By: Bruce Buchanan, Sebelist Buchanan Law PLLC

If the agricultural labor bill, Farm Workforce Modernization Act, becomes law, farmers nationwide will be required to use E-Verify to ensure the eligibility of all new employees. Although it is unlikely that any immigration bill can pass Congress and be signed into law in 2019 and 2020, the Farm Workforce Modernization Act does have bipartisan support.

Under the House bill, farmers would face the E-Verify requirement in exchange for getting broader access to foreign workers under an expansion of the H-2A visa program. The bill would, for the first time, make workers eligible for H-2A year-round. The program is currently limited to seasonal workers. The bill also would provide a path to legal status for farmworkers who are currently in the country illegally.

Many major agricultural organizations, including the Western Growers Association, AmericanHort, the National Council of Farmer Cooperatives, and California Farm Bureau, are in favor of the bill. However, the American Farm Bureau Federation has not endorsed the bill because of concerns of whether the changes to the H-2A program would provide a sufficient number of workers.

E-Verify would not become mandatory nationwide for the largest agricultural employers for 2 ½ to 3 years after the bill is signed into law due to time requirements to draft the regulations and an 18-month window for receiving certified agricultural worker applications from current workers under the earned legalization program.

E-Verify would then begin to be phased in 6 months after the application window for the earned legalization program has closed. The 6-month phase-in would begin with employers with 500 workers or more. After that, E-Verify would be phased in for the rest of the employers within the agriculture industry over the next 15 months.

Before E-Verify becomes mandatory, unauthorized workers who are in the United States would have an opportunity to transition to legal status using one of two routes: (1) transition into H-2A status or (2) pursue certified agricultural worker status if they pass a background check.

Critics assert E-Verify frequently misses foreign nationals, who are unauthorized to work in the United States while incorrectly denying authorization to people who are eligible for work. The Cato Institute alleges E-Verify has failed to stop nearly 12 million illegal hires from happening since 2006, including 1.8 million in fiscal 2018. According to the Cato analysis, E-Verify catches fewer than one in six illegal workers, and it is becoming less effective as workers learn to work around the system.

If you want to know more information on immigration compliance, E-Verify and related issues, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at