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Martin - Good intentions gone awry: IRCA and U.S. agriculture

Martin, Philip L. 1994.. Good intentions gone awry: IRCA and U.S. agriculture. The Annals of the Academy of Political and Social Science, Vol 534: July. pp44-57.

Good intentions gone awry: IRCA and U.S. agriculture
Philip L. Martin

“Labor is the problem of the twentieth century.” (California fruit grower H.P. Stabler in 1902, quoted in Daniel, 1981, 51)
ABSTRACT 1
INTRODUCTION 2
US AGRICULTURE 3
FARMERS AND IMMIGRATION REFORM 5
IRCA'S AGRICULTURAL PROVISIONS 7
DEFERRED SANCTIONS 7
LEGALIZATION 7
ADDITIONAL FARM WORKERS 9
IRCA'S AGRICULTURAL EFFECTS 11
WHAT NEXT? 12
LESSONS 16

Abstract
Agriculture has been the major side and back door through which unskilled Mexican immigrants have entered the United States for the past half century. The industry today employs about 2 percent of the U.S. wage and salary workers, but 40 to 50 percent of the Mexican immigrants who entered the U.S. labor force during the 1980s had at least one farm job.

Immigration reforms in 1986 were expected to close or slow the revolving door to the farm labor market that permitted Mexican immigrants to enter the US for most of the 20th century. By legalizing the farm work force, and stopping illegal immigration, it was hoped that legal workers who did not have to compete with a continuing influx of illegal aliens could gradually force farmers to improve wages and working conditions, thus keeping newly-legalized farm workers in the farm work force. Farmers, in turn, would modify their labor needs, mechanizing where possible, and slowing their plantings of labor-intensive crops in remote areas, where only U.S. government admission or toleration of foreign workers makes the investment viable.

Immigration reforms have proven to be a case of good intentions gone awry in U.S. agriculture. Instead of a legal farm work force, a rising share--at least 30 to 40 percent--of farm workers in the mid-1990s are unauthorized. Most farm employers did not make adjustments to retain the 1.1 million "farm workers" legalized in 1987-88. Instead, more farmers turned to farm labor contractors (FLCs) to provide them with newly-arrived and often unauthorized immigrant workers, and the transfer of rural poverty from Mexico to the US accelerated.

If current trends continue, agriculture will remain a major door through which immigrants enter the US labor market in the 21st century.

Introduction
California agriculture provides a case study of how an industry can remain dependent on an outside-the-community labor force for decades, usually by persuading the federal government to leave immigration doors ajar. There are many reasons why agriculture receives special treatment in immigration matters: it is considered a crown jewel of the U.S. economy; it is an established and widely-dispersed industry familiar with dealing with government, and thus has formidable political clout; and its need for unskilled seasonal workers meshed neatly with the need of small farmers in Mexico for supplemental jobs.

Politicians have embraced the contradictory goals of protecting the industry, by making immigrant workers available, and then, shamed by farm worker poverty, established federal programs to help farm workers and their children to "escape" from the farm labor market. As a result, agriculture opens the most convenient door to the U.S. labor market for unskilled Mexican immigrants.

Special treatment for agriculture in immigration and labor matters is a leitmotiv of American history. Slavery in the southern colonies and states seemed necessary to the farmers of the time to keep a seasonal farm work force available to fill seasonal jobs on cotton and tobacco plantations when free land was available to non-slave farm workers in the west. In the south, tobacco and cotton provided employment from April to November, so plantations could keep farm workers busy for two-thirds of the year.

When irrigation and the transcontinental railroad made it profitable to grow labor-intensive fruit crops for eastern U.S. markets in the 1870s, California farmers argued that only an "un-American" supply of labor would be willing to accommodate itself to be available when needed at minimum wages. The leading farm magazine of the time, the Pacific Rural Press, asserted that California cannot hope to employ Americans or European immigrants because farmers "cannot employ them profitably...more than 3 or 4 months in the year--a condition of things entirely unsuited to the demands of the European laborer." (quoted in Fuller, 1940, 19813). The magazine instead advised farmers where to seek a labor force in China: "The Chinese! ...those great walls of China are to be broken down and that population are to be to California what the African has been to the South."

