AgJOBS: New Solution or New Problem?

DOCUMENTATION NOTE

A9;TOBS: New Solation or New Problem? Philip Martin University of California, Davis

Over half of the workers employed on U.S. farms are not authorized to work in the United States. An historic compromise between employer and worker advocates in September 2003 would legalize some currently unauthorized workers and make it easier for farmers to obtain guest workers, but is unlikely to change the farm labor market, so that the percentage of unauthorized workers is likely to climb again.

AGJOBS: SOLUTION OR PROBLEM? The Agricultural Job Opportunity, Benefits, and Security Act of 2003 (S. 1645 and H.R. 3142), co-sponsored by U.S. Senators Edward Kennedy (D- MA) and Larry Craig (R-ID), and U.S. Representatives Howard Berman (D- CA) and Chris Cannon (R-UT), was introduced in September 2003 to legalize hired workers employed on U.S. farms. M O B S provides a path to legal status for some currently unauthorized farm workers, and makes it easier for farm employers to recruit additional workers via the H-2A guest worker program by easing requirements employers must satis+.

The major goal of M O B S is to ensure that the workers employed on U.S. farms are legally authorized to work in the United States; worker advocates also hope that legal status will make farm workers more likely to join unions and press for wage increases, reversing the 1990s slide in farm worker wages and benefits. These goals are similar to those of the Special Agricultur- al Worker (SAW) program of 1987-88, which legalized 1.2 million foreigners. However, continued unauthorized migration led to such a glut of farm workers that union contracts and wages fell in the late 1980s and early 1990s despite this massive legalization program (Martin et aL, 1995).

This article asks whether AgJOBS is more likely to provide a new solution or cause new problems in the farm labor market. As with the SAW program 15 years ago, the answers depend largely on how the program is imple- mented, how workers and employers respond, and whether unauthorized

0 2003 by the Center for Migration Studies of New York. All rights reserved. 0198-9183/04/3704.0144

1282 IMR Volume 37 Number 4 (Winter 2003):1282-1291

AGJOBS: NEW SOLUTION OR NEW PROBLEM? 1283

entry and employment continue. However, since AgJOBS is being touted as a model for earned legalization programs for nonfarm workers in construction, meatpacking, and services, it is important to understand how it can help individuals but not change the underlying structure of a labor market that depends on a steady influx of newcomers.

LONG ROAD TO AGJOBS Agriculture is the nation’s oldest industry: the first census in 1790 reported that 90 percent of the four million U.S. residents lived in rural areas, and most were farmers or farm workers. Since 1910, USDA has estimated employment on farms each quarter, distinguishing between operator, family, and hired workers, and, in recent years, hired worker employment averaged 1.2 million a year, including agricultural service workers - persons brought to farms by labor contractors and similar nonfarm operators. Average farm operator and unpaid family worker employment averaged two million, but many operators and family workers work on farms for only a few hours a day.

USDA also estimated the total number of hired farm workers by having questions attached to the December Current Population Survey, the source of monthly unemployment data. These questions asked whether anyone in the sample household did farm work for wages during the preceding 12 months, under the theory that migrants would be “at home” in December. The CPS is a random sample of U.S. housing units, so sample data were expanded to estimate 2.5 million persons employed for wages on U.S. farms during a typical year in the 1970s and 1980s, and that 8 percent of hired workers were migrants who crossed U.S. county lines and stayed away from their usual homes in order to do farm work for wages.

In the early 1980s, immigration reforms threatened the continued employment of unauthorized workers on U.S. farms. The compromise at the heart of the Immigration Reform and Control Act of 1986 included employer sanctions to discourage unauthorized entry and employment, and legalization for unauthorized aliens who had developed an equity stake in the U.S. Western crop farmers opposed this compromise, arguing that it did not acknowledge their unique dependence on unauthorized workers, and that they would be unable to obtain workers in the flexible manner necessary for their “perishable agriculture” via the existing guest worker program, known as the H-2 program.

