Immigration Policy and Low-Wage Workers: The Farmworker Case
By Bruce Goldstein
Legal advocates who help low-wage workers must confront the controversial debate on national immigration policy. Rules to regulate immigration to this country are necessary, and those rules must be enforced fairly and consistently. One of the thorniest immigration issues is how to react to the presence of an estimated 9.3 million unauthorized immigrants.
Policymakers are debating which undocumented workers should be given the chance to “legalize” their status in the United States, precisely what status should be granted to newly legalized workers, how to reduce unauthorized migration, and how to manage future legal migration. Major business organizations contend that immigrants are needed for certain labor shortages and that many undocumented workers fill jobs that Americans will not do. Worker advocates often respond that citizens will perform jobs if employers offer attractive wages and working conditions. An oversupply of labor drives down wages and reduces labor unions’ ability to organize, especially if many workers have a tenuous immigration status. Nonetheless most labor advocates now recognize the need to legalize undocumented workers, fix the backlogged immigration system, and organize the newly legalized immigrants. Many Americans oppose expanding immigration and reject calls for legalizing “illegal aliens” as an undesirable “amnesty” for lawbreakers. Deporting all unauthorized immigrants may seem to some a logical solution, but humanitarian, economic, and practical concerns make that unlikely. Congress and President Bush have discussed varying methods to “legalize” millions of undocumented workers already here and revise the rules for future immigration. Congress is likely to pass comprehensive immigration legislation during the next few years.
Worker advocates may be able to draw some lessons about immigration policy advocacy from recent developments in Congress regarding agricultural workers. Farmworkers, agricultural employers, and their allies in Congress have been struggling with these issues during the past nine years. They recently reached a hard-fought compromise on agriculture-specific immigration policy. The proposed solutions focus on extending immigration status to currently undocumented farmworkers and revising the agricultural “guest worker” program to regulate future flows of foreign workers into U.S. agricultural jobs. Although this agreement among long-time adversaries has widespread support in Congress, a vocal minority has been obstructing its passage.
In this article I discuss farmworkers’ experiences under recent immigration policy and the proposed congressional compromise. At the heart of the policy debate is a conflict over whether foreign workers should be admitted as immigrants or temporary guest workers. With a summary of the current H-2A agricultural guest worker program as background, I contrast several reform proposals, including the pending compromise bill, and a proworker vision of policy reform.
The Focus of the Debate: “Temporary Workers” or “Immigrants”?
The United States is called “a nation of immigrants,” but not everyone who enters this country for employment—even when authorized—is given an “immigration status” or the chance to become a U.S. citizen. The immigration policy debate in part concerns the question of to whom we will extend a true immigration status with a path to citizenship and the nature of any lesser status that we will offer to others who wish to come to America.
President Bush spoke to the nation on January 7, 2004, about immigration policy. The core of his proposal as it concerns workers’ status was the following:
I propose a new temporary worker program that will match willing foreign workers with willing American employers, when no Americans can be found to fill the jobs. This program will offer legal status, as temporary workers, to the millions of undocumented men and women now employed in the United States, and to those in foreign countries who seek to participate in the program and have been offered employment here. This new system should be clear and efficient, so employers are able to find workers quickly and simply.
All who participate in the temporary worker program must have a job, or, if not living in the United States, a job offer. The legal status granted by this program will last three years and will be renewable—but it will have an end. . . . This program expects temporary workers to return permanently to their home countries after their period of work in the United States has expired. . . . Some temporary workers will make the decision to pursue American citizenship. Those who make this choice will be allowed to apply in the normal way.
Many advocates for immigrants and workers criticized the president’s speech even though some critics praised the president’s willingness even to discuss the controversial topic. Some organizations that seek to limit immigration rejected the proposal as allowing too many foreign citizens to remain in the United States and “rewarding” people who had entered and worked here without authorization. Critics from immigrants’ and workers’ rights organizations generally opposed the proposal’s heavy emphasis on a “guest worker” status rather than a true immigration status. That is, the president would not grant undocumented workers the right to settle here permanently as immigrants with a path to citizenship. The president preferred a large-scale guest worker program to handle the present undocumented workers and to regulate future flows of foreign citizens. Under his proposal, such workers would depend on the willingness of an employer to sponsor them, and the visa would expire after several years. The president preferred temporary work visas in part because he did not want to grant “amnesty” for undocumented workers who violated our immigration laws while others patiently waited their turn from their homelands for consideration of their applications.
