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October 1999, Volume 6, Number 10

Agricultural Guest Workers

In the early 1980s, the percentage of unauthorized workers among US farm workers was 20 to 25 percent and rising, farm wages and benefits were flat or declining, and farmers who feared labor shortages after employer sanctions were approved argued that a new guest worker program was needed.

In the late 1990s, the percentage of unauthorized workers among US farm workers is about 50 percent and rising, farm wages and benefits are flat or declining, and farmers who fear labor shortages as stepped up border controls and employer sanctions enforcement are fine-tuned, argue that a new guest worker program is needed.

There have been a flurry of announcements of support for a new guest worker program. In September, 1999 both Mexican and US politicians expressed interest in a new guest worker program. Mexico's Foreign Minister Rosario Green said on September 2 that Mexico and the US are negotiating about a temporary visa program under which Mexicans could work on US farms at harvest time or in hotels during tourist season. The negotiations, she said, are in early stages and more details may be available at the 2000 Binational Commission meeting.

After a meeting with Mexican border governors, the governors of Arizona, New Mexico, and Texas in September 1999 endorsed a guest worker program that would allow Mexicans to be employed by US employers in hotels, restaurants, construction and landscaping; California Governor Gray Davis did not endorse the call for a guest worker program initiated by Arizona Governor Jane Hull. One of the five Mexican governors at the border conference said guest workers "make more sense than denying the need for workers and prompting many Mexicans into going to work [in the US] illegally."

In September, 1999 several senators, including Dianne Feinsten (D-CA), are expected to introduce a new guest worker bill that would once again offer amnesty or legalization for unauthorized workers employed on US farms.

From SAW-RAW to AgJOBS. Such a law would make a second attempt to legalize the farm work force. The Special Agricultural Worker program, one of two legalization programs included in the Immigration Reform and Control Act of 1986, attracted 1.3 million applicants who claimed to have worked at least 90 days in perishable crops on US farms as unauthorized workers in 1985-86; about 1.1 million SAWs became legal immigrants, including 750,000 who likely did not do 90 days of farm work. In a 1989 New York Times article, a journalist called the SAW program "one of the most extensive immigration frauds ever perpetrated against the United States government.”

IRCA included a Replenishment Agricultural Worker provision, which was designed to permit the employment of legal probationary immigrant farm workers if SAWs left farm work so fast that, despite grower efforts to improve wages and working conditions, farm labor shortages appeared. The RAW program was criticized by all sides and never used during its 1989-93 life, largely because there were no farm labor shortages and because most of those who registered for the RAW program provided US addresses, which led many farmers to presume they were already in the US and thus would not add to the farm labor supply-- over 90 percent of the 700,000 persons who registered for the RAW program in 1988-89 provided US addresses.

The grower-dominated Commission on Agricultural Workers (CAW) evaluated SAW-RAW between 1989 and 1992, and concluded that the farm workers legalized under the SAW program had not seen their wages and working conditions improve, largely because continued illegal immigration made it unnecessary for farm employers to raise wages to retain SAWs. Despite requests from many farm employers, CAW did not recommend a new agricultural guest worker program. Instead, CAW called on federal and state governments to 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 immigration and labor laws by developing, for example, a fraud-proof work authorization card.

The US Commission on Immigration Reform went further in opposing a new guest worker program in June 1995, stating that: "a large scale agricultural guest worker not in the national interest...such a program would be a grievous mistake." On June 23, 1995, President Clinton issued a statement opposing an agricultural guest worker program, asserting that a guest worker program would increase illegal immigration, displace US workers, and depress wages and working conditions. Clinton said that "If our crackdown on illegal immigration contributes to labor shortages.... I will direct the departments of Labor and Agriculture to work cooperatively to improve and enhance existing programs to meet the labor requirements of our vital agricultural industry consistent with our obligations to American workers."