The same American farming system that is considered a success story because the average American household devotes less than 9 percent of its annual spending to food eaten at home is also a major magnet for Mexican immigrants. Anything that might threaten this bountiful supply of cheap food, such as a reduced availability of immigrant workers, must jump over the high hurdles of farmer resistance and fears that fewer immigrants might mean higher food prices.

In this sense, immigrant farm workers provide a classic example of the trade-offs inherent in many immigration decisions. Bringing Mexican farm workers into the US helps to hold down farm wages and thus food prices. The immigrants are eager to come, the farmers are eager to employ them, and because of their presence, Americans have more money to spend on non-food items. What is the trade off? Some of the Mexican workers settle in the US, and they and their children are encouraged by low farm wages to move to urban areas to improve their lot. In this way, the farm labor market becomes a revolving door through which unskilled immigrants can enter the US.

US Agriculture
Agriculture is a frequently misunderstood industry. Farming is often considered a crown jewel of the economy, a testament to the fact that only about 9 percent of the average American household's expenditures are for food eaten at home. The US also runs a $20 to $30 billion surplus in agricultural trade.

This picture of efficiency, however, is clouded by the fact that most US farms lose money farming, and that US government payments typically account for one-fourth of net farm income. A handful of large farms produce most of the nation's food and fiber. The largest 5 percent of all farms, each a significant business, account for over half of the nation's farm output, while the smallest two-thirds of all farms account for only 5 percent of all farm output. These small farms, on average, lose money farming.

Most American farms are family farms—defined by USDA as those that can operate with less than the equivalent of one and one-half year-round hired hands--and it is these livestock and grain operations that wrote the American agricultural success story. Most of these farms are operated by non-Hispanic whites: the Census of Agriculture in 1992 reported that there were 1.9 million US farms, and that over 80 percent were operated by non-Hispanic whites. Many of these farmers are sideline farmers, but others report long hours of work, so that about two-thirds of US farm work is done by farmers and their unpaid family members.

The subsector of U.S. agriculture that is most closely associated with Mexican migrants is so-called FVH agriculture, the 75,000 U.S. farms that hire workers to produce fruits and nuts, vegetables and melons, and horticultural specialties (FVH) such as flowers and nursery products. Even the 75,000 number exaggerates the number of small farm employers the largest 10 percent of these FVH farms account for 80 percent of U.S. fruit and vegetable production and employment. It is true that most U.S. farms, as well as most fruit and vegetable operations, are small, family-run operations, but seasonal factories in the fields account for most of U.S. farm worker employment, and it is their efforts that have led to immigration exceptions for agriculture.

Immigration policy and immigrants are linked to fruit and vegetable agriculture because immigrants constitute almost two-thirds of the industry's current work force and nearly all the entrants to the seasonal fruit and vegetable workforce. Among the 140 million Americans who have paid employment sometime during a typical year, only two percent do farm work, and many of these farm workers are teenage hired hands on Midwestern family farms. But of the almost six million immigrant workers who were in the United States legally by the end of the 1980s, up to 1.5 million or 25 percent did at least some farm work, reflecting the enormous appetite of seasonal farm factories for new workers. If 1980s immigration patterns continue in the 1990s, up to 1/4 of the working-aged U.S. immigrants who arrive during the decade may be Mexicans whose initial U.S. employment is in fruit and vegetable agriculture.

Farmers and Immigration Reform
When the Congressional hearings on illegal immigration that eventually culminated in the Immigration Reform and Control Act of 1986 began in 1981, the positions of farm worker and farmer advocates were not well developed. United Farm Workers (UFW) representative Stephanie Bower, for example, testified on September 30, 1981, that the UFW supported "imposing sanctions on employers who hire illegal aliens…[but since] laws covering farm workers have been rarely enforced…we strongly urge that a large budget for staff and operations be allocated to enforce sanctions. The UFW also supported issuing counterfeit-proof social security cards to all workers , including farm workers, to verify their legal right to work in the United States.

