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January 2013, Volume 19, Number 1

Immigration Reform: AFBF, CFBF

Immigration reform is expected be a top domestic priority after issues surrounding the debt ceiling and spending cuts are resolved. President Obama in October 2012 called immigration reform his major "long-term" priority for a second term, and House Speaker John Boehner said that a "comprehensive approach [to immigration] is long overdue." One summary of the politics of immigration reform concluded that the Democrats want immigration reform that includes legalization to reward Hispanic voters while the Republicans need immigration reform to increase their appeal to Hispanic voters.

The coalition in support of comprehensive immigration reform includes employers seeking immigrant workers, from agriculture to IT firms, unions that want to represent newly legalized workers, and many other groups, from young people seeking immigrant status to evangelical pastors with Latino parishioners. Eliseo Medina of the Service Employees International Union said: "We expect action and leadership on immigration reform in 2013. No more excuses. No more obstruction or gridlock."

The Republican-controlled House is considered the major obstacle to an immigration reform that includes a path to US citizenship for many of the estimated 11 million unauthorized foreigners in the US. The Republican Party platform adopted in summer 2012 opposed "any form of amnesty'' for people who intentionally violate immigration law, saying amnesty "rewards and encourages more law breaking." Representative Bob Goodlatte (R-VA) will chair the House Judiciary Committee, and Representative Trey Gowdy (R-SC) will chair the Subcommittee on Immigration Policy and Enforcement; both are expected to oppose legalization.

However, former President George W. Bush in December 2012 urged Republicans in Congress to have "a benevolent spirit" as they consider bills that include legalization. Bush asserted that immigrants "help build our economy" and "invigorate our soul." A new group, Republicans for Immigration Reform, aims to "provide some cover for Republicans that vote in support of an immigration reform" that includes legalization.

There are 28 Hispanic Representatives in the 113th Congress, and three Hispanic senators.

There is more likely to be agreement on new enforcement programs to deter the entry and employment of unauthorized workers than on what to do about unauthorized foreigners in the US. Between 2005 and 2007, the House and Senate agreed on new enforcement measures, including a requirement that all employers check the legal status of newly hired workers via E-Verify, an online database. Senate efforts to create a path to "earned legalization," on the other hand, were marked by complexity, with the unauthorized divided into groups based on their time in the US. Those who wanted to become immigrants would have had to learn English, pay taxes and fees, and return to their countries of origin and re-enter the US legally.

A major question is whether President Obama will work with Congress to develop a comprehensive immigration reform proposal or encourage the enactment of incremental reforms. The Obama administration approved 300 pages of draft legislative language in 2010 that was considered by Senators Charles Schumer (D-NY) and Lindsey Graham (R-SC) but not introduced as a bill. The 2010 draft would have mandated that all employers participate in E-Verify and provided a path for unauthorized foreigners to earn immigrant status and US citizenship.

Some speculate that Democrats eager to reward Hispanic voters will push for an immigration reform that includes an easy path to legalization, while Republicans opposed to adding "Democratic voters" by allowing unauthorized foreigners to become US citizens will press for new guest worker programs. In 2007, the opposing forces of legalization and guest workers resulted in a stalemate in the Senate involving Republicans who opposed legalization and Democrats who opposed guest workers.

Most supporters of comprehensive immigration reform want Obama to support a bill that maximizes the number of unauthorized foreigners who can become legal immigrants and eventually US citizens. Robert de Posada of the Latino Coalition speculated that Obama will propose "a very, very liberal plan that most Republicans will not support, that most southern and moderate Democrats will not support? they can announce once again that they tried [and that Latinos] need to rally in the next election."

The 2005-07 Debate. In December 2005, the Republican-dominated House approved the Border Protection, Anti-terrorism, and Illegal Immigration Control Act (HR 4437), which would have made it harder for unauthorized foreigners to find US jobs requiring all employers to check the legal status of new hires by submitting their data to an E-Verify-type database and raised penalties on employers who hired unauthorized workers. The bill would have added fences and Border Patrol agents on the Mexico-US border, and the so-called Sensenbrenner bill made "illegal presence" in the US a felony, which would have complicated efforts to legalize unauthorized foreigners.

