese city of Yamaguchi.

They're going after the women and the children. Oh my God. And a city official says they're so smart, they tend to sneak up an attack from behind, often grabbing your legs. That is, that is unbelievable that I tell you what, in Texas, we're not gonna have a whole bunch of roaming monkeys come up and getting us, especially our women and children.

We've got a, we got a lot of guns here. This is why you need guns. In Japan, the gun laws are very restrictive. But if you are someone that has not found gun arguments persuasive here in the United States. such a, you know, did you know, like you need a right to defend yourself against the government. You need a right to defend yourself against other people.

You need a right and you know, you hunting's great. The sport aspects of it's great, the cultural aspects of it's great, but if none of that is convincing you, then what should really convince you is the fact that these monkeys are one boat right away from your wife or your kids. These mugs better not get ahold of any kayaks, or we are all screwed.

Oh, oh my god. Maybe Texas will bust them over for free. Greg Abbott's gonna send them to dc. Okay. This says that the male the male monkey. Of this type of monkey, and I'm specifically not telling you because I have no idea how to pronounce it. That's okay. And I'm not gonna embarrass myself. No, it's all right.

We'll just group all monkeys in there. This is also, by the way, making me totally anti-zoo again. It says that the males of this monkey breed weigh about 25 pounds. Is it the no wonder they're not going after the men. You think you could take be taken out by a 25-pound monkey? If I got taken out by a 25-pound monkey, I would deserve it.

That's, but also the fact they're only going after women and children Pretty screwed up. I mean, do men not, do men not taste very good. I. Are they eating 'em or did they just kill 'em and leave them in town square? Just like doctor coming for you. Wait, how is it said? I just don't understand how this is a real story.

This is like a, it's big news. It what website is on Sounds pretty legit. Yeah. You ever heard of the Smithsonian? Yeah, it's, it's where Greg? I sent all the migrants.

How is that a thing? That's so funny. And then this is also one of my favorite little segments of the article. The monkeys evaded traps laid out for them. So, city hall hired a unit to hunt them with tranquilizers. You're not even hunting 'em with a real gun. Oh my God. Why don't you just take a paintball gun after 'em. Get outta here.

You, you could shoot like the pink ones or, or the females. The blue ones are the males. I like this. I like this. And then, you know, if a blue one's coming for you, you better run. The pink one. Well, we don't know. Maybe, maybe the female monkeys are over it too. That yeah, that's true. We don't, we don't want to just assume it's the 25-pound males.

Yeah. How do you lay out a trap for him? Did they put like a doll in the middle of town square, and then put like a net underneath the doll in the, in the mugs? Just like, I'm not going after that. Yeah. Yeah. Did they make monkey? There's no, I don't, I don't, I don't know, but it, I just don't imagine they're trapping all that sophisticated.

If they're chasing after them with a dart gun, you can't buy those at REI? No, Target. And then originally city officials thought that only mon… One monkey was responsible, but the assaults did not stop after that monkey was killed. Oh, so they, oh, so they got one monkey, one of 'em, and thought, and then baby, woo, we're free.

We're we're, we're home. We're free of this monkey invasion. And then a lot more monkeys are in on this. There's like wow that's really, it's like a band of a monkey assassins. This is wild. I also, I really don't like the idea of death by monkey. Like if you're gonna be an animal and you're gonna kill me, I really prefer you don't be a monkey.

Yeah, I that it's a cooler. Than that a 25-pound monkey killed Kyle. Are you kidding me? Yeah. You need a a cooler story. I can't have my immigration work done because Kyle was killed by a 25-pound monkey. No, that's not good enough for my clients. Slap that on your tombstones. Yeah. No, my clients need a bigger animal.

I think we only have time for one more, so I'm gonna finish with you. Need to provide us with some legal advice. in this headline. Perfect. Okay. And I thought it was perfect for you cuz you have a beard. I do have a beard. Is it legal? Yes. To deny a promotion to someone with a beard. Uh, a manager said she won't promote any worker with a beard.

Perfect. I could not agree with this more. Yeah. Because there's only enough beard room for one person in the. And clearly, she wanted to have the best beard. I need to add, he has a medical exemption not to shave. What is okay, look now. So, yeah, I, I'm going to guess, I don't know. I'm going to not, the, this isn't legal advice to discriminate.

Against people on the basis of their beards, but I, I think that would actually be legal except for a circumstance where this guy has a doctor for sure that he's related to that wrote him a note that said, Jeffrey can't shave his beard because it hurts his little face. Yeah. What is the, what's the medical reason?

That's what I want to know. And also, if we're giving out medical reason. For shaving your beard, that we need higher standards, we need higher standards. I just can't, what could possibly happen? You know what this sounds like is when I was in high school, and I didn't wanna run the mile Yes. And track. Yes.