The National Council of Agricultural Employers (NCAE) testified that it had not yet developed a position on employer sanctions, but that if there were to be a sanctions law, "we [agriculture] must have some means to offset a worker shortfall if there are not enough U.S. workers to fill the needs of agricultural employers." (Ibid., p 125). The NCAE offered two reasons why sanctions might lead to farm labor shortages: "they [illegal alien farm workers] will move to other jobs where they may get 12 months out of the year employment"…and many of "those people" (illegal aliens) "do not want amnesty," so if they must "choose amnesty" in order to work in the United States, "they may just opt [to go] back to Mexico."

When the Simpson-Mazzoli immigration reform bill was introduced in 1982, it included sanctions on U.S. employers who knowingly hired illegal aliens, an amnesty for some aliens in the United States illegally, and a streamlined H-2 program that allowed temporary farm workers to fill temporary U.S. jobs if American workers were unavailable at government-set wage and working conditions. Western farm employers were not satisfied with the prospect of a government certification process standing between them and the Mexican workers to whom they had become accustomed. They argued that they could not plan their need for seasonal labor because they produced perishable commodities, that they lacked the free housing required to obtain H-2 workers, and that unions might urge the government not to approve their requests for alien workers on the grounds that U.S. workers were available.

In January, 1983, representatives of most U.S. farm employers met in Dallas, Texas, to decide whether to press for further changes in the H-2 program to accommodate Western growers or to seek a new foreign worker program. The decision was made to seek a new foreign worker program. The Farm Labor Alliance (FLA), a coalition of 22 farm organizations, was created to press for such a program in Congress. The FLA decided to work through Tony Coehlo (D-CA), then the “number 3” person in the Democratic hierarchy of the House of Representatives.

The FLA wanted a flexible guest worker program under which legal non-immigrant workers would be confined while in the United States to farm jobs, and U.S. farmers would not be required to go through a certification process to employ them. Both Senator Alan Simpson (R-WY) and Representative Romano Mazzoli(D-KY) opposed such a free agent guest worker program, arguing that it was hard to justify a guest worker program in legislation designed to re-assert control over immigration. Free agent guest workers, they argued, would be difficult to regulate in a manner that would not undermine the wages and working conditions of U.S. farm workers.

Representatives Leon Panetta (D-CA) and Sid Morrison (R-WA) introduced the FLA's guest worker program as an amendment to the Simpson-Mazzoli bill in the House in 1984. To the surprise of many observers, the House approved the Panetta-Morrison guest worker program in June 1984, producing what the New York Times described as one of the year’s top 10 political stories.

In 1985, Simpson offered the FLA a streamlined H-2 program for agriculture, a three-year transition program under which farmers (and only farmers) could use 100, 66, and 33 percent of their base year employment of illegal aliens, and a Commission on Agricultural Workers (CAW) to study farm labor issues further. However, the FLA got Senator Pete Wilson (R-CA) to offer another version of the Panetta-Morrison program in and, after Wilson agreed to cap the number of guest workers at 350,000, Wilson's guest worker program was approved by the Senate.

When the House considered immigration reform in 1986, Representative Peter Rodino (D-NJ) asserted that he would try to block legislation that included a Panetta-Morrison or Wilson-type guest worker program for agriculture. During the summer of 1986, Representative Charles Schumer (D-NY) negotiated a compromise legalization program with Representative Panetta (D-CA), representing employer interests, and Representative Howard Berman (D-CA) representing worker interests, and this "Schumer compromise" was a key element in permitting the Immigration Reform and Control Act of 1986 to be enacted.

IRCA's Agricultural Provisions
IRCA included three major agricultural provisions: deferred sanctions enforcement and search warrants, the Special Agricultural Worker or SAW legalization program, and the (revised) H-2A plus the new RAW foreign worker programs. Each provision had anticipated and unanticipated consequences.

Deferred Sanctions
Before IRCA, the Immigration and Naturalization Service (INS) enforced immigration laws in agriculture by having the Border Patrol drive into fields and apprehend aliens who tried to run away. Farmers pointed out that the INS was required to obtain search warrants before inspecting factories for illegal aliens, and they argued that the INS should similarly be obliged to show evidence that illegal aliens were employed on a farm before raiding it. IRCA extended the requirement that the INS have a search warrant before raiding a workplace for illegal aliens from nonfarm to agricultural work places.

