WASHINGTON — On Saturday, thousands of people descended on a vast field in Nyssa, Ore., knives in hand. They had been summoned by a viral video on TikTok.
“If you want to know what 350,000 pounds of wasted food looks like, let me show you,” Shay Myers told his followers in the video, which by then had been viewed 2.7 million times.
Myers, CEO of Owyhee Produce, a family farm with fields on both sides of the Snake River in Idaho and Oregon, stood amid what he said was 35 acres of asparagus that wouldn’t be harvested because the visas he had requested for migrant farm workers had been delayed and he couldn’t find enough local workers, despite paying $16 an hour.
“We can’t get the labor,” he said. “What we usually do is bring people on an H-2A visa, but the border is so freakin’ screwed up that they can’t get people across, so we’re 30 days late. They’re telling us another 30 to 45 days before we have any laborers to pick this crop.”
Frustrated after U.S. Citizenship and Immigration Services, or USCIS, told him the workers would arrive at least two months late, Myers decided to turn the loss into a learning experience. He invited his followers to come and take up to 100 pounds of asparagus for free. By midday Saturday, he estimated about 3,000 people had shown up.
“This was a $12,000-an-acre investment in this crop here,” Myers said in another video, posted on LinkedIn. “How do we make that kind of investment and then wonder if a bureaucratic hiccup is going to prevent us from harvesting this crop?”
Northwest Republicans emerge as leaders in reform effort
The last major overhaul of U.S. immigration law came 35 years ago. Employers, immigrant rights groups and a bipartisan coalition in Congress say an update is long overdue, but reaching the 60 votes required to get most legislation through the evenly divided Senate will take significant support from a Republican Party that’s of two minds on immigration.
The fate of immigration reform in the GOP, and in Congress, lies largely with two Republicans from the Inland Northwest, Central Washington Rep. Dan Newhouse and Idaho Sen. Mike Crapo.
The House passed the Farm Workforce Modernization Act on March 18, a bill spearheaded by Newhouse along with Rep. Zoe Lofgren, a California Democrat. While just 30 of the House’s 212 Republicans backed the legislation, all but one of the GOP lawmakers representing Washington, Idaho and Oregon voted in favor.
On the same day, Newhouse was one of only nine Republicans — and the only one from the Northwest — who helped pass the American Dream and Promise Act, a bill that would give legal status to immigrants in legal limbo under Temporary Protected Status and the Deferred Action for Childhood Arrivals program, the so-called “dreamers” who were brought into the country illegally as children.
The farm workforce bill will have a rockier path in the Senate, where at least 10 Republicans would need to join all 50 Democrats to reach the 60-vote threshold required by the “filibuster” rule. In the upper chamber, Crapo has taken the lead, along with Sen. Michael Bennet, a Colorado Democrat.
In a March 26 column in the Idaho Press, Crapo acknowledged the surge of migrants that has overwhelmed authorities along the U.S.-Mexico border, but he said the bill he plans to introduce with Bennet is “not related to the current border crisis.”
“Immigration reforms are long past due,” Crapo wrote, “and I look forward to the work ahead to fix this part of our broken system for the betterment of Idaho agriculture and the Idahoans and other consumers who rely on its resiliency.”
A complicated system
U.S. agriculture has relied on immigrant labor for decades. During World War II, worker shortages led to the “Bracero” program, a deal negotiated with Mexico’s government that brought some 4.5 million single men to work on American farms between 1942 and 1964.
When the program ended, the agriculture industry’s reliance on foreign workers remained and no comparable program was instituted, leading to large numbers of farm workers entering the county illegally. The U.S. Department of Agriculture estimates roughly half of farm workers aren’t authorized to work in the country, with demand for workers far outpacing the number who can come through legal avenues.
The 1986 Immigration Reform and Control Act, signed by then-President Ronald Reagan, sought to correct that problem. It provided legal status to some 2.7 million unauthorized immigrants, including 1.1 million farm workers, in exchange for tightening border security and requiring employers to check their workers’ legal status.
The requirement to prove legal status, however, led to what a 1996 Justice Department report called a “small cottage industry” of counterfeit documents. The law also prohibits employers from questioning the validity of documents that “appear to be genuine.”
“I can’t verify whether my workforce is giving me false papers or not,” Myers said in an interview. “A significant portion of them are probably giving me false documents. I don’t want to do that, and I don’t think the employees want to do that.”
