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April 2013, Volume 19, Number 2

Immigration Reform: Agriculture

The bipartisan Senate immigration reform proposal is expected to include a legalization program for unauthorized farm workers and changes to the current H-2A program that modify the long-standing AgJOBS proposal. The legalization provisions of AgJOBS remain mostly intact, but the current H-2A program would be phased out after a year and replaced.

Under the new guest worker program, 112,000 foreign workers could be admitted in the first year with three-year visas, and the number could rise by 112,000 a year for five years, with a maximum 336,000 foreign worker admissions in a three-year period. Farm guest workers could work in year-round jobs such as dairies, and could change employers. There would be separate minimum wages for six types of workers that could be adjusted annually. The major four types of workers are crop workers, graders and sorters, equipment operators, and dairy and livestock workers.

After five years, USDA could adjust the cap.

Legalization. The most recent version of AgJOBS, introduced in May 2009 as S 1038 and HR 2414, would have allowed 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. The House version would have allowed unauthorized workers earning at least $7,500 from farm work during the qualifying period to apply as well.

Unauthorized farm workers would apply for Blue Cards 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 was 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 sufficient qualifying farm work. Applicants would have paid 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 do farm work to maintain their status but, like Blue Card holders, they could also travel in and out of the US with their derivative legal status. Blue Card holders would be eligible for earned benefits such as unemployment insurance and the earned income tax credit, but not means-tested benefits such as Food Stamps until at least five years after receiving Blue Card status.

To earn immigrant visas for themselves and their families, Blue Card holders would have to perform additional farm work under one of three 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 after enactment of AgJOBS, farm employers must provide Blue Card employees with written records of their farm work and submit a copy to DHS. Employers would be subject to fines up to $1,000 for not providing employment records.

To become immigrants, Blue Card holders 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 when they did. 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 the availability of 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 farm work credit.

Guest Workers. AgJOBS would make three significant "employer-friendly" changes in the H-2A program: attestation, housing vouchers and AEWR changes. First, attestation would replace certification. Employers could make assertions (assurances) 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. Employer job offers, to be filed at least 28 days before workers are needed, would be posted on the internet and no longer circulated via the interstate clearance system. Not more than 14 days before the employer-specified starting date, the employer must advertise for US workers.

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 (two workers per bedroom). Most labor-intensive agriculture is in urban counties, where fair market rents in 2012 range from $800 to $1,200, so that payments to each H-2A worker would be $200 to $300 a month or $1 to $2 an hour for workers employed 150 hours a month. 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, usually the highest of the three wages that must be paid to legal guest workers, minimum, prevailing, and AEWR, would be frozen and studied. AEWRs in 2012 ranged from $9.30 in southern states such as Louisiana to $12.26 in Hawaii, and were $10.24 in California and $10.92 in Washington. If Congress failed to enact a new AEWR within three years, the AEWR would be adjusted to reflect the three-year change in the Consumer Price Index and eventually rise with the CPI by up to four percent a year.

A major issue in 2013 negotiations involved the appropriate AEWR wage. Initially, farm employers wanted to switch the basis for the AEWR from the average hourly earnings of field and livestock workers as reported by employers to USDA to the average or median wage reported by employers to State Workforce Agencies as they compile data for Occupational Employment Statistics. Instead of one AEWR per state, the current practice, using the OES to set the minimum wage for guest workers would result in multiple AEWRs by job title and level of experience in each state.

However, the OES wage for some livestock workers is significantly higher than prevailing wage rates, resulting in a compromise that establishes one AEWR per state and adjusts it to reflect the cost of living.

Hearings. The House Judiciary Subcommittee on Immigration and Border Security held a hearing February 26, 2013 on Agricultural Labor: From H-2A to a Workable Agricultural Guestworker Program. Representative Bob Goodlatte (R-VA), chair of the Judiciary Committee, called the H-2A program "costly, time-consuming, and flawed." Goodlatte called for a new program that includes "practical safeguards" for US and foreign workers and includes "dairy jobs and work in food processing plants, among other things."

DOL certified about 95,000 farm jobs to be filled with H-2A workers in 2008, when DOS issued 64,000 H-2A visas. Most H-2A workers can remain in the US 10 months, but a few, primarily sheepherders, can remain in the US for three years.