This search warrant provision was won by the farmers’ argument that farms should be treated like factories. However, farmers simultaneously argued that farms, unlike factories, were extraordinarily dependent on unauthorized aliens, and that sanctions should not be enforced while the legalization program for farm workers was underway. Sanctions enforcement was thus deferred in most crop agriculture until December 1, 1988.
Legalization
IRCA created two legalization programs: a general (I-687) program that granted legal status to illegal aliens if they had continuously resided in the U.S. since January 1, 1982, and the SAW (I-700) program, which granted legal status to illegal aliens who did at least 90 days of farm work in 1985-86. Because farmers and farm worker advocates testified that many illegal alien workers were paid in cash, it was much easier for illegal alien farm workers to become legal immigrants than it was for nonfarm aliens.

No one knew how many illegal aliens were employed in U.S. agriculture in the mid-1980s. Most farmers and farm worker advocates accepted a USDA estimate that there were 350,000 illegal aliens were employed in agriculture, and this number became the maximum number of Group 1 SAWs. However, the major surprise of the SAW program was that 1.3 million aliens applied for SAW status, or almost three-fourths as many as applied for the general legalization program, even though it was widely asserted that only 15 to 20 percent of the undocumented workers in the United States in the mid-1980s were employed in agriculture.

SAW applicants turned out to be mostly young Mexican men (Table 1). Their median age was 24, and half were between 20 and 29. Since SAWs had to be employed in 1985-86 to qualify, there were few SAWs under 15, compared to 7 percent of the general legalization applicants. Over 80 percent of all SAW applicants were male, and 42 percent were married. In a few limited surveys, SAWs who had an average 5 years of education earned between $30 and $35 daily for 100 days of farm work in 1985-86.


Table 1. Legalization Applicants
Characteristic LAW (a) SAW (b)
Median Age at Entry 23 24
1. Age 15 to 44 (%) 80 93
2. Male (%) 57 82
3. Married (%) 41 42
4. From Mexico (%) 70 82
5. Applied in California (%) 54 52
Total Applicants 1,759,705 1,272,143
Source: INS Statistical Yearbook, 1991, pp. 70-74
(a)Persons filing I-687 legalization applications
(b)Persons filing I-700 legalization applications. About 80,000 farm workers received legal immigrant status under the pre-1982 legalization program.

The SAW program was rife with fraud. Farm worker advocates testified that many unauthorized workers were paid in cash, so unauthorized aliens were permitted to apply for legalization with only a letter from a US farm employer asserting that the named person had done at least 90 days of farm work. Most SAW applicants, in fact, submitted a letter, often signed by a farm labor contractor rather than a farmer, that asserted "Juan Gonzalez picked tomatoes for 92 days in Salinas for me in 1986."

A careful analysis of several hundred applications suggested that most could not be correct (Martin, Luce, Newsom). The 90 day requirement is relatively stiff: in most surveys, less than half of all hired farm workers find 90 days of farm work in a typical year. But, in an unusual twist in US immigration law, after the SAW application was filed, the burden of proof then shifted to the INS to "disprove" the alien's claim, something the INS rarely did. For example, very few farm workers outside the coastal valleys of California do 90 days of farm work in one location, so the assertion of thousands of persons that they picked raisins for 90 days around Fresno must be false, since the raisin harvest season, is at most, 8 weeks or 56 days long.

In the spring of 1987, an early Oregon strawberry crop, as well as fears of IRCA in Mexico, led to fears of a farm labor shortage, and Representative Vic Fazio (D-CA) succeeded in requiring the INS to establish a border entry program for illegal alien farm workers. Under this program, a foreigner could arrive at a US port of entry on the US-Mexican border, assert that she did farm work as an illegal alien in the US for 90 days in 1985-86, but had no records of such employment, and could enter the US with a 90-day work permit to contact the old employer and obtain the letter certifying employment.