Worker advocates fear that workers on temporary visas are too vulnerable to demand better wages and working conditions or even compliance with the law and that some employers will rather hire the temporary workers than U.S. citizens and persons holding true immigration status. President Bush did not offer significant labor protection measures. These advocates also contend that a “temporary” status is inappropriate because most of the jobs in question are permanent, year-round employment and many workers would be building families and setting down roots while losing contact with their home countries. Experience under these programs gave rise to a saying, “We asked for ‘guest workers’ and they brought us human beings.”
The president’s speech contained principles without many details. His administration has not written or supported major immigration legislation since the speech.
The Debate over Farmworker Immigration
An estimated 2.5 million agricultural workers are in the United States. The U.S. Department of Labor has been studying the estimated 1.6 million nonsupervisory agricultural workers employed in seasonal jobs on farms that grow crops (i.e., excluding year-round jobs, supervisors, and livestock workers). In this latter group 52 percent lacked authorized immigration status during 1997–98. That figure, which had been increasing, is probably higher now. With three-fifths or more of farmworkers lacking a lawful status, pressure built for congressional action.
During the late 1990s Congress considered agribusiness-supported proposals that emphasized changing the current H-2A temporary foreign agricultural worker program. Farmworker advocates, critical of guest worker programs and supportive of legal immigration status for undocumented workers, opposed these bills. We need not rehash these earlier conflicts because their varying viewpoints are reflected in more recent congressional debates. The H-2A agricultural guest worker program deserves some explanation.
The H-2A Agricultural Guest Worker Program
The H-2A temporary foreign agricultural worker program originated during World War II and was revised in 1986. The Labor Department annually approves just over 40,000 H-2A jobs, constituting only a small portion of the farm labor force.
The H-2A program allows employers to hire foreign workers to perform seasonal or temporary agricultural work when insufficient numbers of qualified U.S. workers are available at the place and time needed. Employers must submit to the Labor Department an application containing a job offer with all material employment terms. The terms must comply with the law. Once the department accepts the job offer, the employer must recruit U.S. workers. No later than twenty days before the job begins, the department must determine the number of jobs for which U.S. workers could not be found. The employer takes the department’s “labor certification” to the U.S. Department of Homeland Security’s immigration service, which then arranges for the U.S. consulate in the country where the employer is recruiting foreign workers (often, but not always, Mexico or Jamaica) to issue visas.
The H-2A statute has protection provisions against undercutting wages and working conditions of U.S. workers. (Those provisions can also prevent exploitation of foreign workers). The Labor Department may not issue a labor certification unless it finds that (1) insufficient numbers of U.S. workers are able, willing, qualified, and available to perform work at the place and time needed and (2) the wages and working conditions of workers in the United States similarly employed will not be “adversely affected” by the hiring of H-2A workers. In other words, employers should not create artificial “labor shortages” by offering job terms that U.S. workers would shun but would attract citizens in impoverished nations. The law also requires employers to hire qualified U.S. farmworkers who apply for work by the season’s midpoint (the “50 percent rule”).
H-2A employers must offer the highest of three wage rates: (1) the local labor market’s “prevailing wage” for the particular job (e.g., picking cucumbers in eastern North Carolina), (2) the state or federal minimum wage, and (3) the “Adverse Effect Wage Rate.” The Adverse Effect Wage Rate concept began in response to stagnation of agricultural workers’ prevailing wage rates due to the presence of foreign workers.
Guest workers are vulnerable for several reasons. They hold a restricted status. They receive temporary, “nonimmigrant” work permits for employment at one particular employer. H-2A workers do not acquire any right to stay in the United States. They have no right to switch employers. They must return home at the termination of their job, which may not exceed eleven months. They may not receive a visa unless an employer designates them to receive one, and they have no right to be recalled to work the following year.
The workers’ circumstances also make them vulnerable. Most lack English-language skills, significant education, or familiarity with the U.S. legal and support systems. Their families may not accompany them. They usually reside in isolated rural areas in housing controlled by their employers. They ordinarily come from impoverished nations and are attempting to escape desperate economic straits.
