BREAKING NEWS: House Passes Immigration Bill Creating Earned Pathway to Citizenship for Dreamers and Farmworkers

The news we have all been waiting for is finally here. The Democratic controlled House of Representatives has taken a colossal step toward making comprehensive immigration reform a reality. On Thursday evening, members of the House voted along party lines to approve two legislative proposals that would create a pathway to citizenship for an estimated eleven million undocumented immigrants living in the United States, including Dreamers and farmworkers. These proposals are known as (1) the American Dream and Promise Act of 2021 and (2) the Farm Workforce Modernization Act of 2021.

What is the American Dream and Promise Act – H.R. 6?

The American Dream and Promise Act, also known as H.R. 6, creates an earned path to citizenship for more than two million Dreamers who were brought to the United States as children, as well as beneficiaries of certain temporary humanitarian programs including recipients of Deferred Enforced Departure (DED) and Temporary Protected Status (TPS). This proposal consists of

Title I: Dream Act of 2021

Title I of the Act would allow certain long-term residents who entered the United States as children to apply for conditional permanent resident status. Those who would obtain conditional permanent resident status would be considered lawfully admitted for permanent residence under the law.

Requirements

The American Dream and Promise Act would grant Dreamers conditional permanent resident status for 10 years, and cancel removal proceedings if they:

Have been continuously physically present in the U.S. on or before January 1, 2021;
Were 18 years old or younger on the initial date of entry into the U.S.;
Are not inadmissible on the following grounds: criminal, security and terrorism, smuggling, student visa abuse, ineligibility for citizenship, polygamy, international child abduction, unlawful voting, or former citizens who renounced citizenship to avoid taxation; and have not participated in persecution;
Other than a state offense for which an essential element is the person’s immigration status or a minor traffic violation, have not been convicted of:
- any federal or state offense punishable by a term of imprisonment of more than 1 year
- 3 or more federal or state offenses for which the person was convicted on different dates and imprisoned for an aggregate of 90 days or more;
- a crime of domestic violence (unless the applicant is a victim themselves of domestic violence, sexual assault, stalking, child abuse or neglect, elder abuse or neglect, or human trafficking, having been battered or subjected to extreme cruelty, or having been a victim of criminal activity); and
- Graduate from high school, obtain a GED or industry recognized credential, or are in a program assisting students in obtaining a high school diploma, GED or equivalent exam, or in an apprenticeship program.
- Pass security and law enforcement background checks pay a reasonable application fee and register for the Selective Service if required.
- Additionally, children of certain temporary workers who arrived in the U.S. at the age of 18 or younger and were continuously present in the U.S. since January 1, 2021 are also eligible for relief.
- The application fee would include a cost not to exceed $495

To gain full lawful permanent resident (LPR) status, Dreamers would be required to:

Acquire a degree from a U.S. institution of higher education; or complete at least two years in good standing in a bachelor’s or higher degree program or in an area career and technical education program at a post-secondary level in the U.S.; or
Complete at least two years of military service, and if discharged, received an honorable discharge; or
Be employed for periods of time totaling at least three years and at least 75 percent of the time that the person has had employment authorization.

The Act also includes numerous provisions benefitting Dreamers that would include:

Repealing Section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which penalizes states that grant in-state tuition to undocumented students on the basis of residency;
Allowing Dreamers to access federal financial aid;
Permitting eligible Dreamers deported from the United States by the Trump Administration to apply for relief from abroad.

Title II: A Path Forward for TPS and DED Recipients

Title II of the American Dream and Promise Act would grant those with Temporary Protected Status (TPS) or Deferred Enforced Departure (DED) the ability to apply for legal permanent resident status (a green card) and cancel removal proceedings if they:

Have been in the United States for a period of 3 years before the Act’s enactment; and
Were eligible or had TPS on September 17, 2017 or had DED status as of January 20, 2021.

The bill amends current TPS law to require the Secretary of Homeland Security to provide an explanation of a decision to terminate a TPS designation and requires the Secretary must provide a report 3 days after publishing a notice of such termination. This report must explain the original designation and any progress made by a country to resolve the issues leading to TPS designation. The Secretary also has to describe the qualitative and quantitative methods used to assess whether or not country conditions have improved, which would include addressing any challenges or shortcomings related to the initial designation.

The bill also clarifies that an immigrant entering the TPS program will be considered as having been inspected and admitted into the United States.

Title III: Additional General Provisions

The bill also outlines numerous provisions that protect Dreamers and individuals with TPS or DED during their application for relief.

These include:

Ensuring the Secretary of Homeland Security or the Attorney General may not remove a person who appears prima facie eligible for cancellation of removal and conditional permanent residence.
Requiring the Secretary to provide a reasonable opportunity to apply for relief to a person subject to removal who requests such an opportunity or who appears prima facie eligible.
Providing a fee exemption for individuals under the age of 18, received an income that is less than 150% of the poverty line, are in foster care or lacking familiar support, or who cannot care for themselves due to a serious, chronic disability.
Permitting individuals with a pending application an employment authorization document and to apply for advance parole.
Permitting the Secretary to waive select inadmissibility bars and crimes of domestic violence for humanitarian purposes, family unity, or if the waiver is otherwise in the public interest. Strengthening administrative and judicial review procedures for individuals denied benefits under this Act.
Ensuring the confidentiality of information of applicants and prohibiting DHS from using information provided during the application for immigration enforcement.
Establishing a new grant program to assist nonprofits in screening individuals for eligibility and assisting in their application for relief under this bill.

What is the Farm Workforce Modernization Act of 2021 – H.R. 1603?

The Farm Workforce Modernization Act of 2021 would ensure a pathway to citizenship for certain agricultural workers. It consists of three titles.

