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AgJOBS: New Solution or New Problem?
AgJOBS: New Solution or New Problem?
The goals of AgJOBS are similar to those of the agricultural provisions of the Immigration Reform and Control Act of 1986. IRCA’s Special Agricultural Worker (SAW) program legalized 1.2 million foreigners, but unauthorized immigration continued and led to such a glut of farm workers that the number of union contracts and farm worker wages fell despite legalization. The Florida sugar cane industry mechanized harvesting in response to a dispute over the piece rate wages paid to H-2A cane cutters and few new farmers, except for tobacco growers in the southeast, obtained legal workers via the revised H-2A guest worker program. Unauthorized workers were readily available throughout the US, and they replaced the SAWs who left the farm work force.
This article asks whether AgJOBS is more likely to provide a new solution or cause new problems in the farm labor market. As with the SAW program 15 years ago, the answers depend largely on how AgJOBS is implemented, how workers and employers respond, and whether unauthorized entry and employment continue. AgJOBS is being touted as a model for earned legalization programs for nonfarm workers in construction, meatpacking, and services. Therefore, it is important to understand how legalization can help individuals but at the same time not change the underlying structure and operation of a labor market that depends on a steady influx of newcomers. As a result, there can be significant shares of unauthorized farm workers despite a series of successful legalizations.
Average employment does not indicated how many workers were employed during the entire year, as would occur if a worker was employed on a farm, but not during the survey week. In the past, USDA estimated the total number of hired farm workers by attaching questions to the December Current Population Survey (CPS), the source of monthly unemployment data. These questions asked whether anyone in the sample household did farm work for wages during the preceding 12 months, under the theory that migrants would be “at home” in December. The CPS, which was sent to a random sample of U.S. housing units, found that 2.5 million persons were employed for wages on U.S. farms during a typical year in the 1970s and 1980s. Eight percent of this 2.5 million included “migrants,” who are defined as those who crossed U.S. county lines and stayed away from their usual homes overnight in order to do farm work for wages.
In the early 1980s, immigration reforms that included sanctions on U.S. employers who knowingly hired unauthorized workers threatened to curb rising reliance on such workers. The Grand Bargain that became the heart of the Immigration Reform and Control Act of 1986 included employer sanctions to discourage unauthorized entry and employment, and legalization for unauthorized aliens who had developed an equity stake in the United States. Western crop farmers strongly opposed this Grand Bargain when it was proposed by the Select Commission on Immigration and Refugee Policy in 1982. They argued that they had a unique dependence on unauthorized workers and that the guest worker program available to farmers, known as the H-2 program, was too inflexible for “perishable western agriculture” because it required farmers to ask the US Department of Labor to certify their need for foreign farm workers 60 days before the workers were needed, to provide them with free approved housing, and to meet other criteria. Western farmers demonstrated in 1984 in the U.S. House of Representatives, and in 1985 in the U.S. Senate, that they had the political clout to block immigration reforms that did not deal with their concerns.
A compromise in the summer of 1986, that was later echoed in AgJOBS, allowed IRCA to be enacted. IRCA’s Schumer compromise, named for then Representative, now Senator, Charles Schumer (D-NY) allowed unauthorized farm workers who had done at least 90 days of farm work in 1985-86 to become legal immigrants, which satisfied worker advocates. However, to satisfy western farmers, if newly legalized SAW farm workers left farm work quickly, and farm labor shortages developed, legal foreign workers could be admitted in two ways: a revised H-2A program that was made more employer friendly, or a new Replenishment Agricultural Worker (RAW) program. The result should have been legal workers employed on U.S. farms.
There were no farm labor shortages in the early 1990s, however, and the RAW program was allowed to expire without ever being used. Instead, continued unauthorized entries and employment led to surpluses of workers and falling wages. The average hourly earnings of farm workers fell relative to average manufacturing wages in the early 1990s despite a recession and rising health care costs that held nonfarm wages in check (Figure 1). In 1992, these farm labor market trends prompted the U.S. Commission on Agricultural Workers (CAW) to conclude that there was “a general oversupply of farm labor nationwide” and, “with fraudulent documents easily available,” employer sanctions were not deterring the entry or employment of unauthorized workers. Researchers emphasized that the number of unauthorized workers was rising, wages and benefits were falling, and farm labor contractors were increasing their share of worker-job matches in agriculture.
