Skip to navigation

Skip to main content

 

January 2004, Volume 10, Number 1

AgJOBS, Guest Workers

President Bush on January 7, 2004 unveiled a program that would permit
the six to eight million unauthorized foreigners in the US with jobs to
become temporary legal residents. As temporary residents, they would be
free to travel in and out of the US, get social security numbers and
driver's licenses, and could apply for immigrant visas.

The Fair and Secure Immigration Reform (FSIR) program aims to fulfill
Bush's goal of "matching willing foreign workers with willing US
employers when no American can be found to fill those jobs." However,
for unauthorized migrants already working illegally in the United
States, the no-American-worker requirement would be considered
fulfilled. A US official gave this example: some one is working
illegally at Holiday Inn, which acknowledges [most likely in a letter or
affidavit to DHS] that "she's been working here as of such-and-such date
[and] that person is now legal, let's say, for the three years of this
program." The unauthorized worker would then take the employer's letter
to DHS, pay a registration fee, and receive a three-year renewable visa.

There is no clear path from this work visa to immigrant status:
administration officials emphasized that "there is no linkage between
participation in this program and a green card, and it is temporary in
nature -- one must go home upon conclusion of the program." The number
of green cards or immigrant visas available for US employers who cannot
find US workers, currently 140,000 for workers and their families, would
increase, but there could still be long waits for employers seeking
immigrant visas for needed foreign workers. For example, if five
million unauthorized workers sought an additional 100,000 employment-
based immigrant visas a year, it would take 50 years to convert all of
them to immigrants.

FSIR also includes a new guest worker program for what Bush says are
"the jobs being generated in America's growing economy [that] American
citizens are not filling." FSIR would allow US employers to advertise
jobs on a new internet labor exchange, and if no US worker accepted, the
employer could go abroad and get guest workers, who would receive three-
year renewable visas. Guest workers from outside the US would not have
to pay the registration fee as would unauthorized workers in the US.

Registered temporary workers would have a new incentive to return to
their country of origin, according to the administration, since they
would earn retirement credits in their home country's system for their
contributions to US Social Security. [The US sends Social Security
checks abroad, but some countries reduce home-country benefits because
of the work abroad. However, since US Social Security benefits are much
higher than most origin country benefits, it is not clear that the
promise of transferable retirement credits would be an incentive to
return].

Most observers said that Bush is likely to win points with US Hispanics
for what they called "a more humane, safe, orderly and legal immigration
policy." Mexican President Vicente Fox said Bush's plan represented "a
clear recognition of the value of these Mexicans who are working there
in the United States." Most US employers welcomed the Bush plan for
potentially offering an easier way to obtain guest workers, while unions
were wary, emphasizing that Bush did not propose wage floors or
government-supervised recruitment of US workers.

Critics seized on the fact that an immigrant visa may not become
available before the temporary status runs out, saying that Bush's
proposal "is more likely to ensure their departure than ensure their
permanent residency." They emphasized that there are long waits before
immigration visas become available for unskilled workers sponsored by US
employers, and that, without a 245(i) program, which allows foreigners
in the US when their greencards become available to pay a fee and adjust
status in the US, some of the workers returning to their countries of
origin to get an immigrant visa may be barred from legal re-entry for 10
years because they were in the US illegally.

Department of Homeland Security Secretary Tom Ridge set the stage for
the administration proposal by calling for some kind of legalization
program, saying "as a country, we have to come to grips with the
presence of eight to 12 million illegals. I think there's a growing
consensus that, sooner rather than later, we need to deal with the
reality that these men, women and families are here, many contributing -
- most contributing -- to their community, paying taxes, paying into
Social Security. We have to legalize their status."

Democratic Presidential candidate Howard Dean favors earned legalization
for undocumented workers who have committed no crimes, and Rep. Richard
A. Gephardt (D-Mo.) introduced the Earned Legalization and Family
Reunification Act in 2002, which would legalize foreigners who had been
physically present in the United States for at least five years and who
had worked for at least two years of that time.

Congress did not take final action on the three major pending
immigration bills, but there is speculation that AgJOBS, DREAM and CLEAR
may be enacted in 2004 because of the new impetus given by Bush's
speech. In an effort to head off the approval of a new guest worker
program, Rep. Thomas Tancredo, (R-CO) introduced a bill that would
require the Department of Homeland Security to certify that illegal
migration is "under control" before any unauthorized foreigners in the
US receive work visas. Tancredo, who heads the 70-member Congressional
Immigration Reform Caucus, complains that the Bush proposal would reward
foreigners who broke the law to enter the US.

The Bush proposal is not a full amnesty, which is as an "act of clemency
by an authority by which pardon is granted to a group of individuals.
Clemency is an act of "mercy, compassion or forgiveness," while a pardon
is a "release from the legal penalties of an offense."

AgJOBS. The Agricultural Job Opportunity, Benefits, and Security Act of
2003 would trade "employer-friendly" changes in the H-2A program for an
"earned legalization" path to immigrant status for unauthorized farm
workers. Unauthorized foreigners who did at least 100 days of farm work
(an hour or more constitutes a day) in a 12 consecutive-month period
between March 1, 2002 and August 31, 2003 could receive a six-year
Temporary Resident Status (TRS) that permits work in the US and travel
in and out of the US.

TRS farm workers could earn a permanent immigration status by doing at
least 2,060 hours or 360 days of farm work in the next six years,
including at least 1,380 hours or 240 work days during the first three
years following adjustment, and at least 430 hours or 75 work days
during each of three 12-month periods in the six years following
adjustment. Spouses and minor children of TRS workers would not be
deportable (but would not be allowed to work) and could receive
permanent immigrant status when the farm worker qualified for an
immigrant visa.

