“Misery acquaints a man with strange Bedfellows.”  Shakespeare, The Tempest.

 

The sponsors of S.1645, the Agricultural Job, Opportunity, Benefits, and Security Act of 2003 (AGJOBS), claim that it represents the fruit of years of discussion among growers, farm worker advocates, and Latino groups to provide for a more stable, secure, safe, and legal American agricultural work force and food supply.  Only “experienced, trusted workers with a significant work history in American agriculture” will be allowed to stay here legally and “earn adjustment” to legal status. A “growing crisis that threatens American agriculture, workers, and consumers” will be averted.[1] It is an “historic deal” that will both enhance key labor protections for foreign agricultural workers and our national security.[2]

 

This article is a critical analysis of the many problematic provisions of this legislation that deserve greater public scrutiny.  It is not a summary of the bill – for an overview of bill content, consult the NumbersUSA side-by-side of the three main 2003 amnesty bills.[3] 

 

The guest worker legislation introduced in S.1645 is based on failed legal and economic models, and cannot achieve its purported goals of stabilizing the agricultural labor force or protecting the wages and working conditions of farm workers.  S.1645 is a Faustian bargain between previously irreconcilable alien and agricultural employer special interests on the left and right, wherein the ‘left’ is willing to trade away statutory U.S. worker protections for a model “earned legalization program,” intended to be a “first step” towards a universal amnesty and open immigration system, and the ‘right’ is assured an unlimited supply of indentured imported labor for U.S. agribusiness.  There is no evidence that either faction seriously believes that S.1645 will produce the cornucopia of rural justice promised by its sponsors, Senators Edward Kennedy and Larry Craig, and Representatives Chris Cannon and Howard Berman.[4]

 

S.1645 has two distinct parts, an amnesty program and a bracero program.  Title I is an agricultural worker amnesty modeled closely on the 1986 Special Agricultural Worker (SAW) amnesty, but with significantly weakened program controls and safeguards.[5]  Title I amnesty is not defensible unless its supporters can show that the SAW amnesty was an effective, honest and just program. In my view, that is an impossible task. 

 

Independent analysts have concluded that SAW was a disaster for American immigration and agricultural policy.  SAW was an economic failure that destabilized the agricultural labor supply, leaving it more dependent on casual imported labor.  As an amnesty for 1.3 million illegal aliens whose unlawful acts had excluded them from participation in legal immigrant programs, SAW was marked by pervasive fraud and corruption, and represented a historic failure of the legal system.  Finally, as a purported federal program of social justice, it expanded the incidence of poverty and related indicators of social dysfunction for California, other receiving states, and even for Mexico. Changes in the political and economic environment since 1986 all support the view that S.1645 will reproduce these profoundly negative consequences.

 

Title II of S.1645 is a complete restructuring of the H-2A temporary agricultural worker law. Title II would transform the H-2A program from a foreign labor certification program, whose purpose is to protect American jobs, into one which combines procedures similar to the controversial H-1B temporary skilled labor program, but with new obligations and restrictions imposed on a largely uneducated and vulnerable foreign work force that recall the indentured labor or bracero labor contracts from the past. 

 

The AGJOBS Agricultural Worker Amnesty

 

1.  Homeland Security and Criminal Alien Concerns

 

The 1986 SAW amnesty was enacted with literally no consideration of national security or terrorist risks, a stance that should not be repeated after 9-11.[6]  Both the amnesty and guest worker titles of S.1645 retain the vulnerabilities of the 1986 legislation, and moreover add significant new formal restrictions on homeland security-based procedural and formal barriers to entry.

 

Admission by preliminary application.  Title I amnesty applicants who submit a completed application form (including applicable fees and supporting documents) at a port of entry on the Mexican border may be admitted in “preliminary” status, without a background check or even verification of the data on the application. Border applicants must be issued an entry-reentry border-crossing card.[7]  More than 100,000 Mexicans obtained legal U.S. residence at the border in 1987 under more restrictive rules.[8]  Most of these applications are now believed to have been fraudulent.

 

Law enforcement cooperation restrictions. SAW contained a sweeping confidentiality provision that made all information furnished by an amnesty applicant “confidential.”  Criminal penalties, including fines of up to $10,000, were imposed on government officials who violate this stringent ‘gag order.’[9]  S.1645 would extend the confidentiality gag to suppress data originating with an employer or the ‘designated entity’ that prepared the amnesty application.[10]

 

SAW included an important proviso that required the federal government to provide a “duly recognized law enforcement entity” conducting a “criminal investigation,” with applicant-furnished information, and any other information derived from applicant-furnished data[11], and to exchange applicant data and applicant criminal records not available from other sources with immigration and law enforcement agencies.[12]  S.1645 omits those provisos. Implementation will create a gaping hole in the integrated DHS alien tracking system that is the first line of defense against admission of alien terrorists and gangsters.

