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April 2003, Volume 9, Number 2

New Guest Workers for Ag?

The US has a program called H-2A that allows farm employers anticipating labor shortages to apply to the US Department of Labor for certification of their need for temporary foreign farm workers to fill temporary US farm jobs. The foreign workers receive H-2A visas, and the program under which they are admitted is called the H-2A program. In order to receive DOL certification of their need for H-2A workers, US farm employers must try to recruit US workers by preparing a job offer that describes the job fully and offers at least government-specified wages, housing, and transportation (farmers can offer more than these minimums, but rarely do).

The H-2A program allows US farm employers anticipating labor shortages to request certification of their need for temporary foreign workers to fill temporary US jobs. To obtain DOL certification of the need for foreign workers, the US employer must prepare a "job or clearance order" that describes the job, wages and benefits, and offers free housing. DOL must approve this job order and circulate it in regions that may have US workers available to fill the jobs for which H-2A workers are requested. US workers who respond to the job offer travel to the site, and go to work.

If US workers are not available, the US farm employer may go abroad, recruit workers, and have them admitted to the US. Recruitment abroad is not regulated by the US government, for instance, the employer can recruit only men who do not wear glasses. However, H-2A workers must be paid according to the job order, which becomes their contract.

In negotiations leading up to the Immigration Reform and Control Act of 1986, eastern growers who in the early 1980s employed what were then called H-2 workers to hand-cut sugar cane in Florida and pick apples in eastern states won minor changes in the program, which was renamed H-2A. However, western growers opposed any guest worker program that required them to have DOL certify their need for foreign farm workers. The compromise in IRCA was the Special Agricultural Worker program to legalize unauthorized farm workers who did at least 90 days of farm work in 1985-86. IRCA also contained the Replacement Agricultural Worker to admit more foreigners who could float from farm to farm if farm labor shortages developed.

H-2 workers who did qualifying farm work could legalize even though they were legally in the US, and some H-2 citrus workers in Arizona became SAWs. However, sugar cane was defined as an ineligible crop, and most of the 10,000+ cane cutters did not qualify-only the few who did sufficient qualifying work in apple picking as well- Northwest Forestry Workers V. Lyng.

The SAW program legalized 1.2 million foreigners, three times more than the 400,000 expected. The RAW program was never implemented because there were no labor shortages, even though almost 700,000 unauthorized foreigners signed up to be RAWs, most with US addresses. However, beginning in the mid-1990s, farmers pressed for a new non-certification guest worker program, and in December 2000, a compromise agreement to revise the H-2A program was reached between the National Council of Agricultural Employers and the United Farm Workers.

The December 2000 compromise had two major elements- changes to the H-2A program for employers, and earned legalization or "agricultural worker adjustment" for unauthorized workers. The changes to H-2A included:

1) Attestation replacing certification, meaning an end to job offers or clearance orders circulated through the US Employment Service system. Instead, employers would have to contact former workers, advertise locally for workers, and list available jobs at least 28 days before the need date in America's Job Bank;

2) A change to the required minimum wage. Currently, employers must pay the higher of the adverse effect wage rate (AEWR), the local prevailing wage for the particular job, or the federal or state minimum wage. Under the compromise, the AEWR of $6.50 to $7.50 an hour would have been frozen for at least three years;

3) Allowances instead of housing: employers could provide a housing allowance of $100 to $150 a month instead of providing free housing if the governor of a state certified that there was sufficient housing available in the area of intended employment of the H-2A workers.

The major two pro-worker revisions in the December 2000 compromise were: (1) exempting employers hiring H-2A workers from these requirements if they had contracts with unions; and (2) covering H-2A workers under the Migrant and Seasonal Agricultural Worker Protection Act of 1983. H-2A workers were excluded from MSPA in 1983, under the rationale that the H-2/H-2A program contained worker protection provisions. If these H-2A protections were weakened in the December 2000 compromise, then MSPA coverage of H-2A workers would require employers to disclose wages, housing etc to workers, requires farm labor contractors to be licensed, and allow H-2A workers to file suit in federal rather than state court to enforce their contracts.

The earned legalization provisions of the December 2000 compromise would have allowed unauthorized farm workers who did at least 100 days of farm work in one of the two previous seasons to become "temporary resident aliens" free to travel in and out of the US, but not receive any welfare or means-tested benefits. After completing a three-part farm-work requirement, they could become regular immigrants, that is, work at least 360 days in agriculture within six years, including at least 240 days in the first three years, and at least 75 days a year in each of at least three years, allowing unauthorized workers to become immigrants after at least three years.

During this minimum three-year farm work period, the unauthorized spouses and children of temporary resident farm workers could not be removed if located in the US, but they would not be eligible for work permits until the farm worker achieved immigrant status. At that point, the worker and his family could become immigrants, without regard to waiting lists.

The December 2000 compromise was blocked by ex-Senator Phil Gramm (R-TX), who preferred that unauthorized workers become only guest workers, not immigrants. In 2001, it appeared that farm labor would be dealt with in a larger legalization program that was being discussed by the US and Mexico. The Mexican government articulated a four-point proposal: legalization of unauthorized Mexicans in the US, a new guest-worker program, cooperative measures to end border violence, and having the US exempt Mexico from per country visa quotas and Foreign Minister Jorge Castaneda in June 2001 said: "It's the whole enchilada or nothing."

The September 11 terrorist attacks stopped the momentum for a new framework for managing Mexico-US migration, and grower representatives have reportedly reduced their support for some elements of the December 2000 compromise. For example, instead of freezing the AEWR, some growers want to eliminate the AEWR, and substitute the higher of the minimum or a prevailing wage for the particular occupation being filed by a worker (S. 1442 and H.R. 2457).

Other growers want to continue the search for a compromise that includes legalization. The Agricultural Coalition for Immigration Reform in 2003 announced that it would propose an earned adjustment of status for illegal workers in the US, and a guest worker program that will provide sufficient workers in the future. According to growers, a Republican President and Congress has produced "the political climate to achieve immigration reform."

Congressman Jeff Flake (R-AZ) introduced a free-agent guest worker proposal that would allow unauthorized workers in the US to apply for legal work permits, and admit an additional 300,000 foreign workers a year who would be free to change US employers. Under Flake's proposal, migrants would pay $1,000 for a biometric card that includes a work visa and personal information, with the funds collected used to administer the program as well as cover, for instance, hospitals for uncompensated emergency care provided to legal and unauthorized migrants.

H-2A Litigation. SAMCO, a custom harvester/FLC in Ventura county, California that brought 38 H-2A workers from Mexico to California to harvest lemons in March-April 2002, was sued by CRLA in September 2002 for failing to properly pay overtime, not providing rest periods and lunch breaks, and not reimbursing some workers for expenses incurred traveling to and from Mexico; CRLA sought $250,000 on behalf of the workers. CRLA sued in state court, and in January 2003, a federal judge rejected SAMCO's request to confine litigation to federal courts. The case may go to trial in 2003.

In North Carolina, the state with the most H-2As, a third of the H-2A workers often quit before the end of the season, so that their employers do not have to pay the cost of their return transportation. Legal Services attorneys believe that some farm employers encourage H-2A workers to "quit" in order to save the cost of return transportation.

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