The proposed legislation puts no cap on the number of temporaries. Some
reports suggested 500,000 unauthorized farm workers might qualify,
others estimate 800,000, including 25 percent in livestock, which was
excluded from the SAW legalization program of 1987-88. Some reports
suggested 500,000 unauthorized farm workers might qualify, others
estimate 800,000, including 25 percent in livestock, which was excluded
from the SAW legalization program of 1987-88.

There are two other guest worker bills pending in Congress, associated
with Senators John McCain (R-AZ) and John Cornyn (R-TX). The McCain
bill would create a three-year H-4B work visa available to unauthorized
foreigners in the US before August 1, 2003 who pay a $1,500 fee or have
the fee deducted from wages. H-4B visa holders would have to return to
their countries of origin and apply for H-4A visas if they wanted to
become US immigrants. http://www.numbersusa.com/interests/amnesties108.html)

The path to US immigrant and citizenship status would begin with US
employers, who request foreign workers after posting job offers in a new
"electronic registry" maintained by DOL for at least 14 days, and paying
$500 for each H-4A worker requested ($1,000 if they have more than 500
employees). US employers requesting H-4A workers must pledge to pay
prevailing wages and promise not to displace US workers 90 days before
and after hiring H-4A workers. H-4A foreign workers could work in the
United States for three years, and could have their visas renewed once.
After at least three years in H-4A status, foreigners can apply for
immigrant visas on their own or through an employer sponsor.

The Cornyn bill would allow unauthorized foreigners in the US to receive
W-visas that permit them to remain in the US for nine or 12 months. W-
visa workers in the US up to 270 days a year could return to seasonal US
jobs indefinitely, while year-round workers in the US could have their
one-year work permits renewed three times, up to a total of 36 months.
W-visa holders could bring their families to the US if their earnings
are at least 125 percent of the federal poverty line.

In order to hire W-visa workers, US employers would have to file labor
attestations with DOL promising to pay at least the minimum wage,
advertise the job for at least 14 days, and hire qualified US workers
who apply. W-worker Social Security and Medicare taxes are to be
deposited in a special account, and refunded to W-workers when they
return to their countries of origin. After three years of US work with
a W-visa and return to the country of origin, the foreigner may apply
for US immigrant status, with priority for immigrant visas based on
whether a US employer acts as a sponsor, whether the foreigner received
promotions or wage raises while employed with a W-visa in the US, and
the W-visa holder's record of paying taxes and knowing English.

Perspective. AgJOBS continues efforts since the mid-1990s to trade
"employer-friendly" changes in the H-2A program for an "earned
legalization" path to immigrant status for unauthorized farm workers.
The Senate approved a version of AgJOBS on July 23, 1998 on a 68-31 vote
that only made the H-2A program more employer-friendly, but then-
President Clinton threatened a veto and AgJOBS was not enacted.

In December 2000, after the election of Presidents Fox and Bush, worker
and grower representatives reached a compromise that included the major
elements of the current AgJOBS proposal, that is: (1) freezing the
Adverse Effect Wage Rate (AEWR) for several years; (2) allowing
employers to provide AgJOBS workers with a housing allowance instead of
housing; and (3) granting provisional legal status to unauthorized farm
workers who could prove that they did at least 100 days of farm work in
the preceding 18 months. If a provisional legal farm worker did at
least 360 days of farm work in the next six years, including 275 days in
the first three years, he earned an immigrant status. Senator Phil
Gramm (R-TX) blocked approval of this compromise.

During the spring and summer of 2001, there were Mexico-US meetings on
migration and a variety of proposals to legalize farm and other workers
in the US. Foreign Minister Jorge Castaneda in June 2001 said that
Mexico's four-pronged immigration reform agenda included legalization
for unauthorized Mexicans in the US, a new guest-worker program,
cooperation to end border violence and the US exempting Mexico from visa
ceilings. Castaneda added, "It's the whole enchilada or nothing."
President Fox in September 2001 said: "we must, and we can, reach an
agreement on migration before the end of this very year."

The September 11, 2001 terrorism stopped Mexico-US negotiations on
migration, and AgJOBS was the first major proposal to win bipartisan
support in Congress. Many migrant advocacy groups hope that AgJOBS can
be a model for earned legalization in other sectors, and many newspaper
editorials concluded that AgJOBS was the best way to deal with
unauthorized Mexican workers- bottom up, with agreement on principles
and details worked out by employer and worker interests rather than
being debated in Congress. The Dallas Morning News editorialized that
AgJOBS "may just be a model for other industries that are willing to
pound out compromises of their own." (October 12, 2003)

Democratic Presidential candidate Howard Dean favors earned legalization
for undocumented workers who have committed no crimes, while Rep.
Richard A. Gephardt (D-Mo.) introduced the Earned Legalization and
Family Reunification Act in 2002, which would legalize the residence of
foreigners who had been physically present in the United States for at
least five years and who had worked for at least two years of that time.

Many newspaper editorials concluded that AgJOBS was the best way to deal
with unauthorized Mexican workers because, they said, it was bottom up,
carefully targeted, and reflected agreement worked out by employer and
worker interests. For example, the Salinas Californian said that AgJOBS
"is a big step forward for farm workers, growers and U.S. immigration
reform," (September 25, 2003) while Dallas Morning News editorialized
that AgJOBS "may just be a model for other industries that are willing
to pound out compromises of their own." (October 12, 2003) The
Washington Post asserted that "the food industry, in practice, would not
function without them [illegal aliens]." (November 10, 2003).

Elisabeth Bumiller, "Border Politics as Bush Woos 2 Key Groups With
Proposal," New York Times, January 8, 2004. Elisabeth Bumiller, "Bush
Would Give Illegal Workers Broad New Rights," New York Times, January 7,
2004.