QUESTIONS REGARDING H-2A REFORM

1. Is it true that the reform bill would allow nearly automatic admissions of unlimited number of H-2A workers and that employers will not have to recruit US workers?

NO.  The reform bill simply replaces the current, over 50-year old means of requiring employers to search for domestic workers, called the labor certification process, with a modern computer-based technology called a registry, a prototype of this system already is in use by the Department of Labor (DOL).  A 1998 GAO study found that under the current, outdated labor certification process, DOL misses its statutory deadline nearly 40% of the time, even though the system required application to be submitted sixty (60) days in advance.  The registry matches worker requests for farm work with grower requests for workers in an efficient and timely manner.  Workers don’t need computers or "cell phones" to use the registry.  They simply contact job service offices like they currently do.  The registry, like labor certification, is simply a means by which the government can in a more timely manner determine whether domestic workers are available and refer them to jobs.  Under the registry, like labor certification, the Department of Labor decides whether temporary foreign workers can be admitted, based upon unavailability of domestic workers.

Farmers seeking to use the H-2A program must advertise the registry and still must engage in positive recruitment outside of the registry by advertising for workers in local labor markets with likely sources of labor.

In sum, unless a registry check finds insufficient workers and a farmer advertises its job opportunities, a farmer cannot obtain H-2A workers.  The process is not radically different than the status quo.  It is simply made more efficient.

2. Is it true that a reformed H-2A program would take away jobs from domestic farmworkers in rural counties with high unemployment and lead to additional undocumented migration in those areas?

NO.  In 1998, a significant effort was made in rural counties in California with high unemployment rates, to recruit unemployed persons to work in agricultural jobs after enactment of the Welfare to Work legislation.  Agricultural employers worked closely with county welfare and employment service offices to recruit unemployed persons.  The extensive efforts, documented by government agencies, showed that few unemployed persons were interested in working in temporary and seasonal farm jobs.  Unemployed workers preferred permanent, full time jobs and the agencies preferred to direct their training resources there.  Many of the unemployed were single mothers who sought full-time jobs and for whom childcare was an issue.  Thus, there is not a direct a correlation between unemployment rates and willing and able farm workers.  Moreover, the registry job search would assure that unemployed workers get access to the jobs before any foreign workers are admitted.

3. Is it true that H-2A workers overstay their visas and don’t return home, and that a reformed program would encourage more illegal immigration?

NO.  A 1998 GAO study of the H-2A program did not indicate evidence of overstays of H-2A worker.  Moreover, a 1999 study of the Carnegie Foundation for International Peace found minimal evidence of overstays of H-2A workers.  The reason is obvious.  H-2A workers get free transportation to and from home, a premium wage, free housing and many other benefits.  Most importantly, they get a visa that allows them to freely cross the border into the U.S. without paying a smuggler and risking their lives.  If a worker does not go home after the visa expires, he/she loses the right to these considerable benefits and is ineligible to participate in the program in the future.  The reform bill assures similar benefits and takes away workers’ ability to participate in the future if they do not go home in a timely manner.

4. Is it true that the H-2A reform bill does not require the payment of the federal and state minimum wage to domestic and H-2A workers?

NO.  State and federal minimum wage are applicable to all workers under the bill.  In all cases, US workers and H-2A workers would have to be paid a premium wage rate.  The lowest wage rate would be the prevailing wage rate plus a premium of up to 5% if the prevailing wage is less than the prior year’s average hourly earnings of field and livestock workers for the state.  In no case would a worker receive less than the federal or state (if higher) minimum wage.

5. Is it true that redefining the adverse effect wage rate to a prevailing rate standard will hurt US and H-2A workers?

NO.  The adverse effect wage rate (AEWR) is an arbitrarily set wage rate that averages all nonsupervisory field and livestock worker wages in a state.  This is different that the prevailing wage rate, which is the wage for the specific occupation in the area of intended employment (the Davis-Bacon standard).  The bill would require that employers provide the prevailing wage (in no case less than the minimum wage), plus a premium of up to 5% if the prevailing wage is less than the average of all field and livestock jobs statewide.  Many employers cannot afford to pay the current AEWR because it ignores the market factors that dictate how much they can pay for labor and still compete in international markets with competitors from the 3rd and 2d world countries with much lower wage and benefit standards.

The prevailing wage rate standard in the bill is a premium wage rate, but more affordable that the AEWR.  As a result, many more US and H-2A workers  would benefit from this standard because many more employers would be able to provide it even though it is a premium wage that exceeds the minimum wage.  Currently, only about 30,000 workers are admitted under the H-2A program annually, which represents a small percentage of the actual need.  Coupled with housing, and transportation, US and H-2A workers receive a substantial and costly wage and benefit package.

6. Is it true that the reform bill would not require the provision of safe and sanitary housing?

NO.  The bill requires as a condition of using the H-2A program that employers provide housing or a housing allowance.  The provision of a housing allowance recognizes that in some areas of the country migrant and seasonal farmworkers do not live on the farm, but, in the community and housing does not exist on farms.  In other cases farmers have not built on-farm housing because the H-2A program does not work.  With the reform of the program in this bill, farmers will have an incentive to build housing.  The bill gives them a 3-year period wherein they can provide an allowance to be spent on housing in the area.   As a practical matter, this transition would track somewhat the period for the reformed program to be implemented.  After 3 years, farmers would be required to provide either housing or a housing allowance.  The housing allowance option would only be available in labor markets which the Governor of each state finds have sufficient housing available.

The bill does not change current DOL housing occupancy standards.  In addition, the bill creates a farm labor housing commission to study and recommend long-term solutions to the problem of adequate in-season housing for farm workers.  In addition, agriculture has supported legislation in this year’s agriculture appropriations bill requiring USDA to study issues related to the improvement of farmworker housing generally.

