Immigration Laws: October, 2003 - Number #01

The Agricultural Job Opportunity, Benefits, and Security Act of 2003 (S 1645 and HR 3142), co-sponsored by US Senators Edward Kennedy, (D-MA) and Larry Craig, (R-ID) was introduced in September 2003. AgJOBS 2003 continues the efforts since the mid-1990s to trade "employer-friendly" changes in the H-2A program for an "earned legalization" path to immigrant status for unauthorized farm workers. The Senate approved an earlier version of AgJOBS on July 23, 1998 on a 68-31 vote, but then-President Clinton threatened a veto, and that threat, plus House immigration-control Republicans who opposed legalization, as well as union-oriented Democrats who opposed relaxing worker protections in the H-2A program prevented the enactment of AgJOBS.

In December 2000, after the election of Presidents Fox and Bush, negotiations between worker and grower representatives reached a compromise that would have modified the H-2A program in three important ways: (1) freeze the Adverse Effect Wage Rate (AEWR) for two or three years; (2) allow employers to provide AgJOBS workers with housing or a quarter of the Section 8 housing allowance, under the theory that guest workers would share housing; and (3) grant provisional legal status to unauthorized farm workers who could prove that they did at least 100 days of farm work in the preceding 18 months. Then, if a provisional legal farm worker did at least 360 days of farm work in the next six years, including 275 days in the first three years, the provisional legal status could be turned into an immigrant status.

During the spring and summer of 2001, there were Mexico-US meetings on migration and a variety of proposals to legalize farm and other workers in the US. The debate centered largely on whether currently unauthorized workers should be granted only a guest worker status, an immigrant status, or a temporary status that would enable workers to "earn" an immigrant status. The September 11, 2001 terrorism stopped legislative momentum for these proposals.

AgJOBS 2003 would allow unauthorized foreigners who did at least 100 days of farm work (an hour or more constitutes a day) in a 12 consecutive-month period between March 1, 2002 and August 31, 2003 to receive a six-year Temporary Resident Status (TRS) that permits work in the US and travel in and out of the US. The application period would begin six months after enactment, and last 18 months. Applications could be filed within the US or at US ports of entry with Mexico and both farm worker unions and employer associations would be Qualified Designated Entities to receive applications.

TRS workers could earn a permanent immigration status by doing at least 2,060 hours or 360 days of farm work in the next six years, including at least 1,380 hours or 240 work days during the first three years following adjustment, and at least 430 hours or 75 work days during each of three 12-month periods in the six years following adjustment. Spouses and minor children of TRS workers would not be deportable (but would not be allowed to work), and could receive permanent immigrant status when the farm worker qualified.

The proposed legislation puts no cap on the number of temporaries. Some reports suggested 500,000 unauthorized farm workers might qualify, others estimate 800,000, including 25 percent in livestock, which was excluded from the SAW legalization program of 1987-88. Some reports suggested 500,000 unauthorized farm workers might qualify, others estimate 800,000, including 25 percent in livestock, which was excluded from the SAW legalization program of 1987-88.

The H-2A program would be made more "employer-friendly" by requiring DOL to approve employer requests for H-2A temporary workers. Instead of engaging in DOL-supervised recruitment, employers could "attest" to their need for H-2A workers by filing job offers at least 28 days before the need date at local ES offices, then advertising the job at least 14 days before the need date. If local workers did not appear, the employer would be authorized to have guest workers admitted.

Employers must provide free housing to H-2A workers or "a monetary housing allowance" if the governor certifies there is sufficient housing for workers to find their own housing. The housing allowance is the "statewide average fair market rental for existing housing for metropolitan or nonmetropolitan counties" assuming two persons per bedroom in a two-bedroom unit, or about $275 a month per worker in coastal California counties such as Monterey, and $150 a month in inland counties such as Fresno.