 

2.  Program Fraud Vulnerabilities

 

The S.1645 Title I amnesty retains all the fundamental flaws found in the 1986 IRCA amnesty legislation. The most notorious aspect of the 1986 amnesty program was the pervasive fraud, particularly for aliens amnestied under INA §210 (SAW). The New York Times described SAW as “one of the most extensive immigration frauds ever perpetuated against the United States government.”[13]  Although the estimated size of the illegal alien population engaged in agricultural work in the 1980s was only 300,000 to 400,000 out of a total agricultural workforce of 2.5 million, 1.3 million aliens were amnestied under the SAW program. An estimated two-thirds of the applications were fraudulent.[14] Only 28 per cent of SAW applicants in a California statewide survey indicated that farm work was their previous occupation.[15]

 

Much of the fraud has been attributed to major statutory restrictions placed on INS review of SAW applicants.[16]  S.1645 retains these restrictions intact.

 

Weak eligibility documentation.  S.1645 would reenact the very weak SAW standard for proof of eligibility.[17]   DHS is required to approve the application and adjust the status of an alien who creates a “just and reasonable inference” of eligible employment, and meets the other requirements of S.1645 Title I.[18] Federal courts have interpreted identical language from INA §210 to mean that a mere third-party affidavit in support of an applicant’s personal testimony was sufficient to prove employment, and that supporting documentation from an employer suspected or convicted of fraud could not be refused without an individualized investigation and review. Another landmark case, citing the legislative history of the SAW program, even held that requiring corroborating evidence was impermissible.[19]  Similarly, both SAW and S.1645 merely require the alien to submit “reliable documentation” of identity.  Under current case law, “reliable” documentation obtained under a false name, including false documents authenticated through third-party affidavits, can still be used to obtain amnesty benefits under S.1645.[20]

 

S.1645 makes other technical changes whose net effect is to lower the eligibility threshold even further.  S.1645 deletes the existing SAW procedural rule that shifts the evidentiary burden to the government to “disprove” the reasonableness of the alien’s evidence.[21]   However, the pro-amnesty litigation cited above makes this formal procedural rule much less significant. Second, S.1645 eliminates the SAW residency requirement (to document residence in the U.S. before the eligibility cut-off date) entirely.  Unlike SAW, S.1645 allows illegal aliens to file an amnesty application (and thus obtain a stay of removal and work authorization) up to thirty days after apprehension by DHS.[22]

 

Expanded confidentiality gag. A key feature of the 1986 IRCA amnesties was the inclusion of strict confidentiality provisions.[23] Information on SAW applications supporting forms could not be used to prosecute SAW applicants for apparent welfare fraud, tax evasion, or other violations of law.  SAW only protected information “furnished by the applicant.”  S.1645 would expand the confidentiality shield to include qualified farm labor organizations, employer associations, qualified designated entities, and any employer or former employer, including labor contractors.[24]

 

S.1645 would also delete the SAW proviso that clarified that confidentiality rules may not be construed to limit the use of application-related data in INS files for immigration enforcement or law enforcement purposes, as well as a related clause that currently permits informational exchange of applicant criminal records.[25]  These changes would effectively restrict background investigations of applicants or cooperation with local police in prosecuting or removing criminal aliens or terrorists.

 

The consequences of the 1986 confidentiality gags underline the danger posed by the expanded confidentiality provisions in S.1645. After passage of IRCA, corrupt employers, farm labor contractors, and even non-profit application processors (a.k.a. ‘designated entities’) entered an enormously profitable fraudulent documents market.[26]  Over the next decade, the percentage of the illegal alien agricultural work force employed by labor contractors surged upward.  With unscrupulous employers and contractors protected by the confidentiality gag rules, and a highly sophisticated document fraud ‘mafia’ already in place, the incentives for massive fraud and related criminal activity in S.1645 are even greater than in 1986.

 

3.  Alien Worker Protections and Preferences

 

S.1645 would provide amnestied illegal aliens and their derivative relatives greater job protections than U.S. citizens and legal permanent residents. In a very unusual provision, illegal aliens who are approved for “legal temporary resident” (LTR) status under the Title I amnesty may not be terminated from employment by any employer “except for just cause” for as long as they remain in LTR status.[27]  Amnestied aliens may retain LTR status until September 1, 2010.[28] 

 

In effect, for the seven fiscal years following enactment, this very large class of amnestied illegal aliens will, by statute, have greater agricultural job security than U.S. citizens, legal permanent residents, or any other class of lawfully present aliens with employment authorization. This provision appears to nullify numerous state statutes that define the employment relationship as “at will.”  