Farmers worried that enforcement could lead to crops rotting in the fields. Therefore, farmers in some regions, particularly tobacco growers in the southeastern states, turned to the H-2A program to obtain legal foreign workers after several ex-administrators of the H-2A program opened labor brokerages and offered, for a fee, to provide them with H-2A workers. As these brokers expanded in states such as Georgia and North Carolina in the mid-1990s, the number of jobs the Department of Labor (DOL) certified as needing to be filled with foreign workers began to rise, as seen in Table 1, and Mexican workers harvesting tobacco replaced Jamaicans cutting sugar cane as the major group of H-2A workers in the US.
US DOL H-2A Certifications: 1985-2000
Western growers were still unwilling to undergo DOL-supervised recruitment and to satisfy the housing requirements of the H-2A program. They therefore proposed variations of the expired RAW program to obtain legal foreign workers. For example, Representative Bob Smith (R-OR) introduced the Temporary Agricultural Worker Act of 1997, which would have created 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.” The Smith proposal would have satisfied a major employer demand—avoiding the requirement of the H-2A program to recruit US workers under the supervision of the US Department of Labor.
There was widespread union, church, and Hispanic advocacy opposition to the Western grower guest worker bills in Congress. The U.S. Commission on Immigration Reform had concluded in June 1995 that: "a large-scale agricultural guest worker program...is not in the national interest...such a program would be a grievous mistake." President Clinton tried to head off Congressional consideration of guest worker bills by issuing a statement: “I oppose efforts in this Congress to institute a new guestworker or ‘bracero’ program that seeks to bring thousands of foreign workers into the United States to provide temporary farm labor.”
Nonetheless, the Senate in July 1998 approved the first version of AgJOBS as Amendment 3258 to the Commerce-Justice-State Department appropriations bill, which would have substituted a registry for certification. Under this first version of AgJOBS, legally authorized farm workers would have had to register with local Employment Service offices and indicate whether they were willing to migrate out of the area for farm jobs. Farm employers would have submitted job offers to the ES registry, and ES would have verified that the jobs they offered paid prevailing wages before listing them, that is, the new registry would have assumed responsibility for: (1) verifying the legal status of farm workers seeking jobs; and (2) verifying that employer job offers satisfied the requirements of any new program. Under this proposal, if an employer requested 100 workers at least 21 days before they were needed, and ES had only 40 workers registered and willing to go to the employer seven days before the need date, the grower would receive a "shortage report" from the registry that would grant permission to bring 60 foreign farm workers into the US. AgJOBS, however, was removed from the appropriations bill in conference committee, in part because of a threatened presidential veto.
During the summer of 1999, there were cracks in the solid alliance of church, worker, and other groups opposed to a new guest worker program. Growers hired the founding executive director of the National Immigration Forum, a major pro-immigrant group, to seek a compromise guest worker proposal, and his activities led the Carnegie Endowment to issue a paper that included most of the proposals advanced by growers, including a registry to eliminate DOL certification of the need for foreign workers and allowing farm employers to provide housing vouchers to foreign workers instead of providing housing.
The election of Vicente Fox in Mexico and George W. Bush in the United States changed the dynamics of the guest worker debate. Worker advocates had shown that they could block grower demands for a new guest worker program that dealt primarily with the concerns of employers. However, growers could block efforts to simply legalize unauthorized workers, fearing newly legalized workers would quit farm work and leave them with labor shortages. A compromise between worker and grower representatives in December 2000 included a new form of earned legalization. Unauthorized workers who did at least 100 days of farm work would receive a temporary legal status, and they could earn full immigrant status if they continued to do farm work for at least 360 more days in the next six years, including at least 240 days of farm work in the first three years of their temporary resident status, and at least 75 days in each of three-12 month periods.
Worker advocates found the compromise acceptable, since unauthorized workers and their families eventually became immigrants. Employers also accepted the compromise, since experienced farm workers would not leave immediately. However, Congressional Republicans who opposed “rewarding lawbreakers,” led by Senator Phil Gramm (R-TX), blocked approval of AgJOBS in the waning days of the Clinton Administration.
The focus shifted from Congress to Presidents Bush and Fox, who met in February 2001 and established a binational "migration working group" to create "an orderly framework for migration that ensures humane treatment [and] legal security, and dignifies labor conditions." Mexican Foreign Minister Jorge Castaneda said that: "The final goal is to regularize the situation of those Mexicans who are without documents," and went on to say that Mexico's four-pronged immigration agenda included legalization, a guest-worker program, ending border violence and exempting Mexico from visa quotas, and added, "It's the whole enchilada or nothing."
