"Agricultural Opportunities Act"
Office of Research, Advocacy and Legislation
The National Council of La Raza
1111 19th Street NW, Suite 1000
Washington, D.C. 20036
Before the House Subcommittee on Immigration
June 15, 2000
My name is Cecilia Muñoz. I am the vice-president for the Office of Research, Advocacy and Legislation of the National Council of La Raza (NCLR). NCLR is a
private, nonprofit, nonpartisan organization established in 1968 to reduce poverty and discrimination and improve life opportunities for Hispanic Americans. NCLR
is the largest constituency-based national Hispanic organization, serving all Hispanic nationality groups in all regions of the country through our network of 230
affiliate community-based groups and regional offices. NCLR has supported fair and effective immigration and farmworker policies for over two decades, and has
ensured a fact-based Latino perspective on the issue of immigration. NCLR approaches this issue as a civil rights organization, with an interest in protecting the rights of our constituency and promoting the values and principles of the nation as a whole.
I appreciate the opportunity to submit this statement before the Subcommittee today, especially when it concerns an issue that ultimately will affect the lives of
perhaps the single most disadvantaged of all groups in the United States: the nation's farmworkers. These hard-working Americans toil in the fields for meager
earnings and few benefits; they sustain multi-billion dollar industries, and literally put food on our tables. Yet, they remain largely invisible to the rest of the country.
Under a century-old system of labor, farmworkers continue to be inadequately protected by federal laws and regulations, including worker protection standards that all other workers take for granted.
We have heard today from representatives of the agricultural industry which is again attempting to orchestrate the establishment of additional special privileges for itself, proclaiming the same unsubstantiated argument employed continuously since the mid-1800s: that there are labor shortages.
NCLR continues to side with the experts in government and in the private sector who have studied and found that there is still no shortage of work-authorized farmworkers, but a shortage of decent jobs and decent pay. Second, the status quo is indeed untenable, not because of over-regulation of labor standards in agriculture but because of a complete lack of enforcement of the few labor standards that actually apply to farm work.
Therefore, NCLR strongly opposes H.R. 4548, the Agricultural Opportunities Act, as well as other similar proposals primarily because they would not improve conditions for America’s farmworkers. In fact, we believe that this legislation would give unscrupulous employers an unreasonable level of control over farmworkers’ lives. Such comprehensive control could only lead to further exploitation of the nation’s most vulnerable workers.
II. The Face of America’s Farm Labor Force
The history of farm labor in the United States coincides with the political awakening of the American Latino community. Since the beginning of the last century,
Mexicans and other Latinos have been an integral part of the nation’s farm labor force, and farmworkers have been integral to the growth of Hispanic Americans’ political consciousness.
For this reason, NCLR, like most Latino advocacy organizations, is concerned about current proposals to "reform" or expand current guestworker programs. In fact, the majority of farmworkers in the United States are Latino. In 1997 and 1998, 81 percent of farmworkers are foreign-born; 95 percent of these are from Mexico. As many as 52 percent of farmworkers are undocumented; 58 percent of farmworkers, however, consider the United States their permanent home.1 Further, the plight of farmworkers in the United States has gotten worse over the last decade. Government studies 2 show that:
Farmworker wages are stagnant: since 1989, the average hourly wage has risen only 18 percent, compared to 32 percent for non-agricultural workers
Annual earnings remain below the poverty line: for the past decade, the median income of individual farmworkers has been $7,500 while for farmworker families it
has remained less than $10,000
Despite their poverty, farmworker use of public benefits remains low and has declined
Farmworker assets are decreasing: in 1994-5, one-third of all farmworkers were homeowners, by 1997-8 only 14 percent were homeowners
More workers now rely on their employers, contractors and coworkers for transportation to work: in 1994-5 49 percent of workers owned a vehicle; in 1997-8,
the figure dropped to only 44 percent.
Unemployment and underemployment is rampant: even during the hiring peak, just over half of the nation’s total farm labor workforce held agricultural jobs
The number of days crop workers actually were employed on farms has diminished over time: from 1989-91, the typical foreign-born worker was employed in
farming for 213 days; this figure fell to 193 in 1992-1994, and to 176 in 1995-1997. U.S. born workers are also seeing less time in the fields, from 183, to 155, to
129 over the same period. This indicates that the number of jobs available to all farmworkers is shrinking.