 

Since LTRs need only perform 360 hours[29] of ‘agricultural labor’ during the 2,555 days after enactment, (and legalized derivative relatives are exempted entirely from the agricultural labor requirement),[30] it is likely that most aliens amnestied under S.1645 will be employed most of the time in non-agricultural work, which offers better pay and working conditions.

 

In a similar provision to the 1986 amnesty, S.1645 makes AGJOBS amnesty applicants eligible for taxpayer-funded legal assistance from the Legal Services Corporation that is “directly related” to applications to adjust status at both the LTR and LPR stages.  The provision represents a large financial windfall for the immigration bar.[31]

 

4.  Unlimited Immunity from Removal and Adjustment of Status for Dependents

 

The treatment of the immediate relatives of amnestied illegal aliens under S.1645 could significantly weaken the enforcement of immigration law outside the agricultural sector, by creating a malign classification of illegal alien with immunity from civil and criminal provisions of federal immigration law.[32] 

 

S.1645 would enact an absolute blanket bar on removal by DHS of the spouses and minor children (including adult children who have “aged-out” of minor status after the date the illegal alien applicant was amnestied) so long as the primary applicant “maintains” LTR status. However, these dependents may not be granted employment authorization.[33]  “Notwithstanding any other provision of law,” DHS must grant LPR status to these dependent aliens once the amnestied applicant has adjusted status and received a green card.  These dependents may be included in the primary beneficiary’s adjustment application, or they may self-petition for a green card.[34]

 

Although the Immigration Act of 1990 granted relief to certain spouses and minor children of SAW beneficiaries, the S.1645 ‘family unity’ provisions strip out all the checks and balances of the 1990 legislation.[35] Derivative dependents do not need to be in illegal status to qualify for LPR status, nor do they even need to be present in the U.S., nor does the spousal or parental relationship have to exist at all, prior to the date (up to 10 years or more after amnesty is granted) on which the derivative alien applies for a green card.  Like most self-petitioning provisions of U.S. immigration law, under S.1645, even separated spouses and non-custodial parents may file derivative adjustment applications.[36] Because derivative relatives are given the applicant’s sweeping confidentiality protections, DHS investigation of fraud at the application stage will be impractical.

 

The very large class of alien relatives who establish derivative eligibility for amnesty under S.1645 will receive blanket immunity from removal under any ground of inadmissibility or deportation in federal immigration law, including criminal activity, aggravated felonies, crimes of moral turpitude, national security offenses, terrorist activity, immigration fraud, alien smuggling, etc.[37] The very inclusive language of S.1645 (“not withstanding any other provision of law”) indicates that this blanket immunity also protects derivative aliens applying for adjustment of status to legal permanent resident.  DHS could not initiate removal proceedings until the derivative alien was granted LPR status, and even then the language of S.1645 makes it an open question whether criminal or other normally removable acts committed while the alien was in derivative LTR status could form the basis for a removal proceeding.

 

The existence of a large class of illegal aliens who may not work, but also who may not be removed no matter what violations of federal, state or local law they may commit, raises numerous legal issues that will confuse and impede the administration of immigration law in all areas. The obvious benefits of derivative amnesty beneficiary status to otherwise excludable aliens, including the combination of no work or residence requirement, immunity from removal, protection under the S.1645 confidentiality provisions, etc., will be irresistible incentives for fraud, corruption, and other immigration-related criminal activity.  

 

5.  Adverse Effects of Amnesty on United States Workers

 

Expansion of job opportunities for amnesty beneficiaries.  For U.S. workers, the most significant adverse provision of S.1645 is the greatly expanded scope of the AGJOBS amnesty beyond the field labor beneficiaries of the 1986 amnesty.  Illegal aliens are more likely to tolerate lower wages and adverse working conditions than Americans, and studies have shown that legalization does not eliminate this downward pressure.[38] S.1645 would allow this very large amnestied population to compete with U.S. workers in a greatly expanded range of occupational sectors, with predictable adverse effects on U.S. worker recruitment, compensation, and retention.

