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FJ Bulletin: Senators Leahy & Gillibrand Propose to Expand Problematic H-2A Program to Year-Round Jobs

Immigration Labor - AgJOBS

On September 28, 2010, Senators Leahy (D-VT) and Gillibrand (D-NY), introduced the “H-2A Improvement Act.” The bill would expand the H-2A temporary foreign agricultural worker program to include jobs at year-round dairy operations. Senator Schumer (D-NY), chair of the Judiciary Committee’s Immigration Subcommittee, and Senator Sanders (I-VT), cosponsored the bill.

The bill is deeply flawed. The claimed need for agricultural guestworkers traditionally has been based on the difficulty attracting workers to seasonal jobs that yield lower annual incomes than year-round jobs. This bill would unjustifiably extend the H-2A program to thousands of dairy jobs that are year-round. In addition, the proposal fails to provide needed reforms to the H-2A program or address the needs of the current labor force by providing undocumented dairy workers a path to legal status.

The H-2A guestworker program permits employers to apply for permission to hire foreign labor for temporary or seasonal jobs lasting ten months or less. Sen. Leahy’s and Gillibrand’s bill would enable employers of dairy workers and sheep and goat herders to participate in the H-2A program even when they seek year-round workers (currently there is already an exception for sheep herders). Under the bill, dairy workers and sheep and goat herders would be able to work for the petitioning employer for up to three consecutive years and employers could seek an extension for workers to continue their employment for an additional three-year period. After the first three-year period, workers would be eligible to petition to adjust status to lawful permanent residency. Although the feature allowing workers to petition for permanent residency is a good concept, the reality is that these workers would have to wait many years to receive permanent residency because few green cards are available for this category of immigration applications. Meanwhile, other H-2A workers would continue to hold temporary work permits with no opportunity to become permanent residents through the H-2A program.

The bill’s expansion of the H-2A program to year-round work is extremely problematic. The H-2A program focuses on temporary or seasonal agricultural work because it is premised on the idea that it may be difficult to find US workers for such work. That same logic does not apply to year-round employment in industries such as dairy. Unfortunately, the Department of Labor has rarely rejected employers’ claims of “labor shortages” under the H-2A program. Employers often prefer highly productive, vulnerable guestworkers over U.S . workers who have the freedom to quit and are more likely to challenge illegal practices. Expanding the H-2A program to include year-round employment would lead many US workers in the dairy industry to be denied jobs due to employer preferences for guestworkers or forced to quit due to unacceptable working conditions. Yet this bill offers almost nothing to protect dairy workers from inevitable abuses.

Farmworker Justice has grave concerns about the H-2A program, which has a long history of worker abuse. To bring in H-2A guestworkers, employers must show that there are no U.S. workers available for the job and that the wages and working conditions of US workers won’t be adversely affected because of the importation of the guestworkers. Despite this requirement and despite the fact that the H-2A program does contain some minimal labor protections, the program is rife with abuses due to the very nature of the program. Abuses in the program range from discriminatory rejections of qualified U.S. workers and arbitrary firings to systemic wage violations and deplorable housing conditions.

Due to their restricted status, H-2A guestworkers are vulnerable and lack the bargaining power of other workers. H-2A guestworkers may only work for the one employer that obtained their visa and are dependent on that employer for continued employment. Many guestworkers arrive deeply in debt, having paid enormous recruiters’ fees in their home countries for what they think will be good-paying jobs in the United States. When they arrive, they often find they were grossly misled. Because of their indebtedness, guestworkers are desperate to work to repay their debt and are unable to challenge onerous and illegal conditions that would be rejected by workers who have a union contract or the freedom to quit and find another job. For these reasons, outside of the circumstances surrounding the delicate AgJOBS compromise, we oppose expanding the H-2A program to include additional categories of workers.