Western growers demonstrated in 1984-85 that they had the political clout to block immigration reforms that did not deal with their concerns, and a compromise was reached in the summer of 1986 that is echoed in AgJOBS.

1284 INTERNATIONAL MIGRATION REVIEW

Under the so-called Schumer compromise, named for then Rep. (now Senator) Charles Schumer (D-NY), unauthorized farm workers would be legalized under the Special Agricultural Worker (SAW) program, giving agriculture a legal work force. If these legalized workers left farm work quickly and farm labor shortages developed, additional workers could be admitted via the revised H-2A program or via the Replenishment Agricultural Workers (RAW). The difference between these guest worker programs was that farmers had to attempt to recruit workers under U.S. Department of Labor (DOL) supervision to obtain H-2A workers, but were rewarded with workers tied to their farms by contracts. Under the RAW program, by contrast, a certain number of foreign workers would be admitted to “float” from farm to farm, so that farmers would not have to engage in DOL-supervised recruitment or provide housing to RAW workers. RAW workers could earn an immigrant status by continuing to do farm work.

There were no farm labor shortages in the early 199Os, and the RAW program was allowed to expire without ever being used. Instead, continued unauthorized entries and employment led to surpluses of workers and falling wages. The average hourly earnings of farm workers fell relative to average manufacturing wages in the early 1990s despite a recession and rising health care costs that held nonfarm wages in check (Figure I), prompting the U.S. Commission on Agricultural Workers (CAW) to conclude in 1992 that there was “a general oversupply of farm labor nationwide” and, “with fraudulent documents easily available,” employer sanctions were not deterring the entry or employment of unauthorized workers.

Figure I. Ratio of Farm to Manufacturing Hourly Earnings, 1965-2000

65%

e t .

5 5 .

5 0 .

45 -

4 0 - - Ratio US Farm to Mfg - Ratio U Farm to Mfg 35

30 1965 1968 1971 1974 1977 1980 1983 1986 1989 1992 1995 1998 2Dol


Newly arrived unauthorized foreigners soon became a significant share of the hired farm work force, and they were often brought to farms by farm labor contractors willing to be “risk absorbers” in the event of immigration enforcement (Thilmany and Taylor, 1993). Legalized SAWs soon recognized that economic mobility would require occupational and often geographic mobility, so many moved to cities to find jobs in services, construction, and. manufacturing: by 1993, the SAW share of the United States crop workforce had fallen by two-thirds, the unauthorized share had quadrupled, and farm employers worried about losing crops if there were to be effective immigration enforcement (Figure 11).

Figure 11. SAWs and Unauthorized Crop Workers, 1989-2000 (percent of crop workers)

60 - SAWS - Unauthorized

m .

10 -

0 1989 1 9 w 1991 1992 1993 1994 1995 1996 1997 1998 1999 Zoo0

Farmers in some regions, particdarly tobacco growers in the southeastern states, turned to the H-2A program to obtain legal foreign workers. In states such as Georgia and North Carolina, heavily publicized enforcement actions encouraged some farmers to turn to ex-administrators of the H-2 program who opened labor brokerages. These brokers convinced growers that they could obtain highly motivated and legal H-2A workers for a relatively small broker- age fee if they had housing for the workers. The number of jobs certified by DOL as needing to be filled with foreign workers began to rise sharply &er 1996, and Mexican workers harvesting tobacco replaced Jamaicans cutting sugar cane as the major group of H-2A workers in the United States.