In 2004, Congress rolled out an electronic system to verify employment documents, now known as E-Verify, but employers and civil liberties groups have resisted using it over concerns about its accuracy and the largely unspoken understanding that cracking down on unauthorized workers without providing a pathway for them to work legally would decimate the U.S. economy, especially the agricultural sector.
“If we make it so difficult, but yet we say we’re mandating E-Verify and don’t you dare hire anybody who doesn’t have legal status, then the crop will rot in the field — or it doesn’t get planted in the first place,” said Braden Jensen, deputy director of governmental affairs at the Idaho Farm Bureau Federation.
Just 13.5% of employers used E-Verify as of 2018, according to USCIS data, and only eight states mandate its use for all employers. Idaho mandates E-Verify only for government agencies and contractors, while Washington and Oregon have a handful of local mandates.
The 1986 law also established the H-2A visa, the program Myers was counting on to harvest his asparagus crop, which allows seasonal guest workers to enter the country legally. But employers say the H-2A process is still stuck in 1986.
Until a 2019 rule change, the law required employers to post job openings only in newspapers, not online. Employers also have to work with multiple federal agencies, and while the U.S. Department of Labor offers an online application portal for its part of the process, Myers said USCIS only communicates by mail.
Farmers are required to pay H-2A workers a higher minimum wage, intended to prevent migrant labor from undercutting or driving down wages for local workers, but employers say those so-called “adverse effect wage rates” are often higher than commodity prices can justify. Only about 10% of all U.S. farm workers enter the country on an H-2A visa, according to the U.S. Department of Agriculture.
The current H-2A program also defines agriculture narrowly, excluding meat processing plants, and is restricted to temporary or seasonal jobs that last less than a year, effectively barring its use for year-round jobs in sectors like the dairy industry. As a result, those sectors rely more heavily on an unauthorized workforce.
“Ninety percent of our workers are foreign-born, and we don’t have a visa program,” said Rick Naerebout, CEO of the Idaho Dairymen’s Association. “It gives you a really good idea of the size and scope of this issue for Idaho dairymen, and really Western agriculture as a whole.”
Proposal ‘would be a huge impact for farmworkers’
The version of the Farm Workforce Modernization Act that passed the House last month, to which Crapo and Bennet are likely to make minor changes, has three pillars.
The first would let unauthorized farmworkers earn legal status, along with their spouses and children, after passing background checks. They would need to prove they had worked at least 180 days over the past two years to earn temporary legal status. After at least eight years of agricultural work and paying a $1,000 fine, they would also have the chance to earn permanent resident status, often called a “green card.”
“If there’s this opportunity, farm workers are going to be more than happy to do whatever it takes to gain that legal status, because it will impact not just them but their children,” said Irma Morin, CEO of the Community Council of Idaho, a nonprofit that serves farm workers and Idaho’s Latino community.
“It would be a huge impact for farmworkers, primarily removing that fear of deportation,” Morin said. “Farmworkers provide an indispensable service, yet their jobs are some of the most dangerous and least compensated in the country. They’re excluded from basic protections that others take for granted.”
The second pillar of the legislation would reform the H-2A program, streamlining the application process through a single online platform. It would limit fluctuations in the wage rate for H-2A workers, an effort to control costs for employers while protecting workers’ compensation.
It also would provide up to 20,000 H-2A visas for year-round jobs. Jensen and Naerebout said their organizations are pushing to raise that cap, and Crapo mentioned “addressing the year-round needs of Idaho’s dairy operations” as a priority in his March 26 column.
Jensen said the Idaho Farm Bureau Federation wants to see changes to the H-2A wage rate. Newhouse said in an interview he was open to Crapo and Bennet making any improvements to the wage rate, which he said was the trickiest part of the House bill to negotiate, in the Senate version.
The third and final pillar of the bill would mandate E-Verify nationwide for agricultural jobs while ensuring due process for workers who are wrongfully rejected by the system.
Reluctance lingers for some who focus on border crisis
While the bill’s advocates say the need to reform the U.S. immigration system is more urgent than ever, most Republicans in Congress so far seem reluctant to decouple the issue from the situation on the southern border.
Rep. Russ Fulcher, a Republican who represents North Idaho and Myers’ fields on the Idaho side of the Snake River, voted for the bill in 2019 but changed course and voted against it in March. In an interview, he said he had no problem with the content of the legislation but couldn’t support it unless the Biden administration cracks down on the influx of migrants or restores some of the Trump-era immigration restrictions it has swiftly repealed.
