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Immigration and Guest Worker -- Mark Silverman




By Mark Silverman, Staff Attorney

Immigrant Legal Resource Center

March 20, 2000


Our comments will focus on analysis of best practices and suggestions for further improvements in the area of immigration policy. Our comments are on immigration policy related to migrant and other farmworkers cannot be separated from our views on the question of "Guest Worker" legislation in general. Therefore, we believe it useful to express those views from the outset.

We at the Immigrant Legal Resource Center (ILRC) believe that there is no need for a "Guest Worker" program. We therefore vigorously oppose the proposals currently before Congress, as well as any Guest Worker legislation because we believe such programs increase worker exploitation, lower wages and working conditions, and increase the number of undocumented workers in the U.S. The reason being that "guest workers" will remain in the U.S., despite withheld wages. As has been pointed out, there is nothing as permanent as a "temporary" worker program.

Below we discuss some specific best practices as well as suggestions for immigration policies that affect migrant families. We support these recommendations, but we oppose any Guest Worker legislation even if combined with some of these proposed changes in immigration law.

In about June of 1999, the federal government issued excellent proposed regulations and an interim policy in defining what constitutes "public charge" for immigration purposes. It may well have been that the Immigration and Naturalization Service (INS) played the major role in formulating this new policy. It is, however, probable that the Department of State (DOS) also played a key role in their formulation. In any event, this is the new policy of both the INS and DOS.

One of the most important parts of this policy is to state very clearly that access to public health programs will not constitute public charge except for benefits related to long-term institutional care. This policy change is critical in promoting migrant families’ access to preventitive health care programs such as the federal CHIP program (called "Healthy Families" in California).

Example: Carlos Campo is a legal resident who has filed an immigrant visa petition for his wife, Maria. Carlos and Maria have three U.S. citizen children. Carlos had been afraid to apply for the Healthy Families program for his children because he had heard that these benefits would be considered a "public charge" which could make Maria ineligible to immigrate. The new federal policy, however, has clarified that neither receipt of Healthy Families nor Medicaid will have a negative impact on Maria’s immigration because these health benefits are not considered a "public charge" in that they are not for long-term institutional care. Carlos and Maria now have signed their children up for Healthy Families which is a win-win situation: resulting in an improvement of the children’s healthcare (and health), and therefore, indirectly, their educational achievement, and an overall reduction in public expenditure on children’s healthcare. (The old saying "an ounce of prevention..") has clearly been demonstrated to be true in terms of healthcare for all children.

Outreach Efforts: There has also been considerable collaboration between governmental entities and community-based organizations (CBO’s) to get the word out to migrant families (and other immigrants) that signing up for CHIP programs like Healthy Families poses absolutely no risk to their ability to immigrate. We suggest that these efforts be intensified because many families are still afraid to access these very valuable programs.

3. IMPLEMENTATION OF AFFIDAVIT OF SUPPORT PROVISIONS OF FEDERAL IMMIGRAITON LAW. Santiago Plan: 1, 6 (subsection on rights of children), 7

Best Practices: The changes in the 1996 immigration law has created a rigid affidavit of support requirement that prohibits citizens and legal residents from immigrating their children and spouses unless the family earns 125% of the official poverty level or can find another co-sponsor. The State Department’s consular offices have taken some positive steps in simplifying what has become a very cumbersome process, which is difficult for all immigrants to navigate, and therefore is even more difficult for migrant families. There has also been positive guidance by the DOS to the consulates.

Suggestions for Further Improvements in Policy Implementation: The Department of State has made positive changes in terms of simplifying the process. Unfortunately, a number of U.S. consulates which process family-based immigrant visa applications continue to incorrectly implement the existing affidavit of support rules. Common errors include: a) failure to accept the validity of binding affidavits by legitimate co-sponsors; b) insisting that families who meet the low-end of the affidavit requirement show additional income. It is also unfortunate that a number of consular officials ignore the policy memos sent to them by the DOS. Our suggestion is a simple one: the consular offices should adhere to the law and the policies of the Department of State. The incorrect implementation is especially troubling given the recent positive changes in the definition of "public charge" as discussed in the previous section (1) above.

4. BEST PRACTICE: IMPLEMENTATION OF SECTION 245(I) OF THE IMMIGRATION AND NATIONALITY ACT (INA): Santiago Plan: 1, 6 (subsection on rights of children)

In 1994 Congress enacted section 245(i) of the Immigration and Nationality Act (INA). This law represented a win/win situation for the State Department, the INS (which now receives a penalty fee of $1,000 per applicant which is very important in funding its adjudications), and migrant and other immigrant families. Those who qualify based on this provision benefit enormously because it permits the spouses and children of U.S. citizens and legal residents to obtain legal status in the United States. In areas such as California’s Central Valley, the effect of such legislation would be to reduce the percentage of undocumented workers in the agricultural labor force.