7. Is it true that the bill does not require employers to reimburse the in-bound and out-bound transportation costs of US and H-2A workers?

NO.  The bill requires employers to reimburse in-bound and out-bound transportation costs for both H-2A workers and US workers.  Similar to the existing H-2A program, workers who complete 50% of the contract period would have in-bound costs reimbursed, and if they complete the contract, their transportation home would be provided.

8. Is it true that employers are not required to hire US workers through 50% of the period of employment?

NO.  The bill requires employers to hire any U.S. workers referred by the registry through the first 50% of the period of employment unless the employer is employing no aliens, or the registry has unfilled job opportunities in the same occupation and area of employment with other employers.

9. Is it true that employers may terminate workers for any reason, regardless of the contract commitment?

NO.  Employers may only terminate workers for lawful job-related reasons, such as the inability or unwillingness to perform the job, or in a situation where there is an unanticipated lack of work for the workers to perform.

10. Is it true that an H-2A worker is not entitled to a job contract when recruited?

NO.  The reform bill extends for the first time the provisions of the federal migrant Act to H-2A workers, including the requirements of the Act to disclose the term and conditions of employment in writing.  These disclosure requirements provide a double disclosure of the terms the employer is also required to provide independently under the H-2A program rules.

11. Is it true that employers using the program do not have to pay a users’ fee?

NO.  The bill requires employers using the H-2A program to pay a reasonable fee to offset the costs incurred by DOL and INS in administering the program.

        QUESTIONS REGARDING ADJUSTMENT OF STATUS

1. What is adjustment of status?  Isn’t it just amnesty for farmworkers?

NO.  The bill recognizes that a substantial portion of the agricultural workforce is in undocumented status and possesses skills and commitment to farm work.  Because of the shortage of documented workers, the choice is to try to meet our need for workers to produce the nation’s food through guest workers alone, or through a program that reduces the number of H-2A workers initially needed by allowing the most experienced farm workers already here and working in agriculture to earn the right to adjust to legal status.  The bill recognizes the skill and contribution of those who have worked a half a year or more in agriculture the year prior to enactment, and allows them to achieve conditional nonimmigrant status.  If they work in nonimmigrant status exclusively in agriculture for a minimum of 6 months in 5 of 7 years after enactment, they can adjust their status to that of permanent resident. While in nonimmigrant status, workers could work in agriculture up to 10 months a year and would be required to leave the country for at least 2 months each year until they adjust to permanent resident status.  Then, upon becoming eligible for permanent resident status, they could work anywhere and remain in the US throughout the year.

The bill does not repeat the mistakes of the SAW program enacted in 1986, which was an amnesty program that only required proof of 90 days of farm work and then allowed workers to immediately adjust status.  Many of the workers left agriculture after adjusting, leaving the industry with its current problem.

By combining an adjustment program with reform of the H-2A program, the framework for a legal short and long-term agricultural workforce is established.  The adjustment provides the opportunity for legal status to a significant part of the existing agricultural workforce and ensures a temporary foreign worker program that is workable for the future as additional workers are needed.  Moreover, the new registry included in the H-2A reform program facilitates recruitment of US and adjusted workers and will screen out undocumented workers and stop the past cycle of undocumented workers going through an employment eligibility system that does not afford employers the ability to determine whether workers are legal or not.

2. Isn’t the adjustment of status provision just a form of indentured servitude?

NO.  Participation in the adjustment process is strictly voluntary.  If workers in undocumented status prefer to remain in that status and face the fears and uncertainties inherent in such status, they may choose to do so or, an alien could seek a job in the H-2A program.  Workers who choose to adjust status must work a minimum of 6 months in agricultural work for 5 years.  They have 7 years to complete this obligation, in case of health or other reasons they cannot work for a period of time.

While in the US, the adjusted workers are free to work for any employer and move from crop to crop within the U.S.  Their admission does not have to be "sponsored" by an employer.   They receive the full protection of all U.S., and local labor laws.  They have a visa that allows them to come and go freely from their home country to the US.  They will not have to rely upon smugglers and risk life, limb or their limited resources.  They are simply afforded a prized opportunity to earn legal status, should they choose to accept it.

3. Can’t employers and contractors control who participates in the adjustment process?

NO.  The bill provides a role for employers, unions, churches and immigrant organizations, through qualified designated entities (QDEs) to assist workers in obtaining legal status.  Employer records would be essential to proving the qualifying work, but, workers can obtain assistance from QDEs in piecing together qualifying employment if necessary.  Moreover, it is in the employer’s interest to assist workers in adjusting status because this also assures the employer that the worker is legal.  The standard of proof of qualifying employment would be high in order to avoid the problem of fraud that occurred in the SAW program in the 1986 immigration amendments.  High standards would benefit the true farmworker and maintain the integrity of the program.

4. Is it unfair to treat adjusted workers differently than H-2A workers?

NO.  Adjusted workers are treated for all practical purposes the same as domestic workers.  They are protected by all U.S. labor laws and could move from one agricultural employer to another in pursuit of different work, higher wages or better opportunities.  They are not bound by a contract that limits their employment to work for a specific employer for a specific period, a common complaint of critics of the H-2A program.  Moreover, if workers eligible for adjustment preferred to work as H-2A workers, and receive the benefits of that program, including contractual commitments, they could choose to do so.  The choice is strictly up to the individual worker.

The primary difference between adjusted workers and domestic workers is that adjusted workers are, in most instances, limited to work in agriculture for a minimum of 6 months and a maximum of 10 months a year and have to return to their country of origin for at least two months annually until they adjust to permanent resident status.  Otherwise, they are free to pursue the work opportunities and benefits they choose in agriculture while in the U.S.