Despite evidence of an ample supply of farm workers, as indicated by lagging farm wages, there have been ongoing calls for a new guest worker program. For example, after California voters approved Proposition 187 in November 1994, outgoing Mexican President Salinas and California Governor Wilson—who were on opposite sides of the Proposition 187 debate—agreed that there should be a new guest worker program that would allow Mexican workers to be employed temporarily in the US. Frank del Olmo of the Los Angeles Times argued in a January 31, 1995 Op-Ed in the newspaper that a guest worker program is the "least bad" means to control illegal immigration. On February 6, 1995, California Attorney General Dan Lungren, the Republican candidate for governor in 1998, called for a guest worker (companero) program that would permit Mexican workers to be "free-agent" workers in the US.

Beginning in 1995, farmers had bills introduced in Congress to launch a new guest worker program for agriculture, at least on a pilot basis. There were several proposals, but they shared the call for an end to labor certification, the process though which DOL decides, before foreign workers are admitted, whether they are needed. One striking feature of the mid-1990s farmer proposals is that they did not emphasize labor shortages or a "need" for foreign farm workers; instead, the proposals were justified in the name of obtaining legal workers and ensuring their return.

On July 23, 1998, the Senate approved on a 68-31 vote the Agricultural Job Opportunity Benefits and Security Act of 1998 or AgJOBS as Amendment 3258 to the Commerce-Justice-State Department appropriations bill; the House did not act on the bill. AgJOBS would have substituted a registry run by the Employment Service for labor certification by DOL.

1998 Proposal. Growers do not want the US government to control the border gate, as it does under the current H-2A program. In 1987, the Department of State issued visas to about 13,000 mostly Caribbean H-2A workers. In 1998, DOS issued about 26,400 H-2A visas; about 80 percent went to Mexicans. In the late 1980s, the major employer of H-2A workers was Florida sugarcane, which imported 9,000 to 10,000 Caribbean H-2A workers to hand-cut sugar cane. In the late 1990s, the major employer of H-2A workers are tobacco farmers in North Carolina and other middle south states.

The registry included in the 1998 proposal, and expected to be included in 1999 proposals, would have eliminated this governmental control by requiring legally authorized farm workers to register with local Employment Service offices and indicate whether they were willing to migrate out of the area for farm jobs. Employers would then submit job offers to the ES registry, and ES would verify that the jobs offered paid prevailing wages before listing them, that is, the new registry would assume responsibility for: (1) verifying the legal status of workers seeking to register by checking the documents and data they provide with INS and SSA; and (2) verifying that employer job offers satisfied requirements of any new program.

If an employer made a request for 100 workers at least 21 days before they were needed, and ES had only 40 registered workers willing to go to the requesting employer seven days before the need date, the grower would receive a "shortage report" from the registry that would grant him permission to bring 60 foreign farm workers into the US. US workers would be dropped from the registry and deemed unavailable for US farm jobs if they rejected three registry requests for workers from farmers. The ES would be responsible for advertising and making both workers and farm employers aware of the registry.

In addition to the registry, the other major features of the 1998 AgJOBS H-2A program included:

1.) Foreign workers admitted under the new program would receive up to 10-month renewable H-2A visas; they could remain in the US continuously for up to three years;

2.) Employers would pay federal FUTA and FICA taxes on the wages of the foreign workers to a trust fund rather than to UI and SSA authorities, about 8.3 percent of their earnings-- trust fund monies would be used to reimburse DOL and INS for their costs of administering the program. Most migrant and seasonal farm workers do farm work for about 1,000 hours a year; at $6-$7 an hour, employers would pay $500 to $580 a year per worker into the trust fund, so that every 10,000 AgJOBS foreign workers would generate $5 million;

3.) If the Attorney General found that a significant number of AgJOBS foreign workers were remaining in the US, 20 percent of their earnings could be withheld and paid into the trust fund, and returned to the worker after he surrendered the visa-ID, which would include a photo and biometric information;

4.) AgJOBS H-2A foreign workers who completed at least six months of farm work in each of four consecutive calendar years could become third-preference immigrants; this provision is similar to the probationary immigrant plan of the never-used RAW provisions of IRCA, but there is a lengthy wait for immigrant visas for third preference unskilled workers; and

5.) There was no limit on the number of AgJOBS foreign workers who could be admitted.

