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July 2004, Volume 11, Number 3

Congress: AgJOBS, Dream, Solve

The Agricultural Job Opportunity, Benefits, and Security Act (AgJOBS) was not attached to must-pass bills in the Senate in July 2004. Supporters argued that AgJOBS should be approved because it was a compromise between worker and employer advocates, would test the "earned adjustment" concept, change the procedure for obtaining H-2A workers from certification to attestation, and increase security by identifying unauthorized foreigners in the US. It can be expected to be re-introduced in the next session of Congress.

AgJOBS, supported by both worker and employer groups would offer an earned immigrant status to currently unauthorized farm workers who did at least 360 days of farm work over the next six years (Title 1), and would make the H-2 program more employer-friendly (Title 2).

To qualify for an AgJOBS legal temporary resident permit, unauthorized workers would have to do at least 575 hours or 100 days of farm work during any 12 consecutive months between March 1, 2002, and August 31, 2003. Applicants for LTR status would have to create a "just and reasonable inference" of eligible employment, which could be satisfied with an affidavit from an employer asserting that the worker did the required work. Strict confidentiality provisions prohibit the government from using applicant information to prosecute employers or workers for past violations of tax or welfare laws.

Once the worker qualified for temporary resident status, his spouse and children would be permitted to stay in the United States, but could not work; when the worker earned immigrant status, spouses and children would also receive it. Legal temporary residents would be required to perform at least 360 days (at least one hour of farm work for a day) of "agricultural labor" during the first 2,555 days (seven years) after enactment of AgJOBS. Unlike H-2A workers, temporary residents are not tied to a particular US employer; they can change jobs and do nonfarm jobs as well.

Under AgJOBS, the H-2A program would be changed from a certification to an attestation program. Under certification, the border gate remains closed until the US employer convinces the government that it was unable to recruit US workers at government-set wages and working conditions. Under attestation, by contrast, the employer merely attests that he is offering prevailing wages, and DOL must approve employer applications for guest workers, which enables employers to bring guest workers through border gates. US employers would no longer have to file job offers via the interstate clearance job order system of the US Employment Service to show that US workers are unavailable, and farm employers could send job orders to local ES offices 28 days in advance of the date on which they need workers, down from the current 45 days.

The AEWR that farmers must offer local workers and pay to H-2A workers, would be frozen at the 2003 rate for three years, after which annual increases would be capped at four percent a year. In a key victory for California growers, most of whom do not offer housing to the workers employed on their farms, employers would be able to offer a housing allowance rather than free housing if a state's governor certified that there was sufficient housing available for out-of-area workers. AgJOBS would also change the current H-2A requirement to provide housing to workers who "are not reasonably able to return to their residence within the same day" to a more limited requirement- only workers who live "beyond normal commuting distance" would be provided with housing.

Many newspapers editorialized in favor of AgJOBS. For example, the Wall Street Journal on May 7, 2004 asserted that "The nation's farm economy has long suffered from a shortage of workers willing to do the backbreaking but essential labor that Americans tend to shun" and complained that it is hard to obtain legal guest workers via the H-2A program because "the Department of Labor compliance manual runs to 325 pages, and the specifications are notoriously legalistic and time-consuming." Thus, AgJOBS would "fix a broken guest worker program and thereby induce more use of it."

Senator Larry Craig (R-ID) said that AgJOBS provides "A one-time, earned adjustment program would permit about 500,000 proven, trusted workers with a substantial history of U.S. farm work before September 1, 2003, to keep working here, legally."

DREAM. There were an estimated 1.3 million unauthorized children in K-12 schools in 2002; about 65,000 a year graduate from high school, and 13,000 are believed to be enrolled in public colleges and universities. The pending Development, Relief and Education for Alien Minors Act (S1545) would allow states to offer in-state tuition to unauthorized foreigners. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 says, "An alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a state (or political subdivision) for any postsecondary education benefits unless a citizen or national of the United States is eligible for such a benefit ... without regard to whether the citizen or national is such a resident."