During the spring and summer of 2001, Mexican and U.S. officials met to discuss improving conditions for unauthorized Mexicans in the United States, which was Mexico’s top foreign policy priority. Several proposals were introduced in Congress to legalize farm and other workers. The debate over the proposals centered largely on whether the United States should grant currently unauthorized workers guest-worker status, the proposal favored by Senator Phil Gramm (R-TX), an immigrant status, as favored by the AFL-CIO and most immigrant organizations, or a temporary resident status that would enable them to eventually "earn" an immigrant status, as proposed in AgJOBS. Within the grower coalition that was supporting AgJOBS, an important new player emerged: the American Nursery & Landscape Association, representing over 2,200 firms that hire farm workers to grow, sell and use landscape plants. The September 11, 2001 terrorist attacks stopped the debate over these proposals, and there was debate but no Congressional action in 2002.
TRS workers could earn permanent immigration status by performing at least 2,060 hours or 360 days of farm work in a six year period ending in 2009, including at least 1,380 hours or 240 work days during their first 3 years and, in at least three of the six years, do at least 75 days of farm work a year. The spouses and minor children of TRS workers would not be deportable if they are in the US, but they would not be allowed to work legally until the TRS worker becomes an immigrant, at which time spouses and minor children could also receive immigrant visas, regardless of queues and waiting lists in the immigration system.
Legalization fulfills the key demand of worker activists. AgJOBS satisfies grower demands by making the H-2A program more "employer-friendly." Instead of having the US Department of Labor certify their need for foreign workers, farmers would simply “attest” that they needed foreign workers, and DOL would have to approve employer attestations if employers filed their job offers with DOL at least 28 days before workers were needed. In other words, instead of the burden of finding US workers falling on employers, as it does currently under the H-2A certification process, the burden of finding US workers would shift to DOL, which would have to authorize the admission of H-2A workers if local workers were not available at least 14 days before the farmer-set need date.
Most western growers do not offer housing to the seasonal workers they employ; which is one reason why they find it hard to be certified to employ foreign workers under the H-2A program. Under AgJOBS, employers could provide workers with "a monetary housing allowance" if the state’s governor certified there was “sufficient housing “ so that workers could be expected to find their own. The housing allowance would be equivalent to the “statewide average fair market rental for existing housing for metropolitan or nonmetropolitan counties,” assuming two persons per bedroom in a two-bedroom unit, which means that four workers would be expected to share a two-bedroom unit. Most of California’s major farm counties are metro counties, and average rents for two-bedroom units range from $600 to $1,000 a month, suggesting that housing allowances would be $150 to $200 per worker per month.
Under the current H-2A program and under AgJOBS, employers would have to reimburse inbound and return transportation costs for workers who complete the season. Workers establish the length of the season when they apply to DOL, and they must guarantee work for at least three quarters of the season that they specify. If AgJOBS is enacted, worker advocates could sue employers in federal rather than state courts to enforce the contracts of foreign workers. Farmers would have to pay foreign H-2A workers the higher of the federal or state minimum wage, the prevailing wage in the occupation and area of intended employment, or the Adverse Effect Wage Rate (AEWR), which is a wage calculated for each state by DOL to avoid wage depression due to the presence of foreign workers. U.S. citizens, legal immigrants, and unauthorized workers may be paid the federal or state minimum wage unless they are working alongside H-2A workers, in which case they must receive the same wages as H-2A workers.
Table 2 includes three estimates of the number of unauthorized farm workers. The first column, 58/20, estimates that there are 1.2 million unauthorized foreign farm workers because the NAWS found that 58 percent of crop workers were unauthorized in 2001-02; the 20 percent unauthorized livestock workers is our own estimate. The second column shows that if the unauthorized percentages were higher, if 2/3 of crop workers and 1/3 of livestock workers were unauthorized, there would be 1.4 million unauthorized U.S. farm workers, the likely upper limit. The third column provides the conservative estimate, showing that if 50 percent of crop workers and 10 percent of livestock workers are unauthorized, there would be 1 million unauthorized farm workers.
How many unauthorized workers?