TABLE 1 U.S. DOL H-2A CERTIFICATIONS, 1985-2000

Major Commodities Farm jobs Cerrified Sugarcane Tobacco Sheep

1985 20,682 10,017 831 1,433 1986 21,161 10,052 594 1,043 1987 24,532 10,616 1,333 1,639 1988 23,745 10,75 1 2,795 1,655 1989 26,607 10,610 3,752 1,581 1990 25,412 9,550 4,666 1,677 1991 25,702 7,978 2,257 1,557 1992 18,939 4,271 3,080 1,522 1993 17,000 2,3 19 3,570 1,111 1994 15,811 1,419 3,720 1,305 1995 15,117 4,116 1,350 1996 19,103 9,756 1,366 1997 23,562 14,483 1,667 1998 34,898 16,984 1,961 1999 4 1,827 16,206 1,443 2000 44,017 14,554 1,865 Source: US. Department of Labor, ETA, OWS. Annual Reports. Farm jobs certified by DOL as needing to be filled

Recognizing that enforcement could leave them without harvest workers, but still unwilling to undergo DOL-supervised recruitment and to satisfy the housing requirements of the H-2A program, western growers proposed variations of the expired RAW program in Congress. There was widespread union, church, and Hispanic advocacy opposition, and President Clinton threatened to veto any such program: “I oppose efforts in this Congress to institute a new guestworker or “bracero”program that seeks to bring thou- sands of foreign workers into the United States to provide temporary farm labor” (White House Press Release, June 23, 1995).

Farmers did not give up on their quest for an alternative guest worker program, and the election of Vicente Fox as the Mexican president in July 2000 and George Bush as U.S. president in November 2000 prompted farm employer and worker advocates to agree on a compromise version of AgJOBS in December 2000 that introduced a new concept: earned legalization. Earned legalization offered temporary resident status to unauthorized workers who had done at least 100 days of farm work during the previous year, and allowed them to earn an immigrant visa if they did at least 360 more days of farm work in the next six years. Earned legalization satisfied employers, who received assurance that newly legalized farm workers would not immediately leave for non farm jobs, and worker advocates, who wanted legal immigrant status for unauthorized farm workers. However, Congressional Republicans who opposed “rewarding lawbreakers” with legal status, led by Senator Phil Gramm (R-TX), blocked approval of AgJOBS.


During the spring and summer of 2001, there were Mexico-U.S. meet- ings on migration, the top foreign policy priority of Mexico, and a variety of proposals were introduced in Congress to legalize farm and other workers. The debate centered largely on whether currently unauthorized workers in the United States should be granted a guest worker status, an immigrant status, or a temporary resident status that would enable them to eventually “earn” an immigrant status. The September 11, 2001 terrorism stopped leg- islative momentum for these proposals.

AG]OBS 2003: TRS AND H-2A CHANGES

AgJOBS 2003 would allow unauthorized foreigners who did at least 575 hours or 100 days of farm work (one hour or more constitutes a day ofwork), whichever is less, in a 12-consecutive month period between March 1, 2002 and August 31, 2003 to receive a six-year Temporary Resident Status (TRS) that gives them the right to live and work in the United States. The application period would begin six months after enactment and last 18 months, and applications for TRS could be filed within the United States or at U.S. ports of entry with Mexico. To avoid dealing directly with the Department of Homeland Security, unauthorized foreigners could file applications for TRS with Qualified Designated Entities, and farm worker unions and employer associations would be favored as QDEs to receive applications.

TRS workers could earn a permanent immigration status by doing at least 2,060 hours or 360 days of farm work in the next six years, including at least 1,380 hours or 240 work days during their first 3 years in TRS. Spous- es and minor children of TRS workers would not be deportable (but would not be allowed to work lawfully), and could receive permanent immigrant status when the farm worker received an immigrant visa, regardless of queues and waiting lists.

The H-2A program would be made more “employer-friendly,’’ with farmers “attesting” to their need for foreign workers. The U.S. Department of Labor would have to approve employer attestations that they needed H-2A workers if employers filed job offers at least 28 days before workers were needed at local Employment Service offices. Employers would also have to advertise the jobs in local media at least 14 days before the need date but, if local workers did not appear, DOL would have to authorize employers to employ H-2A workers.

