July 2007, Volume 13, Number 3
AgJOBS and CIRA 2007
The Agricultural Job Opportunities, Benefits and Security Act or AgJOBS (S 340 and HR 371) was introduced as stand-alone legislation in January 2007 and then incorporated largely into CIRA 2007. It has been suggested that AgJOBS be enacted as stand-alone legislation to test several concepts embodied in CIRA 2007, including earned legalization and a streamlined guest worker program.
Legalization. AgJOBS would allow up to 1.5 million unauthorized farm workers (plus their dependents) who did at least 150 days or 863 hours of farm work in the 24-month period ending December 31, 2006 to apply for Z-A probationary status during an 18-month sign-up period. H-2A workers who did sufficient qualifying work in 2005-06 could qualify for Z-A visas, but not H-2A workers admitted in 2007 and beyond.
Workers without payroll records could submit evidence of their qualifying work with affidavits from contractors or fellow workers that, "by a preponderance of the evidence" demonstrated they did farm work.
Unauthorized farm workers could apply for Z-A visas through a government-approved qualified designated entity, a licensed attorney, or an immigration practioner recognized by the DHS Board of Immigration Appeals (legal aid programs funded by the federal government could also aid applicants). Applicants must pay an application fee as well as a $100 fine. Once they have Z-A visas, they (and their family members, who could apply for work permits that would not require them to do farm work) would be legal US residents for at least four years, when Z-A visas can be renewed.
Z-A visa holders could work and travel freely within the US and enter and leave the US. They could earn an immigrant status by continuing to do farm work. There are three options: (1) doing at least 150 days (a day is at least 5.75 hours) of farm work a year during each of the first three years after enactment; (2) doing at least 100 days of farm work a year during the first five years; or (3) doing at least 150 days in any three years, plus 100 days in a fourth year (for workers who do not do 150 days in the first three years). Z-A visa holders are eligible for Unemployment Insurance and EITC benefits, but not welfare benefits such as Food Stamps.
Z-A visa holders could receive credit for farm days not worked because they were fired without "just cause" by farm employers, and receive credit for days not worked because of injuries incurred in doing farm work. Administrative mechanisms would be established to deal with worker petitions for such credits.
After proving that this farm work was done and that income taxes were paid, Z-A visa holders could pay $400 plus an application fee to receive immigrant visas for themselves and their immediate families (family members do not need to satisfy the farm work requirements). Z-A visa holders would become immigrants by traveling to their countries of origin and applying at a US consulate, the so-called touch-back requirement (family members do not need to touch back). At the consulate, they would have to prove they filed US tax returns and would need to pass an English proficiency test.
The conversion of Z-A visas to immigrant visas would not begin until the backlog of applications awaiting visas is cleared, an estimated eight years. Z-A visa holders will be given "merit points" so that they qualify for immigrant visas under the new point system.
H-2A Reform. The H-2 program allows US farm employers to request certification from the US Department of Labor to have foreign workers admitted "temporarily to the United States to perform agricultural labor...of a temporary or seasonal nature." DOL certified almost 60,000 farm jobs as needing to be filled with foreign workers in FY06, the most ever.
There were about three million jobs, including 2.1 million or 70 percent lasting less than 150 days on the reporting farm, for workers hired directly by farmers in the 2002 Census of Agriculture, suggesting that the jobs certified to be filled by H-2A workers were less than two percent of US farm jobs. Additional workers were brought to farms by labor contractors and other intermediaries.
Under AgJOBS, the H-2A would be renamed the Y-2A program and changed to make it easier for guest workers to be employed on US farms. These changes would begin one year after the enactment of AgJOBS, except for the AEWR change, which would be effective immediately. The expectation is that the number of jobs certified to be filled by H-2A workers will not increase quickly because Z-A visa holders will continue to do farm work.
The current exception to the seasonal job requirement is sheepherders, who can stay in the US up to 36 months with H-2A visas. AgJOBS would add goat herders and dairy workers to this list. In the 2002 COA, about 42,000 dairies reported hiring workers directly, as did 6,600 sheep and goat farms.
The H-2A program would change in three major ways. First, attestation would replace certification, effectively shifting control of the border gate to employers who make assertions (assurances) to the US Department of Labor that they have vacant jobs, are paying at least the minimum or prevailing wage, and will comply with other H-2A requirements. Employer job offers, to be filed at least 28 days before workers are needed, are to be posted on the internet--there would be no need to circulate the job offer via the interstate clearance system. Not more than 14 days before the employer-specified starting date, the employer must advertise for workers.