As a legal matter, H-2A employers wield extraordinary power over workers, both foreign and domestic. An H-2A employer must offer the minimum wage rates required by the regulations but need not offer any more than required. A U.S. or foreign worker who demands a higher wage can be counted as “unavailable” so that the job slot is filled with a guest worker at the minimum required wage. In these circumstances labor unions have little leverage.
The principal employment law for farmworkers excludes H-2A guest workers. For example, the Migrant and Seasonal Agricultural Worker Protection Act requires employers to disclose all material terms of employment at the time of recruitment and to comply with them; the act allows workers to file lawsuits in federal court for violations. H-2A workers, by contrast, receive disclosures when they arrive in the United States but not at the time of recruitment and are relegated to state courts and state contract law.
Under these pressures, foreign workers often fear that they will be fired and deported or not recalled the following season if they demand better wages or working conditions or seek legal assistance for unlawful employer activities. With no opportunity to become citizens, they also recognize that elected politicians in the United States rarely will take up their cause against the employers who vote and give campaign contributions. Many employers prefer guest workers because they will work for low wages and at very high levels of productivity compared to U.S. workers. Some employers create artificial labor shortages for themselves by not recruiting U.S. workers, deterring U.S. workers from applying for jobs, forcing U.S. workers to quit their jobs, and firing them. Such conduct is illegal but widespread.
The Chambliss Proposal: One Vision for the Future
Sen. Saxby Chambliss (R.–Ga.), the chairman of the Subcommittee on Immigration, Border Control, and Citizenship of the Senate Judiciary Committee, “believes [that] we need a total overhaul of our immigration policies” and that the logical place to start is with reform of the H-2A agricultural worker program.” He introduced the Temporary Work Reform Act of 2003, which not only starts with the H-2A program but ends there as well.
Chambliss does not propose to allow undocumented workers in U.S. agriculture to become legal immigrants. Nor would his bill allow undocumented workers already in the United States to apply for H-2A guest worker positions unless they first return to their homeland and apply from there. Thus the Chambliss bill is even narrower than the president’s proposal to allow undocumented workers to convert to a guest worker status without leaving the United States. Chambliss explained:
We must treat those who are here illegally as exactly that. Under a guest worker program, they should be allowed work visas[,] not green cards. They should not be given advantages over those who are attempting to come to the [United States] through the legal process, which we should encourage. Foreign workers in a guest worker program must be temporary workers.
Chambliss, as described below, offers employers incentives to use the H-2A guest worker program to recruit and employ workers, in theory to discourage hiring of undocumented workers.
Chambliss’ bill would change the H-2A program in numerous ways to make it easier, quicker, and less expensive for employers to use while lowering wage rates, reducing government oversight, and minimizing labor protection provisions. For example, his bill would eliminate the Adverse Effect Wage Rate and replace it with a new “prevailing wage,” which would be lower and harder to police. The bill contains several of the proemployer components of the legislative compromise on agricultural immigration—discussed below—but offers farmworkers nothing in return for these concessions.
The Chambliss bill would curtail H-2A guest workers’ access to federally funded legal services. Private-practice lawyers rarely take guest workers’ cases because the wage losses are too small to make the cases economically viable or because of geographic, language, or other obstacles. Programs funded by the Legal Services Corporation may represent H-2A workers for matters arising out of their employment contracts. Chambliss would prohibit these programs from representing H-2A guest workers once they leave the United States. Since H-2A workers stay in the United States for only a few weeks or months, this proposal would effectively deny them representation. Legal aid attorneys, unlike any other attorneys, would be required to submit a request for mediation to the Federal Mediation and Conciliation Service before filing any lawsuit. Farmworker advocates oppose the Chambliss bill.
Elements of a Profarmworker Vision for Immigration Policy
So far no single piece of immigration legislation represents the ideal public policy from the viewpoint of farmworker advocates, and farmworker advocates do not have a unified position on all issues. A profarmworker policy undoubtedly would contain a generous legalization program to enable many undocumented farmworkers to apply for legal immigration status. This country has not enforced its immigration laws effectively. Unauthorized immigrants consequently have come seeking work, and agricultural employers have hired large numbers of them. The presence of so many undocumented workers surely has perpetuated low wages, poor benefits, limited unionization, and other consequences to the detriment of farmworkers. At this stage, however, there is little point in attempting to punish the undocumented farmworkers, and certainly there is little political will to punish the employers. Leaving aside criminals, terrorists, and others who need to be removed for specific reasons, we are not going to deport most undocumented workers. Yet we do need to know who resides within our borders, and we should restore the rule of law in agricultural employment. The logical solution is to offer undocumented workers the chance to gain immigration status so that they “come out of the shadows” and have a better chance of improving their wages, benefits, and living conditions.