A solution to the immigration crisis in agriculture already exists in the AgJOBS bill, S. 1038/HR 2414. AgJOBS is a bipartisan compromise between labor and agricultural employers that would provide employers with a stable labor force by giving current farmworkers an opportunity to earn legal status through continued work in agriculture. AgJOBS would also make balanced changes to the H-2A program, including by allowing dairy employers to participate in the program in the event of labor shortages. New labor protections would help workers prevent and remedy illegal employer conduct. The legalization program would give current farmworkers the opportunity to earn legal status and to remain in their jobs while bargaining for better wages and working conditions. Because AgJOBS is a delicate compromise bill, each piece is integral to the overall package and cannot maintain support if taken out of the context of the bill. Breaking out industries from the overall AgJOBS bill does not help the worker community nor does it provide the long-term labor solutions needed in agriculture. Senators Leahy and Gillibrand should continue to push for passage of the AgJOBS bill, rather than introducing flawed, piecemeal legislation like the H-2A Improvement Act.

FJ Bulletin: Senator Chambliss Introduces Bill Designed to Create Exploitable Farm Labor Force

On September 29, 2010, Senator Saxby Chambliss (R-GA), the ranking member of the Senate Agriculture Committee, introduced the HARVEST Act, S. 3912, yet another bill designed to transform the farm labor force into a system of exploited guestworkers. The Chambliss bill would make many significant changes to the H-2A temporary foreign agricultural worker program, which permits employers to hire non-immigrant guestworkers to fill temporary and seasonal agricultural jobs. His bill would lower government oversight of a massively expanded H-2A program, reduce worker protections, eliminate the ability of legal aid lawyers to protect the few remaining rights of guestworkers, and make other changes to ensure farmers have ready access to a steady stream of cheap replaceable workers.

The inability of agribusiness, despite Sen. Chambliss’s help, to win passage of similar proposals during the 1990’s, led to labor-management negotiations and the bipartisan Congressional compromise in the Agricultural Job Opportunities, Benefits and Security Act, S.1038/H.R.2414. (“AgJOBS”). AgJOBS is a win-win-win compromise that would provide employers and consumers with a stable, legal supply of farm labor by offering farmworkers the opportunity to earn legal immigration status. AgJOBS would improve national security by bringing workers out of the shadows, thereby allowing the government to better focus its resources. In the event of a future labor shortage, the AgJOBS compromise would make the H-2A program more accessible to employers while preserving and adding important labor protections for both guestworkers and U.S. workers. AgJOBS is a realistic and fair solution to the immigration crisis in agriculture, where more than one-half of the workforce is undocumented.

Some of the most significant changes are as follows:

In this time of record job loss and unemployment, Chambliss would make it even harder for US workers to get jobs by reducing meaningful recruitment of U.S. workers. Chambliss would remove the “50% rule,” the principal method of giving U.S. workers a job preference with employers that hire H-2A guestworkers based on a claimed labor shortage. The “50% rule” requires employers to hire any qualified U.S. worker who applies for work during the first half of the season, even if a guestworker must be discharged (which rarely happens). The Chambliss bill also would limit the ability of US workers to learn about job opportunities by reducing requirements for job postings and limiting the role of state workforce agencies.

Farmworkers are among the lowest paid workers in our country and there is widespread agreement, even amongst conservatives like Rep. Lamar Smith (R-TX) and Rep. Steve King (R-2IA), that wages for farmworkers should be higher. Yet the Chambliss bill would slash the H-2A program's already inadequate wage rates. Currently, H-2A employers must pay the highest of three wage rates— the state or federal minimum wage, the “Adverse Effect Wage Rate” (AEWR), or the local prevailing wage. The AEWR was created under the Bracero guestworker program as a necessary protection against depression in prevailing wages (wage rates often stagnate because the guestworkers have little ability to demand higher wages). The current AEWR formula is the regional weighted average hourly wage rate for field and livestock workers combined, as measured by the Department of Agriculture’s annual Farm Labor Survey of non-supervisory farm and ranch workers. Chambliss would change the AEWR so that it is merely 15% higher than the state or federal minimum wage. This change lowers current H-2A wage rates. At $9.11/hour, the Georgia AEWR is one of the lowest in the country, yet it would decrease by at least $1.00 per hour under Chambliss’s bill. If the minimum wage does not increase, then the Chambliss AEWR calculation would prevent wages from rising even if the labor market improves, because employers could continue to pay the minimum wage plus 15%.

