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July 2010, Volume 16, Number 3

AgJOBS and Labor Shortages

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. Under the Senate Democrats' framework proposal of April 2010, AgJOBS would be part of comprehensive immigration reform.

Feinstein argued that AgJOBS was vital to US national interests because of a "farm emergency?caused by the absence of farm labor." She asserted that farmers "have tried and tried and tried" to hire US workers, but find few "who are willing to take the job in a hot field, doing backbreaking labor, in temperatures that often exceed 100 degrees."

Due to the lack of farm labor, Feinstein said that 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, she concluded that the lack of farm workers is leading to "nothing less than the slow vanishing of American agriculture."

Feinstein's stories included the difficulty Yuma-area lettuce producers have attracting workers to harvest lettuce despite wages of $10 to $19 an hour. There are several reasons, including unpaid time for crossing the Mexico-US border (many Yuma-area farm workers live in Mexico and enter the US daily) and unpaid time driving to the fields for workdays that can be only four to six hours. If hourly pay is calculated on the 4 am to 4 pm time a worker may invest to cross the border and ride to and from the fields, a $15-an-hour wage for six hours of work is effectively $7.50 an hour.

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 Cards. 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 two-year qualifying period would also qualify for Blue Cards.

Blue Card holders could earn an immigrant status for themselves and their families by doing additional farm work in at least one of three ways: (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 the enactment of AgJOBS; (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). 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).

To become immigrants within seven years of receiving Blue Cards, currently unauthorized foreigners would have to document their farm work, show that they filed income tax returns, and pay an application fee and a $500 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 Blue-Card 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 almost 100,000 farm jobs to be filled with foreign workers in FY09, perhaps 10 percent of the more-than-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.

AgJOBS would change the H-2A program 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 (down from the current 45 days), would be posted on the internet and no longer circulated via the interstate clearance system.

Second, rather than the current requirement that employers 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 of employment before employers could 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 and any US workers employed alongside them, would be frozen at 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 for decades H-2A sheep and goat herders have been allowed to work in the US continuously for up to three years as an exception to this seasonal-job rule. Under AgJOBS, dairy workers would be added to the sheep and goat exception, so that dairies could employ H-2A workers for up to three years. Dairy farms accounted for 15 percent of direct-hire labor expenses in the 2007 Census of Agriculture, 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 in federal courts. If workers file suit to enforce their contracts, growers can request mediation from the Federal Mediation and Conciliation Service, and the parties must attempt to resolve their dispute for at least 90 days before the suit can proceed.

Labor Shortages. There were few credible reports of farm labor shortages. AP's Lisa Rathke wrote a story in May 2010 asserting that, despite the recession and high unemployment rates, US workers shun seasonal farm jobs. She attributed the continuing drop in Imperial Valley asparagus acreage to lack of workers, failing to note that US asparagus production fell by half between the early 1990s and 2005-07 even as consumption of fresh asparagus increased by 90 percent. The reason is trade? over three-fourths of the fresh asparagus consumed in the US is imported, primarily from Peru and Mexico.

USDA Secretary Tom Vilsack has become a proponent of AgJOBS. In a May 2010 speech to the Agribusiness Club of Washington, DC he said: "The agriculture world has to do a better job of explaining to ordinary Americans why they have a stake in immigration reform. About half the food you are consuming was touched at one point by immigrant hands." Vilsack said that, without immigrants, consumers would have to pay higher food costs or rely more on imported food.

There was speculation that the Arizona law enacted in April 2010 making it a crime for foreigners to be illegally in the state would reduce the availability of harvesters for the winter lettuce harvest centered on Yuma. Tom Church, of Salinas-based Church Brothers was quoted in The Atlantic May 11, 2010: "If we had to rely on American workers, it [harvesting] would never get done." Brian Church said that there would be efforts to use machines to harvest lettuce if wages rose.

Sara Rubin, "Will Immigration Law Doom America's Lettuce?" The Atlantic, May 11, 2010. www.theatlantic.com/food/archive/2010/05/will-immigration-law-doom-americas-lettuce/56534/