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Analysis of a Hearing Before the House Subcommittee on Immigration Policy and Enforcement on "Regional Perspectives on Agricultural Guestworker Programs" February 9, 2012[1].

by Nolan Rappaport

Background Information. The H-2A program allows agricultural employers who anticipate a shortage of domestic workers to bring foreign workers to the United States. To qualify for an H-2A nonimmigrant classification: (1) The job must be of a temporary or seasonal nature; (2) The employer must demonstrate that there are not enough U.S. workers who are able, willing, qualified, and available to do the work; (3) The employer must show that the employment of H-2A workers will not adversely affect the wages or working conditions of similarly employed U.S. workers; and (4) Generally, a single, valid temporary labor certification[2] from the U.S. Department of Labor (DOL) must be submitted with the H-2A visa petition[3].

Statement of Judiciary Committee Chairman Lamar Smith[4]. H-2A agricultural work visas do not have a numerical limit, yet half of the farm workers are illegal immigrants. In 2008, the DOL concluded that the vast majority of growers find the H-2A program so plagued with problems that they avoid using it altogether. Growers believe that the DOL, which largely administers the H-2A program, is hostile to them and to the program. They also are troubled by the great cost of using the H-2A program, especially the adverse effect wage rate[5], and the requirement that they have to build free housing for the guestworkers.

America needs an agricultural guestworker program that is fair to everyone it impacts - American growers, farmworkers, consumers and the guestworkers. The program must provide growers who want to do the right thing with a reliable source of legal labor. It must protect the livelihoods of American workers and the rights of guestworkers. And it must keep in mind the pocketbooks of American families. The American Specialty Agriculture Act[6] that I introduced on September 7, 2011, will accomplish these goals. It establishes an H-2C guestworker program responsive to the needs of American growers and maintains strong policies to protect citizens and legal alien workers. It does this without repeating the fraud-ridden mass amnesty for illegal immigrant farmworkers that failed in 1986.

Comments. The comment about a fraud-ridden mass amnesty is a reference to one of the legalization programs established by the Immigration Reform and Control Act of 1986, a special agricultural worker (SAW) program for aliens who had worked at least 90 days in seasonal agriculture during a designated year-long period[7]. Fraud was a major problem in implementing that program. Former Immigration and Naturalization Service (INS) Commissioner Doris Meissner told the Office of the Inspector General at the Department of Justice that a perception that the SAW program was rife with fraud was the commonly held view at the institution[8]. According to Newt Gingrich, "You should have a guestworker program, probably run by American Express, Visa or MasterCard so they minimize fraud, which the federal government won't do[9]." In October 2010, Senator Chuck Grassley asked the DHS Inspector General (IG) to look into whether senior U.S. Citizenship and Immigration Services (USCIS) leaders are putting pressure on employees to approve more visa applications, even if the applications might be fraudulent or the applicant is ineligible. Among other things, the IG found that the mindset of quantity over quality had not ended at USCIS. Nearly 25% of the immigration service officers surveyed indicated that they had been pressured to approve questionable applications[10]. The House Subcommittee on Immigration Policy and Enforcement (Immigration Subcommittee) held a hearing on this report on February 15, 2012[11]. USCIS Director Alejandro N. Mayorkas testified that although the IG's report was based on limited testimonial information and not empirical data, it captured the reality that the tension between quality and speed still exists[12].

Statement of Bruce Goldstein, President of Farmworker Justice[13]. The H-2A program only provides 3-5% of the total agricultural workforce. The majority of our nation's farmworkers are aliens who lack work authorization. Fear of deportation deprives them of bargaining power with their employers and inhibits them from challenging illegal employment practices. The presence of so many vulnerable farmworkers depresses wages and working conditions for all farmworkers, including United States citizens and lawful immigrants.