 

The 1986 SAW amnesty applied only to “seasonal agricultural services,” defined as “field work related to planting, cultural practices, cultivating, growing and harvesting of fruits and vegetables of every kind and other perishable commodities.” [39] 

 

In contrast, S.1645 defines “agricultural employment” for amnesty purposes identically to the scope of the current H-2A program, which AILA spokesman Prof. Stephen Yale-Loehr states is a “very expansive definition.”[40]  That definition would add employment in dairying, horticultural commodities, gums spirits and turpentine production, livestock production, apiary production, “harvesting” of wild and domestic fur-bearing animals, poultry production, wildlife management, forestry or lumbering operations, or any practices… incident to farming operations,” including preparation, storage, delivery, or transportation to carriers or to market to the occupational sectors eligible for amnesty.[41] 

 

Eligible “agricultural labor” is further expanded to include “all service performed on a farm in the employ of any person [i.e. including labor contractors or temporary labor agencies] in connection with the above sectors. Employment qualifying for amnesty will include the operation, management, conservation, improvement or maintenance of agricultural, horticultural, timberland, or irrigation-related real estate and improvements; cotton-ginning and related secondary processing. Any job in a facility for handling, packing, packaging, processing, freezing, grading, or storing in an un-manufactured state any commodity of which more than half was produced by the “operator” of the facility, for example a lumber mill, will qualify. Eligible employment will also include any other “service,” including domestic service, that is performed “on a farm operated for profit.”[42]

 

Like the SAW legalized aliens in 1986, S.1645 amnesty beneficiaries would be exempt from the non-displacement and wage and working condition protection standards of the alien labor certification statute.[43]  This large newly ‘legalized’ population would thus be treated for enforcement and anti-discrimination purposes as ‘United States workers,’ creating in effect the legal fiction that employment of the amnesty alien can have no adverse effect on or displace a U.S. citizen worker.

 

No workforce stabilization. Academic experts, government officials, the Commission on Agricultural Workers, the General Accounting Office (GAO), the Congressional Research Service, organized labor and even employer groups have all found that the SAW amnesty did not result in a more stable and reliable agricultural work force, even after one-sixth of the adult male population of rural Mexico obtained legalized agricultural worker status under SAW.[44] Despite widely publicized claims, no research study since the 1920s has ever documented a farm labor shortage in any region of the United States.[45]  The U.S. Departments of Agriculture, Labor and the Census Bureau studied farm labor supply during the period the Replacement Agricultural Worker (RAW) program was in effect and found no farm labor shortage.[46]  The accelerated departure of aliens in SAW status from the agricultural workforce since 1990 is a consequence of a continuous decline in real agricultural sector wages and benefits. At the same time, investment in agricultural mechanization has stalled since the 1986 amnesty. The data supporting the conclusion of the Commission on Agricultural Workers-- that the concept of an industry-specific ‘earned legalization’ program is fundamentally flawed – has not changed.

 

The AGJOBS H-2A Bracero Program

 

“A farm worker between two lawyers is like a fish between two cats.” Old Spanish Proverb.

 

S.1645 §201 (Title II) is the continuance of efforts since the mid-1990s to trade grower-friendly changes in the H-2A program for amnesty provisions sought by open borders organizations.[47] Title II would completely replace the existing Immigration and Nationality Act §218 temporary agricultural worker (H-2A worker) statute with four new INA sections, 218, 218A, 218B, and 218C.  An earlier version of AGJOBS passed the Senate 68-31 in 1998, but was attacked by Republican immigration-control advocates and Democratic union supporters in the House of Representatives, and died after a veto threat by President Clinton.[48] 

 

Delores Huerta of UFW and Bruce Goldstein of the Farmworker Justice Fund characterized the first AGJOBS legislation as “indentured servitude.”[49]  A close scrutiny of the changes to AGJOBS in S.1645 does not support claims that the new bill will curtail exploitation in agricultural labor or insure a stable workforce.

 

1.  The macro-problems of economic distortion and dependence.

 

While S.1645 may subsidize the value of Western farmland for large corporate owners, it does nothing to change the fundamental economic dilemma of imported agricultural guest labor. In all developed nations, the major failure in guest worker programs has been the inability of the host government to enact regulatory schemes that provide employers access to foreign workers, yet also prevent both the distortion of domestic labor markets caused by reliance of foreign labor and the dependence of foreign populations and states on earnings of contract labor abroad.[50]

 

Ever since the prohibition of Chinese coolie labor in the nineteenth century, a fundamental premise of U.S. immigration law has held that coolie, contract, and bracero alien labor programs create and worsen the distortion-dependence cycle of labor exploitation, and should be prohibited.  The ready availability of foreign workers at low wages has transformed farm work into a job of last resort. U.S. farm worker income has stagnated below poverty levels throughout the relatively short occupational lifetimes of farm laborers, while declining both in absolute terms and relative to all other occupations.[51]

 

In 2003, the Mexican economy has become dependent upon the largest remittance market in the world, estimated by the Mexican government to exceed $14 billion in 2003.[52]  The Mexican economy has historically been unable to convert migrant remittances into viable industrial or rural development, so these cash inflows function largely as welfare payments, spent on subsistence and consumer goods. Corruption and primitive financial and legal infrastructure remain formidable barriers. This extraordinary transfer of funds to Mexico  - in both relative and absolute terms - is a clear indicator of economic dysfunction, and evidence that Mexican economic development has actually regressed, as it avoids job-creating institutional and productive reform in favor of the forced export of impoverished laborers to the United States. 

