Senator Dianne Feinstein (D-CA) re-introduced the Agricultural Job Opportunity Benefits and Security Act (AgJOBS) as S 1038 on May 14, 2009; a companion bill, HR 2414, was introduced in the House. Feinstein argued that AgJOBS was necessary because there is a "farm emergency" mostly "caused by the absence of farm labor." She asserted that farmers "have tried and tried and tried" to hire US workers, but found few "who are willing to take the job in a hot field, doing backbreaking labor, in temperatures that often exceed 100 degrees."

Feinstein said that due to the lack of farm labor, farmers have "watched their produce rot in fields, and have been forced to fallow close to half a million acres of land." Reviewing predictions of asparagus production ending in California's Imperial Valley and fruit and vegetable production shrinking in Colorado, she concluded that the lack of farm workers is leading to "nothing less than the slow vanishing of American agriculture."

Feinstein recited stories of US farms and nurseries trying to recruit US workers at apparently high wages and failing to attract many. She said that Yuma-area lettuce producers were unable to find enough workers to harvest lettuce in spring 2008 despite paying $10 to $19 an hour.

The average hourly earnings of field workers in the Mountain III region of Arizona and New Mexico in April 2008 were $9.38 an hour. One reason why some employers have difficulty recruiting lettuce harvesters is that the unpaid driving time to the fields can be up to four hours a day, and workdays can be as short as four to six hours.

Senator Charles Schumer (D-NY), chair of the Senate Immigration Subcommittee, echoed Feinstein. Schumer read the description of "agricultural worker" in the BLS 2008-2009 Occupational Outlook Handbook and said farm work is "not the description of a life most Americans would want for themselves, much less for their children." Instead, "immigrants who need these jobs to support the families they left behind in their native country" are and should fill US farm jobs.

AgJOBS has two major components: legalization of unauthorized farm workers and H-2A reform.

Legalization. AgJOBS would allow up to 1.35 million unauthorized farm workers who did at least 150 days or 863 hours of farm work in the 24-month period ending December 31, 2008 to apply for Blue Card probationary status during an 18-month sign-up period. H-2A workers who did sufficient qualifying work could qualify for Blue Card visas, but not H-2A workers admitted after the enactment of AgJOBS.

Under the House version of AgJOBS, unauthorized workers earning at least $7,500 from farm work during the qualifying period would also qualify for Blue Cards.

Unauthorized farm workers would apply through government-approved qualified designated entities or licensed attorneys, including legal aid programs funded by the federal government; the sign-up period would begin seven months after AgJOBS is enacted and last for 18 months. Workers would present evidence of their qualifying work, such as employer-issued payroll records, time cards and other work-related documents, or obtain affidavits from contractors or fellow workers that, "by a preponderance of the evidence" demonstrate they did sufficient qualifying farm work. Applicants must pay an application fee and a $100 fine to obtain Blue Card visas, which would include personal biometric data.

Blue Card holders could work and travel freely within the US and enter and leave the US. The unauthorized family members of Blue Card holders who are in the US could obtain a "derivative" probationary legal status that would allow them to obtain work permits. Unlike Blue Card holders, family members would not have to continue to do farm work, but like Blue Card holders, they could also travel in and out of the US with their derivative legal status.

Blue Card holders could earn an immigrant status for themselves and their families by continuing to do farm work. There are three continued farm work options: (1) performing 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) working 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). For six years, employers of Blue Card holders must provide Blue Card employees with written records of their farm work and submit a copy to DHS (employers may be fined up to $1,000 for not providing employment records to DHS).

Blue Card holders are eligible for earned benefits such as unemployment insurance and the earned income tax credit, but not means-tested benefits such as Food Stamps until five years after receiving Blue Card status.

To become immigrants within seven years of first receiving Blue Card status, they would have to document their farm work, show that they filed income tax returns, and pay an application fee and a $400 fine; their family members would become immigrants at the same time. Blue Card holders could receive up to 12 months credit for farm work not done due to pregnancy and injury to themselves or a minor child, severe weather conditions that reduced farm jobs, or being fired without "just cause" by a farm employer and unable to find another farm job after a "reasonable job search." Administrative mechanisms would be established so that injured and unjustly fired workers could receive appropriate work credit.

H-2A Changes. The H-2A program allows 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 94,000 farm jobs to be filled with foreign workers in FY08, up from 77,000 in FY07.

There were about three million jobs on US farms in the 2007 Census of Agriculture (COA)— farmers reported hiring 2.6 million workers directly (the same worker employed on two farms is counted twice) and direct hire farm labor expenditures were 83 percent of the $26 billion total. Farmers reported that a third or one million of these jobs lasted at least 150 days. Since most H-2A workers are employed at least 150 days, they fill almost 10 percent of the at-least-150-day-jobs on US farms.

AgJOBS would make it easier for US farm employers to employ H-2A guest workers. Most of the changes to the H-2A program would begin one year after the enactment of AgJOBS, but the AEWR would immediately return to its 2008 level and be frozen for three years.

The H-2A program would change in three major ways. First, attestation would replace certification, effectively shifting control of the border gate from the US Department of Labor to employers, who would make assertions (assurances) to DOL 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, would be posted on the internet and no longer circulate via the interstate clearance system. Not more than 14 days before the employer-specified starting date, the employer must advertise for US 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, and DOL enforcement of employer assurances would respond to complaints of violations of H-2A regulations, such as the three-fourths guarantee, meaning that the employer must offer work for at least three-fourths of the work period, as specified by the employer. Employers must hire local workers who respond to ads, including Blue Card holders, who apply until 50 percent of the work period stated by the employer is completed. Finally, employers must reimburse 100 percent of the 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, rather than provide free housing to H-2A and out-of-area US workers, AgJOBS would allow farm employers to 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. State governors 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 2008 levels and studied www.foreignlaborcert.doleta.gov/adverse.cfm) If Congress failed to enact a new AEWR within three years, the AEWR would be adjusted on the basis of the three-year change in the Consumer Price Index and eventually rise with the CPI by up to four percent a year.