Legally authorized U.S. workers number at least 540,000-600,000 under the lowest estimates of the agricultural labor force. Improving wages and working conditions, increasing legal protections and implementing the other recommendations made by the Commission on Agricultural Workers would help to attract and retain more legal farmworkers. Currently, however, poverty among farmworkers is more than double that experienced by other wage and salary workers. Moreover, farm work is one of the most hazardous occupations in the country, with routine exposure to dangerous pesticides, arduous labor and extreme heat. And despite their occupational risks, farmworkers are excluded from many labor protections.

Question: This is a grim description farm work in the United States. The suggested improvements probably would attract more domestic workers, but they would be expensive and the cost of the improvements almost certainly would be passed on to consumers in the form of higher prices for produce. Is the public willing to pay substantially more for fruit and vegetables to make farm work more desirable? Maybe, but I doubt that the public will accept much higher prices.

The solutions are not in Chairman Lamar Smith's American Specialty Agriculture Act, Congressman Daniel E. Lungren's Legal Agricultural Workforce Act[14] or Congressman Jack Kingston's Better Agriculture Resources Now Act[15]. Among other things, these bills make sharp cuts in wage rates and worker protections. They all eliminate the 50% rule, which requires H-2A employers to hire qualified U.S. workers who apply for work until the first half of the season has elapsed. The Smith and Lungren proposals also drastically limit the ability of U.S. workers to learn about job opportunities by reducing the positive recruitment requirements which employers presently are required to meet to demonstrate that no U.S. workers are available. Kingston's bill shortens the timeframe for DOL to process H-2A applications and provides for applications to be deemed approved if the Secretary is unable to meet the very tight timeframe. And the Smith and Lungren proposals would reduce government oversight, creating a system in which employers simply promise to comply with required job terms and other requirements, with little if any repercussions for failing to meet program requirements.

Abuses continue to occur in the H-2A program because it is inherently flawed. Among other things, H-2A workers are tied to a single employer. H-2A workers only have authorization to work for the employer who obtained their visas. They do not have a right to seek a job from another employer if they are dissatisfied or mistreated. If the worker leaves the job, or is fired, he must return to his home country. Consequently, most H-2A workers are extremely reluctant to complain about their treatment on the job.

Comments. Abuse and exploitation of farm workers are part of the history of the farming industry in the United States. You can find examples of farms being "sweatshops of the soil" in Edward R. Murrow's 1960's television broadcast, "Harvest of Shame." The entire broadcast is available on the Internet[16]. Permitting the guestworkers to seek work from another employer would help the guestworkers, but it might cause problems for domestic workers. Guestworkers are admitted to the United States on the basis of a visa petition that was approved to provide guestworkers for the petitioner because the petitioner is not able to meet his labor needs with American workers. Letting guestworkers leave the petitioning employer to work for a different employer could result in employers hiring guestworkers even if they can meet their needs with American workers. Perhaps this can be avoided by limiting the dissatisfied or abused guestworkers to employers who have not been able to hire the number of guestworkers they were authorized to hire. Maybe other types of solutions can be found in laws providing assistance to aliens in similar situations. For instance, the Violence Against Women Act (VAWA) addresses the plight of aliens who are being abused by the citizen or lawful permanent resident who brought them to the United States, which is similar to the situation of an abused guestworker. VAWA provides an opportunity for the abuse victims to leave the abusive person and seek permanent resident status on their own. Perhaps VAWA could be used as a blueprint for a bill to give guestworkers the right to go to a different employer if they are being abused by the one that brought them to the United States[17].

H-2A employers have financial incentives to hire guestworkers rather than U.S. workers. Guestworkers are about 10% cheaper than American workers because the H-2A employer does not have to pay Social Security or Unemployment Tax on the guestworkers' wages, but must do so on the U.S. workers' wages.

Comments. Financial savings from hiring foreign workers are an incentive in other occupations as well, but the savings typically are reduced by additional expenses involved in employing foreign workers, such as legal fees for preparing and filing the visa petitions.