A farmworker legalization program would ordinarily require applicants to prove that they have been working in agriculture in the United States, and not merely residing here. Because many unauthorized immigrants face difficulties documenting their farm employment, any program must take these evidence-gathering problems into account. Policymakers must decide whether to require the program applicants to continue to perform agricultural work as a condition of converting to permanent immigration status and as a method of maintaining the farm labor supply. Farmworker advocates often oppose a future-work requirement as inconsistent with our market economy’s expectation that employers will attract and retain employees by offering decent job terms. Any opportunity for farmworkers to become lawful immigrants raises questions about the status of their spouses and minor children. Breaking up families should be avoided by offering family members a reasonable opportunity to become immigrants.
Farmworker advocates do not have a unified position on guest worker programs, but a strong argument can be made for abolishing the H-2A program. If the country needs workers, those workers should receive true immigration status, not a third-class work permit controlled by a single employer to whom or to which they are chained. If the H-2A program is to continue, however, the wages and benefits should be substantially improved, the guest workers should be permitted to switch employers freely, and labor standards enforcement should be substantially enhanced to end rampant abuses. All labor laws and antidiscrimination laws should apply to the guest workers and their employers during recruitment in other countries as well as during employment. Most important, after a period of employment, guest workers should be granted an expedited opportunity for immigration status.
The Compromise: AgJOBS
After years of conflict in Congress, the principal parties involved in these disputes have reached a legislative compromise. A large coalition of agricultural employers, working with Sen. Larry Craig (R.–Idaho) and Rep. Chris Cannon (R.–Utah), and farmworker advocates led by the United Farm Workers, collaborating with Rep. Howard Berman (D.–Cal.) and Sen. Edward Kennedy (D.–Mass.), agreed on legislation. The Agricultural Job Opportunity, Benefits, and Security Act of 2003 (AgJOBS) was introduced in September 2003. As of mid-July 2004, a filibuster-proof, bipartisan majority of 63 Senators had endorsed the bill as cosponsors, as had 114 House members, but the bill had not progressed to floor debate.
The legislation contains two parts: (1) a two-step “legalization” or “earned adjustment of status” program for undocumented farmworkers and (2) changes in the H-2A agricultural guest worker program. The legalization program’s first step would be submission of an application for temporary resident status. Applicants would need to demonstrate that they had performed at least 100 days of agricultural work in the United States during any twelve-month period within the eighteen months ending on August 31, 2003. Several immigration-law “bars” against gaining immigration status (e.g., unlawful presence in the United States) would be waived, but bars based on criminal convictions and other immigration-law standards would apply. The procedures for proving employment recognize the difficulties that undocumented workers will have in proving past employment. The temporary resident immigrant status would authorize farmworkers to work in any occupation and for any employer, travel abroad and reenter the United States, and otherwise be treated as lawful immigrants (not guest workers).
To gain permanent immigration status, the temporary resident would need to fulfill a prospective agricultural-work requirement. The temporary resident would need to perform at least 360 work days of agricultural employment in the United States during the six-year period ending on August 31, 2009. At least 240 of those 360 workdays would have to occur during the first three years, and the worker would have to perform at least 75 days of work per year in at least three individual years. While no worker may earn a green card in less than three years, the worker may count employment that occurred beginning September 1, 2003. Temporary residents who do not fulfill the prospective work requirement on time would be required to leave the country. Temporary residents who are inadmissible under immigration law or commit a felony or three or more misdemeanors would be denied adjustment to permanent status and subject to deportation.
A temporary resident worker who is fired by an employer without “just cause” may file an administrative complaint with the government to gain credit toward the prospective work requirement for the lost workdays (but not back pay). Workers injured on the job would receive credit for lost workdays.
