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July 2004, Volume 10, Number 3

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AgJOBS Setback

The Agricultural Job Opportunity, Benefits, and Security Act (AgJOBS) was not attached to must-pass bills in the Senate in July 2004. Supporters argued that AgJOBS should be approved because it is a compromise between worker and employer advocates, would test the "earned adjustment" concept to deal with unauthorized foreigners, would make employer-friendly changes to the procedure for obtaining H-2A workers, and increase security by identifying unauthorized foreigners in the US.

AgJOBS was not attached to a bill designed to restrict class-action lawsuits because, it was reported, the White House asked Republican Senate leaders not to allow a vote on AgJOBS despite 63 co-sponsors. The reason, according to reports, is that Bush does not want to antagonize the anti-immigrant faction of the Republican base. Bush's January 2004 proposal, which drew fire from some Republicans, would legalize unauthorized workers but not give them immigrant status.

AgJOBS, supported by both worker and employer groups would offer an earned immigrant status to currently unauthorized farm workers who did at least 360 days of farm work over the next six years (Title 1), and would make the H-2 program more employer-friendly (Title 2).

To qualify for an AgJOBS legal temporary resident permit, unauthorized workers would have to do at least 575 hours or 100 days of farm work during any 12 consecutive months between March 1, 2002, and August 31, 2003. Applicants for LTR status would have to establish a "just and reasonable inference" of eligible employment, which could be satisfied with an affidavit from an employer asserting that the worker did the required work. Strict confidentiality provisions prohibit the government from using applicant information to prosecute employers or workers for past violations of tax or welfare laws.

Once the worker qualified for temporary resident status, his spouse and children would be permitted to stay in the United States, but could not work. When the worker earned immigrant status, spouses and children would also receive it, regardless of queues. Legal temporary residents would be required to perform at least 360 days (at least one hour of farm work constitutes a day) of "agricultural labor" during the first 2,555 days (seven years) after enactment of AgJOBS. Unlike H-2A workers, temporary residents would not be tied to a particular US employer; they could change jobs and do nonfarm jobs as well.

Under AgJOBS, the H-2A program would be changed from a certification to an attestation program. Under certification, the border gate remains closed until the US employer convinces the government that it was unable to recruit US workers at government-set wages and working conditions. Under attestation, by contrast, the employer merely attests that he is offering prevailing wages, and DOL must approve employer applications for guest workers, which enables employers to bring guest workers through border gates. US employers would no longer have to file job offers via the interstate clearance job order system of the US Employment Service to show that US workers are unavailable, and farm employers could send job orders to local ES offices 28 days in advance of the date on which they need workers, down from the current 45 days.

The AEWR that farmers must offer local workers and pay to H-2A workers would be frozen at the 2003 rate for three years, after which annual increases would be capped at four percent a year. In a key victory for California growers, most of whom do not offer housing to the workers employed on their farms, employers would be able to offer a housing allowance rather than free housing if a state's governor certified that there was sufficient housing available for out-of-area workers. AgJOBS would also change the current H-2A requirement to provide housing to workers who "are not reasonably able to return to their residence within the same day" to a more limited requirement- only workers who live "beyond normal commuting distance" would be provided with housing.

Many newspapers editorialized in favor of AgJOBS. For example, the Wall Street Journal on May 7, 2004 asserted that "The nation's farm economy has long suffered from a shortage of workers willing to do the backbreaking but essential labor that Americans tend to shun" and complained that it is hard to obtain legal guest workers via the H-2A program because "the Department of Labor compliance manual runs to 325 pages, and the specifications are notoriously legalistic and time-consuming." Thus, AgJOBS would "fix a broken guest worker program and thereby induce more use of it."

Senator Larry Craig (R-ID) said that AgJOBS provides "A one-time, earned adjustment program would permit about 500,000 proven, trusted workers with a substantial history of U.S. farm work before September 1, 2003, to keep working here, legally."

A few House Republicans were challenged in primary elections because of their support for pending immigration legislation. In Utah, Rep. Christopher B. Cannon, a supporter of AgJOBs, was challenged in the Republican primary for his support of earned legalization and in-state tuition for unauthorized high-school graduates, while in Arizona, two representatives who supported an earned legalization guest worker program faced challengers who argued that the incumbents supported amnesty. Cannon won the Republican primary in June 2004 on a 58-42 percent vote.

SOLVE. Democrats, led by Senator Edward Kennedy (D-MA), introduced the Safe, Orderly, Legal Visas and Enforcement Act (SOLVE) in May 2004 to reform immigration admissions and to legalize unauthorized workers who have been in the U.S. at least five years, worked at least two years, and pass English, background and medical checks. Those in the US less than five years could apply for a "transitional status" good for five years, and then apply for "earned immigrant status." To deal with backlogs of relatives waiting to join families settled in the US, the Democrats' plan would exempt close relatives from numerical limits on family-based immigration and grant immediate admission to applicants for immigration visas who have been waiting for more than five years, regardless of per-country numerical limits.

Under the plan, the number of low-skilled guest workers would be capped at 350,000 a year, employers would have to certify their need for foreign workers, and the US Department of Labor would have to check that employers paid prevailing wages and that the presence of guest workers did not adversely affect similar US workers. Guest workers could apply for immigrant visas after two years, and there would be no significant increase in enforcement.

Democratic presidential candidate John Kerry, speaking to the National Council of La Raza's annual conference in June 2004, promised to introduce a comprehensive immigration reform bill in his first 100 days as president that would create a pathway to citizenship for law-abiding unauthorized workers, speed family reunification and enforce existing laws protecting the border.

Elizabeth Shogren, "Bush Is Taken to Task on Immigration," Los Angeles Times, July 17, 2004.