Best Practice: Congress failed to permanently renew section 245(i) in 1997. Congress did extend its protection to any family member for whom a petition was filed by January 14, 1998. This is critical for thousands of migrant families because if the spouse or child is permitted to immigrate within the U.S., he or she avoid being affected by penalties which could force the person to remain outside the U.S. for up to ten years. Please see Appendix A for a more detailed explanation of the importance of this provision.

In April of 1999, the INS issued the first of two excellent memos, implementing the "grandfather" clause of 245(i) in a very flexible and common sense fashion. In essence, it permits anyone who had a valid ("approvable") family (or employment) visa petition filed on their behalf by the cut-off date to continue to qualify to have their final application processed in the U.S. and thus avoid the ten-year bar. It is very possible that the DOS supported this interpretation because it will result in substantial reductions in consular processing workloads.

Additional Suggestions: We recommend that the Service (INS) and the DOS continue to support the permanent renewal of section 245(i) in order to continue to benefit the INS (increased fees for adjudication), the DOS (decreased workload), and migrant and other families (ending the menace of long-term separation).


In this section, we will focus on the immigration aspects of proposed "guest worker" legislation. Our major premise is that temporary workers are subject to exploitation by employers who can hold their immigration status over the workers’ heads, the end result being decreased wages and worsened working conditions. Any immigration legislation that aims to affect the supply of legal farmworkers must therefore provide the farmworkers with lawful permanent resident (LPR) status. Obtaining LPR status for agricultural workers should not be contingent upon an applicant’s continued farm work, as the 1986 SAW program required. The advantage of reducing this particular burden is that it will result in a reduction in the number of undocumented farmworkers in the U.S. Any new legislation should incorporate lessons that we learned through the SAW program.

First, any requirement of past farm employment must be for a realistic period of time, and for considerably less than the 90 days per year by the SAW program. Many real farmworkers submitted less than perfectly valid documentation to establish 90 days of farm labor because the 90 requirement was too onerous to prove, and because multiple contractors and/or employers were inaccessible to the SAW applicants. A current proposal that includes a 150 day requirement is even more unrealistic.

Secondly, to deter undocumented immigration, family members must be accorded derivative status – a benefit not included in the SAW program. This will prevent the separation of wives and children from the legalized farmworker husband/father. Such family separation is an enormous contributor to undocumented immigration. An example will illustrate this: Carlos Campos, a migrant farmworker for years, obtained lawful permanent resident (LPR) status through the SAW program on December 1, 1990. His wife and children still resided in Michoacan, Mexico – a common scenario. Under the SAW statute, Carlos’ wife and children were not permitted to obtain LPR status along with him. This was a significant deviation from the traditional approach in immigration law that normally permits the spouse and children (called derivative beneficiaries) to immigrate at the same time as a spouse/parent. Carlos filed a visa petition for his family in 1991. At that time he discovered that his wife and children would have to wait many years (it probably turned out to be five to six) before they could immigrate and join him. Understandably, his wife and children entered the United States without permission in order to be with Carlos. This occurred in tens of thousands of cases. In addition to separating families, the failure to include derivative beneficiary status to spouses and children resulted in a significant increase in undocumented immigration, especially beginning around 1990. Any future legislation must incorporate derivative beneficiary status in order to avoid this otherwise inevitable flow of undocumented immigration.

Third, the public charge ground of inadmissibility should be waived in any new legislation. In the alternative, the current affidavit of support requirement should be waived. Persons usually may not immigrate to the U.S. if they are "likely to become a public charge". INA (Immigration and Nationality Act) 212(a)(4). This ground of inadmissibility should be waived in any farmworker legislation because of the extremely low annual income earned by most farmworkers. Very few farmworkers are in fact likely to become a public charge, according to the INS and State Department proposed rules on the public charge ground of inadmissibility, issued on May 26, 1999. Many farmworkers, however, will have a difficult time establishing that they and their family members are not likely to become public charges because their farm wages are so low. There is ample precedent for waiving this ground of inadmissibility in immigration law (e.g. asylees and refugees).