So, I wrote a fake doctor's or parent note and said, signed it, you know? And you're just like, here, my doctor says I can't run a mile. And they're Drew, you're, you're on multiple sports teams. And I'm like, no. He says, I can't. And he says, I can't, I don't know what to tell you. It's written in crayon cuz that's all he had available.

I mean, that's all the doctor had available. Yeah, exactly. Yeah. I, so I'm all for it. I, I think that if it is illegal, it shouldn't be illegal. And also, I'm very much against this guy's medical excuse. Yeah. All right. Let's do another one. Let's do another one. We got, we got a little bit more time. All right, so stupid

Why are these articles? Guess who wrote that? Who wrote that? Yeah. Oh, like what? News Station is Smithsonian. They write about everything. What? Who is? Oh no. Texas Tribune. Obviously, you think his writing about the beard? Oh yeah. Yeah. Texas Tribune's a real, they're very big beard advocates. I think this one will shock you.

Actually. I don't think it will hit me with it, the Washington Post. No, that's, yeah, that makes sense. Yeah. They write about a lot of stuff, a lot of beard activism. They've, they're, they're very big in the beard space. You have a beard, you'd know the. Yeah. Oh no, I'm, yeah, I'm a subscriber just because they're beard advocacy.

This one's a little more serious. Mortgage rates top 6% for the first time since the 2008 financial crisis, but we're not in a recession. Does the title say we're not in a recession? No. I added that because we've talked about this before. If the recession thing was also something I found so funny, like if, if you watch videos, you can do this with any politician because they never are consistent in their messaging like any of them.

But it is so funny, and whenever it's just so obvious the recession wanted. So yeah. No, we're definitely not in a recession except for we're in a recession. We're, we're in a recession-ish. Uh, -ish. Yeah. -Ish. You know. Oh, unemployment. But unemployment's still low. Well, that's not the definition of a recession, but I do appreciate the, uh, random variable there.

Now it's getting. What unemployment? Yeah. Yep. People still struggling to find labor and uh, a lot of people still don't wanna work full circle, full circle back to immigration, but the mortgage thing, no, that definitely, uh, that definitely sucks and I, but I, I imagine interest rates are gonna go a lot higher than they are right now.

It, you kind of just have to do that to combat inflation. I did also, I, I read this. Article or I, I know it, it wasn't an article, it was a clip, uh, where the White House was. It was in July when the recession numbers came out and said 0%. It's a bold claim already. It, yeah. That was the inflation in July, and I, I was, and I was like, what?

Inflation dropped 8.6% in a. because that would be actual 0% inflation, but they were just comparing one July to the other. It was like, guys, listen up. It's not worse than it was a few days ago. I think they just need, oh, is that When I heard that, I was like, oh, that is, that's so funny because I actually just had to look it up.

I'm like, wait a second. Really? Because crap really still seems really expensive. And then I looked it up like, oh, okay, I get what they mean. Here it was 0% and that it didn't increase more than it was already. Way up. All right, you wanna wrap it up? Don't do this to me again. You can't do it two weeks in a row.

who was what? Hey, what do we say? Wrap things up. I don't remember.

what do we say? The people need to hear you. Tell them that you love them. Thanks for clicking. I love you. Thank you for clicking. Thanks. If you've reached this bar, if you've reached this far, I… Yeah. So, thank you so much for listening all the way through. But also, I wonder like what else do you, are you not doing right now?

They're probably driving. That's when I listen to my podcasts, I find a lot more comfort in the idea of them listening to this while they're driving than while they're showering. So that's better. I don't think people do that. I don't, no, I I don't want to hear about monkeys attacking a city in Japan while I'm in the shower.

I do wanna hear outta the car then. You're always ready. Yeah. Kyle listens to his own podcast while he's in the shower. I don't listen to my own podcast, period. All right. Uh, well thanks for listen. To the immigration guy and we will see you again next Wednesday. Thank y'all for listening to the Immigration Guy Podcast.

We really appreciate it. You can find us on our website. Go to You can find me on LinkedIn and Twitter. Just search at Kyle Farmer, FLPC. Uh, you can find our law firm on Twitter, Instagram, YouTube. All you have to do is search for at Farmer Law PC. Go ahead and subscribe to download all the episodes of our podcast.

You can download 'em and listen to 'em whenever and wherever you want. Uh, we'll be releasing new episodes every Wednesday on Spotify, Apple Music, Stitcher, which is apparently a real thing. Amazon Music, Google, and wherever else you get your podcast. This is not legal advice, so any information that you get from this podcast should not be taken as such, if you are looking for legal advice, you should consult with a competent attorney for advice regarding your individual situation.

Uh, if you wanna schedule a consultation, just go ahead and use the link in the description of this episode. Thank you.