The bill is one-sided in that it contains many of the grower-favorable compromises conceded by farmworker advocates in the AgJOBS legislation, but none of the beneficial changes for farmworkers that are part of that same compromise. For example, the Chambliss bill would change the H-2A program from a labor certification to a labor attestation program. Under this bill, employers simply promise to comply with required job terms and other requirements, with limited up-front government oversight. While labor advocates agreed in the AgJOBS compromise to switch to the streamlined attestation approach, they did so in return for important changes favorable to workers that Chambliss omitted. For example, AgJOBS would grant H-2A guestworkers the right to enforce their employment contracts in federal court.

The Chambliss bill would reduce the travel-expense reimbursements to which workers are entitled. For many years, H-2A program employers have had to reimburse workers for their in-bound transportation costs after one-half of the season has elapsed and then pay for their travel home if they complete the season. The Chambliss bill would require only that employers pay for travel costs to and from the place from which the worker was approved to enter the U.S., which could be a U.S. consulate hundreds of miles from the worker’s home. In addition, this bill seeks to overrule a U.S. Court of Appeals decision in Arriaga v. Florida Pacific Farms, regarding the Fair Labor Standards Act. It would essentially allow H-2A employers to reduce the workers’ wages below the federal minimum wage by imposing on the workers the obligation to absorb visa, transportation and other costs related to entering the U.S. These provisions would drive foreign workers further into debt and make them even more vulnerable to exploitation.

Currently, H-2A employers must provide free housing that meets safety standards to non-local U.S. and foreign workers, but under the Chambliss bill employers could choose to provide a monetary housing allowance if the state’s Governor has certified that there is sufficient farmworker housing available in that area. Because there is a dire shortage of affordable, safe, healthy housing for farmworkers, this longstanding requirement should not be changed.

For the few remaining protections available to farmworkers, this bill would limit judicial relief and legal assistance, leaving U.S. and foreign workers without means to protect their rights. The bill would prohibit Legal Services Corporation’s (LSC) legal aid programs from representing H-2A guestworkers and would limit the ability of legal aid programs to represent any farmworkers not present in the country at the time of legal assistance. In the few instances where legal representation is possible, the attorneys for H-2A workers, unlike any others, would be required to submit a request for mediation before filing a lawsuit for a worker. Workers would also be required to provide written notice of the violations to their employers before filing a lawsuit and would be barred from filing a lawsuit if the mediator finds that the employer corrected the violation. A mediator should not have authority to bar claims from going to court— that is not mediation at all but rather a discriminatory procedure to deny farmworkers access to the courts. Chambliss’s bill also attempts to intimidate farmworkers from seeking relief under the principal federal employment law for farmworkers, the Migrant and Seasonal Agricultural Worker Protection, by awarding a prevailing defendant attorney’s fees and other expenses. Plaintiffs are not currently entitled to attorneys’ fees and Chambliss’s bill would only give employers this right.

The bill would change dramatically the nature of the H-2A guestworker program, which is currently limited to temporary or seasonal agricultural positions, by expanding the program to include year-round jobs in agriculture, meat processing, and dairy, among other sectors. Chambliss’s bill would alter fundamentally the labor relations system in these occupations. The H-2A program is premised on the idea that it may be difficult to find US workers for temporary or seasonal work. That same logic does not apply to year-round employment in industries such as meat packing.

The Chambliss bill also would create a cross-border H-2A visa under which guestworkers could cross from Mexico into the United States daily for agricultural employment under the H-2A program, returning home each day. Employers would not need to provide such workers with housing or transportation regardless of the lack of available housing or the cost of transportation. Employers claim these workers live in border towns and should be allowed to return home to their families at night. The reality is that the majority of these cross-border workers are from distant towns in Mexico and have no homes to return to at night, so end up homeless, creating difficulties for local communities in both countries.

The Chambliss bill does not offer an opportunity for undocumented agricultural workers to earn the right to obtain legal permanent immigration status or citizenship. The AgJOBS bill recognizes the need to allow current agricultural workers to earn legal immigration status while continuing to harvest our nation’s crops. The Chambliss bill unrealistically expects currently undocumented farmworkers to come out of the shadows to register and pay a $500 fine to work in the H-2A program, for jobs that last between a few weeks and 10 months before having to return to their home countries.

The AgJOBS bill arose from the inability of Senator Chambliss and others to pass their unworkable, unfair proposals, as well as the inability of farmworker advocates to win passage of their ideal legislation. The contents of Sen. Chambliss’s bill demonstrate once again the wisdom and fairness of the AgJOBS compromise.