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Legalization For Farmworkers Seems Close To Reality

by Carl R. Baldwin

It couldn’t have anything to do with the coming US Presidential election, could it, and the desire of Bush strategists to steer more Latino voters into the Republican column? Maybe it could, say I as a skeptical Democrat, but it is a very good idea in any event, and it deserves support, irrespective of party affiliation.

The bill, S. 1645, “The Agricultural Job Opportunity. Benefits and Security Act of 2003,” introduced on September 23, 2003 by Senators Edward M. Kennedy (D-MA) and Larry Craig (R-UT), with Representatives Howard L. Berman (D-CA) and Chris Cannon (R-UT). There are numerous co-sponsors, and House Speaker Dennis Hastert has promised his support. Groups often opposed have closed ranks to support the bill: the National Council of Agriculture Employers, the American Farm Bureau, and the United Farm Workers Union.

Here is the essence of it. Provided that the undocumented agricultural workers, who are almost entirely Mexican, can prove eligibility, they would be granted temporary resident status, which could later (after an additional period of agricultural employment) lead to permanent resident status, with the prospect of an application for naturalization five years later. To be eligible for temporary residence, the farmworker must show that he performed agricultural labor for at least 100 days during 12 consecutive months during the 18 month period ending August 31, 2003 (that is, from March 1, 2002 to August 31, 2003). There are some potential problems here, to be sure. What if the employer, fearing a fine for employing persons not legally eligible to work, failed to maintain accurate records of all of his farmworkers? I have not seen any mention of this impediment in any of the newspaper accounts that I have read of S. 1645, but the statute itself is well aware of this potential problem.

Note this passage on Documentation of Work Experience: an alien applying for temporary residence has the burden of proving by a preponderance of the evidence that he has worked the requisite number of hours or days. If an employer or farm labor contractor has kept proper and adequate records, the alien’s burden of proof may be met by securing timely production of those records. In the alterative, an alien can meet such burden of proof if the alien has in fact performed the work described by producing “sufficient evidence” (not a “preponderance” of the evidence) to show the extent of that employment as a matter of just and reasonable inference. This is what the farmworkers have to hope for: that the Secretary of Homeland Security relies on “just and reasonable inference” when the employer had failed to keep reliable employment records.

There are many good features to temporary legal residence. The farmworker can travel home to visit his family, and return to the US. He is given work authorization. His status will not be terminated unless he engaged in some action that makes him deportable. His spouse and children are not granted temporary residence or work authorization, but are immune from removal while their spouse, the farmworker, maintains temporary resident status. When the farmworker later applies for lawful permanent residence, his spouse and minor children can be included, and that covers children who were minors (under age 21) at the time the farmworker was granted temporary resident status.

The application for temporary residence: mindful of the fact that some fully eligible farmworkers may have returned to Mexico, the statute wisely provides that an application for temporary residence and work authorization can be made at a designated port of entry at a southern land border.

The drafters of the statute wanted to make sure that the farmworkers would remain committed to agricultural work for a while. Therefore, temporary residence will convert to permanent residence and the green card only if the farmworker documents the following: 360 work days of agricultural employment during the six-year period beginning September 1, 2003 and ending August 31, 2009. Two-thirds of that work (240 work days) must be performed in the first three years. The application for adjustment of status to permanent residence must be made no later than August 31, 2010.

What if the growers still need more farmworkers, even after the legalization of an estimated 500,000 workers as the result of S. 1645? The statute’s answer is in the “reformed” H-2A program for temporary agricultural workers. These workers, however, will remain in the category of temporary nonimmigrants. They will not become eligible for temporary residence, and will be required to return to Mexico after their temporary and seasonal work is completed.

The H-2A reform addresses several different concerns. It wants to make sure that the US employer treats foreign workers fairly, and observes the terms of any collective bargaining agreement between the parties. It also wants to make sure that the practice of employing foreign nonimmigrant workers does not displace US workers. The statute also wants to know whether the hiring of H-2A workers has the effect of depressing wages of US workers, and calls for studies to answer that question. The H-2A reform, it seems, is a “work in progress” that will have to be watched.

Given the fact that one of the motivations for the bill was the concern about exploitation by some unscrupulous growers of this vulnerable workforce, it is gratifying to note that there are many protections in the bill for the workers The farmworker cannot lawfully be fired while he is in temporary resident status. If he is, the Secretary of Homeland Security must provide him with a fair hearing, and, if necessary, a full-fledged arbitration proceeding. Both sides must abide by the arbitrator’s decision, but the statute also says that other legal remedies may be available to the aggrieved farmworker.

If this bill is enacted into law, some of our hardest working, most exploited, and most economically vital workers will finally be able to step out of the shadows and into the sunlight. Thank you, Congress, for finally getting it right!

About The Author

Carl R. Baldwin graduated from Columbia University Law School in 1980, and became a member of the New York State Bar a year later. He worked for three years with the New York City Law Department, and then entered solo practice in immigration law, which he has continued to the present. Mr. Baldwin's website of articles and commentary is at Mr. Baldwin has written a book on immigration law, "Immigration Questions and Answers," Allworth Press, 2002, which contains essential background information on how the immigration law works. It can be ordered online at

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.