In California, the unemployment rates in eighteen agricultural counties continue to be nearly double the statewide average even during peak harvest months. 3 The
California Rural Legal Assistance Foundation (CRLAF) has conducted surveys in the last three years of farmworkers in certain raisin and grape producing counties
during harvests. These surveys have consistently found that there are available farmworkers who are not being recruited by employers. In fact, employers are doing a
poor job of making their work opportunities known.
These findings are very disturbing to us. More importantly, they indicate that there is truly no shortage of farm labor in the United States. Were there actually a
shortage, wages would be going up, just as they have in other sectors experiencing difficulty in recruiting and retaining workers. In fact, these figures indicate a
national oversupply of labor. For this reason, NCLR opposes employer efforts to enact policy that would guarantee for themselves a continued oversupply of
Whether it was Chinese immigrants in the nineteenth century, the 4.5 million braceros brought in to toil in the fields between 1942 and 1964, or "guestworkers"
under the current H-2A program, the agricultural industry has been dependent on foreign-labor and has been relentless in maintaining this dependency. They have
spent the last decade soliciting Congressional support for a massive expansion of the H-2A program.
III. Problems with the H-2A Agricultural Guestworker Program
NCLR believes that the existing temporary foreign worker program, known as "H-2A", is overly generous to the agricultural industry and insufficiently protective of
the rights of both U.S. and foreign workers. Industry proposals to further "deregulate" the H-2A program will inevitably and inexorably undermine wages and
working conditions for all of America's farmworkers. There is considerable evidence that the H-2A program – which brings in nearly 30,000 mostly Mexican and
Jamaican temporary workers each year – has been fraught with abuses.
In its December 1997 study, the GAO found that workers who enter under the H-2A program are not receiving all of the protections required by the H-2A law.
The "special requirements" of the H-2A program, which the growers decry, are there for a reason. These protections are intended to ensure that nonimmigrant
guestworkers are hired only to fill actual labor shortages, that U.S. farmworkers' wages and working conditions are not affected adversely, and that foreign workers
are not mistreated.
In 1998, the Department of Labor’s Office of Inspector General reported that the program fails to protect U.S. farmworkers. It found that employers and the State
Employment Service Agencies were doing a poor job of advertising available jobs to U.S. farmworkers, and that the Department of Labor’s Employment Training
Administration was approving H-2A certifications without sufficient scrutiny.
Nevertheless, the Department of Labor is acceding to growers’ demands by offering, for instance, administrative reform and quicker processing that further
undermine the program’s protections. The current program has resulted in lower wages for farmworkers in America. That is why the USDA's National Commission
on Small Farms urged the repeal of the H-2A program after hearing testimony that "large farm operators and agribusiness have unfair advantages 'because employer
costs have been reduced by partial or total exclusion of agricultural workers from coverage under key labor laws.' In addition, 'the authorized importation of foreign
workers for agricultural work (H-2A program), by adding workers to the pool of available labor, has helped keep wages for agricultural workers...below what they
would have been without such interventions.'" 4
The current H-2A program approves 99 percent of the applications filed by agricultural employers despite the labor surplus. The H-2A program was streamlined for
employers in 1986 and has operated to their advantage. The program is growing rapidly and spreading to new crops and new states. In Georgia, for example, the
Department of Labor approved applications for more than 2,200 jobs in 1999, even in cases where the grower failed to file the application on time. 5 During the
previous year, Georgia received fewer than 200 H-2A workers.
Still not satisfied, growers are demanding that Congress "reform" the guestworker program to lower wages, reduce recruitment of U.S. workers, eliminate the
current program’s housing obligations, authorize wage and other employment practices that are currently illegal, and reduce enforcement of labor standards.
Guestworkers are desirable because they lack the right to switch jobs or to remain in the country once their job ends. Guestworkers also lack economic or political
power to improve their conditions.
The vulnerability of H-2A workers forces them to live with unbearable working conditions that no other American would ever tolerate. In a series of articles, the
Charlotte Observer recently shed light on the H-2A program in North Carolina, where employers import as many as 10,000 H-2A workers every year. These
articles are also attached to this testimony as Appendix A. I’d like to highlight one particularly poignant story in the first of these articles. It is the story of Carmelo
Fuentes, an H-2A worker who suffered heat stroke while picking tomatoes in 105-degree heat.