Employers must provide housing to H-2A workers or “a monetary housing allowance,” provided the state’s governor certifies there is sufficient


housing for workers to find their own housing. The housing allowance is the “statewide average fair market rental for existing housing for metropolitan or nonmetropolitan counties” assuming two persons per bedroom in a two-bedroom unit. In metro coastal counties in California, average rents for such a unit are $1,100, so that the housing allowance would be $275 per H-2A worker per month; in metro counties in the San Joaquin Valley, average rents are $600, making the allowance of $150 a month per worker. Only H-2A workers would receive housing allowances.

Employers of H-2A workers would have to reimburse inbound and return transportation costs for satisfactory workers and guarantee work for at least three quarters of the period of employment that they specifj. In a bow to worker advocates, H-2A workers would be able to sue in federal rather than state courts to enforce their contracts. Housing and other H-2A provi- sions could be superseded by a collective bargaining agreement.

Farmers would have to pay H-2A workers the higher of the federal or state minimum wage, the prevailing wage in the occupation and area of intended employment, or the Adverse Effect Wage Rate (AEWR) - U.S. cit- izen, legal immigrant, and unauthorized workers must receive only the federal or state minimum wage unless they are working alongside H-2 workers. To win grower support for AgJOBS, the 2002 AEWRs would apply until 2006 - $8.02 an hour in California, $7.69 in Florida, $7.53 in North Carolina, $7.28 in Texas, and $8.60 in Washington.

HOWMANY WORKERS QUALIFY?

There is no cap on the number of unauthorized foreigners who could qualify for TRS, but there is speculation that 500,000 to 800,000 unauthorized foreigners could qualifj. One way to estimate the number of unauthorized workers who may qualify is to combine data from the National Agricultural Workers Survey (NAWS) with data from the CPS. The percentage of unauthorized workers varies by several well-known factors - type of employer, commodity, and geography. Labor contractors have higher percentages of unauthorized workers than farmers who hire workers directly, the unauthorized percentage is highest in very seasonal fruit and vegetable jobs, and the percentage of unauthorized is highest in the newest areas to receive migrants, the South and Northeast.

Table 2 includes three estimates of unauthorized farm workers, based on percentages of unauthorized workers in crops and livestock. The first column, 58/20, estimates 1.2 million unauthorized foreign farm workers, based on


NAWS data that 58 percent of crop workers are unauthorized and my estimate that 20 percent of livestock workers are unauthorized. The second column shows that, if two thirds of the crop workers are unauthorized, and one third of the livestock workers are unauthorized, there are 1.4 million unauthorized U.S. farm workers. The third column shows that if 50 percent of crop workers and 10 percent of livestock workers are unauthorized, there are 1 million unauthorized farm workers.

TABLE 2 How MANY UNAUTHOIUZED WORKERS?

Unauthorized 58/20 213-113 50110 cropllivestock workers (%) Hired workers(mi1s) 2,500,000 2,500,000 2,500,000 Crop workers(mi1s)

Percent unauthorized Number unauthorized

Percent unauthorized Number unauthorized

Livestock workers

Total unauthorized Percent of 2.5 million Source: See text

1,800,000 58

1,044,000 700,000

20 140,000

1,184,000 47%

1,800,000 1,800,000 67 50

1,200,600 900,000 700,000 700,000

33 10 233,100 70,000

1,433,700 970,000 57% 39%

Under IRCA's SAW program, unauthorized foreigners had to do at least 90 days of farm work between May 1, 1985 and May 1, 1986 to qualify for legal status, a work requirement based on CPS data that showed hired workers averaged 100 days of farm work in the early 1980s.' The NAWS, which interviews workers at work rather than at home, found that crop workers did 24 to 3 1 weeks of farm work a year in the 1990s, or 120 to 155 days of farm work if they were employed for 5-day weeks.

NAWS data show that, when grouped by days of farm work during the previous year, legal immigrant workers did the most days of farm work - 75 percent did 90 or more days of farm work. However, only half of the unauthorized workers did 90 or more days of farm work, in part because many were recent arrivals. If these unauthorized foreigners continue to work in agriculture, MOBS will have failed to legalize the farm work force.

