Rural Laws: January, 2001 - Number #11

Congress did not approve a new guest worker program for agriculture in 2000, leaving US agriculture with a seasonal farm work force that is about 55 percent unauthorized, and increasing. In the reviews of what happened, many commentators noted that US President Bush and Mexican President Fox each favor a new guest worker program.

Negotiations in December 2000 between worker and grower representatives suggested that a compromise that would satisfy both groups might include:
1) freezing the Adverse Effect Wage Rate (AEWR) for two or three years;
2) giving H-2A workers a quarter of the Section 8 housing allowance for a region, under the theory that workers would share housing. Section 8 fair market rents in California farming areas range from $400 a month for a one-bedroom unit in the cheapest areas to $600 or more for a two-bedroom unit, suggesting that farmers would provide $100 to $150 a month as a housing allowance (http://www.huduser.org/datasets/fmr/2001full.pdf);
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, the provisional legal status could be turned into an immigrant status.

The major proposal before Congress to legalize the farm work force was AgJOBS or the Agricultural Job Opportunity Benefits and Security Act. On September 20, 2000 the House Immigration and Claims Subcommittee approved the House version of AgJOBS, but the full House did not consider the proposal. US Secretary of Labor Alexis Herman sent a letter to the Immigration subcommittee that said: "The President has been and remains opposed to establishing a new agricultural guestworker program… if [AgJOBS] were presented to the President, I would recommend that he veto it."

Under the current H-2A program that permits farmers to employ legal foreign workers, farmers must try to recruit US workers by offering them the higher of three wages: the minimum wage, the AEWR, or the prevailing wage. AgJOBS would eliminate: (1) the US Department of Labor's role in certifying the need for foreign workers to fill vacant US farm jobs; (2) the Adverse Effect Wage Rate; and (3) the need to provide free housing to H-2A foreign workers.

Some farm worker advocates recommended that the US repeat the Immigration Reform and Control Act of 1986 strategy, that is, an amnesty followed by effective workplace enforcement to prevent continued employment of unauthorized workers. If there were genuine labor shortages after another legalization, additional workers, advocates argue, should be admitted as immigrants.