Employers and Unions. The American Farm Bureau Federation, which played a key role in 2013 negotiations, announced a proposal in Fall 2012 that would have USDA administer two new guest worker programs, one that would tie workers to a US farm employer and allow them to remain in the US up to three years and another that would allow guest workers to move from farm to farm and stay in the US up to 11 months. The AFBF plan would "allow employers the stability of a contract or the flexibility of portability depending on their business needs."

AFBF President Bob Stallman said that without a new guest worker program, "agriculture's going to move outside the borders of this country."

Under the AFBF proposal, farm employers would have two options to employ guest workers. The first would give an unlimited number of 11-month visas to foreign workers who could move between US farm employers who were registered with USDA. These free-agent guest workers would have to leave the US for a month a year, but could return year-after-year. The second option would allow farm employers to offer renewable 12-month visas to foreign workers who would be tied to their farms. These contract workers would have to leave the US at least 30 days every three years.

The Agriculture Workforce Coalition (www.agworkforcecoalition.org), a group of farm organizations that includes the American Farm Bureau Federation, announced its support in January 2013 for an "earned adjustment in status for current" unauthorized farm workers and "a program to ensure an adequate farm workforce in the future." AFBF President Bob Stallman said that "comprehensive immigration reform through legislation is needed to solve the agricultural worker problem" for farmers who hire seasonal and year-round workers.

The AWC said that, if currently unauthorized workers register and work at least a minimum number of days in US agriculture "for several years," it would support an opportunity for them to "obtain permanent legal status and the right to work in whatever industries they choose."

The Food Manufacturers Immigration Coalition said it was negotiating with the United Food and Commercial Workers over a separate proposal for an earned legalization program for unauthorized workers in meatpacking and other food manufacturing sectors.

UFW President Arturo Rodriguez said that worker advocates "will not agree to any program that does not protect the rights of workers or displaces any US workers." He said that worker advocates would embrace a non-H-2A guest worker program if it included the Adverse Effect Wage Rate and required employers to pay workers' transportation and housing costs.

The UFW outlined a free-agent guest worker program that would issue three-year visas at US consulates abroad to foreigners who had US job offers or "evidence of union membership" for work permits that allowed workers to change US employers and travel in and out of the US. The three-year work permits could be renewed indefinitely. Workers who completed six years of US farm work and who could pass an English-language test could apply for immigrant status. Finally, the UFW wants the Migrant and Seasonal Agricultural Worker Protection Act amended to give farm workers "the right to form, join or assist labor organizations for the purpose of collective bargaining."

The UFW sponsored meetings to inform farm and other workers about the progress of immigration reform talks. Rep Luis Gutierrez (D-IL) told Salinas residents in March 2013 that the deportation of an average 1,400 foreigners a day requires quick action on immigration reform.

Dan Fazio of the Washington Farm Labor Association (WFLA) suggested one trade off. If farm employers do not have to pay for worker housing and the super minimum wage, the Adverse Effect Wage Rate, is reduced, employers may be willing to accept a private right of action, meaning that migrant workers could sue employers for violating any US laws, not just for violating employer-worker contracts. The WFLA was certified to fill 3,900 jobs with H-2A workers in 2012.

Most media reports interviewed farm employers who asserted that they required foreign-born workers to survive. Owners of horses near New York City said "The sons of Scarsdale do not want to muck stalls, but the horse community in Westchester is faced with a serious shortage of horse exercisers and horse trainers and barn managers? As barn owners and horse-business owners, we want the system fixed." Horse grooms earn $500 to $600 a week and receive housing.

SAWs. In 1987-88, some 1.1 million unauthorized farm workers were legalized under the Special Agricultural Workers (SAW) program. Most SAWs were not found in the first US Department of Labor National Agricultural Workers Survey in 1989, when about 35 percent of interviewed crop workers, 630,000 of an estimated 1.8 million, were SAWs. The share of SAWs fell to less than 20 percent or 360,000 by 1992, and has been 12 to 15 percent in recent years, suggesting 180,000 SAWs in a crop labor force still estimated to total about 1.8 million.

There is no official count of the number of farm workers. If the total number of crop workers is 1.4 million, then the number of SAWs was 490,000 in 1989, fell to 280,000 in 1992, and has been 140,000 in recent years.

Regardless of the exact number, two-thirds of those legalized as SAWs were not found in the NAWS. The share of SAWs in the NAWS fell by half in less than five years, and then stabilized at 12 to 15 percent. Proposals to legalize currently unauthorized farm workers aim to slow exits from agriculture by requiring newly legalized farm workers to continue to work in agriculture for three to five years.