 

Congressional acquiescence to agricultural exceptionalism, i.e. the policy of exempting corporate agriculture from U.S. immigration and labor laws, is a leading cause of rural and urban immigrant poverty and exploitation in the United States, and of the regression of American agriculture since 1965 into an increasingly subsidized, protected, and inefficient state-corporatist economic sector. 

 

The National Council of Agricultural Employers has argued, revealingly, that an increased supply of foreign labor is needed to expand labor-intensive fruit and vegetable (FVH) production.[53]  This argument wrongly assumes, however, that the labor supply for FVH productions is more elastic than the demand for workers.  Average national quarterly employment of farm workers is stable at 900,000, a number that has not increased since the mid-1980s.[54]  In crop sectors where foreign labor supply has been restricted, technological changes and producer reorganization have replaced farm worker demand without disruption, and resulted in increased production and reduced consumer costs, both positive outcomes for U.S. producers, consumers, and taxpayers.[55]

 

In summary, the AGJOBS concept, as drafted, will never stabilize the U.S. agricultural work force, but will needlessly delay necessary market-driven reforms and perpetuate rural poverty in Mexico and the U.S., all at great social and economic cost to U.S. citizens and enterprises.

 

2.  The unexamined shift from labor certification to attestation.

 

S.1645 would transform the importation of agricultural labor from a certification-based to an attestation-based system.[56]  The existing foreign labor certification program is a “border gates closed” program. A U.S. employer must document that U.S. workers are unavailable for hire, and that the employment of alien workers will not adversely affect the wages and working conditions of U.S. workers.[57] Job opportunity protection for U.S workers is supervised by the U.S. Department of Labor (DOL).  DOL-determined minimum wages and working conditions are required.  Employers dislike the current H-2A certification, because they are required to accept U.S. workers referred by unions and employment offices, and to provide free, regulated housing for U.S. and foreign workers.[58]

 

In contrast, the attestation system in S.1645 would operate similarly to the controversial H-1B foreign specialty worker program. The employer would file a petition “attesting” that various conditions will be met while employing foreign workers.  DOL must presume that petitions are valid, and may not delay applications, nor initiate investigations of employers absent a formal complaint with a “reasonable basis” from an “aggrieved party.”[59]

 

3.  Criminal alien and homeland security risks.

 

S.1645 Title II will require DHS to adopt expedited processing of H-2A petitions and to notify an appropriate U.S. consular office of such approval within seven working days.[60] Of even greater concern is the provision in S.1645 that would exempt Title II H-2A guest-workers from the basic standards of inadmissibility in American immigration law, and replace these basic safeguards with a uniquely weak new standard: The H-2A alien “shall be considered admissible” if he or she has not, within the previous 5 years, “violated a material provision…” of the H-2A guest-worker eligibility rules under proposed new INA section 218, 218A, and 218B, and has not previously been found to be removable (“…violated a term or condition of admission into the United States as a nonimmigrant…”).[61]  Prior illegal presence is also waiveable. 

 

In effect, this loophole will prevent the federal government from denying admission to an H-2A applicant on criminal, public health, or even national security or terrorist grounds applicable to virtually all other non-immigrants.  Instead, the government will be required to admit nearly all H-2A applicants, regardless of criminal or national security records.  S.1645 would leave DHS with the unrealistic option of having to remove these very dangerous aliens through a time- and resource-intensive administrative investigation and hearing process.

 

4.  Weakened U.S. worker protections.

 

S.1645 would significantly weaken legal protections and job opportunity preferences for U.S. workers, a retrogressive step that would help keep incomes of American farm laborers at or below official federal poverty levels.

 

Job opportunities.  S.1645 is intended to encourage recruitment of alien farm laborers from a literally unlimited international pool, while discouraging bona fide U.S. workers who reside beyond commuting distance from applying for job openings. U.S. workers, both unemployed casual laborers and experienced farm workers, will be less able to identify agricultural job openings and will face increased statutory and informal barriers to locating jobs where transportation and housing costs are employer-subsidized.