Workers lined up at the ports of entry, and soon entrepreneurs offered work clothes, instruction in farming practices, and geography lessons to the thousands of Mexicans seeking to enter the US. Almost 100,000 Mexicans entered the US in 1987-88 under this border entry program, even though, near the end of the program, over 95 percent of those who applied were rejected.
Additional Farm Workers
Many unauthorized aliens were believed to be "trapped" in farm work by lack of English, skills, and documents. By granting farm workers legal status, the expectation was that nonfarm employers of unskilled workers, such as hotels and factories, would recruit SAWs, so that farm employers would gradually improve wages and working conditions to retain them. With sanctions preventing additional illegal aliens from entering the US, the expectation was that the low-wage labor market would gradually tighten.

However, farmers won another special exception that discouraged adjustments in crop choices and labor strategies. IRCA included two programs through which US farmers could obtain foreign workers if they faced labor shortages, the revised H-2A program and the Replenishment Agricultural Worker (RAW) program.

There are two major ways to import foreign workers: to tie them to a particular employer with a contract, or to permit the foreigners to be free agents in the labor market. Immigration schemes to reduce macro labor shortages usually permit foreigners to be free agents in the labor market, while programs that aim to meet micro labor shortages usually require the government to certify that foreign workers are needed, and then they tie the foreign worker to a particular vacant job with a contract.

The H-2A program is a contractual program. In exchange for having the government certify that the farmer faces a genuine labor shortage, the farmer is free to recruit workers where ever and however he pleases, and the foreign workers are required to remain with the employer who brought them into the US, or face deportation.

Farm worker advocates dislike the H-2A program, arguing that H-2A workers are "captives" of their US farm employers. In a strange bedfellows alliance, California farmers who feared that the United Farm Workers union might send them workers whenever they did the required advertising for US workers in order to obtain permission to obtain H-2A workers, and legal services attorneys who found it difficult to persuade H-2A workers to make complaints and enforce their contracts, a Replenishment Agricultural Worker (RAW) program was established.

The RAW program would have been a first in US immigration history. If the US government projected a farm labor shortage, then RAWS could be "admitted" to fill US vacant farm jobs. However, to protect farmers from government interference, there would be no certification that US workers were not available, and to protect the RAW workers, they would be free agents in the US, free to move from farm to farm. The immigration anomaly was that, after doing at least 90 days of farm work for three years, the RAW could become a legal immigrant, and five years of US farm work would enable a RAW to become a naturalized US citizen.

Neither the RAW nor the H-2A program admitted any additional legal foreign workers since IRCA was enacted, largely because illegal immigration continued, and document fraud enabled farmers and workers to satisfy IRCA. RAW admissions depended on national calculations of farm labor “need” and supply, and these calculations did not produce the necessary prediction of a labor shortage to justify the issuance of RAW visas, and so the RAW program expired on September 30, 1993.

H-2A admissions require employers to request for alien workers. The US Department of Labor added staff to handle the expected 200,000 H-2A applications per year, but instead admissions shrank from about 30,000 in 1989 to 15,000 in 1995. The shrinkage of the H-2A program is due in large measure to the mechanization of the Florida sugarcane harvest, which in the mid-1980s employed 9000 H-2A mostly Jamaican cane cutters. US Sugar, the nation's largest employer of H-2A temporary foreign workers for over 50 years, announced in June, 1995 that it would harvest all of its sugar cane by machine in 1996.

IRCA's Agricultural Effects
The SAW-RAW compromise was not debated extensively in Congress, although the possible effects of other immigration reforms on agriculture had been discussed throughout the early 1980s. However, IRCA should have had at least two effects in agriculture: farm workers should be legal U.S. workers, and farmers should have adjusted to expect fewer newly-arrived unauthorized workers from Mexico.

IRCA has not had these hoped-for effects in agriculture. There are several reasons, including a continued influx of unauthorized workers, and less rather than more effective enforcement of immigration and labor laws in agriculture. The demand for labor-intensive fruit and vegetable commodities, both in the US and abroad, has increased, encouraging increased plantings of the crops that tend to rely on foreign workers.