Representative Howard Berman has introduced a bill that offers a meaningful solution to the needs of agricultural employers, farmworkers and the nation, the "Agricultural Labor Market Reform Act of 201."[18] Among other things, it establishes an earned legalization program under which experienced, undocumented farmworkers in the U.S. who meet stringent requirements are given temporary permission to work in agriculture for three to five years and an opportunity to earn permanent immigration status[19].

Comments. The Agricultural Labor Market Reform Act of 2011 confers "blue card status" upon an alien who: (1) during the 24-month period ending on December 31, 2010, has performed specified lengths of, or earned a specified amount from, agricultural employment in the United States; (2) applied for such status during the 18-month application period; (3) is otherwise admissible to the United States; and (4) has not been convicted of specified felonies or misdemeanors. Provides for adjustment of blue card status to permanent resident status based upon completed periods of agricultural employment. Exempts an alien from certain Social Security-related violations if committed prior to receiving blue card status. Amends the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to require farm labor contractors to participate in the E-verify Program. And establishes a trust fund for agricultural labor market reform[20].

Statement of Gary W. Black, Commissioner of the Georgia Department of Agriculture[21]. Georgia has a vested interest in making sure its agricultural employers have the manpower necessary to effectively run their operations. Agriculture is the leading industry in Georgia, employing one in seven Georgians.

During the legislative session of 2011, the Georgia General Assembly passed House Bill 87, the "Illegal Immigration Reform and Enforcement Act of 2011."[22] This legislation directed the Georgia Department of Agriculture (Department) to conduct a study of the labor needs of Georgia agriculture.

The Georgia Department of Corrections (Corrections) developed a pilot program for using probationers to fill Georgia's agricultural labor needs. Two producers participated in this program - one with a large farm and one with a small farm. The larger farmer was originally sent 58 probationers to help with his harvest. By combining the probationers with his existing workers, he was able to compare their productivity. He found the probationers to be half as productive as his other workers. The smaller farmer needed 10-20 workers a day to pick squash and cucumbers. Out of 104 probation workers, he eventually found 15-20 reliable workers. At the end of the day, both producers agreed that the program had potential to meet the niche needs for farmers desperate for workers.

The final report[23] found, among other things, that agricultural guestworker reform must start with the federal government. From expanding eligibility to exercising common sense in writing rules for the antiquated program, only the federal government can make this program useful for farmers. Also, the study indicated a need for improved and expanded education and outreach to the agricultural industry about state and federal labor recruitment programs.

Comment. Commissioner Black also testified[24] on October 4, 2011, at a hearing held by the Immigration Subcommittee on, "America's Agricultural Labor Crisis: Enacting a Practical Solution."[25] Among other things, he suggested the possibility of the federal government establishing a guestworker program and then delegating the day-to-day responsibilities of administering the program to states through a Memorandum of Understanding.

Statement of Paul Wenger, President of the California Farm Bureau Federation (CFBF)[26]. I am here today, because farmers and ranchers across the nation need a solution that provides a legal workforce to cultivate and harvest our crops and tend our livestock. My organization, CFBF,[27] protects family farms and ranches on behalf of more than 74,000 members statewide. Our industry today employs at least 900,000 and possibly 1.2 million unauthorized workers who have special skills and abilities that we cannot exist without. According to a U.S. Department of Labor's National Agricultural Worker Survey, more than half of the agricultural workers are unauthorized.[28]

Last year, the Immigration Subcommittee approved a bill that would make E-Verify mandatory for all employers, including farmers, without proposing a workable way for farmers and ranchers to obtain a stable, legal workforce.

Comment. U.S. law requires companies to employ only individuals who may legally work in the United States - either U.S. citizens, or foreign employees who have the necessary authorization. E-Verify is an Internet-based system that allows businesses to determine the eligibility of their employees to work in the United States.[29]

We need not speculate about what will happen "the day after" if Congress chooses to impose a national E-Verify mandate. The unauthorized workers we are relying on now cannot be replaced with American workers. Few Americans seek agricultural jobs. In the late 1990's, facilitated by the leadership of Sen. Dianne Feinstein, a multi-county welfare-to-farm-work program was launched in the Central Valley. Regional unemployment rates ranged from nine to 12%; in some localities, unemployment exceeded 20%. Out of more than 100,000 prospective "welfare-to-work" placements, only three individuals were successfully placed.