 

S.1645 would end the current requirement that employers engage in “positive recruitment” of U.S. workers “until the date the H-2A workers depart for the employer’s place of employment,” and would terminate the regulatory requirement that employers file job orders for U.S. farm workers at state employment offices (SESAs) on a multi-state region or national basis.[62]  The deadline for submitting a local job order to a SESA is reduced from 45 to 28 days in advance. The current positive multistate recruitment requirement is shriveled to a single token advertisement in a publication in a local labor market “likely to be patronized by potential farm workers.”

 

Agricultural employers already aggressively recruit H-2A workers through overseas agents, but make little effort to recruit U.S. workers despite persistent and double-digit unemployment in areas, such as central California, with heavy commercialized agriculture. An important GAO study noted a huge discrepancy in the ratio of available agricultural workers referred to H-2A and non-H-2A employers in North Carolina, a major user of H-2A labor. GAO cited the negative effect that agricultural associations and labor contractors have on the hiring of domestic workers, in particular the regulatory loophole which excludes workers whose daily commute is less than 60 miles each way from transportation and housing benefits.[63] In North Carolina, the GAO reported that the state employment system referred 27,461 domestic (non-H-2A) agricultural workers and placed 15,886 of them with employers during the study period. In stark contrast, a mere 13 domestic workers were referred to H-2A employers, out of more than 5,000 H-2A agricultural clearances requested by North Carolina employers.

 

Poverty-level wage caps.   Prof. Yale-Loehr has written in his authoritative immigration law treatise that H-2A wages have declined 20 percent in real terms since the 1970s.[64] Yale-Loehr points out that the ability of growers to find loopholes to avoid even the minimal wage protections of the AEWR is a significant problem.[65]

 

S.1645 would lower incomes for hired farm and livestock workers who now struggle to survive at poverty levels, by weakening the already inadequate adverse effect wage rate (AEWR) that must paid to alien farm workers. Since 1987, the AEWR has been the regional average hourly earnings of field and livestock workers during the prior year, as reported to USDA by farm employers. It is determined from USDA annual wage surveys of employers’ reported wage rates to non-supervisory workers. Each year, DOL issues the USDA regional survey rates as the H-2A program AEWR for each state.[66] 

 

The 2002 poverty level for a family of two is $12,120, or $15,260 for a family of three.[67]  For three years after enactment, the S.1645 adverse effect wage rate (AEWR) will be frozen at the January 1, 2003 rate, or approximately $8.42 per hour, yielding an estimated maximum annual income for an H-2A worker of $14,474.[68]  Thereafter, annual increases in AEWRs are capped at four per cent. However, this poverty-level income assumes a farm worker can work a full 40-hour week for his or her entire 10-month authorized stay in the U.S.  In practice, AILA spokesman Prof. Yale-Loehr has pointed out that nationally, the average farm worker only works in agriculture for 25 weeks per year at 38 compensated hours per week, yielding a more realistic annual farm worker income of  $7,999.[69]

 

S.1645 includes a longstanding demand from agricultural employers that the AEWR be calculated by agricultural commodity, job title, and locality.[70]  The American Farm Bureau Federation has conceded that this provision will lower actual compensation to an “affordable” or “market-based” wage. In practice, this segregation of higher-paid jobs out of the much larger pool of unskilled labor classification will ensure that most foreign workers receive only the state or federal minimum wage.[71]

 

The U.S. Conference of Catholic Bishops, the American Bar Association, and other “advocates” for farm labor stated that the exclusion of farm workers from eligibility for overtime pay (required for all other workers) under prior guest worker legislation was “unacceptable.”  But they have remained silent on the retention of this discriminatory practice in S.1645.[72] 

 

In 2000, the ABA was quite explicit in its condemnation of H-2A reform as a viable legislative solution:

 

“None of the pressing problems faced by U.S. farm workers today will be solved by streamlining the temporary labor certification process or by repealing or lowering existing H-2A requirements to make the program more attractive to agricultural employers.”[73]

 

With easily replenished aliens providing constant downward wage pressure, and the federal government capping upward wage movement, S.1645 will guarantee farm worker poverty in perpetuity.  Passage of S.1645 will insure that the rhetoric about U.S. farm workers deserving equal rights and a living wage will remain just that – hypocritical rhetoric.