One of the most dramatic changes in the farm labor market due to IRCA is the switch from "undocumented workers" to "falsely documented" workers. Illegal immigrants who do farm work are usually among the poorest and least sophisticated such workers in the United States. IRCA may well be remembered as a stimulus to illegal immigration for spreading work authorization documents and knowledge about them to very poor and unsophisticated rural Mexicans and Central Americans, encouraging first-time entrants from these areas.

In the early 1990s, pre-IRCA legal farm workers, newly-legalized SAWs, and a continued influx of illegal aliens have produced an ample supply of seasonal workers, giving farmers little incentive to improve wages and working conditions. Study after study confirms the fact that most farmers have not raised wages, improved working conditions or housing, or otherwise made adjustments to recruit and retain legal workers. Instead, the IRCA-wrought influx of workers has encouraged in some cases reductions in wages and farm worker earnings.

Most farm workers have been paid the same per hour worked or unit of work done since the late 1980s, but farm worker earnings have nonetheless declined in many instances because, with more workers, each does fewer hours of work. Farm worker profiles indicate that a typical seasonal worker is available for farm work about 40 weeks per year, finds work during 20 to 25 weeks, or 700 to 1,000 hours, so that, at $5 hourly, farm work generates $3,500 to $5,000 annually.

Seasonal farm workers have also been affected by the post-IRCA tendency of farm operators to hire more seasonal workers through FLCs. In California, the “market share” of FLCs appears to have risen from about 1/3 of all job matches in the early 1980s to over half in the early 1990s. Employees of FLCs are worse off in several ways, including the tendency of FLCs to pay lower wages to recently arrived immigrants. Many FLCs condition employment on worker acceptance of housing away from the worksite, and then they charge workers for both housing and rides to work. Housing away from the farm, usually in barracks-style accommodations, costs each worker $25 to $35 weekly, and then the private rural taxis which provide rides to worksites typically charge each worker $3 to $5 daily. A worker getting $200 weekly (40 hours @ $5), often has $50 or 25 percent less take-home pay if he or she is employed by a FLC because of these housing and taxi charges.

Hiring documented illegal workers through FLCs means that few farmers have planned for a future of fewer and better-paid legal workers. Unlike the U.S. manufacturing industries that shrank in the face of lower-wage competition during the 1980s, labor-intensive U.S. agriculture expanded, usually in ways that guarantee farm labor shortages in the 1990s. In state after state, the story is similar: Washington apple acreage up 25 percent since IRCA; 3,000 acres of citrus planted in remote areas of California since the mid-1980s; thousand acre blocks of oranges planted in Southern Florida. When asked about the labor assumptions that went into these plantings, many of which will not need harvest workers until the mid-1990s, the answers are a sheepish we-didn't-think-about-labor or we assumed seasonal labor would be available at the minimum wage, “as it always has been.”

What Next?
There was a great deal of uncertainty about IRCA's effects on farmers and farm workers. This uncertainty, as well as the 4-year life of the RAW program, gave the IRCA-created Commission on Agricultural Workers (CAW) its mandate to review the effects of IRCA and especially its SAW provisions on the farm labor market.
The Commission was charged with “reviewing” nine questions and conducting “an overall evaluation of the special agricultural provisions” of IRCA. On the basis of case study research and hearings, the Commission made three types of findings. First, in its overall evaluation of the SAW program, the Commission concluded that the majority of SAW-eligible undocumented workers gained legal status, but through such a flawed worker- and industry-specific legalization program that Robert Suro in the New York Times described the SAW program as " one of the most extensive immigration frauds ever perpetrated against the U.S. government."

Second, the Commission found that, although the SAW program legalized many undocumented farm workers, the continued influx of illegal workers prevented newly legalized SAWs from obtaining improvements in wages and benefits from farmers. Third, the Commission reported that the farm labor market continues to leave the average farm worker with below-poverty level earnings.

