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The Agricultural Jobs, Benefits and Security Act would allow currently unauthorized farm workers to earn an immigrant status and make it easier for farmers to hire legal H-2A guest workers. AgJOBS, supported by a coalition of over 400 employer, union and advocate groups, got 53 votes on April 19, 2005, when it was attached to an emergency military spending bill in the Senate (60 votes were needed). A competing bill by Sen. Saxby Chambliss, R-GA, that would have simply revised the H-2A program was defeated 77-21.

AgJOBS would permit unauthorized farm workers who did at least 100 days of farm work in 12 consecutive months between July 1, 2003 and December 31, 2004 to become temporary residents. They could earn an immigrant visa by doing at least 360 days of farm work in the next six years, including at least 240 days of farm work in the first three years and at least 75 days of farm work a year in at least three years. As soon as AgJOBS workers fulfill these requirements, they can apply for immigrant visas, and their spouses and minor children would also receive immigrant visas whether in the US or abroad.

Under AgJOBS, it would become easier for farm employers to hire H-2A guest workers. Instead of having to recruit US workers under Department of Labor supervision, under AgJOBS farmers would send job offers to local employment service offices and, unless local workers are available, farmers could go abroad and recruit H-2A workers to fill the jobs. Currently, farmers must provide free approved housing to out-of-area US workers and H-2A workers. Under AgJOBS, they could offer a housing allowance instead of free housing if the state's governor certifies that there is sufficient farm worker housing.

McCain-Kennedy. Senators John McCain (R-AZ) and Edward Kennedy (D-MA) introduced the 105-page Secure America and Orderly Immigration Act of 2005 (S. 1033/H.R. 2330) to implement the proposals of President Bush in May 2005. The 11-title bill would, for instance, aim to enhance border security, re-authorize a program that reimburses state and local governments for the cost of imprisoning unauthorized foreigners, and create a new "Essential Worker Visa Program." http://www.cirnow.org)

Some 400,000 new H-5A and H-5B visas would be available for essential workers inside and outside the US; the cap could be adjusted year by year in response to labor market conditions. Foreigners who are outside the US but with a US job offer would pay $500 for an H-5A visa valid for three years and renewable once; at the end of six years, the worker either has to return home or be in the pipeline for a green card. The H-5 visas are portable, meaning the worker can change US employers, but workers who lose US jobs must find another US job within 60 days. H-5 visa holders can enter and leave the US.

Unauthorized foreigners in the US on May 12, 2005 could apply for H-5B visas if they can show they have a work history and pass background checks; their family members are also eligible. However, in order to qualify for permanent status, they must continue working in the US, pass additional security and background checks, and pay a substantial fee/fine of at least $2,000.

Employers may sponsor H-5A and H-5B workers for immigrant visas after they have been employed at least four years in the US, and workers may apply on their own for immigrant visas after five years of US employment. The number of immigration visas available for economic/employment reasons would be increased from 140,000 to 290,000 a year (this includes principals and their family members).

To free up more immigration visas for family unification, immediate relatives of U.S. citizens would no longer be counted against the 480,000 annual cap on family-sponsored immigration visas and the income requirement for sponsoring family members would be reduced from 125 percent of the poverty line to 100 percent.

A public-private foundation would be created under the USCIS Office of Citizenship to support programs that promote citizenship and to fund civics and English language instruction for immigrants, and the bill extends federal reimbursement for hospitals that provide emergency care to unauthorized foreigners as well as H-5A and H-5B workers.

McCain-Kennedy would create a new electronic work authorization system that will ultimately replace the current paper-based, I-9 system. The Department of Labor would gain new authority to conduct random audits of employers to ensure compliance with labor laws and fines for illegal employment practices would be increased.

The bill would aim to promote circular migration by requiring Mexico and other foreign countries to enter into migration agreements with the U.S. that help control the flow of their citizens to jobs in the U.S. and encourage the re-integration of their citizens returning home.

A competing bill is expected to be introduced in Summer 2005 by Senators Jon Kyl (R-AZ) and John Cornyn (R-TX) which will require certification that illegal migration is under control before any new temporary-worker program is launched. Unlike McCain-Kennedy, the Kyl-Cornyn bill would require unauthorized foreigners in the US to return to their countries of origin before they could adjust to immigrant status.

Outlook. US immigration policy has been based on the premise that foreigners should enter and be in the US legally. Employer sanctions in the mid-1980s and the border control build-up after the mid-1990s aimed to accomplish this control goal. However, in the absence of internal enforcement, the result became something of a Darwinian border-crossing test- those who eluded the border patrol found it relatively easy to obtain false documents and US jobs, and the US employers who hired them faced little risk of fines.

President Bush, in arguing that legal is better than illegal, proposed a temporary worker program for unauthorized workers inside and outside the US. At least implicitly, Bush was acknowledging that the border should but cannot be "controlled" and that unauthorized workers are "needed" in the US by saying that his proposal would "match willing foreign workers with willing American employers."

Turning Bush's general proposals into concrete plans, as McCain-Kennedy does, requires hard choices about issues that range from what employers must do before hiring guest workers to how the government will monitor them inside the US. One proposal is to issue work visas that do not tie guest workers to a particular employer, under the theory that this protects the worker by allowing her to leave bad employers.

All proposals require that foreigners work in the US or leave, which means a monitoring system must be established to track the work done by guest workers who are free agents in the US labor market. In order to avoid the charge that turning unauthorized foreigners into guest workers is an amnesty, some proposals call for the unauthorized to leave the US and re-enter with guest worker visas.

A major difference between the proposals is what happens at the end of several years of US work. President Bush said that, after a maximum six years, guest workers must leave if they have not found a way to obtain an immigrant visa, either through family unification or having a US employer sponsor them. McCain-Kennedy would give guest workers additional avenues to apply for immigrant visas and increase the number of such visas available. Both proposals have been careful to ensure that unauthorized foreigners in the US do not gain an advantage in the quest for a green card over those who "played by the rules" and waited in their countries of origin.

In June 2005, Bush said that he would press Congress to begin immigration reform with improving border security, and then turn to legalizing unauthorized foreigners in the US.