Under IRCA’s SAW program for unauthorized farm workers, eligibility was limited to those who did at least 90 days of farm work between May 1, 1985 and May 1, 1986, a work requirement based on CPS data showing that hired workers averaged 100 days of farm work in the early 1980s. The NAWS, which interviews workers at work rather than at home, found that crop workers averaged 24 to 31 weeks of farm work a year in the 1990s, or 120 to 155 days of farm work if they were employed for 5-day weeks. The NAWS also found that, when grouped by days of farm work during the previous year, legal immigrant workers did the most days of farm work: 75 percent of legal workers did 90 or more days of farm work, versus half of the unauthorized, suggesting that AgJOBS’ 100-day work requirement may leave half of the unauthorized ineligible for the temporary resident status.
Crop Workers: Days Worked by Legal Status
Bush has for several years advocated a program to "match willing foreign workers with willing U.S. employers when no American can be found to fill those jobs." For unauthorized migrants already employed illegally in the United States, the no-American-worker requirement would be considered fulfilled.. The Bush plan has not been transformed into legislation, but could work as follows: some one is working illegally, the employer acknowledges in a letter or affidavit worker’s employment history, which the foreigner uses to become a registered guest worker for three years after paying a fee and undergoing a security check.
The Bush proposal offers no clear path from guest worker to immigrant status, and administration officials emphasized that "there is no linkage between participation in this program and a green card…one must go home upon conclusion of the program" and then apply for an immigrant visa, perhaps with the support of the US employer. Bush promised to propose an increase in the number of green cards or immigrant visas available for U.S. employers who cannot find U.S. workers. There could still be, however, long waits for employers seeking immigrant visas for needed foreign workers. For example, if five million unauthorized workers sought an additional 100,000 employment-based immigrant visas a year, it would take 50 years to convert all of them to immigrants.
The Bush proposal also includes a new guest worker program for "the jobs being generated in America's growing economy [that] American citizens are not filling." It would allow U.S. employers to advertise jobs on a new internet labor exchange, and if no U.S. worker responded to the ad, the employer could go abroad and recruit guest workers. These guest workers would receive three-year renewable visas like those issued to unauthorized workers in the United States. Guest workers from outside the United States, however, would not have to pay the registration fee of $1,000 to $2,000 charged to unauthorized workers in the United States. Registered workers would have a new incentive to return home, according to Bush, because they would earn retirement credits in their home country's pension system for their contributions to U.S. Social Security.
Most observers said that Bush is likely to win points with U.S. Hispanics for what they called "a more humane, safe, orderly and legal immigration policy." Furthermore, most U.S. employers welcomed the Bush plan for offering an easier way to obtain guest workers. Critics seized on the fact that an immigrant visa may not become available within three or six years, so that Bush's proposal "is more likely to ensure their departure [of unauthorized workers who register] than ensure their permanent residency." There are long waits before immigration visas become available for unskilled workers sponsored by US employers. Without a 245(i) program, which allows foreigners in the United States to pay a fee and adjust status within the United States when their greencards become available, some of the workers returning to their countries of origin to get an immigrant visa may be barred from legal re-entry for 10 years because they were in the United States illegally.
Democratic Presidential candidate John Kerry supports legalization for unauthorized foreigners who have worked in the US, paid taxes and can pass a background check. stating that "Immigration is central to our nation's history." The major Democratic proposal in Congress, the Safe, Orderly, Legal Visas and Enforcement Act (SOLVE), would legalize unauthorized workers who have been in the United States for at least five years, worked at least two years, and pass English, background and medical checks. Those in the United States less than five years could apply for a "transitional status" good for five years, and then apply for "earned immigrant status."
A key issue will be verifying the work histories provided by applicants for temporary legal status. There was widespread fraud in the SAW program, with most applicants submitting one-sentence letters (affidavits), often from contractors, that read: “Jose Gonzalez picked tomatoes for 92 days in 1985-86.” Most applicants provided no proof of the claimed employment in the form of pay stubs or tax or other records, and the SAW program placed the burden on the U.S. government to disprove applicants’ information, which the then Immigration and Naturalization Service was unable to do in most cases. Recognizing this problem, AgJOBS would put the burden on the applicant to demonstrate "by a preponderance of the evidence" that the claimed work was performed.
Some things may change as a result of AgJOBS. Controversies over the H-2A program may shift from the federal government to state governors, who would come under pressure from farm employers to certify that there is sufficient housing. Perhaps the most important impact of AgJOBS would be the signal that it sends to farmers, processors and bankers about the future availability and cost of farm workers: a signal that workers will continue to be available at roughly current costs. If unauthorized workers continue to arrive and find jobs in the hope of a future legalization, AgJOBS will have improved the lives of individual farm workers without making fundamental change in the farm labor market.