According to his employer, Mr. Fuentes, who was 36 years old, said he just wanted a short break after showing signs of heat stress, which state investigators said
were "dangerously ignored" by his supervisor. His employer said "that boy said he was fine, and just needed to rest." As he rested, heat stroke shut down his internal
organs and led to Mr. Fuentes to suffer from severe brain damage. According to the Charlotte Observer story,
Nobody can know exactly what Carmelo Fuentes said about how he felt that July day in 1998. But as a veteran working his third N.C. harvest, he likely understood
what some say are the unwritten rules of the government program that brought him to an N.C. farm 2,000 miles from home.
Work fast, or lose your job to somebody who is faster. Complain about your living or working conditions, and you’re sent back to Mexico. Get sick or injured, and
you’re off the list of workers invited back next season.
These are the rules that have many guestworkers have come to understand as determining whether they will continue to be able to work in the United States. That is
why the H-2A program reminds so many Mexican Americans of the universally denounced Bracero program that existed between 1942 and 1964. As in the H-2A
program, Bracero workers were so controlled by their employers that, according to Ernesto Galarza, one of NCLR’s founders, undocumented workers actually
used to consider themselves "libre" or "free workers" since they could leave an employer if conditions were intolerable. 6 The same can still be said about the current
NCLR opposes the current H-2A program, and calls for its repeal. Any attempts to reduce the protections it provides for farmworkers, those already in the U.S.
and those entering through the program, should be rejected.
IV. Problems with H.R. 4548
The Agricultural Opportunities Act falls far short of what is needed to improve the H-2A program and to make better the lives of America’s farmworkers. This bill
would subject farmworkers to even poorer wages and working conditions and inequitable economic and political status for many years to come.
This legislation would create a new foreign agricultural worker program (H-2C) and leave the current H-2A program in place. This proposal is very similar to
legislation already defeated by the House of Representatives (Roll Call no. 85, 180-242) in 1996. It is also similar to provisions in H.R. 4056 and S. 1814, bills that
would also create a second temporary guestworker program for undocumented farmworkers already in the country. Neither program would be acceptable, and the
legislation should be rejected.
As mentioned above, the current H-2A program inadequately ensures that U.S. farmworkers have access to available farm jobs, and that individuals entering as
H-2A workers are not exploited. H.R. 4548 would establish an H-2C program similar to the H-2A program, but would reduce recruitment of farmworkers inside
the United States, eliminate housing opportunities, reduce wage rates, decrease government oversight, and in other ways lower labor standards of U.S. farmworkers
and allow exploitation of vulnerable foreign guestworkers. The bill would also authorize wage systems ("group piece rates") and other practices that have been used
to circumvent the law and prevent farmworkers from improving their circumstances.
A. Recruitment of U.S. Farmworkers
H.R. 4548 bill would allow a virtually unlimited flow into the country of exploitable temporary foreign workers whose visas would be controlled by employers.
Under the current H-2A program’s "50% rule job preference," employers must hire qualified U.S. workers who apply by the time one-half the season has elapsed.
H-2A program employers must affirmatively recruit in the private marketplace (this is known as "positive recruitment") and use the federal-state Job Service to
circulate job offers to areas where migrant workers may be located.
H.R. 4548 bill would require no positive recruitment or Job Service circulation of job offers. The new system of state job registries is designed to fail to refer U.S.
workers to such employers and thereby justify the issuance of visas to exploitable guestworkers. Under this proposal, all agricultural employers could reject qualified
U.S. workers who applied for a job directly to the employer, or through a nonprofit group, a union, or a labor contractor. See § 101(a)(6). Yet, employers could
use labor contractors to hire foreign workers. Employers need only consider a U.S. worker’s job application if it was submitted through a "job registry," a new
government agency to be established in each state. The job registry could have as little as 14 days to recruit U.S. migrant workers before the employer would get
access to guestworker visas. Yet, growers could recruit guestworkers for months.
The current H-2A program requires employers to offer housing, and to provide it at no cost to the worker. The proposed H-2C program would eliminate the
housing obligation and authorize employers to provide below-market-rate housing allowances (at least for three years). Due to a severe housing shortage for
farmworkers, and the inadequacy of their wages and the allowance, farmworkers will not be able to find housing or to finance its development and the burden will fall
on farmworkers and local communities. See § 204(b)(6) and 204(d)(3).