“We went through that in pretty good detail in 2019 and decided that the policy, given the overall circumstances at the time, was really good,” Fulcher said. “Frankly, I think it still is. What’s changed is the circumstances.”
“When that came through the process in 2019, we had an administration in place that actually enforced the law. We had a structure in place where we were controlling what was happening on that border. Since then, just the reverse has happened.”
Newhouse said he understands Fulcher’s changed position.
“A lot of my friends have expressed the same kind of reluctance due to the crisis at the border that’s happening now,” Newhouse said.
But the Central Washington Republican, himself a third-generation farmer, said his bill is “part of the multipronged approach we should be taking.”
“Improving border security is one thing,” Newhouse said. “This legislation will actually reduce the incentive of people to come into our country illegally, because they won’t be able to get employment.”
Reps. Cathy McMorris Rodgers of Spokane and Mike Simpson of Eastern Idaho both cosponsored the House bill, voting for it along with fellow GOP Reps. Jaime Herrera Beutler of Southwest Washington and Cliff Bentz of Eastern Oregon.
In an April 22 interview with Punchbowl News, Sen. Dick Durbin, an Illinois Democrat who chairs the committee charged with immigration issues, said he sees Newhouse’s bill, along with the American Dream and Promise Act, as the foundation for a bipartisan compromise on immigration. Still, he said, addressing the crisis at the southern border “is one of the tickets of admission if we want to get into this conversation.”
Several prominent Republicans have expressed a desire to compromise on immigration reform, including former President George W. Bush, who wrote in an April 16 op-ed in The Washington Post that “the issue has been exploited in ways that do little credit to either party.”
Yet another faction on the political right takes a more hard-line stance on giving legal status to unauthorized immigrants, and Crapo found himself in their crosshairs after announcing his intention to introduce the farm labor bill in the Senate. In an article on the right-wing website Breitbart, journalist Neil Munro accused the Idaho senator of trading “cheap, compliant imported labor for the farm industry in exchange for imported votes for Democrats.”
Immigrants would have to work between eight and 14 years to earn a green card, and at least five more years to become citizens, before they could vote. While Hispanic voters favored Biden over Trump by a roughly two-to-one margin in 2020, a 2012 report by the Republican National Committee blamed that disparity on anti-immigrant elements within the party.
“If Hispanic Americans perceive that a GOP nominee or candidate does not want them in the United States,” the report concluded, “they will not pay attention to our next sentence.”
Patrick Kole, vice president for legal and government affairs at the Idaho Potato Commission, credited the Northwest Republicans for leading immigration reform efforts despite threats from hardliners in their party.
“Candidly, there’s a lack of political courage going around these days,” Kole said. “I really commend people like Dan Newhouse, Mike Simpson, Mike Crapo for being willing to put themselves on the line to do the right thing.”
Congressional Democrats face pressure from their own left flank to pass more comprehensive immigration reform, but Rep. Pramila Jayapal, a Seattle Democrat who leads the Congressional Progressive Caucus, said she would vote again for the farm workforce bill if it comes back from the Senate, even if it isn’t paired with reforms for the “dreamers” and those with Temporary Protected Status.
“They are two very separate populations,” Jayapal said in an interview. “I would vote for it, but I also think there’s no reason to not have the Dream and Promise Act with it as well. I just think we have to move every vehicle we can possibly move as quickly as possible.”
Naerebout said his organization also would prefer broader reform, but he hopes passing the farm workforce bill could encourage other industries to follow.
“That’s proven over the last decade to be just too heavy of a lift,” he said of comprehensive reform. “Now we’re focused on trying to do it sector by sector, because that seems to have the most promise of success, but we do find it distasteful to be solving a problem for ourselves and not solving the same problem for other sectors of the economy.”
Jensen said while reform is long overdue, he hopes the past year has brought new urgency.
“This issue really hasn’t been fully addressed for more than three decades,” he said. “If there’s anything we’ve learned from this pandemic, it’s how critical our food supply is, but also how fragile it can be.”
If the bill doesn’t pass, Naerebout said, “We maintain the status quo, and the status quo isn’t working for the employers or the employees, and so we continue to have political ideology get in the way of productive policy that can happen.”