Congress Fails to Pass Agriculture Immigration Reform Legislation

This is not surprising given the heavy legislative schedule and the political headwinds that were present during the closing days of the 117th Congress. Immigration legislation did not top the list of legislative priorities as Congress needed to pass an Omnibus Budget Bill to fund all 12 federal agencies for the remainder of Fiscal year 2023 or to punt the entire process over to the new 118th Congress that would convene on January 3rd. There was a glimmer of hope in the waning days of the Lame Duck session but the odds were so heavily stacked against a positive outcome and that probably nothing short of a miracle would have produced positive results. The need for a comprehensive agriculture labor reform legislative package has never been greater for our dairy producers. If anything local labor demands for producers and our cooperatives have grown worse and more costly. Given the disappointing results of the inaction by the 117th Congress it is worth reviewing what happened and what this means for the future.

Border Crisis Dominated the Immigration Legislative Agenda

I have made this point several times in my previous updates and it remained as the most prominent roadblock to any immigration legislative undertaking. I do not need to cover old ground as I have already laid out in past articles the open border situation we are experiencing from Texas to California. It is estimated in the past two years that at least 5 million illegal immigrants have crossed the U.S. Mexican border. And that number is increasing, on a monthly basis. As the 117th Congress drew to a close, Title 42 which was put in place by the Trump administration, was a major topic of discussion. It required that under the COVID pandemic health concerns, immigrants crossing the border in a number of cases could be made to return to Mexico. This health provision was responsible for as many as one third of the immigrants being sent back across the border. The rest would be released into the U.S. under Title 8 pending a hearing sometime in the future with the Department of Homeland Security. Title 42 was set to expire on December 21st, however the U.S. Supreme Court extended its coverage to February 2023. The purpose was to give the Biden Administration time to come up with a plan to deal with the heavy influx of immigrants that are expected to enter the U.S. once Title 42 is revoked. Thousands of immigrants are waiting in Mexico to see what will happen to Title 42. As this article goes to press the status of this health requirement is still up in the air. However, it should be pointed out that Title 42 is not an immigration policy that will help our dairy producers. It is merely a government program that was initiated during the pandemic.

Ag Immigration Legislation and Related Immigration Bills

There is no question that there were plans to move an Ag Immigration Bill as part of the $1.65 Trillion Omnibus “must pass” spending package. Since the House had already passed the Farm Workforce Modernization Act in 2021 the ball was in the Senate’s court. Senators Bennet (D) Colorado and Crapo (R) Idaho were jointly negotiating their own bill. In addition Senators Sinema (I) Arizona and Tillis (R) North Carolina wanted to pass a DREAMERS Bill that would allow those children who came to the U.S. illegally years ago to be given citizenship. At the same time Senate Majority Leader Schumer (D) New York was interested in giving the 11 plus million undocumented immigrants already in the U.S. citizenship as well. All of these bills would be added as amendments to the Omnibus spending package.

The Affordable and Secure Food Act

After a long wait the Senate version of an Ag Labor Reform Bill was introduced by Senator Bennet of Colorado. It offered some improvements over the House version of the Farm Workforce Modernization Act. They included: 1. It set a limit of 3% on the average annual Adverse Effect Wage Rate (AEWR) increase as compared to 3.25% in the House Bill. 2. It established an earned legal status for agriculture workers along with their spouses and minor children. It also allowed them to earn a green card after 10 years of agriculture work. 3. It reformed the H-2A temporary worker program by providing visas for year-round workers—a major victory for dairy producers and cooperatives. 4. It established a mandatory nationwide electronic verification system for ag employment. 5. And it lowered the cost of housing and increased the access for rural workers to housing.

Political Support Collapses

It goes without saying that the political support to move any immigration legislation in the 117th Congress quickly diminished as the problems at the U.S. Mexican border grew worse. Senator Crapo of Idaho withdrew his support for The Affordable and Secure Food Act. The Senate needed 10 Republicans to garner the necessary 60 votes to pass the Omnibus Bill. Once Republican Senator Crapo withdrew his support for the bill its chances of being added to the Omnibus were dead. Senator Bennet did not even offer his bill as an amendment to the Omnibus. No other immigration legislation was included in the spending package as well.

Insofar as the new 118th Congress is concerned the outlook is not all that good I am afraid to say. Congressman Kevin McCarthy (R) California who is running for Speaker has stated that the House will not take up any immigration legislation, in the near future. What have we learned over the last two years? For one thing the border has to be secured! Congress will not focus on any immigration related issues until it is. Can a divided Congress work with the current Administration to make that happen? And will the Administration come up with a plan to secure the U.S. border? Until this happens, I remain very pessimistic about our chances for passing Agriculture Immigration Reform Legislation.