 

5.  Weakened wage and working condition protections for H-2A workers.

 

Expanded employer legal immunity.  S.1645 significantly restricts the current assurance required from H-2A employers that they are in compliance with applicable federal, state, and local employment-related laws and regulations, specifically including employment-related health and safety laws.[74] Instead, an H-2A employer will need only to attest to compliance with applicable labor laws. Employers are also expressly exempted from compliance with Migrant and Seasonal Agricultural Worker Protection Act (AWPA) worker protections.[75] 

 

Although agricultural labor has historically had fatality, injury, and job-related illness rates that are among the highest of all U.S. occupational sectors, S.1645 would immunize agricultural employers from liability or sanctions for health and safety violations.[76]  The language of S.1645 strips H-2A workers of the right of private action to remedy violations of vital health and safety protections, such as OSHA field sanitation standards.[77]  It would also strip away remedies available under equivalent state regulations that have incorporated OSHA standards.[78]  The existing assurances are the legal ‘bootstrap’ that allows H-2A worker health and safety claims to be considered.[79]  To make matters worse, S.1645 expressly immunizes H-2A employers from liability for violations of the health and safety provisions of AWPA, the other statutory protection for agricultural workers.[80]

 

The new language in S.1645 would also further limit H-2A employer liability for violations of the Fair Labor Standards Act (FLSA), since that legislation is “employment-related,” but not “labor-related.”  In the past, FLSA coverage has been invoked to protect H-2A workers against various abuses, including the practice of permitting intermediaries to collect various fees and costs from workers for transportation, visa processing, or required clothing and tools, even when such costs were not directly deducted from workers wages.[81]

 

Restricted housing and transportation allowances.  S.1645 eliminates the current requirement that employers provide housing to all non-commuting workers, and allows them to substitute a “housing allowance” in areas where the state has certified that there is “adequate housing supply.” 

 

This change would have negative consequences for both U.S. and alien workers.  Although the requirement that “family housing” be provided where it is the prevailing practice is retained, the new housing allowance would be calculated as 25 per cent of the “Section 8” welfare rent subsidy for a two-bedroom unit.[82]  By definition, the statutory authorized allowance would not provide adequate funds to rent family housing for a U.S. worker, an agricultural worker amnestied under Title I, nor an H-2A worker with dependents

 

In practice, enactment of the S.1645 housing allowance provision would end employer liability for maintenance of ‘Section 8 migrant apartments,’ which would become the responsibility of HUD or its state or local agency counterpart. Given the refusal or inability of state and local taxpayers to assume the costs of subsidized alien migrant worker housing, a more likely scenario will be institutionalized slum housing for alien workers.

 

S.1645 would restrict eligibility for housing assistance to workers who live “beyond normal commuting distance,” a narrower eligibility standard than the existing regulation, which requires housing for workers who “are not reasonably able to return to their residence within the same day.” [83] S.1645 would also impose limits on the requirement that employers reimburse transportation and subsistence to and from the place of employment, excluding workers who do not travel more than 100 miles or do not qualify for employer-provided housing.[84]

 

The more restrictive housing and transportation provisions in S.1645 will have a significant adverse effect on working conditions of U.S. farm workers, including aliens amnestied under Title I.  DOL has stated that access to affordable housing and transportation are the primary barriers to employment and job retention for U.S. farm workers.[85] Prof. Yale-Loehr reports that most farm workers in California currently lack adequate shelter, and subsist in parking lots, fields, and other open spaces.[86] According to Prof. Yale-Loehr, U.S. workers face a daunting “double hurdle” barrier to agricultural employment.  DOL has determined that a “reasonable distance” can be as much as 60 miles from the work site.  Fewer than half of farm workers own vehicles, and public transportation is non-existent in rural areas. In addition, there is a pervasive shortage of affordable housing in rural areas, so that U.S. farm workers are far more likely to reside in urban areas in the region.[87]

 

S.1645 also omits the existing regulatory requirements that employers provide the H-2A worker with all tools, supplies and equipment required to perform his or her assigned work, and that employers provide the worker three daily meals at a fixed cost. [88]  Elimination of these protections for H-2A workers will remove the legal bootstrap that extends these protections to U.S. workers and Title I amnestied aliens.

 

A loophole-ridden enforcement ‘authority.’  Existing H-2A worker protections have been characterized by federal investigators as difficult to enforce, because of a strong perception among both employers and alien workers that guest work is indentured servitude. According to GAO, an “inherent” problem exists when a worker is legally in the U.S. only at the behest of the employer, and must leave the country once the employment is terminated.

 

The statutory guarantee of employment for 75 per cent of the work contract period, the “three quarters guarantee rule,” is notably difficult to enforce because employers can request artificially long contract periods without significant threat of review by DOL’s Wage and Hour Division. The employer benefits by not having to pay the three-quarters guarantee or the transportation home for workers who leave before the prolonged “contract period” ends. H-2A workers are generally uneducated, and fear that they will not be rehired by recruiters or contractors if they complain. The requirement that the H-2A alien depart the U.S. immediately after job termination will make DOL review of complaints, especially complaints of unlawful retaliation, difficult.[89] 

 

S.1645 will make effective enforcement even more difficult and improbable.  The requirement that each worker be provided a more detailed hours and earnings statement will not protect the alien against inflated contract time periods.[90]  The change from a labor certification to a streamlined attestation system will eliminate DOL’s ability to assess the suitability of the work contract period before the arrival of the alien worker at the job site, with negative implications for wages and working conditions.

