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Job or Visa Portability for Agricultural Guest Workers

December 21, 2017

Most guest worker programs are employer-led and contractual, meaning that employers request government certification to employ foreign workers who are tied by contract to a particular job. Contracts assure employers that they will have workers, and provide work and wage guarantees for workers.

Contracts in the US H-2A program require employers to pay the recruitment costs of workers, provide housing to guest workers, and pay an Adverse Effect Wage Rate that is above the minimum wage to guest workers. Contracts may trap guest workers in jobs with abusive employers; if they complain, they may be fired and lose their right to remain lawfully in the US.

UN member governments are negotiating a Global Compact on Migration to promote “safe, orderly, and regular” migration; the US withdrew from GCM negotiations in December 2017. Some employers, governments, and NGOs are calling for new types of guest worker programs, including free-agent programs that would allow guest workers to change employers, so-called job- or visa-portability.

The Immigration Reform and Control Act of 1986 included two guest worker programs: (1) the current H-2A contractual guest worker program that ties guest workers to a particular employer and (2) a four-year replenishment agricultural worker (RAW) program to admit the number of free agent guest workers needed according to labor shortage calculations.

IRCA allowed farmers anticipating labor shortages to be certified to recruit and hire H-2A guest workers if they tried and failed to recruit US workers, provided guest workers with free housing and meals or cooking facilities, and paid an AEWR that averaged about $12 an hour in 2017.

Alternatively, if there were farm labor shortages as determined by USDA and DOL, RAWs could be admitted to avoid farm labor shortages. RAWs could have changed agricultural employers, and their employers would not have needed to provide them with housing or pay them the AEWR.

Unique Social Security Numbers would have been given to RAWs, and their employers would have reported their days of farm work to the government. After three years of qualifying farm work, RAWs could have applied for immigrant visas without an employer sponsor. RAWS would have become unauthorized if they failed to perform sufficient qualifying farm work each year.

Unauthorized Mexico-US migration rose in the early 1990s, and there were no labor shortages, so the RAW program expired without being implemented.

The H-2A and RAW programs generated mixed feelings among employers and unions. Employers could choose whether to invest in housing and pay the AEWR and be guaranteed guest workers, or hope that free-agent RAWs would appear when needed. Unions liked the prospect of workers earning an immigrant visa after three years of farm work, but feared that newcomers to the US might have difficulty finding jobs and affordable housing.

A migration infrastructure that included settled migrants could have taken advantage of newcomer RAWS when providing them with housing, rides to work, and other services.

The Senate’s comprehensive immigration reform bill, the Gang of Eight’s S 744 approved on an 68-32 vote in June 2013, would have similarly given agriculture two guest worker options with new W-3 and W-4 programs. The W-3 program would have been like the current H-2A program and tied a foreign worker to a particular US farm employer and job for up to three years, but W-3 workers could have gone to work for another farm employer after they completed their initial contracts.

The W-4 "at will" program resembled the RAW program, requiring an initial job offer to enter the US, after which W-4 visa holders could change employers. W-4 visa holders would remain legal so long as they were not unemployed more than 60 days.

S 744 required farm employers to provide housing or a housing allowance to their W-3 and W-4 visa holders. However, farm employers could have provided a housing allowance to W-3 workers if the state’s governor certified that there was sufficient housing for farm workers in the area. Employers of W-4 workers could have always provided a housing allowance, and employers within 50 miles of US borders would not have had to offer housing to guest workers.

US and unauthorized farm workers can change employers, but most do not obtain housing or have contracts with their employers that include work guarantees. Both the 1986 IRCA and S 744 included contractual and free-agent guest worker programs for agriculture, and allowed employers to decide which program they preferred. Worker choice, on the other hand, depends on the number of workers seeking jobs and the number of contractual and free-agent jobs available.