The Commission recommended that federal and state governments should take steps to develop a legal farm work force, to improve social services for farm workers and their families, and to improve the enforcement of labor laws. In response to IRCA's failure to reduce illegal immigration, the Commission recommended more enforcement and a fraud-proof work authorization card. To combat declining real wages, the absence of benefits like health insurance, and the exclusion of some farm workers from federal and state programs that would make them eligible for unemployment insurance benefits and workers compensation, the Commission recommended that the federal government provide more services to farm workers and their children and that farm workers be covered under protective labor laws. Finally, the Commission recognized that federal and state agencies today have only a limited ability to enforce farm labor laws, and recommended that enforcement efforts should be better coordinated and targeted.

The Commission also made several recommendations that may undermine some of these efforts to reduce farm worker poverty. For example, the Commission recommended that the same regulations govern the importation of non-immigrant farm and nonfarm workers. This recommendation was made in the spirit of ending agricultural exceptionalism, the practice of exempting farmers from labor laws under the theory that family farmers should not be burdened by excessive formal regulation. However, the employer certification and worker protections in the agricultural H-2A program are there because of past problems. While the Commission developed no evidence that the nonfarm H-2B program needs these extra procedures and protections, it heard considerable testimony that current protections in the H-2A program are
inadequate. Thus, the intent of this recommendation can only be to substitute weaker H-2B procedures for stronger H-2A rules, and this flies in the face of the evidence that was developed. The H-2A program may need to be reviewed, but probably not with the goal of substituting H-B2 criteria for H-2A criteria.

The Unfinished Agenda
Most of the Commission’s consensus recommendations are a useful step in the right direction, but they fail to deal with the root causes of the farm labor problem and the legacies of IRCA’s agricultural provisions. The federal government has permitted immigration to be a subsidy for the labor-intensive fruit and vegetable subsector of U.S. agriculture. This immigrant labor subsidy encourages the expansion of an industry in which the majority of workers earn below poverty-level incomes. This farm worker poverty is widely recognized, but there is unlikely to be an effective solution to reduce it until the question of who is responsible for the farm worker's plight is confronted.

It is often argued that poor farm workers are the price that must be paid for cheap food. But the relationship between cheap farm workers and cheap food has not been studied. The numbers seem to belie this conventional wisdom. Two-thirds of the nation’s farm work is done by farmers and their families. Hired workers do only one-third of the nation’s farm work. Immigrant farm workers, the poorest hired workers, do about two-thirds of the work done by hired workers. This means that, if there were no immigrant farm workers, almost 80 percent of the nation’s farm work would be done without them. In other words, holding down the wages of seasonal farm workers, while it impoverishes more than 1 million American workers, holds down the average family's food bill only a little. Even in the case of the fruits and vegetables that immigrant workers harvest, farm wages typically account for less than 10 percent of the retail price of a head of lettuce or a pound of apples. Doubling farm wages, and thus practically eliminating farm worker poverty, would raise retail food prices by less than 10 percent.
Retail food prices may not even increase if the U.S. government aimed to increase rather than depress farm wages. The farmers who relied on Mexican Bracero workers in the early 1960s argued that "the use of braceros is absolutely essential to the survival of the tomato industry." What happened when they nonetheless disappeared? The termination of the bracero program in 1964 accelerated the mechanization of the harvest in a manner that quadrupled production to 10 million tons between 1960 and 1990. Cheaper tomatoes permitted the price of ketchup and similar products to drop, helping to fuel the expansion of the fast food industry.

Not only is it inefficient to hold down food prices by holding down farm worker wages; it is also morally wrong. Why should immigration exceptions hold down the wages of farm workers, who average $5000 annually, in order to lower food prices for nonfarm workers, whose average earnings are $25,000 per year? The federal government should collect data and conduct studies on the true costs of cheap farm workers. These costs are significant, and as the farm work force includes more and poorer immigrants, the cost will rise.

Second, the government will have to deal with the new dynamic element that is gradually reducing it’s ability to regulate the farm labor market: farm labor contractors (FLCs). FLCs are the intermediaries who, for a fee, recruit, transport, and supervise farm workers. Since IRCA was enacted in 1986, the share of all seasonal job matches made by FLCs has increased. Today it exceeds 50 percent in many harvest labor markets. Worker, farmer, and agency testimony as well as research suggest that FLCs are practically a proxy for the employment of undocumented workers and egregious or subtle violations of labor laws.