Since many undocumented workers would fear filing an application with the Department of Homeland Security due to their undocumented status, applications may be filed with a “qualified designated entity” (an organization approved by the Department of Homeland Security), such as a labor union, nonprofit group, or employer organization. To reduce the potential for unauthorized practice of law by fraudulent immigration practitioners, no application may be filed with the Department of Homeland Security directly unless the applicant is represented by a licensed attorney. Procedures would be established to permit filing applications from abroad. The applicants would be eligible for assistance on their application from programs funded by the Legal Services Corporation. Upon receiving temporary resident status, they would be eligible for legal services generally.
A temporary resident farmworker’s spouse and minor children caught residing in the United States without immigration status may not be deported but would not be eligible to work. The spouse and minor children may adjust to permanent resident status once the farmworker adjusted to permanent resident status, as long as the spouse and children are otherwise eligible under immigration law.
Without accurate estimates of the number of farmworkers, predictions about the number of farmworkers who would be eligible range from about 500,000 to more than 1,000,000.
The AgJOBS bill would modify the H-2A temporary foreign agricultural worker program. Farmworker advocates made concessions on the H-2A program largely to obtain the legalization program but also to add new protection provisions to the H-2A program. Applying to the program would be streamlined to become a quicker “labor attestation” program. Most H-2A worker protection provisions would continue, and some that are in the Labor Department’s H-2A regulations would appear in the statute:
ß The employer would have to continue to guarantee the opportunity to work for at least three quarters of the stated period of employment or pay compensation for any shortfall (the “three-fourths minimum work guarantee”).
ß Qualified U.S. workers (including the newly legalized farmworkers) would have to be hired as long as they applied during the first half of the season (the “50 percent rule”).
ß H-2A employers would have to provide workers’ compensation insurance.
ß No job that was vacant because the previous occupant was on strike or involved in a labor dispute may be filled by an H-2A worker.
ß The employer would have to reimburse inbound transportation costs to workers who finished half the season and pay for transportation costs home when they completed the season.
The bill would modify some H-2A requirements:
ß The program would recognize the freedom of bona fide labor unions to negotiate job terms with H-2A employers.
ß H-2A employers would have to provide housing at no cost, but employers may provide a housing allowance (set by a formula based on subsidized housing rents) as long as the governor of the state certifies that sufficient farmworker housing is available.
ß The H-2A employer would still be required to pay at least the highest of the state or federal minimum wage rate, the local prevailing wage, or an Adverse Effect Wage Rate, but the legislation would freeze the Adverse Effect Wage Rates for three years at the 2002 levels. The U.S. General Accounting Office and a special commission would issue studies and recommendations on the appropriate method to set wage levels under the H-2A program. If Congress failed to enact a wage formula within three years, the Adverse Effect Wage Rates would be adjusted annually based on the previous year’s change in the consumer price index, up to 4 percent per year.
The bill specifies that H-2A workers would be permitted to file a federal lawsuit to enforce their wages, transportation cost reimbursements, minimum-work guarantee, motor vehicle safety protection, and other H-2A job terms. Any party to such a lawsuit may insist on nonbinding, free mediation, which may not delay the litigation beyond ninety days. This cause of action would preempt a claim under state contract law, but all other state labor law rights would remain in force. For the first time, transportation safety standards would apply to H-2A workers; these standards are similar to the protection provisions that workers have under the Migrant and Seasonal Agricultural Worker Protection Act. The Labor Department would be required to establish procedures for filing a complaint to resolve farmworkers’ complaints about employers’ violations of their rights and would have authority to impose back pay and civil money penalties and bar employers from the program. Both sides made painful concessions, and the compromise is reasonable. However, farmworkers continue to be disadvantaged by the stronger political power of their employers.
Proposals for immigration policy reform in Congress have ignited a fiery debate that has serious consequences for many low-wage workers and their family members as well as for the nation as a whole. No occupational group has been the subject of more legislative proposals on immigration in recent years than agricultural workers. For other worker advocates, the lessons to be drawn from farmworkers’ experiences in the workplace and in immigration policy debates need to be adjusted in accordance with the circumstances and needs of the workers being represented and their relative strength in Congress. Nonetheless controversies in the agricultural sector over legalizing undocumented workers and operating guest worker programs offer some relevant lessons for the broader immigration policy discussions.
Farmworker Justice Fund
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Immigration Policy and Low-Wage Workers: The Farmworker Case