Employers would be required to reimburse inbound and return transportation costs for satisfactory workers, guarantee work for at least three quarters of the period of employment, and pay the higher of the minimum wage, the prevailing wage in the occupation and area of intended employment, or the Adverse Effect Wage Rate (AEWR). To win grower support for AgJOBS, the 2002 AEWRs would apply until 2006, while farm wages are studied- 2002 AEWRs were $8.02 an hour in California, $7.69 in Florida, $7.53 in North Carolina, $7.28 in Texas, and $8.60 in Washington.

The H-2A program will continue to admit legal foreign workers only for temporary or seasonal jobs, generally those that last less than 10 months. [There is a longstanding exception for sheepherders, who may stay three years in the US as H-2A workers.] Thus, unauthorized dairy, livestock, and poultry workers can qualify for legal status, but livestock employers cannot obtain H-2A workers under the H-2A program unless their jobs are seasonal.

Worker advocates and employers agree that, if AgJOBS is approved, there should be a legal farm work force. Advocates hope that legalization will set in motion a virtuous circle of more workers joining unions and pressing for wage increases, with employers responding because they prefer to keep experienced farm workers rather than hiring new workers via the H-2A program.

If AgJOBS is approved, there is likely to be renewed interest in the farm labor market, as organizations are created to legalize farm workers (legalization will be funded by worker application fees) and a new system is established to monitor the days of farm work by TRS workers. There will also be a new work history database, with workers getting credit for days not worked because of on-the-job injuries or if they were fired without "just cause." To administer these provisions, DHS is to establish a new arbitration system to deal with workers who allege that they were fired without just cause.

A key issue will be verifying the data in worker applications for temporary status and the work histories of temporaries over the next six years. During the Special Agricultural Worker program of 1987-88, there was widespread fraud. Foreigners who had not done sufficient farm work to qualify submitted letters (affidavits), mostly from contractors, saying that they had worked long enough to meet the requirements of the law. The INS was unable to meet its burden of proof to show that the worker-applicant's information was wrong.

During AgJOBS legalization, the burden would be on the applicant to demonstrate "by a preponderance of the evidence," that the claimed work was performed. There might also be less fraud than in 1987-88 because of the required continuing farm work, and the requirement that employers provide to each temporary worker as well as DHS an annual report on who worked and how many days. On the other hand, the percentage of work done by workers employed through farm labor contractors has risen significantly, to almost half of all farm work days in California, and thus records may be less reliable now than 15 years ago.

AgJOBS requires two reports. GAO would report by June 2007 whether the employment of H-2A or unauthorized aliens in the United States has depressed farm worker wages and whether an AEWR is necessary to protect US workers or whether a prevailing wage standard is sufficient. A Commission on Agricultural Wage Standards would be established to report by June 2007 to answer the same questions.

Senator Kennedy said that "We think we have an excellent chance of getting the agricultural workers' bill passed," and added that President Bush has signaled he will sign it into law.

Guest Workers. Several other guest worker bills were introduced in summer 2003. Senator John Cornyn (R-TX) introduced the Border Security and Immigration Reform Act of 2003, which would allow US employers to sponsor an unlimited number of unauthorized foreigners for US jobs; the workers would receive "blue-cards," and could remain in the US nine or 12 months a year, up to a total of 36 months continuously. Cornyn is a member of the subcommittee on Immigration, Border Security and Citizenship.

Under Cornyn's proposal, guest workers could enter and leave the US as they pleased for 36 months, would have to be paid at least the minimum wage by their US employer and would not be eligible for Social Security and Medicare benefits. However, they and their employers would pay Social Security and Medicare taxes, which would be used to provide sick and injured guest workers with health care while in the US, with the balance refunded in Mexico to workers who abide by the terms of their visas. If the guest workers returned to their countries of origin after 36 months, their applications for immigrant visas would receive priority over those of otherwise similar Mexicans.

Several Arizona Congressional representatives, including Senator John McCain (R-AZ), released another proposal [S. 1461 and H.R. 2899] that would create two new worker visas. Under the Land Border Security and Immigration Improvement Act: 1) H-4A visas would allow foreigners to work in the United States for up to six years, and then apply for immigrant visas on their own or through an employer sponsor. The spouses and children of H-4A work visas would not be eligible for work visas, but they would receive preference for visitors' visas; 2) H-4B visas would be available to unauthorized foreigners who were in the US before August 1, 2003 if they paid $1,500 for a three-year work visa.