Outlook. Growers hired the former executive director of the National Immigration Forum, Rick Schwartz, to contact migrant advocates and broker a compromise that would turn them from opponents to supporters of a new guest worker program. Apparently are a result of his efforts, the Carnegie Endowment issued a paper in June 1999 that embraced most of the growers proposals, including the registry and a probationary immigrant status that would require unauthorized farm workers in the US who registered for visas under the new program to continue to do US farm work for five to seven years or lose their legal status. In exchange for acceding to the more grower-friendly "H-2A EZ," the Carnegie paper advocates "zero tolerance" for unauthorized migration and labor law violations.

When discussed during a meeting of migrant advocates on September 8, 1999 in California, the Carnegie proposal was greeted with skepticism. The proposal begins from the premise that almost anything that decreased illegality in the farm labor market would be an improvement, an assertion that was not uniformly endorsed. The Carnegie proposal seemed to have an important internal contradiction. On the one hand, the program was argued to be acceptable to growers because it reduces labor supply uncertainty: growers want to be assured that workers will be available when needed. However, to "protect" newly legalized workers who are required to do US farm work, workers will not be tied to any particular employer with a contract.

Jim Holt, testifying on behalf of the National Council of Agricultural Employers May 12, 1999, argued that:

1.) US farmers need access to foreign farm workers if the US wants to continue expanding its labor-intensive fruit and vegetable agriculture;

2.) welfare reform and currently unemployed workers do not want to do farm work, and that workers referred to farm employers by state Employment Services offices are not screened for legal status, and thus farmers cannot be assured that, by hiring ES-referred workers, they are hiring legal workers;

3.) the H-2A program cannot provide legal nonimmigrant workers to farmers because it is too complex and requires both the provision of housing and the payment of an Adverse Effect Wage Rate or AEWR, a guaranteed hourly wage set for each state that ranged in 1999 from $6.21 to $7.53, and averaged $6.98. [Since 1987, each state's AEWR is the average hourly earnings of field and livestock workers in the previous year. USDA stopped asking farmers if they provided housing to employees in 1995, when US employers reported that they provided housing—free or charge-- to about 15 percent of their employees].

Holt argued that the current AEWR be replaced by a 51st percent standard—a sample of wages observed in the labor market would be recorded, and the wage paid to the 51st percentile of workers would be considered the AEWR—any employer paying the 51st percentile or more would satisfy this new AEWR requirement.

As the guest worker debate heats up, op-ed articles appeared, some arguing that some legal program must be better than the status quo, and others contending that the US would be foolish to revive the discredited Bracero program. Kitty Calavita in the Los Angeles Times noted that 500 Braceros arrived in Stockton on September 29, 1942, setting in motion Mexico-US migration networks. She argued that the case for a new guest worker program rests on effective enforcement of border controls and employer sanctions that eliminate unauthorized workers, which she calls improbable, and a conviction that the H-2A program is inappropriate, which is not what most government and academic observers believe.

The Seattle Times on September 5, 1999 outlined the prospects for a new guest worker program. If there is no guest worker program, changes now underway may reduce the need for guest workers. For example, the story noted that some farmers have diversified their crops so that they can employ fewer workers for longer periods. Randy Smith of Cashmere, Washington now grows 19 varieties of fruit and provides housing for most of his long-season employees. Ken Bailey's Orchard View Farms is the largest US cherry farm, with 1,100 acres and a peak 600 workers.

Some commentators noted that the Mexican government has an interest and capacity—in light of US divisions--to shape any new guest worker program for US agriculture far greater than it had at the time the Bracero program was created. Mexico wants access to the US labor market for its citizens, but also wants their rights to be protected.

Lynda V. Mapes, "Growers favor letting farmworkers trade time in fields for legal residency," Seattle Times, September 5, 1999. Finlay Lewis, "Immigrant amnesty bill sought. Would link farm work to quest for legal status," San Diego Union Tribune, July 29, 1999. Kitty Calavita, "Why Revive an Inhuman Program?" Los Angeles Times, July 18, 1999. Roberto Suro, "Migrants' False Claims: Fraud on a Huge Scale," New York Times, November 12, 1989. Papademetriou, Demetrios and Monica Heppel. 1999. Balancing Acts: Toward a fair bargain on seasonal agricultural workers. Washington. Carnegie Endowment Paper 9.