In the alternative, legislation must exempt farmworkers and their spouses and children from the onerous affidavit of support requirement pursuant to INA 212(a)(4)(C). See also INA 213A. Modifying the prior example will illustrate the problem. Carlos Campos, a migrant farmworker for years, applies for lawful permanent resident (LPR) status through the new hypothetical legislation. His wife and three children still reside in Oaxaca, Mexico. The current affidavit of support rules require that Carlos (or a co-sponsor) have an annual income of $24,400 in order to be able to immigrate his family. This is far higher than the annual income of most farmworkers. Under our proposal, there would be no mandatory affidavit of support requirement. The INS (or State Department) would instead weigh various factors including the family members’ ages, health, and assets as well as the affidavit of support. See INA 212(a)(4)(B).

Fourth, the "three and ten year bars" and the "permanent bar" based on unlawful presence should be waived. Returning to the prior example, let us assume that Carlos Campos has been working without authorization in the fields for a number of years, and that he has frequently returned to Mexico to visit his family, most recently in December for about four months. These departures (and undocumented re-entries) would bar Carlos from being able to immigrate. INA 212(a)(9)(B) and 212(a)(9)(C). These grounds of inadmissibility must be made inapplicable to persons seeking residency under any future farmworker legislation.

Fifth, there may need to be a cap on the number of persons who may legalize through the program. Applications should be accepted only from persons residing in the U.S. until it is clear that there are unfilled numbers under the cap. It would be a travesty of justice and common sense to bring workers into the U.S. pursuant to future legislation without giving the clear "first shot" to undocumented farmworkers already residing here. This will be important if there is a "cap" on the number of persons who may immigrate through future farmworker legislation.

6. IMPROVEMENTS IN WAGES AND WORKING CONDITIONS ARE FUNDAMENTAL TO RESOLVING AGRICULTURAL LABOR ISSUES. Santiago Plan: 6 (especially first two subsections - on working conditions and wages)

There is no shortage of agricultural workers in the U.S. In fact, farmworkers suffer from high unemployment and underemployment rates. Furthermore, it is not possible to even consider, much less resolve, questions of labor shortages in agriculture without first ensuring that farmworkers earn decent wages, have good working conditions, and have meaningful freedom to organize into unions.

There is a conflict between the goals of farm owners (adequate labor supply at low wages) with those of farmworkers and supporters (adequate job supply at decent wages). Any solutions to agricultural labor issues must promote a policy of adequate labor supply with decent wages and working conditions.

Experts in issues concerning migrant workers have identified a key issue: If [farmworkers] and their children succeed in urban labor markets, then the US immigration miracle of giving opportunity to the poor of other countries is repeated. If they do not, then rural poverty in Mexico becomes rural and eventually rural and urban poverty in the US. In our view, in order for immigrant agricultural workers to repeat the US immigration miracle, in addition to addressing wage issues, our policies must also promote infrastructure, especially education, in farmworker communities. Public policy must make the growers pay their fair share of the social cost of guaranteeing adequate supplies of seasonal labors through appropriate tax contributions at the federal level and especially at the state and local levels. The transfer of poverty from rural Mexico to small rural communities in California has created tremendous burdens on these communities. Currently, the growers benefit from this situation without having to bear their proportionate share of this burden.




Section 245(i) allowed otherwise eligible people to apply for green cards from within the United States, rather than returning to their home countries. It applied only to people who were eligible for green cards based on their family or employment relationships. This eligibility was based on their passing Immigration and Naturalization Service (INS) screenings for eligibility, including screenings for criminal offenses, health problems, whether they would use public benefits, whether they had committed immigration fraud or misrepresented themselves on an INS application. The issue is not whether these applicants are eligible to become permanent residents, but rather from where they can apply, from the U.S. or from their countries of origins. Without Section 245(i), people must return to their home countries and stay there while their green card applications are being processed. In some instances, that means being away from their families up to ten years.

Hypothetical Example to illustrate problem: Julie Lopez is a U.S. citizen. Julie married Joe in May of 1998. They now have one child born in the U.S. Joe entered the U.S. without permission in 1996.

Julie submitted a visa petition for Joe in June of 1998 -- after the January 14, 1998 deadline. If Section 245 (i) is not extended, Joe will not be able to obtain his legal permanent residency through adjustment of status in the U.S., and will have to leave the U.S. in order to obtain his legal residence status at the U.S. Consulate in Mexico (Ciudad Juarez).

The problem is that under current law, since Joe has remained in the U.S. for more than one year, she is subject to the ten-year bar as soon as she leaves the U.S. Therefore, the cruel reality is that as soon as Joe leaves the U.S. to obtain his legal residence status in the U.S. Consulate, she will be subject to the harsh ten year bar and face separation from his wife and baby. There are thousands of families facing the same cruel dilemma as the Lopez family.