California relies on the labor of at least 400,000 farm and ranch workers each year. In 2009, only 3,503 farm jobs in California were certified for H-2A. Florida farmers directly hire farm employees to fill 115,306 positions. H-2A provides, at most, 3.8% of Florida's needed farm labor. In Texas, about 100,000 workers fill roughly 155,000 farm jobs each year. In 2009, only 2,807 farm jobs in Texas were certified for H-2A, which means that H-2A currently fills only 1.8% of Texas' farm labor needs.

We need a new program model that is more flexible, scalable, and market-oriented. The program should include biometric visas and incentives for workers to abide by the terms of their visas and return home when the work is done. The program also must see to the needs of the dairy and livestock industries. Western dairies and ranches may be larger than their counterparts in many parts of the country, but the problem of finding a viable, legal workforce is the same. Only the scale is different.

Under current law, dairies and ranches have no "safety net" program to obtain legal workers. The industry needs work visas that allow workers to stay long enough to meet the industry's year-round needs. It also needs options for the experienced dairy workforce currently in the country to obtain a visa authorizing them to work here legally.

In conclusion, I urge you to remember that the farmers and ranchers who produce your food need a workable means of hiring the people required to do the work.

Statement of H. Lee Wicker, Deputy Director of the North Carolina Growers Association (NCGA)[30]. As the largest H-2A Program user in the nation, NCGA[31] has more than 700 farm members that will employ more than 7,000 H-2A workers. The farmers and farmworkers of NCGA have worked together and refused to succumb to the conventional wisdom that it is impossible to comply with labor, immigration and worker protection laws.

American farmers need a reasonable, rational, predictable and workable worker program that supplies a legal, available, and fairly compensated farm workforce. The current H-2A program is costly, unpredictable, and administratively flawed. Most farmers lack confidence that the federal agencies running the program will make the required decisions on time even when the farmers execute their responsibilities perfectly and well in advance of the deadlines.

In prior testimony I offered this Committee some practical and sustainable solutions that would give farmers and farm workers confidence that an agricultural guestworker program can work, be predictable, and treat all parties fairly.

Comments: Wicker is referring to a hearing held on April 13, 2011, before the Immigration Subcommittee on, "The H-2A Visa Program: Meeting the Growing Needs of American Agriculture?"[32] He testified that amnesty is not the way to ensure that growers will have an adequate and legal labor force. The solution is to reform the wage rate; mandate binding mediation and arbitration; the cost associated with the worker applying for the visa should be born by the worker, and inbound transportation should not be reimbursed until completion of 50% of the contract; and lastly, streamline and simplify the H-2A process.[33]

Chairman Smith's American Specialty Agriculture Act adopts many of the important and meaningful reforms sought by agricultural employers and would be a substantial improvement over the current program. NCGA proudly endorsed this bill last fall. Some of the other legislative proposals also would make improvements to current law. For instance, the BARN Act introduced by Representatives Kingston and Westmoreland include several of the improvements agricultural employers have suggested. The other proposals are more narrow in scope and, while the bills offer important reform, their provisions standing alone are insufficient to deal with the larger, systemic problems of the current program.

I have reservations about the current version of the 12-year-old AgJobs bill that seeks to legalize the undocumented farm workforce without adding a single worker and without creating a guestworker program for the future. Rather than improving the situation, it would make many of the problems worse. Amnesty alone for undocumented workers did not work well for farmers in 1986, and it will not solve the problem in the years ahead. We need a workable and predictable guestworker program.