Title I. Earned Legalization for Certified Agricultural Workers

Title I establishes a program for agricultural workers in the United States (and their spouses and minor children) to earn legal status through continued agricultural employment and contribution to the U.S. agricultural economy.

Initial Eligibility. Eligible applicants must show at least 180 days of agricultural employment over the last 2 years.
Five Year Renewable Visas. Qualified applicants are provided 5-year renewable agriculture visas. Individuals can renew their 5-year visas by working at least 100 days in agriculture each year. Those who have ag experience but do not meet the criteria for eligibility are provided the option of applying for H-2A visas.
Option for Permanent Resident Status. Individuals have the opportunity to but are not required to, earn Legal Permanent Resident (LPR) status. Those applying for LPR status must pay a $1,000 fine and meet one of the following criteria:

a. If an individual worked in agriculture in the U.S. for at least 10 years before enactment, they must work an additional 4 years in agriculture after enactment before they can apply.

b. If an individual worked in agriculture in the U.S. for less than 10 years, they must work an additional 8 years in agriculture before being eligible to apply for LPR status.

Title II: Improving the H-2A Program

Title II reforms the H-2A program to provide 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.

Single Portal for Filing. Employers would now have a single filing process through an online portal, which DHS, DOL, and the State Workforce Agencies (SWAs) can process simultaneously, rather than three distinct adjudications under the current system. This streamlining of these systems works toward reducing costs and processing time from 75 to 60 days.
Single Petition for Staggered Needs. Employers would now be able to file one petition reflecting staggered labor needs. For example, under the current program, if an employer needs 10 workers on March 15, another 20 on April 15, and 10 more on May 15 as production ramps up, the employer must file three different petitions. This bill streamlines this process by allowing the employer to file one petition for all such workers.
Streamlined Recruiting. Employers would now be required to simply file a job posting on an electronic registry rather than filing newspaper print advertisements.
Wage Reform. The bill reforms H-2A wages to better reflect real-world wages, while protecting against sudden wage increases that disrupt employer planning and operations:

a. More Predictable and Granular Wages. Rather than one wage determination for all agricultural labor, the bill sets wages more reflective of the primary occupation (e.g., crop workers, livestock workers, machine operators, graders, and sorters, etc). This will ensure that wage requirements better reflect the real-world wages paid to specific types of workers.

b. Limiting Wage Fluctuations. To prevent large fluctuations in wage rates, the bill caps wage increases and decreases, thus providing more stability and predictability to employers. Wages would be governed as follows:

2022: One-year wage freeze—i.e., 2022 wages would be pegged off 2021 rates.
2022-2030: Wages could not decrease by more than 1.5% or increase by more than 3.25%. Exception: If the resulting wage is less than 110% of the Federal or state minimum wage, then the wage could go up by up to one additional percent.
Beyond 2030: Wages could not decrease by more than 1.5% or increase by more than 3.25%, and the Secretaries of Ag and Labor will establish new wage methodology with input from stakeholders

c. Limiting Mid-Contract Wage Increases. Wage requirements would now apply for the duration of the contract, rather than potentially fluctuating mid-contract.

5. Reducing Housing Costs. The bill improves the availability of farmworker housing while lowering employer costs related to providing such housing.

a. Preserving Existing Housing. The bill prevents current farmworker and rural housing stock from serving other constituencies. Among other things, the bill authorizes $1 billion to rehabilitate housing that is aging out of the USDA incentive program, thus reopening eligibility for rental assistance and preserving housing stock for farmworkers.

b. Incentivizing New Housing. The bill triples the amount of funding for the USDA 514 loan program and 516 grant programs, which provides 1% loans and grants, respectively, for constructing new housing. The bill would also reform eligibility criteria to expand the use of those programs in more expensive housing markets.

c. Lowering Housing Costs. The bill reduces grower costs related to housing by increasing funding for the USDA 521 rental assistance grant program, while also reforming eligibility criteria to expand the use of the program in more expensive housing markets.

Reducing the Need for Litigation. The bill adopts prior compromises in which the Migrant and Seasonal Worker Protection Act (MSWPA) is expanded to protect H-2A workers, while effectively requiring mediation to resolve differences before lawsuits are instigated.
Filling Year-Round Labor Needs. The bill takes a two-pronged approach to meet year-round labor needs.

a. Increased Access to Green Cards. The bill dedicates an additional 40,000 green cards per year for agricultural workers. These visas can be used by employers 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 United States. These 40,000 green cards will go a long way to meeting year-round labor needs.

b. Temporary 3-Year Visas. In addition, the bill creates a new, capped program for employers seeking to bring in temporary workers to fill year-round needs. Although the program would be capped, the Secretaries of Agriculture and Labor would be able to increase visa caps if market conditions warrant such increases. Visas would be made available for both dairy and non-dairy needs.

Title III: Mandatory E-Verify for the Agricultural Sector

This title would establish a mandatory, nationwide E-Verify system for all agricultural employment. The system would only be made mandatory for the agricultural sector, with a structured phase-in and guaranteed due process for authorized workers who are incorrectly rejected by the system.

Click here to read the Farm Workforce Modernization Act of 2021 fact sheet in Spanish published by farmworkerjustice.org.

What happens next?

The American Dream and Promise Act and Farm Workforce Modernization Act are now moving to the United States Senate where they must be passed in order to become law. These proposals no doubt face opposition by Republicans but could become law if Democrats can obtain a slim majority.

We endorse the actions of the government toward taking a meaningful step to legalize Dreamers and Farmworkers that make up an essential part of American society.

To read the White House statement regarding the passage of the American Dream and Promise Act of 2021 click here.

Questions? If you would like to schedule a consultation, please text 619-569-1768 or call 619-819-9204.

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