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January 1998, Volume 4, Number 1

HR 2377, Other Guest Worker Issues

Sen. Gordon Smith (R-OR) introduced S.1563, a 24-month
pilot program identical to H.R. 2377, introduced by Rep. Bob Smith (R-OR).
H.R. 2377, the Temporary Agricultural Worker Act of 1997, would create an H-2C
nonimmigrant worker program as a two-year pilot program "to admit
non-immigrants to perform temporary or seasonal agricultural services," with
temporary defined as a job intended to last less than 10 months.

Under the proposed H-2C program, employers wishing to hire foreign farm
workers would file labor condition attestations (LCAs) with their local ES
offices, send a copy to the INS district office, and post a notice of the
attestation in the work place. Each LCA would include employer promises
(attestations) to: (1) pay the higher of the minimum wage or the local
prevailing wage "in the occupation in the area of intended employment" to US
and H-2C workers; (2) file a job order with the local ES before the "need date"
for workers, and (3) give preference to US workers until five days before the
need date; and to employ H-2C workers for no more than 10 months in any
12-month period.

The job orders filed with the ES would be different under the H-2A and H-2C
programs. Under the H-2A program, employer job orders must be filed at least
60 days before the need-for-workers date, provide detailed job descriptions and
offer free housing that is inspected by DOL and in-bound transportation; the
detailed job offer under the H-2A program becomes a contract that the US or
foreign worker can sue to enforce.

Under the H-2C program, by contrast, there are no detailed requirements for
employer job orders, and they can be filed as late as five days before the need
date. Housing or a housing allowance must be offered to H-2C workers if it is
the prevailing practice in the area; if employers offer housing to H-2C
workers, it must comply with state and local housing codes, but not federal
farm labor housing codes. Employers of H-2C workers must provide workers
compensation insurance or, in the states where farm workers are not covered by
workers compensation, insurance with equivalent benefits.

The INS has three days to approve the employer's petition, and forward it
to a US consulate abroad for issuance of H-2C visas to workers. Employers then
provide the names of workers to receive H-2C visas to the US consulates. The
foreign workers would receive visas that list their period of authorized US
work, initially for 10 months, but with the possibility of up to two-year
renewals. If an association was the US employer, the H-2C worker could be
assigned a series of jobs for farmer-members of the association.

The unique feature of the H-2C program is the trust fund established to
encourage workers to return to their countries of origin. H-2A employers are
exempt, and H-2C workers would be exempt, from the Social Security Tax (FICA)
and federal Unemployment Tax (FUTA)--some states require employers of H-2A
workers to pay state Unemployment Insurance taxes.

Under the H-2C program, employers would pay FICA and FUTA taxes, plus 25
percent of workers wages, into a trust fund, which would be managed by the US
Treasury, and used to pay expenses of the H-2C program. Any funds remaining
after expenses are paid would be returned to workers in their country of origin
if they apply for funds within 30 days of the expiration of their visas.
Employers would not pay other fees for H-2C workers, as they do under the H-2A

The H-2C program is an attestation program; the current H-2A program, by
contrast, is a certification program. One way to think about the difference
between these programs is that under attestation, the US employer opens the
border gate to foreign workers--the ES can only review employer LCAs for
"completeness and obvious inaccuracies"--while under certification, the border
gate remains shut until DOL agrees that US workers are not available to fill
the jobs which the employer wants to fill with foreign workers.

Farm worker advocates oppose the H-2C program, even on a pilot basis,
arguing that, with renewals, there could be as many as 75,000 H-2C workers in
the US by 2000 under HR2377. A major concern of advocates and government
agencies is the switch from certification to attestation; it is usually easier
to persuade employers to make wage and working condition improvements before
foreign workers arrive than after complaints are received about US and H-2C
workers at work. If the H-2A and H-2C programs were to operate side-by-side,
most employers would presumably use the H-2C program, since it imposes fewer
costs and obligations, and provides them more flexibility.