DOL would review employer assurances for "completeness and obvious inaccuracies" and approve them within seven days of receipt. Foreign H-2A workers would arrive and go to work. Enforcement would respond to complaints of violations of H-2A regulations, such as guaranteeing work for at least three-fourths of the work period specified by the employer, hiring local workers (including Z-A visa holders) who apply for jobs until 50 percent of the work period stated by the employer is completed, and reimbursing 100 percent of transportation costs of workers who complete the job. Under AgJOBS, there must be mandatory mediation to try to resolve disputes before suits are filed.
Second, farm employers could pay a housing allowance of $1 to $2 an hour, depending on local costs to rent two-bedroom units that are assumed to house four workers, rather than provide free housing, as is currently required. The state's governor would have to certify that there is sufficient rental housing for the guest workers in the area where they will be employed in order for H-2A employers to pay a housing allowance rather than provide free housing.
Third, the Adverse Effect Wage Rate, the minimum wage that must be paid to legal guest workers, would be frozen at its 2002 levels and studied. In California, the AEWR would be reduced from $9.20 an hour in 2007 to $8.02 an hour, and there would be similar five to 10 percent reductions in other states. If Congress failed to enact a new AEWR within three years, AgJOBS would allow the AEWR to be adjusted after three years on the basis of the three-year change in the Consumer Price Index. Eventually, the AEWR would rise with the CPI, up to a maximum four percent a year.
Employer job orders become contracts that H-2A and US workers can sue to enforce. Currently, H-2A workers sue to enforce these employment contracts in state courts; under AgJOBS, they could sue in federal court. DOL would establish an office to which H-2A workers could complain that their rights were violated. If disputes were not resolved at this stage, either party could insist on free non-binding mediation to delay the litigation for up to 90 days. H-2A workers would continue to be excluded from the protections offered by MSPA of 1983, which requires disclosure of wages and working conditions at the time and place of recruitment and requires farmers to use only federally licensed FLCs.
Many current requirements of the H-2A program would continue under AgJOBS, including having employers reimburse H-2A (and US workers from beyond commuting distance) for their transportation and subsistence costs if they complete their work contracts, requiring employers to continue to hire US workers until half of the work contract period is completed, and guaranteeing work to H-2A and US workers for at least three-fourths of the contract period.
If there is a collective bargaining agreement at a particular farm, wages, benefits and many of the other job-related items spelled out in the law for Y-2A workers under AgJOBS could be negotiated by the union and the employer. That is, there can be flexibility in regulations when there is a union, and rigidity when there is not.
CIRA 2007. The Senate debated the 761-page Comprehensive Immigration Reform Act of 2007 (S1348) in May and early June. The bill stalled on June 7, 2007 when a bid to cut off debate lost on a 45-50 vote; 60 votes were needed to bring the bill to a vote. It stalled again on June 28, 2007 on a 46-53 vote, meaning that consideration of immigration reform will probably be postponed until 2009.
CIRA 2007's so-called grand bargain provided a path to legal status for the unauthorized in the US, favored by most Democrats, and shifted future legal immigration toward foreigners with skills under a point system, favored by most Republicans. It was negotiated privately by a dozen senators, led by Senators Edward Kennedy (D-MA) and Jon Kyl (R-AZ).
CIRA 2007 would have: (1) increased border and interior enforcement to slow illegal migration; (2) provided a path to legal status for most of the 12 million unauthorized foreigners in the US; (3) established a new guest worker program and revised existing programs; and (4) created a point system to select some US immigrants.
CIRA 2007 differed from CIRA 2006, approved by the Senate on a 62-36 vote in May 2006, in several important ways. First, the CIRA 2007 included triggers, meaning that more Border Patrol agents would have to be hired, more border fencing built, and the mandatory new employee verification system working before the Z-legalization and new Y-1 guest worker programs could start.
Second, CIRA 2007 required touchbacks, meaning that unauthorized foreigners must leave the US, apply for immigrant visas abroad, and return to the US legally. Third, CIRA 2007 would have changed the legal immigration system by admitting a third of US immigrants on the basis of points earned for US employment experience, English, education and other factors expected to increase the likelihood that a foreigner would be economically successful in the US.
Enforcement. CIRA 2007 aimed to reduce illegal immigration with new border and interior enforcement measures. It called for an increase in the number of Border Patrol agents from the current 14,500 to 20,000 within 18 months (and eventually to 28,000), an additional 370 miles of fencing on the border, and enough detention space for 27,500 foreigners. After enactment, anyone apprehended inside the US after entry without inspection would have been barred from receiving work or tourist visas to enter the US in the future.
A mandatory Employment Eligibility Verification System (EEVS) would have checked the legal status of all new hires within 18 months of enactment and, within three years, verified the status of employees hired before the enactment of CIRA 2007. Employers would have submitted employee-provided data to DHS via the internet, and DHS would have had access to Social Security data to check on the workers' legal status. The Social Security Administration would have been required to develop fraud-resistant cards.