 

One of the greatest practical obstacles to DOL oversight of worker protections in attestation-based temporary alien labor programs has been the restriction that DOL may only fully investigate complaints after a worker demonstrates that “reasonable cause” exists to believe that an employer failed to comply with assurances or misrepresented material facts in an alien labor application. S.1645 would impose this restrictive H-1B type standard on H-2A agricultural workers, who nearly always lack the education and resources to assemble such evidence without professional assistance.[91] For example, S.1645 states that DOL may not grant complainants an extension of time greater than 60 days after issuance of a “reasonable notice” determination to prepare for the required evidentiary hearing.[92] This provision, previously found only in H-1B regulations, will significantly restrict the ability of the vast majority of workers without pre-existing professional legal representation to conduct discovery, issue subpoenas, and otherwise assemble the detailed evidentiary record required to maintain an administrative labor complaint.

 

S.1645 includes several tough-sounding penalty provisions: Up to a $15,000 civil penalty per violation is authorized for a failure to fulfill assurances or a misrepresentation during which a U.S. worker was displaced.[93]  However, loopholes adopted from H-1B practices will insure that the probability of significant civil sanctions against exploitative or unlawful employers is very low.

 

S.1645 leaves the imposition of all civil fines to the discretion of DOL administrative hearing officers, no matter how egregious the case.[94]  Most disqualifications from employer participation in the H-2A program and larger fines require the worker to prove that an employer’s failure to meet a required recruitment, wage, or working condition assurance was either “substantial” or “willful, ” and that any factual misrepresentation in an application be “material.”[95]   Proof of intent (willfulness), contractual essentiality (substantiality) or economic impact (materiality) has in practice been an exclusionary threshold for U.S. worker complainants in an H-1B setting, and will be much harder in the H-2A context.[96] 

 

In any case, S.1645 caps civil penalties at $90,000 per employer application irregardless of the number of workers hired, a unique restriction in immigration and labor law jurisprudence not found even in H-1B law.[97] Employer associations, which have been responsible for most H-2A hiring under the current program, are shielded from joint liability for employer violations unless the worker can prove actual knowledge of the violation by the association.[98]

 

A toothless new ‘private right of action.’  S.1645 would enact a new “private right of action” for H-2A workers, which advocates for workers and employers claim would protect alien workers against unethical employers and labor contractors.[99]  In fact, a closer examination of this subsection reveals that rights to litigation in federal court are limited to very narrow grounds, and that such “right” may be exercised only after waiving numerous other avenues for legal relief at the state and federal levels. The alien worker is left with far fewer protections than those afforded to U.S. workers under the AWPA.[100]

 

Before filing a civil suit to enforce the most important worker protections, including problems with housing or housing allowances, payment of wages, benefits and conditions of employment (including compliance with any other federal state or local labor laws), the statutory guarantee of employment, motor vehicle safety requirements, or prohibition of discrimination, S.1645 requires the alien to participate, at the election of the employer, in nonbonding arbitration for ninety days, a delay that will push adjudication of a complaint beyond the contract period in many or most cases.[101] Only then, and only after the worker first withdraws any DOL or state administrative complaint, will a federal district court have jurisdiction to consider a H-2A worker suit.[102]

 

In exchange, S.1645 strips H-2A workers of virtually all other remedies available under state or federal law. Any other enforceable right of action under federal or state law “shall not exist.”  Worker actions under state contract law are expressly preempted. Settlement of a complaint by DOL or through mediation precludes any further action.[103]

 

H-2A workers could not be awarded damages or equitable relief unless the worker proves that the alleged violations were “intentional.”[104] S.1645 makes workers compensation benefits, where available, the exclusive remedy for bodily injury or death. Such availability bars the recovery of actual damages or equitable award of back or front pay, or any other rights or recovery beyond that available under state workers compensation law.[105]

 

No medical insurance. S.1645 requires that H-2A workers be covered under state or federal workers compensation programs. However, the costs of medical treatment remain the responsibility of state taxpayers, as the great majority of domestic and alien farm workers will remain impoverished, uninsured, and reliant upon hospital emergency rooms and public clinics for treatment. As areas of high agricultural employment are usually areas with a high incidence of illegal alien presence, the combined effect of the Title I amnesty and the Title II bracero program will undoubtedly deepen the fiscal crisis