Given ineffective immigration controls and insufficient farmer-provided and public services, such as housing for newly-arrived immigrants, FLCs have privatized important parts of both immigration policy and immigrant services. As they play the role of 19th Century ship captains in recruiting, transporting, and employing new arrivals, their activities promise to bring into rural communities some of the neediest immigrants – relative to the average American – that have ever arrived in the United States.

The increase in FLC activities has been driven by several factors, including farmer efforts to minimize enforcement risk, the arrival of more diverse immigrant workers, and the legalization of people with the requisite experience to get into the game. IRCA's employer sanctions increased the potential cost of hiring illegal alien workers, so growers rationally tried to shift these risks to FLCs, since they, under IRCA, are employers in their own right. Second, the "new-new" immigrants arriving since IRCA have in many cases needed non-traditional intermediaries for language, recruitment, or social service reasons – farmers used to dealing with Mexicans from the Central Highlands were not necessarily capable of dealing with the Mixtecs and Guatemalan Indians arriving today. Third, the SAW program legalized more persons who could be FLCs; FLC registration usually requires legal status, and some newly-legalized SAWs became FLCs.

FLCs, immigrants, and labor standards seem to be mutually incompatible. A contractor operates between a farmer and a farm worker, but the power of the two over the contractor is very different. Farmers typically know what the going overhead or commission is, and thus FLCs are unlikely to extract an extra-high fee from them. Newly-arrived immigrants, on the other hand, may not know the minimum wage, so that FLCs can turn what appears to be a money-losing deal with farmers into a profit-making deal by extracting money from workers. As the U.S. Industrial Commission observed in 1901, "the position of the contractor...is peculiarly that of an organizer and employer of immigrants...He holds his own mainly because of his ability to get cheap labor...(he)succeeds because he lives among the poorest class of people, knows them personally, knows their circumstances, and can drive the hardest kind of bargain with them." The United States may have to follow the German practice and prohibit labor contracting in industries in which contracting has proven difficult to regulate.

Third, IRCA’s most important legacy may be the foundation it laid for a new wave of rural poverty in the United States. The rural poverty that many thought was reduced when millions of small white and Black farmers left agriculture in the 1950s and 1960s may be recreated through immigration in the 1990s.

The SAW program legalized mostly young Mexican men who were working illegally in U.S. agriculture. By legalizing only these working men, some hoped that they would be encouraged to continue to return to their families each winter. Many continue to commute between the United States and Mexico, but many others are bringing their families to the United States. These mixed families – mixed in terms of the legal status of family members – need education, health, and social services if they and their children are to succeed in the United States. However, their settlement in rural America and their mixed legal status makes it difficult to provide them with the social services that they need.

Lessons
Immigration reform in U.S. agriculture was a case of Good Intentions Gone Awry. Instead of ending a century of immigration and labor law exceptions, IRCA reinforced them: immigrant workers continue to act as a subsidy that encourages the expansion of a subsector of the U.S. economy in a manner that leaves the majority of its workers in poverty. Cheap farm workers do not provide consumers with cheap food, but they do act as a regressive tax on some of the poorest American workers. Furthermore, fruit and vegetable agriculture does not employ seasonal farm workers for a lifetime; when they leave through agriculture’s revolving-door labor market, they increasingly become the neediest residents in American towns and cities.

Americans want a prosperous farm economy that can provide them with an abundant supply of food. But the fruit and vegetable subsector of American agriculture is expanding in a manner that requires all taxpayers to alleviate the human suffering it produces. Making the fundamental changes in the immigration policy and enforcement that are necessary in order to reduce or eliminate farm worker poverty, instead of merely mitigating it, is the economically and morally right thing to do.
Farm workers and their families remain near the bottom of the socio-economic ladder because the federal government has been more willing to help individuals to escape from the farm labor market than to control immigration so that farm workers can help themselves. Farm workers and their children who find nonfarm jobs often obtain higher incomes, but if they are replaced in agriculture by even more desperate immigrants, the United States is condemned to a Sisyphean task in its quest to reduce farm worker poverty.