Date: December 20, 2019
House Passes H.R. 5038, the
“Farm Workforce Modernization Act of 2019”
On December 11, 2019, the House passed H.R. 5038, the Farm Workforce Modernization Act of 2019, as amended by the House Judiciary Committee, by a vote of 260 to 165. The bill was originally introduced by Representative Zoe Lofgren (D-CA) on November 12, 2019. The bill now moves to the Senate for consideration.
The bill would, among other things, create a new certified agricultural worker (CAW) status that provides temporary work authorization, requires SSA, as practicable, to assign CAWs Social Security numbers (SSN) through an automated system, and offers CAWs the ability to adjust to lawful permanent resident status. In addition, the bill would make permanent an employment eligibility verification system (i.e., E-Verify), mandate use of the system by agricultural employers, and allow the Department of Agriculture (USDA) to assist agricultural employees contesting tentative nonconfirmations (TNC).
H.R. 5038, as reported with amendments, includes the following provisions of interest to the Social Security Administration (SSA).
Title I – Securing the Domestic Agricultural Workforce
Sections 101-127 - Certified Agriculture Worker (CAW) Status
- Would require DHS to create a new CAW status that provides temporary work authorization, for certain individuals 1 who are currently in the United States and previously performed a certain amount of agricultural work (among other requirements) 2. CAW status would be valid for 5 and a half years, which may be extended.
- Would require DHS to provide an 18-month CAW application period 3 upon publication of an interim final rule 4 no later than 180 days after enactment. Among other application requirements, would require individuals to submit evidence of prior agricultural work 5 using tax or other government records.
- Would specify that CAWs and their spouses and children who have been granted certified dependent status are lawfully present. In the United States, noncitizens who are lawfully present, as determined by the Attorney General, can receive Old Age, Survivors, and Disability Insurance benefits, provided they meet the other factors of eligibility. The bill would also specify that CAWs and their certified dependents are not qualified aliens, which means they would not be eligible for Supplemental Security Income benefits while in those statuses.
- Would allow individuals who do not meet the prior agricultural work requirement, but who meet all other CAW requirements, to be eligible for alternative H-2A nonimmigrant status. 6
- Would allow CAWs to adjust to lawful permanent resident (LPR) status once all Federal income tax liability since being granted CAW status has been paid. 7
Section 128 - Protections, Conforming Amendments and Automated SSN Assignment
- Would amend section 208(e) of the Social Security Act to prohibit prosecution for SSN fraud and program violations occurring prior to CAW and dependents status. Would be effective on the first day of the 7th month after enactment.
- Would amend section 210(a) of the Social Security Act to cover CAW and their dependents work under Social Security. Would apply to work performed after the date of enactment.
- Would require SSA, to the extent practicable, to coordinate with DHS to implement an automated system for assignment of SSNs to CAWs and their dependents, mandating use for original SSNs. 8
Title III – Electronic Verification of Employment Eligibility
Section 301 - Electronic Employment Eligibility Verification System 9
- Would require DHS to establish and administer an electronic verification system (System) patterned on E-Verify 10 to respond to inquiries on the identity and employment authorization of new hires, including maintaining records of such inquiries and verification responses.
- Would require the System to provide a confirmation or TNC of identity and employment eligibility no later than 3 calendar days after the initial inquiry. 11
Measures to Prevent Identity Theft
- Would require DHS, in consultation with SSA, to develop after publication in the Federal Register a process for the System to:
- block SSNs subject to unusual multiple use in the system, or SSNs that are otherwise suspected or determined to have been compromised by identify fraud or other misuse. DHS must notify the employer who submitted the inquiry to the System, that such account must be re-verified in no later than 10 days 12;
- allow parents and legal guardians to suspend or limit the use of the SSNs or other identifying information of minors in their care. 13
Responsibilities of the Commissioner of Social Security
- Would require SSA, in consultation with DHS, to establish a reliable, secure method to compare names and SSNs submitted to the system to SSA records in order to validate the information and determine whether the SSNs are valid for employment.
- Would prohibit SSA from disclosing Social Security information except for confirmation or nonconfirmation.
- Would require SSA and DHS to update records quickly to promote maximum accuracy and provide a process for prompt correction of TNCs.
Voluntary System Use
- Would allow for voluntary use of the new System as created under Title III once the current E-Verify system is repealed. 14
Social Security Card
- Would establish Social Security cards 15 as acceptable proof of work authorization, along with any other documents DHS determines acceptable as published in Federal Register. 16
- Would require DHS, in consultation with SSA, to provide a TNC process as follows:
- the employer must notify the employee of a TNC within 3 business days after receipt;
- after the employer notifies the employee, he or she has 10 business days to contest the TNC;
- DHS must issue the final confirmation or nonconfirmation no later than 30 calendar days after the employee contests the TNC. 17
- Would require DHS, in consultation with SSA, to provide a process for employees to seek administrative review of a final nonconfirmation, to ensure prompt resolution, and to provide a response to the appeal within 30 days. 18 DHS may impose a civil monetary penalty for frivolous appeal requests.
Reverification of Previously Hired Individuals
- Would require reverification of employees with expiring work authorization within 3 business days.
- Would require reverification of employees, where DHS has notified an employer of unusual multiple use of SSN in the System, no later than 10 days after such notification.
