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January 2010, Volume 16, Number 1

AgJOBS, Immigration Reform

AgJOBS. US farmers ( and farm worker advocates ( remained committed to enactment of Agricultural Job Opportunities, Benefits and Security Act (AgJOBS), which was re-introduced in the House and Senate in May 2009. Senator Dianne Feinstein (D-CA) has replaced ex-Senator Larry Craig (R-ID) as the chief proponent of AgJOBS in the Senate.

Feinstein stressed the need to approve AgJOBS to curb farm labor shortages. She said: "I think a country that's strong really should be able to produce its own food, but you can't do it with domestic labor, and that's just a fact."

AgJOBS, negotiated in December 2000 and now nine years old, would legalize currently unauthorized farm workers and make employer-friendly changes to the H-2A program. 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 could apply for Blue Card probationary status. H-2A workers who did sufficient qualifying work before the end of 2008 could qualify for Blue Cards, but not H-2A workers admitted after the enactment of AgJOBS. Blue Card holders could work and travel freely within the US and enter and leave the US, and could earn an immigrant status for themselves and their families by continuing to do farm work over the next three to five years.

The H-2A program would change to allow farm employers to attest that they complied with H-2A recruitment rules, permit employers to offer a housing allowance instead of free and approved housing to H-2A and out-of-area US workers, and freeze the AEWR at its 2008 levels and study it.

Farm employers can generally employ H-2A workers a maximum of 10 months. There is an exception for sheepherders, who are allowed to remain in the US up to 36 months; AgJOBS would expand this exception to dairy workers.

Immigration Reform. DHS Secretary Janet Napolitano on November 13, 2009 announced that the Obama administration supported a three-legged comprehensive immigration reform, including tougher enforcement to deter illegal migration, a "tough and fair pathway to earned legal status" for most of the 12 million unauthorized foreigners in the US, and a streamlined legal immigration system with more guest worker visas. (

Napolitano argued that immigration reform would enhance national security and help US workers by protecting them from competition from exploitable unauthorized workers. In response, Republicans, who opposed comprehensive immigration reform in 2006 and 2007 said that the US had not yet developed the tools needed to deter illegal immigrants, and that talk of legalization could encourage more illegal immigration.

Obama expects Congress to act on bills introduced by Representative Luis Gutierrez (D-IL) on behalf of the Hispanic Congressional Caucus and Senator Charles Schumer (D-NY), chair of the Senate Immigration Subcommittee. Gutierrez introduced the 600-page Comprehensive Immigration Reform for America's Security and Prosperity Act (CIR ASAP) in December 2009; Schumer is expected to introduce a bill in January 2010.

Napolitano said: "When Congress is ready to act, we will be ready to support them." However, it is unlikely that Congress will approve immigration reform if unemployment remains high. When immigration reform stalled in the Senate in June 2007, the unemployment rate was 4.6 percent. In November 2009, it was 10 percent.

The CIR ASAP is less restrictive to unauthorized foreigners than the bills debated by the Senate in 2006 and 2007, and would also introduce new avenues for further immigration. Title I would "improve" rather than expand existing border enforcement efforts and restrict some types of interior enforcement; Title II would develop and implement an employment verification system (it is not clear whether the current E-Verify system would be replaced or modified); Title III would make more visas available so that families of immigrants could be unified without long waits; Title IV would create an earned legalization program for unauthorized foreigners who were in the US by December 15, 2009 and a separate legalization program for unauthorized farm workers; Title V would reform current H-visa guest worker programs and create a Commission on Immigration and Labor Markets (CILM) to make binding recommendations for future flows of workers; and Title VI would promote naturalization and integration.

Despite continued business appeals for more temporary workers, the CIR ASAP does not raise the 65,000 plus 20,000 annual limit on H-1B visas, and includes new wage requirements on employers requesting H-1B foreign workers, imposes prevailing wage requirements on L-1 intra-company transfers, and gives the US Department of Labor more enforcement authority over the H-2B program. CIR ASAP would allow up to 100,000 Prevent Unauthorized Migration (PUM) visas a year to be issued for three years, by lottery, to countries that send large numbers of unauthorized foreigners to the US.

The Essential Worker Immigration Coalition, which includes employers who hire low-skilled migrants, announced its opposition to these guest worker changes. It called the PUMs inadequate and opposed the commission.

Outlook. The Senate is expected to take up immigration reform before the House, setting the tone of the debate. Observers consider the provisions of the House's CIR ASAP a wish list of those who would like higher admissions rather than a realistic roadmap to an immigration reform likely to be approved by Congress. In comparison to comprehensive immigration reform bills debated in the Senate in 2006 and 2007, CIR ASAP would offer an easier path to immigrant status and would not toughen border or interior enforcement.

Each of the three elements of comprehensive immigration reform in both House and likely Senate bills is controversial. A core element of improved enforcement is a mandatory system for employers to check the legal status of employees. The current E-Verify system allows employers to check the data submitted by newly hired workers against government data bases. In November 2009, some 167,000 employers with 639,000 worksites participated in E-Verify, and 2,000 employers a week were signing up. Employer participation is voluntary, although beginning in 2009, most federal contractors, as well as employers in states such as Arizona, must enroll in E-Verify.

Many groups that support "comprehensive" reform, including the US Chamber of Commerce, insist that E-Verify be replaced with a verification system that requires newly hired workers to present IDs with biometric information, such as a secure Social Security card with biometric fingerprints included on a chip, to counter document fraud. Others argue that demands for a perfect verification system is a smokescreen to delay effective enforcement? they say an individual should not have to present a more secure document to get a job than to board an airplane.

Similarly, there is likely to be a debate over the appropriate "tough and fair pathway" to immigrant and eventually citizenship status. In 2006 and 2007, Senate reform proposals divided the unauthorized into groups based on the length of time they were illegally in the US, and required unauthorized heads of household to leave the US and return legally. Unauthorized foreigners wishing to become immigrants would have had to pay fees and taxes and learn English.

The third leg of the stool is "future flows," a euphemism for guest workers. The US currently has guest worker programs that cap temporary admissions of foreigners with college degrees at 65,000 a year and of low-skilled foreigners admitted to fill seasonal nonfarm jobs at 66,000. Former Labor Secretary Ray Marshall on behalf of the AFL-CIO proposed a commission to determine the number of guest workers and immigrants to be admitted each year. Most employers oppose a commission, fearing that it would not reach the "right" answer.

Representative Zoe Lofgren (D-CA), chair of the House Immigration Subcommittee, predicted on November 16, 2009 that future flows would be especially contentious. She said that the Immigration Reform and Control Act of 1986 failed because it dealt only with enforcement and legalization: "Comprehensive immigration reform needs to meet the legitimate employment needs in the future."

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