C. Minimum Work Guarantee
Under the H-2A program, employers who seek guestworkers have been required to offer the opportunity to work at least ¾ of the work-days in the stated period
of employment, except when there is an Act of God. This "three-fourths guarantee" gives migrant workers some indication of their potential earnings and discourages
employers from over-recruiting to secure a labor surplus and drive down wages. The H-2C program would lack any minimum work guarantee.
D. Wage Provisions
Farmworkers' wages have been declining in real terms for the last decade. This wage depression is caused partly by the presence of economically and politically
weak guestworkers and undocumented workers (whose presence has increased to 52% of the labor force). To overcome the depression in wage rates and protect
both U.S. and foreign workers, H-2A employers must pay the highest of three minimum wages: (1) the federal or state minimum wage; (2) the local, job-specific
"prevailing wage," as determined by the Department of Labor using state agency wage surveys; and (3) the H-2A "adverse effect wage rate (AEWR). The formula
for setting the AEWR was changed by the Reagan administration, which lowered the rates by an average of 20%. The H-2A AEWR is now defined as the regional
average hourly wage for field and livestock workers, as found in Department of Agriculture annual surveys. For example, Arizona’s AEWR is now $6.74, California
$7.04, Georgia $6.72, North Carolina $6.98 and Washington $7.64. Often the AEWR is higher than the local prevailing wage and therefore many H-2A employers
must pay the AEWR.
The H-2C proposal (§ 2(1)) would redefine the term "adverse effect wage rate" (or "AEWR") to lower wage rates in most circumstances as compared with the H-2A program. The
AEWR would be the local "prevailing wage" (under some circumstances plus five percent). The prevailing wage (plus five percent) is often significantly lower than
the current AEWR (the regional hourly average wage). In addition, since the local prevailing wage is often an artificially low "piece rate," in many cases the only
effective base wage rate will be the minimum wage under law at the federal ($5.15 per hour) or state (in California $5.75) level.
Employers could increase productivity standards to overcome the effects of any potential increases in prevailing wage rates. Such "speed-ups" would no longer be
regulated. The H-2A program has some (admittedly weak) protections.
No individual worker would be guaranteed the H-2C minimum required wage rate. The bill allows employers a huge loophole to avoid paying the "adverse effect
wage rate." The employer may offer an incentive wage system (piece rate, "group rate," "task rate") and merely demonstrate that its employees, "taken as a group,"
on average earn the local prevailing wage. If the group as a whole earns the minimum rate, then some workers, by definition, are earning below that minimum rate.
The workers’ only real wage floor is the federal or state minimum wage, from which some agricultural employers are still exempt. § 204(a)(4)(A)-(B)
The employers would continue, as under the H-2A program, to be exempt from Social Security and unemployment taxes, depriving foreign workers of social security and creating
incentives to use guestworkers rather than U.S. workers.
As non-immigrant temporary visa holders, these H-2C workers would be ineligible for legal assistance from organizations funded by the federal Legal Services Corporation. There is a
special exception that allows H-2A guestworkers to secure legal assistance regarding their employment contracts.
There are other aspects of this bill that would reduce labor standards or offer protections that might seem helpful but turn out to be meaningless, but they are far too
numerous to discuss in this testimony.
NCLR believes there should be a change in farm labor policy, but H.R. 4548 is not the right policy prescription. Instead, Congress should seek to improve
opportunities for farmworkers, both foreign-born and U.S. born, by enacting the following recommendations:
Effectively Enforce Existing Protections and Labor Laws: The Department of Labor (DOL) must prevent persisting employer abuses of the H-2A program, by
enforcing existing protections in the program, including the "fifty percent rule," which gives U.S. farmworkers preference over an H-2A worker. Growers must also
not be allowed to exploit foreign workers by underpaying them or denying them crucial benefits. DOL also must increase its vigilance over the H-2A program and
resist attempts to reduce alleged administrative burdens.
Provide Adequate Resources for Enforcement of Labor Laws: The Administration should request, and Congress should provide, sufficient funding to DOL's
Wage and Hour Division and OSHA, among others, to assure effective monitoring and enforcement of labor standards for U.S. farmworkers and H-2A workers.
Congress should also revisit the budget restrictions and limitations on the Legal Services Corporation grantees that have traditionally served farmworkers.