Penalties for violating employer sanctions laws would have risen to $5,000 for a first offense and up to $75,000 for repeat offenders. Businesses that use subcontractors would have been responsible for ensuring that their subcontractors employed only legal workers.
DHS, which reported 16,727 employers participating in the EEVS in May 2007, pledged to have the EEVS ready for all seven million US employers within 18 months, so that the legalization and guest worker programs could have begun. According to DHS, 92 percent of workers whose data are submitted to Basic Pilot, the current version of EEVS, are verified as employment eligible within three seconds.
However, EEVS can only verify that the name and SSN match; it cannot determine, for example, if someone is using another person's identity and SSN. Some employer groups noted that meatpacker Swift participated in Basic Pilot, but 1,282 unauthorized workers were arrested on December 12, 2006 in the largest-ever workplace raid.
Legalization. The estimated 12 million foreigners illegally in the US before January 1, 2007 could have registered with DHS beginning six months after enactment, paid $1,000, undergone background checks, and obtained four-year renewable Z-1 visas. In a provision that drew criticism from conservatives, applicants for Z-visas could have received work permits immediately, before the background checks were completed.
Many of the amendments were aimed at making it harder for at least some unauthorized foreigners to legalize. During the early June debate, an amendment approved on a 57-39 vote would have given law enforcement agencies access to information in Z-applications that were denied. Another amendment, to deny Z-visas to convicted felons, including those convicted of identity theft or fraudulent use of identification documents, lost on a 46-51 vote.
On June 27, 2007, an amendment to require unauthorized foreigners to return to their countries of origin to apply for Z-visas, a provision expected to increase uncertainty about lawful return to the US, lost on a 45-53 vote. An amendment to prohibit unauthorized foreigners from converting their Z-visas into green cards lost on a 41-56 vote. An amendment to limit Z-visas to those in the US at least four years, rather than those in the US before January 1, 2007, lost by an 18-79 vote.
If CIRA 2007 had been enacted, Z-1 visa holders could have lived and worked legally in the US indefinitely; their spouses could have obtained Z-2 visas, and their minor children Z-3 visas. Low-income Z-visa holders would not have been eligible for the Earned Income Tax Credit and would not have received social security credit for any earnings while unauthorized.
Z-1 visa holders could have become immigrants if they had passed an English test and undergone a background check, paid a $4,000 fine, and applied at a US consulate in their home country. This is the "touch-back" rule, which would have applied only to the head of an unauthorized family. However, Z-1 visa holders could not have become regular immigrants until the current backlog of foreigners awaiting immigrant visas was cleared, a process that DHS estimates would take eight years. Immigrants may normally become naturalized US citizens after five years.
A June 2007 telephone poll for New America Media of 1,600 unauthorized foreigners conducted in Spanish suggested that over 80 percent of those eligible would have applied for Z-visas. Of those polled, 40 percent had no dependents in the US. However, only two-thirds said they would return home to apply for an immigrant visa; this percentage rose to 80 percent if the departing migrants were guaranteed re-entry to the US.
There would have been a second legalization program for up to 1.5 million unauthorized farm workers who did at least 150 days of farm work in the two years ending December 31, 2006. They could have applied for Z-A visas by paying $100 and become immigrants by paying an additional $400.
Under CIRA 2007, both Z and Z-A visa holders would have received enough "points" under a new immigrant selection system to qualify for immigrant visas. An amendment to require Z and Z-A visa holders to compete with other foreigners seeking to immigrate strictly on points was defeated 31-62, under the argument that eliminating a path to legalization for farm workers (who are unlikely to receive sufficient points to obtain immigration visas) would have unraveled the delicate compromises embodied in CIRA 2007.
The DREAM Act, previously proposed, was incorporated into CIRA 2007. It would allow unauthorized foreigners under 30 who were brought to the US as minors to become immigrants after three rather than eight years.
Guest Workers. The third key element of CIRA 2007 was a new guest worker program to admit up to 200,000 Y-1 guest workers a year, down from the originally proposed 400,000 a year. As introduced, the cap on Y-1 work visas could have risen if employers requested all available visas early in the year; this market adjustment mechanism was eliminated by amendment.
A proposal first rejected and then accepted would have sunsetted the Y-1 guest worker program after five years- both votes were 49-48. An amendment requiring all employers to try to recruit US workers before hiring Y-1 guest workers was approved 71-22 (as originally written, the bill would have allowed DOL to waive attempted recruitment of US workers in "labor-short" occupations).
Most Y-1 visas would probably have gone to low-skilled foreign workers filling year-round US jobs. The H-1B program for workers with higher skills would have doubled in size, and the current H-2A and H-2B seasonal programs would have become the Y-2A and Y-2B programs.