There were strong reactions against HR 4437 that culminated in a May 1, 2006 Day Without Immigrants, when a million or more immigrants and their supporters demonstrated instead of going to work or school. Some meatpacking plants and construction sites closed for the day, and many businesses in immigrant neighborhoods closed.

These demonstrations influenced the debate in the Senate over the Comprehensive Immigration Reform Act (S 2611), which was approved in May 2006. CIRA 2006 included more enforcement, legalization for some unauthorized foreigners, and a new guest worker program. CIRA 2006 would have required all employers to check new hires by submitting their data to an E-Verify-type database, raised penalties on employers who hired unauthorized workers, and added fences and Border Patrol agents.

CIRA 2006 would have created three legalization programs. Unauthorized foreigners in the US at least five years would have become "probationary immigrants" who could earn a regular immigrant status after at least six more years of US work and tax payments. Those in the US two to five years could have received three-years of protection from deportation, during which time they would have had to return to their countries of origin and then re-enter the US legally. Those in the US less than two years would have been expected to leave on their own.

CIRA 2006 included a new H-2C guest worker program that would have allowed US employers to "attest" that they did not lay off US workers 90 days before or after hiring guest workers. Employers who wanted to hire guest workers would have posted vacant jobs that offered at least the minimum or prevailing wage on a new electronic job registry to inform potential US workers. If US workers did not respond, employers could make job offers to foreigners outside the US, who could enter with H-2C visas and report to the employer, but later change to another US employer. H-2C workers could have applied for immigrant visas after working four years in the US.

The Senate took up immigration reform again in 2007, when it considered but did not approve the Comprehensive Immigration Reform Act of 2007 (S 1348) in June 2007. CIRA 2007 had enforcement provisions similar to CIRA 2006, legalization for most unauthorized foreigners, a new guest worker program and a point system to select some US immigrants.

CIRA 2007 was "tougher" than CIRA 2006 in several respects. First, CIRA 2007 included triggers, meaning that more Border Patrol agents would have had to be hired, more border fencing built, and the mandatory new employee verification system deemed to be "working" before legalization and new guest worker programs began. Second, CIRA 2007 required all unauthorized foreigners to return to their countries of origin and re-enter the US legally, not just those in the US two to five years, as in CIRA 2006. Third, CIRA 2007 would have admitted a third of US immigrants on the basis of points granted for their knowledge of English, their education and their US work experience.

Despite the support of President Bush and Senate leaders, CIRA 2007 failed because of the combined opposition of those opposed to more guest workers and of those opposed to amnesty. Then-Senator Obama opposed the 2007 bill.

Agriculture. Comprehensive immigration reform proposals in 2006 and 2007 included the Agricultural Job Opportunity Benefits and Security Act (AgJOBS), which was negotiated by worker and employer advocates in summer-fall 2000. The most recent version introduced in May 2009 (S 1038 and HR 2414) would allow up to 1.35 million unauthorized farm workers who did at least 150 days or 863 hours of farm work in the previous 24 months to apply for Blue Card probationary status during an 18-month sign-up period. After more farm work, for instance, at least 150 a year in each of the first three years after enactment, the Blue Card holder and his/her family members in the US could become regular immigrants.

AgJOBS would make three significant "employer-friendly" changes in the H-2A program. First, employers could "attest" to DOL that they have vacant jobs, are paying at least the minimum, prevailing, or AEWR wage, and will comply with other H-2A requirements to be certified by DOL to employ H-2A workers. Second, rather than provide free housing, 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. Third, the Adverse Effect Wage Rate, usually the highest of the three wages that must be paid to legal guest workers, minimum, prevailing and AEWR, would be frozen and studied.