US employers could hire H-4B workers after advertising jobs for at least 14 days in an electronic job registry (jobs filled by H-4 workers would have to be re-advertised at least every three years). H-4B visa holders would have to return to their countries of origin and apply for H-4A visas if they wanted to become US immigrants.

Senator Joe Lieberman (D-CT) offered a plan that would qualify unauthorized foreigners in the US for at least five years for legal immigrant status if they had paid taxes and passed a security check. US employers could request "guest workers" if there were "demonstrated labor shortages for unskilled and semi-skilled workers;" these guest workers could join unions and earn an immigrant status after five years. Most of the contenders for the Democratic presidential nomination have also embraced the idea of earned legalization.

President George Bush received about 35 percent of Hispanic votes in November 2000, and Bush aims to increase that percentage in 2004 to 40 percent. There are 38.8 million Hispanics in the US, but only 7.5 million Hispanics were registered to vote for the 2000 elections; 5.9 million voted. Analysts are expecting eight to nine million Hispanics to be registered for the 2004 election. The major Hispanic advocacy groups normally back Democrats, and during their summer 2003 meetings, they blasted Bush as a president who pushes primarily symbolic policies for Latinos. Most Latino advocacy groups want an amnesty or legalization program for unauthorized foreigners, not a new guest worker program.

Other. The Development, Relief and Education for Alien Minors (or Dream) Act, pending in the Senate, would allow persons under 21 in the US for at least five years and who graduated from US high schools to become legal immigrants. There are an estimated 1.1 million unauthorized children in US K-12 schools, and some 50,000 to 60,000 unauthorized children graduate from US high schools each year.

The Immigrant Workers Freedom Ride, organized by labor unions and civil rights organizations, held rallies for legalization en route to and in Washington and New York. (www.iwfr.org) Ride organizers, who left the West Coast in mid-September, demanded legalization for unauthorized foreigners and full rights for all foreigners. One sign read: "I cut your grass, I make your bed, I wash your dishes, I pick your fruit. I refuse to be invisible." Another made reference to America's history: "Immigrants are today's slaves."

In 1961, blacks and their white supporters boarded buses with the aim of integrating buses, waiting rooms and terminals in the South, which were often kept segregated despite a Supreme Court ruling that it was illegal to keep interstate carriers segregated. Many of the speeches of September 2003 asserted that the claim for "immigrant civil rights" was the logical continuation of that earlier movement.

US presidents must be "natural-born citizens." Bills pending in Congress would allow immigrants who have been citizens at least 20 years to be president.

The US ended FY03 with the largest deficit in history, $374 billion, more than double the FY02 deficit of $158 billion; the deficit is projected at $480 billion for 2004. Federal tax receipts relative to the overall economy reached their lowest level since Dwight D. Eisenhower was president in FY03, while government spending has climbed to the highest point since Bill Clinton declared the era of big government over. Defense spending rose 50 percent since 1999, from $261 billion to $389 billion.

Steven Greenhouse, "Congress Looks to Grant Legal Status to Immigrants," New York Times, October 13, 2003. John J. Goldman, "2003 Freedom Ride Ends With a New York Rally," Los Angeles Times, October 5, 2003. Michael Doyle and Dennis Pollock, "Farmers, laborers praise illegal-immigrant work plan," Fresno Bee (Calif.), September 24, 2003. Ronald Brownstein, "Lieberman Offers Citizenship Plan for Illegal Immigrants," Los Angeles Times, September 4, 2003. Rachel L. Swarns, "Old ID Card Gives New Status to Mexicans in U.S.," New York Times, August 25, 2003. Rachel L. Swarns, "Republicans Put Immigration Laws Back on Political Agenda," New York Times, August 4, 2003. Sergio Bustos, "GOP legislators launch plan for temporary visas," El Paso Times, July 26, 2003.