Section 302 - Mandatory Electronic Verification for the Agricultural Industry
- Would phase-in mandatory use of the employment electronic verification for agricultural employers, beginning after publication of the interim final rule (that must occur no later than 180 days after enactment), and after completion of the 18-month application period for CAW status 19, as follows:
- 6 months for agricultural employers with 500 or more employees
- 9 months for agricultural employers with 100 or more employees, but less than 500.
- 12 months for agricultural employers with 20 or more employees, but less than 100; and for any employer who recruits or refers agricultural employees for a fee.
- 15 months for agricultural employers with 1 or more employees, but less than 20.
- Would not require mandatory use for any other employers, unless otherwise required under Federal or State law, Executive Order, rule, regulation or delegation of authority. 20
Rural Access to Secondary Review Process
- Would require DHS and USDA, and in consultation with SSA, to create a process for employees to seek assistance in contesting a TNC at USDA local offices or service centers.
- Would not delegate or transfer responsibility for reviewing or resolving TNCs from DHS or SSA.
Section 303 – Coordination with the E-Verify Program
- Would repeal the current E-Verify program 21 with provisions to ensure current users are transitioned to the new System created under Title III of this Act, which would become effective 30 days after rules are finalized for the System as provided under section 309.
Section 306 – Protection of SSA Programs
- Would require DHS and SSA to ensure an agreement is in place, effective for fiscal years beginning on or after October 1, 2019, which would provide funds for SSA’s full costs of its responsibilities in carrying out the provisions under Title III, including systems and operational costs.
- Would require advance reimbursement on a quarterly basis, as well as annual cost accounting and reconciliation, which would be reviewed by the Inspectors General of DHS and SSA.
- Would deem a previous year’s agreement to be in effect, on an interim basis, if a new agreement has not been reached by October 1, and would require the agreement be adjusted for inflation, as well as for changes in the volume of requests.
- Would require SSA and DHS to notify the House Committees on Ways and Means, Judiciary, and Appropriations, as well as the Senate Committees on Finance, Judiciary, and Appropriations, no later than October 1, of failure to reach agreement, and until agreement has been reached, provide an update every 90 days on the status of negotiations.
Section 308 – Modernizing and Streamlining the Employment Eligibility Verification Process.
- Would require DHS, in consultation with SSA to provide a plan to Congress no later than 12 months after enactment, to modernize and streamline the employment eligibility verification process, including, but not limited to:
- procedures to verify the identity and employment authorization of employees when in-person, physical examination of documents is not practicable; and
- eliminate Form I-9.
Section 309 – Effective Date
- Would require DHS to publish rules implementing Title III, no later than 180 days before the end of the 18-month CAW application period 22. The rules must be finalized no later than 180 days after publication.
1 Includes individuals who are not work-authorized, are not lawfully present, those under deferred enforce departure (DED), or who have temporary protected status (TPS) under section 244 of the INA.
2 DHS may grant certified agricultural dependent status to the worker’s spouse and child.
3 DHS may extend the application period for up to an additional 12 months.
4 Would be effective immediately upon publication (but may be subject to change after public notice).
5 To qualify, individuals must submit proof that they performed agricultural labor or service in the United States for at least 1,035 hours (or 180 work days) during the two-year period preceding the introduction of this Act (i.e., November12, 2019). We note that SSA only maintains annual earnings records.
6 Under current law, employers must sponsor H-2A applicants when they are outside the U.S. The bill would require DHS to establish a procedure that would not require these H-2A applicants to depart the U.S.
7 Section 121 defines Federal tax as Federal income taxes assessed in accordance with section 6203 of the IRC of 1986.
8 The bill requires DHS to begin accepting CAW applications within 180 days of enactment, and provides another 180 days for DHS to make a decision on such applications. Accordingly, to the extent practicable, SSA would need to coordinate with DHS to establish the automated enumeration system (i.e., expand Enumeration Beyond Entry) within this timeframe, or CAW applicants would have to apply for an SSN in local field offices.
9 Amends the INA to add a new section 274E for section 301 provisions.
10 It appears the bill would codify the existing E-Verify system.
11 Employees who have applied, but not yet received an SSN are provided 3 days after the receipt of the SSN.
12 This provision appears to codify DHS’ existing Fraud Alert process.
13 DHS may implement this child-lock program on a limited, pilot basis before expanding nationally.
14 Sections 302 and 303 of this Act requires the mandatory use of the System for agricultural employers and any others required under Federal or State law, Executive Order, rule, regulation or delegation of authority.
15 Does not include Social Security cards that specify on the face that the issuance of the card does not authorize employment in the United States.
16 DHS must accept CAW documentation as proof of employment authorization no later than 12 months after the completion of the CAW 18-month application period.
17 The employer may terminate the employee after receipt of a final nonconfirmation. If the employer does not terminate the employee pending the appeal, the employer must notify DHS through the System. Failure to notify DHS will be deemed a violation of 274A(a)(I)(A) of the INA.
18 Not later than 30 days after dismissal of an appeal, and individual may seek judicial review of such dismissal in the United States District Court in the jurisdiction in which the employer resides or conducts business.
19 May provide up to 24-months before phase-in of agricultural employers mandatory use.
20 Including the Federal Acquisition Regulation (FAR) and employers hiring F-1 students during the 24 month extension for STEM Optional Practical Training (OPT) categories, and employers in the Northern Mariana Islands seeking work permits for workers.
21 Subtitle A of title IV of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note)
22 DHS must publish an interim final rule providing the CAW application no later than 180 days after enactment.