Improve Existing Recruitment Methods: The agricultural industry must improve its current recruitment methods to attract available, work-authorized U.S.
workers. Surveys along the East Coast, where more growers are using the H-2A program, have shown that U.S. farmworkers are indeed available for work but
need advance assistance with transportation; which is rarely provided to U.S. farmworkers. Growers also must assure that their written job advertisements are
placed in locations where U.S. farmworkers will hear or see them. In addition, the Department of Labor's U.S. Employment Service must improve its outreach
efforts to match U.S. farmworkers with available agricultural jobs, primarily since less than five percent of all U.S. farmworkers use this system to secure work.
Employers and DOL should improve coordination with labor unions and community-based organizations that are ready and willing to promote recruitment of U.S.
farmworkers to meet the employers' needs.
Make Growers Who Use Farm Labor Contractors (FLCs) Responsible for Treatment of Their Workers: Congress and enforcement agencies must assure
that growers do not circumvent existing labor laws by increasingly relying on FLCs for workers. Since the enactment of the Immigration Reform and Control Act of
1986 (IRCA), growers have come to depend more heavily upon FLCs to produce a workforce. Essentially, contractors have become the "risk buffers" between
growers and their immigrant workers, and now perform the regulatory duty imposed by IRCA on all employers. Furthermore, evidence has shown that workers
hired by FLCs are more susceptible to exploitation in the form of lower wages, reduced benefits, lower retention rates, and inferior working conditions.
Enact a New Legalization Program: While we believe there is an oversupply of available work-authorized farm workers, the currently high proportion of
undocumented workers in the farm labor force is troubling. NCLR believes that the use of farm labor contractors competing to provide growers with the cheapest
available workers has led to an overrepresentation of undocumented workers. These workers are not as able to defend themselves from exploitative practices as are
legal workers. Congress should allow workers who have already contributed to the U.S. economy through their sweat and labor an opportunity to become legal
residents, without any conditions that would further subject workers to more exploitation.
Enact Pro-Immigrant Legislation This Year: Many farmworkers would benefit from passage of pro-immigrant legislation that has already been introduced.
Namely, NCLR strongly supports and calls on Congress to enact:
S. 2407, the Date of Registry Act, which would update a long-standing provision of the Immigration Act called "registry" and allow long-time resident,
deeply-rooted immigrants who are contributing to our economy to remain here lawfully. This bill would change the registry cutoff date from 1972 to 1986. NCLR
would prefer a change in the date to 1994.
S. 1592, the Central American and Haitian Adjustment Act, which would correct for past unequal treatment among different groups of similarly-situated
Central American and Caribbean Refugees.
H.R. 1841, to restore Section 245(i) of the Immigration and Nationality Act, which would allow immigrants who are eligible to adjust their status to lawful
permanent residency to do so while remaining in the country instead of traveling to their home country to complete the process. By passing this provision, Congress
could ensure that immigrants are not separated from their families and employers for as many as ten years.
Legislation, not yet proposed, to decrease the immigration backlogs by increasing the number of available visas so that immediate relatives of U.S. citizens
and permanent residents may join their families and cease having to wait in interminable backlogs for lawful admission to the United States
All of these proposals will help reduce the number of undocumented workers in the labor force, not just in agriculture, but in other sectors that are genuinely
experiencing trouble finding work-authorized workers.
I respectfully urge you to consider these recommendations, as they represent a consensus among many different immigrant and farmworker advocates about
immigration policies that Congress should enact in the short-term. Immigration is but one of the many complicated issues concerning farm labor that need to be
addressed, and I appreciate the attention the Subcommittee is paying to the issue today. However, before the Subcommittee considers acting on this legislation, I ask
that you take a closer look at the need for comprehensive reform of our farm labor system.
Finally, I would like to call your attention to a letter that was sent to the entire House and its leadership last February. It is also attached as Appendix B. It calls on
the Senate to reject guestworker legislation and is signed by 185 organizations made up of farmworkers, and individuals that work day-to-day with farmworkers.
Please take their voices into account as you consider this legislation.
Once again, I thank the committee for allowing NCLR to present this testimony. I would also like to thank Bruce Goldstein of the Farmworker Justice Fund (FJF)
for assisting NCLR with this testimony. I would encourage any Members of the Subcommittee to contact NCLR or FJF with any questions.