The H-2A program currently allows only employers offering seasonal farm jobs to participate, although H-2A sheep and goat herders have been allowed to work in the US continuously for up to three years as an exception. Under AgJOBS, dairy workers would be added to the exceptions, and H-2A dairy workers could work three years continuously in the US. Dairy farms accounted for 15 percent of direct-hire labor expenses in 2007, about the same as fruit and nut farms, and reported hiring 176,000 workers, two-thirds for more than 150 days on their farms.

Employer job orders become contracts that H-2A and US workers can sue to enforce. Currently, H-2A workers can sue to enforce these contracts in state courts; under AgJOBS, they could sue employers who violated contracts in federal courts. AgJOBS requires DOL to establish an office to which H-2A workers could complain. If this office failed to resolve employer-employee disputes, either party could insist on free non-binding mediation to delay litigation for up to 90 days.

H-2A workers would be offered protections comparable to those contained in the Migrant and Seasonal Agricultural Worker Protection Act of 1983 (www.dol.gov/esa/whd/regs/statutes/0001.mspa.htm), including assurances that the vehicles used to transport them were safe. Even though many of those who recruit H-2A workers are or should be licensed as FLCs, AgJOBS, unlike MSPA, does not require the disclosure of wages and working conditions to workers at the time and place of recruitment.

Many requirements of the H-2A program would continue under AgJOBS. These include 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.

Eligibility Estimates. How many unauthorized workers would qualify for legalization under AgJOBS? If two-thirds of the estimated 1.4 million crop workers are unauthorized, and a third of the estimated 429,000 livestock workers are unauthorized, there were a total 1.1 million unauthorized farm workers in 2007.

Farm workers qualify for legalization if they did at least 863 hours or 150 days of farm work in the 24 months ending December 31, 2008. Based on NAWS data, about 80 percent of unauthorized crop workers would qualify; if all of the unauthorized livestock workers qualify, up to 880,000 unauthorized workers could be legalized.

There are no national estimates of the number of persons employed for wages on US farms. Instead, a USDA survey of farm employers reports employment and average hourly earnings, and a DOL survey of farm workers reports worker characteristics (including legal status) and earnings.

USDA's NASS http://usda.mannlib.cornell.edu/MannUsda/viewDocumentInfo.do?documentID=1063) estimates employment on US farms four times a year. It reported that an annual average 884,500 workers were hired directly by farmers in 2002, when the average hourly earnings of field and livestock workers were $8.17 (an additional 250,000 workers were brought to farms by contractors and custom operators). By 2007, NASS estimated that an annual average 739,800 workers were hired directly by farmers, down 16 percent, and that the average hourly earnings of field and livestock workers were $9.49, up 16 percent (an additional 325,000 workers were brought to farms by contractors and custom operators).

DOL's NAWS (www.doleta.gov/agworker/naws.cfm) interviews several thousand workers employed on crop farms each year. The NAWS finds that about three-fourths of crop workers were born in Mexico and that most are unauthorized. The NAWS survey of workers finds lower hourly earnings than the NASS survey of employers, in part because supervisors are excluded from the NAWS but included in the NASS.

One way to estimate the number of farm workers who may be eligible for legalization under AgJOBS is to divide the crop and livestock labor expenditures of farmers in each state by the average hourly earnings of farm workers in that state. The NASS survey reports the average hourly earnings of field workers, but only a combined field and livestock average hourly earnings.

Dividing almost $18 billion in crop labor expenditures by field worker earnings that ranged from $8.30 to $10 an hour across NASS regions in 2007 yields 1.9 billion hours worked on crop farms. Dividing these 1.9 billion hours by the 1,384 average hours worked by crop workers (40.7 hours a week, according to the NASS survey of employers, and 34 weeks of farm work a year, according the NAWS survey of crop workers), yields 1.4 million crop workers.

If the $8.5 billion in livestock labor expenditures are divided by employer-reported average hourly earnings, and assuming that 70 percent of the combined field and livestock wage in each state is attributed to crop workers and 30 percent to livestock workers, there were 873 million hours worked on livestock farms in 2007. Livestock workers are employed more hours than crop workers, an average 2,035 a year based on the NASS report of 40.7 hours a week times 50 weeks. The result is an estimated hired livestock work force of 429,000.

No one knows how many farm workers are unauthorized. If two-thirds of the estimated 1.4 million crop workers and a third of the estimated 429,000 livestock workers are unauthorized, there were a total 1.1 million unauthorized farm workers in 2007. Higher unauthorized worker shares generate more unauthorized; if 70 percent of crop workers and 40 percent of livestock workers are unauthorized, about 63 percent of US hired workers, some 1.2 million, are unauthorized.

Unauthorized farm workers would be eligible for legalization under AgJOBS if they worked at least 863 hours or 150 days in the 24 months ending December 31, 2008. NAWS data suggest that 80 percent of the crop workers interviewed were employed more than 74 days. Using the two-thirds crop and a third livestock unauthorized shares, and assuming that 80 percent of the 923,000 unauthorized crop workers qualified and all of the 142,000 unauthorized livestock workers qualified, yields 880,000 eligible unauthorized farm workers.

It may be hard for unauthorized workers to find documentation of their farm hours and days worked in 2007 and 2008. For some unauthorized workers, it may be easier to find a W-2 statement that shows farm earnings in 2007 and 2008. Based on NAWS estimates of worker earnings, a W-2 statement showing combined 2007 and 2008 earnings of $7,000 or more should include almost all eligible farm workers.