There would have been three types of Y-visas: for the new temporary workers (Y-1), for seasonal farm workers (Y-2A, with an unlimited number of 10 month visas available), and for seasonal nonfarm workers (Y-2B, with up to 100,000 visas good for 10 months available). Y-1 visas would have been issued to foreign workers after US employers requested them by name.
US employers could have employed Y-1 workers after advertising vacant jobs for at least 90 days and making certifications, including promising not to lay off US workers in order to hire guest workers. Employers would have paid a processing fee and a guest worker impact fee of $500 to $1,250, depending on the firm's size, but this fee could have been waived if the employer provided health insurance to employees. Employers would have to provide Y-1 workers with the same wages and benefits as similar US workers, and paid at least the local prevailing wage. Employers in counties with unemployment rates of seven percent or more would have to have obtained waivers from DOL to employ Y-1 workers.
To obtain Y-1 visas, foreigners would have paid a processing fee and an impact fee of $500 and reported to their US employers within seven days. Two-year Y-1 visas could have been renewed twice, for a total of six years of US work. However, the worker would have to have spent at least one year in his/her country of origin between US work stints. (An amendment to allow six continuous years of US work failed on a 41-57 vote). Y-1 guest workers would have been prohibited from being unemployed more than 60 days at any one time and for more than 120 days during the life of each two-year work visa. Y-1 guest workers could have changed to another US employer who is certified to hire Y-1 workers.
Y-1 guest workers could have brought their family members with them to the US if they earned at least 150 percent of the poverty line for their family (about $30,000 for a family of four in 2007) and had health insurance for their dependents. However, to discourage guest workers from bringing their families, those who brought family members would have been allowed two rather than three US work stints, and family members could have accompanied them for only one of these two stints.
The Y-2A program would have changed the H-2A program in three important ways: attestation would have replaced certification to determine if foreign farm workers are needed, housing allowances could have been provided to guest workers instead of free housing, and the Adverse Effect Wage Rate would have been frozen at 2002 levels and studied. The Y-2B program would have operated like the current H-2B program, with a ceiling of 100,000 visas, up from the current 66,000 plus an additional 20,000 for workers who had previously held H-2B visas.
The cap on the H-1B program, which now admits 65,000 foreigners a year with at least a BA coming to the US to fill a job requiring a BA, would have been raised to 115,000 in FY08, and eventually to 180,000 a year. All employers, rather than just H-1B dependent employers (those with at least 15 percent H-1B workers), would have had to certify that they did not lay off US workers 180 days before and after hiring H-1Bs. Employers would have been prohibited from placing ads for "H-1Bs only," and employers with 50 or more workers could have had a maximum of 50 percent H-1B employees.
Legal Immigration. CIRA 2007 would have changed the legal immigration system for at least 14 years. There were about four million foreigners waiting for immigrant visas in May 2005, including 1.5 million spouses and minor children of legal immigrants (112,000 immigrant visas were issued to spouses and minor children of legal immigrants in FY06). This backlog would have been cleared by adding 440,000 visas a year to expedite family unification.
To reduce "chain migration," CIRA 2007 would have capped the number of immigrant visas for parents of adult US citizens at 40,000 a year and the number for spouses and children of immigrants at 87,000 a year. An unlimited number of spouses and minor children of US citizens would have been admitted as immigrants, but the immigrant visas currently available for married sons and daughters of US citizens, and brothers and sisters of US citizens, would have been be eliminated. The diversity lottery that awards 50,000 immigrant visas a year would have been terminated.
CIRA 2007 would have instituted a new point system to select immigrants. Foreigners seeking to immigrate would have had to earn at least 55 of the maximum 100 points to get an immigrant visa, with up to 47 points available for employment (given for type of US job, age and experience, and employer recommendation), up to 28 for education, and up to 15 for English and civics. Once an applicant had the minimum 55 points, another 10 points could have been awarded for having US relatives. Foreigners seeking visas to fill high-demand jobs, whether as janitors or engineers, would get up to 16 of the 47 employment points.
For example, under the system proposed in CIRA 2007, a 29-year old Mexican who had worked six years as a US guest worker could achieve 61 points by having five years of US job experience in a high-demand occupation (health care aide), being young and knowing English, and having a US relative. However, a 45-year old Indian IT worker with a PhD and a US job offer but no US work experience would receive only 49 points, despite knowledge of English.
For the first eight years of CIRA 2007, immigration would have risen to 1.4 million a year, including 1.1 million family-based and 247,000 employment-based immigrants. After eight years, there would be 627,000 family- and 380,000 employment-based immigrants a year, for a total of one million.