Footnotes


1 http://judiciary.house.gov/hearings/Hearings%202012/hear_02092012.html
2 http://www.foreignlaborcert.doleta.gov/about.cfm
3http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac
89243c6a7543f6d1a/?vgnextoid=889f0b89284a3210VgnVCM100000b92ca60aRCRD
&vgnextchannel=889f0b89284a3210VgnVCM100000b92ca60aRCRD

4 http://judiciary.house.gov/news/Statement%20Regional%20Perspectives.html
5 The Department's H-2A regulations at 20 CFR 655.120(l) provide that employers must pay their H-2A workers and workers in
corresponding employment at least the highest of: (I x) the Adverse Effect Wage Rate (AEWR); (ii) the prevailing wage; (iii)
the prevailing piece rate; (iv) the agreed-upon collective bargaining wage, if applicable; or (v) the Federal or State minimum wage, in effect at the time the work is performed. http://www.foreignlaborcert.doleta.gov/adverse.cfm
6 http://www.govtrack.us/congress/billtext.xpd?bill=h112-2847
7http://www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?vgnextoid=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD
&vgnextchannel=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=publaw
, Part A, Section 301.
8 http://www.justice.gov/oig/special/0007/interviews.htm
9 http://www.issues2000.org/2012/Newt_Gingrich_Immigration.htm
10 http://www.oig.dhs.gov/assets/Mgmt/OIG_12-24_Jan11.pdf
11 http://judiciary.house.gov/hearings/Hearings%202012/hear_02152012_2.html
12 http://judiciary.house.gov/hearings/Hearings%202012/Mayorkas%2002152012.pdf at p.6.
13 http://judiciary.house.gov/hearings/Hearings%202012/Goldstein%2002092012.pdf
14 http://www.govtrack.us/congress/billtext.xpd?bill=h112-2895
15 http://www.govtrack.us/congress/billtext.xpd?bill=h112-3443
16 http://www.cbsnews.com/video/watch/?id=7087479n
17 http://www.dhs.gov/files/programs/gc_1270658654030.shtm
18 http://www.govtrack.us/congress/billtext.xpd?bill=h112-3017
19 For the statement Farmworker Justice issued when this bill was introduced on September 23, 2011, see
http://www.fwjustice.org/files/immigration-labor/9-23-11_FJ_StatementBermanFinal.pdf
20 http://thomas.loc.gov/cgi-bin/bdquery/z?d112:HR03017:@@@D&summ2=m&
21 http://judiciary.house.gov/hearings/Hearings%202012/Black%2002092012.pdf
22 http://www1.legis.ga.gov/legis/2011_12/versions/hb87_HB_87_APP_22.htm
23 http://agr.georgia.gov/AgLaborReport.pdf
24 http://www.judiciary.senate.gov/pdf/11-10-4BlackTestimony.pdf
25http://www.judiciary.senate.gov/hearings/hearing.cfm?id=0bd5589287f5bbb3d229c1850f7b44e2
26 http://judiciary.house.gov/hearings/Hearings%202012/Wenger%2002092012.pdf
27 http://www.cfbf.com/
28 The National Agricultural Worker Survey (NAWS) is performed under contract to the Department of Labor and its information is
made available to the public through periodic research reports and a public use data set. http://www.doleta.gov/agworker/naws.cfm
29http://wwe-verifyw.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=75bce2e261405110VgnVCM1000004718190aRCRD&v
gnextchannel=75bce2e261405110VgnVCM1000004718190aRCRD
; see also, http://www.dol.gov/compliance/guide/taw.htm
30 http://judiciary.house.gov/hearings/Hearings%202012/Wicker%2002092012.pdf
31 http://ncgrowers.org/
32 http://judiciary.house.gov/hearings/printers/112th/112-28_65744.PDF
33 http://judiciary.house.gov/hearings/pdf/Wicker04132011.pdf


About The Author

Nolan Rappaport was a counsel on the House Judiciary Committee. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has spent time in private practice as an immigration lawyer at Steptoe & Johnson. He is retired now, but he does temporary and part time work.


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