Several other proposals were introduced in the House in 2011 to legalize currently unauthorized farm workers and make it easier for farmers to employ legal guest workers. HR 2847 would provide up to 500,000 H-2C visas a year to foreign farm workers who could stay in the US up to 10 months a year, but not provide a path to immigrant status. HR 2895 would not cap the number of 10-month W-visas available to foreign farm workers who could move from one farm employer to another while in the US for up to 10 months each year. Both programs would be administered by USDA. Rep Lamar Smith (R-TX), who introduced HR 2847, will no longer chair the Judiciary Committee, and Dan Lundgren (R-CA), who introduced HR 2895, was not re-elected.

Senator Dianne Feinstein (D-CA) is expected to re-introduce AgJOBS in 2013. Meanwhile, worker and employer advocates are considering a free-agent program similar to the never implemented Replenishment Agricultural Worker program that was included in the Immigration Reform and Control Act of 1986. If the government found farm labor shortages, RAW visas would have been issued to foreigners inside the US or abroad who could have used their RAW visas do farm work. After four years, RAW visa holders could have applied for immigrant status. There were no labor shortages during the four-year 1989-93 life of the RAW program, so it expired without ever being used.

AFBF. The American Farm Bureau Federation in October 2012 released a new plan to legalize unauthorized farm workers if Congress requires all employers to use E-Verify to check the legal status of new hires. Under the AFBF proposal, qualifying unauthorized farm workers in the US would receive five-year "ag cards" that would restrict them to farm work and not provide a path to US immigrant status.

Farm employers could also hire guest workers who are outside the US; they would receive one-year visas that tie the foreign worker to the sponsoring employer, or to two employers if the guest worker was employed by one farmer for eight months and another for four months. Foreign farm workers could also apply for 11-month visas that would allow them to work for any "registered" farm employer before spending at least 30 days outside the US and then returning for another 11 months of US farm work. Workers holding 11-month contracts would become unauthorized if they were jobless in the US more than 30 days. Under the AFBF proposal, USDA would administer these new guest worker programs.

The AFBF, which says that its proposal is flexible and market-based, aims to give farm employers a choice between contract workers who are tied to their farms and workers who would float from farm to farm. The current H-2A program requires employers to provide housing and pay a higher-than-minimum Adverse Effect Wage Rate. The AFBF proposal requires the payment of the federal or state minimum wage and does not require the employer to provide housing or transportation to the work place. The AFBF proposal would not require farm employers to abide by the terms of the Migrant and SeasonalÿAgricultural Worker Protection Act (MSPA) when hiring guest workers, and bars workers from using a "private right of action" to sue employers who violate MSPA and other labor laws.

Manuel Cunha of the NiseiÿFarmers League complained that the AFBF is not a "team player" supporting the joint efforts of worker advocates and farm employers to enact AgJOBS. He said: "We have nothingÿ[no AgJOBS] because Farm Bureau has not supported what we'veÿdone?Labor standards have to be the same for US and alien workers." Cunha has been vocal in asserting that US workers cannot fill the farm jobs now held by immigrant farm workers. He said: "The workers are not here. You got to have milkers. You don't bring anyone out of the unemployment line to milk cows."

The UFW and other farm worker advocates decried the lack of worker protections in the AFBF proposal. They emphasized that the AFBF provides options for farm employers, but not for farm workers.

CFBF. The California Farm Bureau Federation released the results of an online survey in December 2012 that found 61 percent of 800 respondents reported trouble finding sufficient workers in 2012. Over half of those responding hired workers directly; 35 percent hired workers via FLCs.

About 40 percent of survey respondents were tree fruit growers and 20 percent produced wine grapes. Most respondents hired fewer than 25 seasonal workers, and said that lack of labor delayed the timely completion of farming tasks. CFBF President Paul Wenger said the survey showed that farmers need "a secure, effective program that allows people from foreign countries to work legally in the United States to harvest crops."