Eight states, including California, Illinois, New York and Texas, allow unauthorized graduates of their state's high schools to attend college at in-state tuition rates. Kansas adopted an in-state tuition law in May 2004, and Delaware and Georgia permit in-state tuition via administrative action.

The Dream Act also includes a two-step legalization process for unauthorized children who entered the United States before their 16th birthday and lived in the US at least five years, had maintained "good moral character," and graduated from high school or enrolled at a US college. Such unauthorized foreigners could become temporary legal residents and, after six years, they would be eligible to become immigrants if they had completed at least two years of college or served for at least two years in the U.S. military.

SOLVE. Democrats, led by Senator Edward Kennedy (D-MA), introduced the Safe, Orderly, Legal Visas and Enforcement Act (SOLVE) in May 2004 to reform immigration admissions and to legalize unauthorized workers who have been in the U.S. at least five years, worked at least two years, and pass English, background and medical checks. Those in the US less than five years could apply for a "transitional status" good for five years, and then apply for "earned immigrant status." To deal with backlogs of relatives waiting to join families settled in the US, the Democrats' plan would exempt close relatives from numerical limits on family-based immigration and grant immediate admission to applicants for immigration visas who have been waiting for more than five years, regardless of per-country numerical limits.

Under the plan, the number of low-skilled guest workers would be capped at 350,000 a year, employers would have to certify their need for foreign workers, and the US Department of Labor would have to check that employers paid prevailing wages and that the presence of guest workers did not adversely affect similar US workers. Guest workers could apply for immigrant visas after two years, and there would be no significant increase in enforcement.

Health. The House voted 331-88 in May 2004 against a bill that would have required hospital workers to investigate the immigration status of all patients seeking emergency medical care. Under the bill, emergency rooms would have had to collect identifying information from patients, possibly including fingerprints and photographs as well as the name of the patient's employer, and forward it to DHS. Employers of unauthorized foreigners would have been required to pay for their employees' medical costs.

Most working-age Americans get health insurance through their jobs. In 2003, the average annual premium for a full-time worker and his/her family was $9,100.

The U.S.-Mexico Border Counties Coalition, representing 28 counties on the US-Mexican border, reported that hospitals provided $200 million in uncompensated care to unauthorized foreigners in 2003. Congress in 2004 authorized $1 billion to reimburse states for treating illegal immigrants. In order to avoid being billed for their treatment, the Border Patrol does not pick up unauthorized foreigners from hospitals after they are treated.

Politics. A few House Republicans were challenged in primary elections because of their support for pending immigration legislation. In Utah, Rep. Christopher B. Cannon, a supporter of AgJOBs and DREAM, was challenged in the Republican primary for his support of earned legalization and in-state tuition for unauthorized high-school graduates, while in Arizona, two representatives who supported an earned legalization guest worker program faced challengers who argued that the incumbents supported amnesty. Cannon won the Republican primary in June 2004 on a 58-42 percent vote.

Democratic presidential candidate John Kerry, speaking to the National Council of La Raza's annual conference in June 2004, promised to introduce a comprehensive immigration reform bill in his first 100 days as president that would create a pathway to citizenship for law-abiding unauthorized workers, speed family reunification and enforce existing laws protecting the border.

About 75 percent of the nation's Hispanics live in California, Texas, Illinois, New York and Florida and, since only Florida is considered a battleground state, some Latino leaders expressed fear that Hispanic issues may be overlooked by the major presidential candidates.

The Chicago Council on Foreign Relations released a report in June 2004 recommending "an integrated and comprehensive response to immigration" realities, including earned legalization, a "properly structured temporary worker program," and "vigorous enforcement ...of workplace protection and labor laws." The recommendations are perhaps noteworthy for their absence of any call for improved border and interior enforcement.

The report says that there are four important background facts influencing immigration and its impacts: demography (aging population), labor markets (job growth), regional integration, and national security. The immigration system is "broken," the report asserts, and urges immigration to be treated as "a critical element of economic policymaking and national productivity."

Darryl Fears, "Latinos Express Election Concern," Washington Post, June 26, 2004.