Researchers note that 75,000 H-2C workers, assuming they were employed
year-round, could represent about 7.5 percent of the one million year-round
equivalent work force, and three percent of the 2.5 million individuals who do
farm work sometime during a typical year. A pilot H-2C program may have
significant local impacts in the five areas selected by USDA to operate the

Perhaps the major item that would be tested is the feasibility and
effectiveness of withholding workers' wages to induce returns. Critics note
that Jamaicans who participated in the H-2A program had more than 25 percent of
their wages withheld under the private contracts that they were required to
sign with the Jamaican recruiting agency. "Hundreds" reportedly remained in
the US and gave up the 25 percent.

Outlook. Jack King, the California Farm Bureau Federation's national
affairs director, said that "We have had no shortages to speak of, but we fear
that could change" if border and interior enforcement reduced the supply of
unauthorized workers, and because farmers are planting more and more acres of
labor-intensive fruits and vegetables, many in a manner that require hand

On October 1, 1997, Rep. Saxby Chambliss (R-GA) introduced HR 2595, the
Farmers' Temporary Employment Assistance Act that would create a new guest
worker program and overhaul the H-2A program. One Georgia farmer has obtained
foreign workers under the H-2A program over the past four years, and the
Chambliss proposal would reduce the notification period from 60 to 25 days,
substitute employer attestations for DOL certification of the need for foreign
workers, and end the currently required national search for US workers. Some
worker wages would be withheld to induce returns.

In California, Republican Attorney General Dan Lungren, a likely candidate
to replace Governor Pete Wilson in 1998, renewed his 1995 support for a guest
worker (companero) program in October 1997, saying that Latinos are likely to
support it because it acknowledges the contribution of Mexican workers to
California's economy. However, Latino groups attacked the proposal, saying
that it tells Mexicans "We want your labor, but we don't want you to live

Lungren in 1995 proposed a program under which a fixed number of Mexican
workers would be allowed to enter the US to fill vacant farm jobs, and up to a
third of their pay would be withheld by their US employers and repaid to them
by a US consulate in Mexico to "provide the essential incentive for workers to
return home once their employment ended."

UFW President Arturo Rodriguez said Lungren's proposal would "worsen the
already miserable conditions plaguing most farm workers." According to
Rodriguez, "In most farming regions there are two or more farm workers for
every job. Lungren's guest worker program is based on the agribusiness myth
that there is a shortage of farm workers.... agribusiness' chief farm labor
strategy over the years has been maintaining a surplus supply of labor."

Most discussions of farm labor shortages make no reference to wages, which
is curious because farmers who sell peaches or grapes are familiar with the
effects of supply and demand on prices. For most labor-intensive commodities,
demand is fairly stable in the short term, but fluctuations in supply can cause
sharp swings in the prices farmers receive.

SSN Matching. Most estimates of the percentage of illegal farm
workers cited in the press are in the 50 percent to 70 percent range, based on
reports received from the Social Security Administration on "bad" social
security numbers submitted by farmers. This is consistent with the 37 percent
illegal alien share of the total farm work force reported by the NAWS; about 60
percent of California farm workers are seasonal therefore 50 percent illegal
seasonal workers (60 x 50 =30 percent illegal), plus 20 percent of regular or
year-round workers (40 x20 =8), would suggest an overall 38 percent illegal
work force.

In Idaho, the Idaho Grower Shippers Association is exploring the use of
H-2B workers in potato packing warehouses after the SSA matching and INS
inspections indicated significant unauthorized workers. According to reports,
if there are a significant number of SSN-name discrepancies, the INS conducts
an inspection.

David Pace, "Chambliss bill would allow unlimited use of foreign farm
workers," Associated Press, November 18, 1997. Lynn Graebner, "Farmers face
shortage of laborers," Sacramento Business Journal, November 3, 1997. Steven
A. Capps, "Lungren backs guest works," Sacramento Bee, October 17, 1997.