CONCLUSIONS: SOLUTION OR PROBLEM? If AgTOBS is approved, there is likely to be renewed interest in the farm labor

~~

market, as organizations are created to legalize farm workers (legalization will

'This average obscured the fact that 50 to 60 percent of hired workers in the CPS were employed on farms less than 50 days in 1983. For example, 56 percent of hired workers did only 12 percent of the days of work done by hired workers in 1983.

1290 INTERNATIONAL MIGRATION h W E W

TABLE 3 PERCENT OF WORKERS W H O DID AT LEAST 60,90, AND 120 DAYS OF FARM WORK OVER 12

MONTHS, 1993-98 Share of Workers

60 days 90 days 120 days 1997-98(%) All Workers 68 56 47 100 U.S. Citizens 59 47 39 22

1997-98 66 55 45

1997-98 85 75 66

1997-98 64 50 37

Immigrants 84 75 67 24

Unauthorized 65 51 41 52

Source: NAWS Public Use Data, 1993-98

be funded by worker application fees) and a database records the days of farm work done by TRS workers as well as data on dependents, taxes paid, and crime. A new adjudication system is to be established under AgJOBS is to give TRS workers credit for days not worked in agriculture because of on-the- job injuries or if they were fired without “just cause.”

A key issue will be verifying the data in worker applications. During the Special Agricultural Worker program, there was widespread fraud, as unauthorized foreigners submitted letters (affidavits) especially from contractors, saying they did qualifying farm work, and the United States government was unable to meet its burden of proof to show that the applicant’s information was wrong. M O B S puts the burden on the applicant to demonstrate “by a preponderance of the evidence” that the claimed work was performed - there may also be less fraud because of the continuing farm work requirement. Most TRS workers should be tempted to satisfy their farm work obligation as soon as possible. TRS workers seeking to complete their farm work requirement, combined with easier admissions via the H-2A program and continued illegal migration, could increase the farm labor supply, putting downward pressure on wages and benefits as in the late 1980s and early 1990s and speed- ing the exit of legal workers from agriculture.

Many things will not change as a result of AgJOBS. Most workers will continue to be young immigrant men from rural Mexico. H-2A controversies may shift to governors, who will be under pressure from farm employers to certify that there is sufficient housing so that farmers can pay housing allowances rather than provide housing, while advocates cite statements about the lack of farm worker housing common in state applications for federal housing grants.

AgJOBS continues to send mixed signals about the future availability and cost of farm workers. One the one hand, MOBS expresses a desire for a legal farm workforce, which advocates assume will also be a higher-wage


work force. However, an easing of admissions under the H-2A program combined with an AEWR freeze signals employers that workers will continue to be available at a predictable cost. Furthermore, if unauthorized workers continue to arrive and present false documents to employers in the hope of another legalization, the combined effect is likely to produce no fundamen- tal changes in the farm labor market.

REFERENCES Martin, P. 2003 Promise Unfi@lled Unions, Immigration, and Farm Workers. Ithaca. Cornell University

Press. <www.cornellpress.cornell.edu>.

1994 “Good Intentions Gone Awry: IRCA and U.S. Agriculture. The Annals of the Acade-

Martin, P., W. Huffman, R. Emerson, J. E. Taylor and R. Rochin, eds. 1995 Immigration Refirm and US. Agriculture, Berkeley, CA: Division of Agriculture and

Natural Resources Publication 3358. Thilmany, D. and E. Taylor 1993 “Worker Turnover, Farm Labor Contractors and IRCA’s Impact on the California

Farm Labor Market,” American Journal OfAgicultural Economics, 75:350-360. May. U.S. Commission on Agricultural Workers 1992 Final Report. Washington, DC. Government Printing Ofice. U.S. Department of Labor 2000 Findings from the National Agricultural Workers Survey (NAWS) 1997-1 998.

my of Political and Social Science,” 534:44-57.

March.

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AgJOBS: New Solution or New Problem?