U.S. Policy and Mexican Guestworkers
The History of U.S. Policies toward the
Mexican Agricultural Worker and the Impact of New Legislation
Contents:
Introduction
Mexicans
Choose Citizenship
The
Labor Relationship Begins
A
New American Policy
Bracero
Program
Modern
Policy
Newly
Proposed Legislation - S.1814
Conclusion
Federal
Legislation and Regulations
References
and External Links
Footnotes
Introduction
For
most of the 20th century Mexican immigration has been linked to employment
north of the Rio Grande. The United States has a long and precarious history
with the Mexican farmworker that can perhaps be characterized as “friend
when we need him, foe when we do not.” The United States has depended
on him for its prosperity, yet in turn has blamed the Mexican farmworker
for a variety of its ills. An analysis of the history of policies affecting
these laborers illustrate this de facto policy of, “bring them in
when they are needed, send them back when they aren’t.”
1
The majority
of farmworkers are recent legal immigrants, however a substantial portion
consists of undocumented workers. Moreover, thousands of farmworkers are
also brought in as temporary guestworkers who do not have permanent status
and are sent home after their work is completed.
The history
of legislation between Mexican workers and the United States began in
the mid- 1800’s and continues today in the form of Senate Bills 1814
and 1815 among others. It is the Rural Coalition’s goal to reconcile
the past and present in order to illustrate the cyclical pattern of legislation
and attitudes toward Mexican agricultural workers in the United States.
We in turn hope that by providing a brief history of the policies that
have affected these farmworkers the need for change may be further illuminated.
Moreover, it is our interest to recognize and illustrate the significant
role the Mexican laborer has played in the agricultural development of
the United States.
The Rural
Coalition believes that all farmworkers, regardless of their legal status
or national origin, must have access to the fundamental rights and fair
working conditions all persons deserve.
Mexicans
Choose Citizenship (1840 - 1930)
The
modern relationship between the Mexican citizen and the U.S. began with
the acquisition of Mexican territories by the United States in 1848. The
Treaty of Guadalupe-Hidalgo settled the
Mexican-American War of 1847 and gave the land comprising the states of
Texas, New Mexico, Arizona and California to the U.S. Mexican citizens
remaining in the former Mexican territories had the choice of Mexican
or United States citizenship and if they did not elect citizenship within
one year they automatically became citizens of the United States. Most
Mexicans chose to stay where they had already established a home rather
than to move to Mexico.2
However, despite the liberal citizenship policy of the treaty, the Mexican
citizen was often confronted with racism and mistreated in the growing
fields and ranches. Thus the Mexican laborer was generally treated poorly
from the beginning.
The Labor Relationship Begins (1850 - 1890)
America’s first major labor relationship with the Mexican worker
arguably began with the construction of the railroad between the U.S.
and Mexico. However, the expansion of cattle ranches in the Southwest
and fruit production in California further augmented the necessity for
Mexican labor in the United States. Thus, between 1850 and 1880, 55,000
workers immigrated to the U.S. as field hands and railroad workers.3
The Mexican presence continued to expand between 1880 and 1900. During
this span approximately 60 percent of the railroad crews consisted of
Mexican laborers. This time period is generally characterized as the first
wave of heavy immigration from Mexico to the United States. The Mexican
immigrants of this era fell into a variety of categories that included,
“skilled miners, work hands from cattle ranches in Mexico, indentured
servants fleeing Mexican farms, small independent producers who were forced
north by natural disasters or Indian raids and workers affected
by the War of Secession.”4
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A New American Policy (1900-1930)
The beginning of the 20th century marked the development of a more concrete
policy and fluctuating attitude by the United States toward the Mexican
laborer. It is estimated that between 1900 and 1930 over 300,000 Mexican
immigrants were legally admitted into the United States, and perhaps as
many as one million undocumented immigrants settled in the same period.5
During
the early part of the 1900’s Mexican farmworkers were faced with
various employment uncertainties at home. A major cause of unemployment
was the Mexican
Revolution of 1910, in which Mexican citizens sought to overthrow
the Mexican dictatorship and establish a true democracy. The Mexican Revolution
left much of Mexico in disarray and the Mexican government was unable
to improve the conditions and lives of its citizens after the Revolution.
As a result, crop bounties became smaller and employment became scarce6
and the Mexican farmworker had to look north for survival.
America’s
involvement in World War I provided needed job opportunities for the Mexican
worker. While much of the U.S. labor force was overseas fighting the war,
agencies in Mexico recruited workers for the agricultural and railroad
industries of the U.S.7
At the
same time Congress enacted the Immigration Act of 1917, which set literacy
tests for reading English "or some other language or dialect, including
Hebrew or Yiddish.” However, the Act contained a provision allowing
the Commissioner of Immigration and the Secretary of Labor to waive immigration
law provisions for temporary guestworkers. Thus, under the Departmental
Order of 1918, the Commissioner waived the head tax, contract labor laws
and literacy requirements for Mexican laborers. This resulted in a continued
reliance on immigrant Mexican workers by southwestern agricultural employers.
These exceptions have often been described as the first Bracero program.8
In 1924
the Border Patrol was established, but had little manpower or control
over the border until much later. However, the Border Patrol had a very
significant symbolic effect on the Mexican laborer. With the advent of
the Border Patrol came the definition “illegal alien”. The negative
connotations of this phrase are evident today and impact both legal and
illegal immigrants alike.
In perhaps
the first display of modern U.S. policy of “send them back when they
are not needed,” the depression years of the 1920’s and early
1930’s led the United States to participate in the repatriation of
hundreds of thousands Mexican workers. Mexican laborers were blamed for
the unemployment problem in the United States, and between 1929 and 1932,
345,000 Mexicans were sent back to their homelands.9
Similarly, Congress suddenly began to enforce existing laws reducing the
amounts of Mexican immigrants from 4000 to 250 a month. Literacy and contract
restrictions of the Immigration Act of 1917 that had been previously waived
in order to bring in more Mexican workers were suddenly enforced by INS
administrators.
Perhaps
related to the prevalent attitude toward the Mexican agricultural laborer
was the exclusion of farmworkers from the National
Labor Relations Act (NLRA), which guaranteed most private sector workers
the right to join labor unions and bargain with employers. The NLRA was
considered a “pro-labor” regulation that provided protective
labor laws and a social safety net for most workers of the 1930’s.
In fact, to this day farmworkers are not covered by standard labor laws
such as the NLRA, but instead are covered by other “parallel”
regulations such as the Seasonal
Agricultural Worker Protection Act.
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Bracero
Program (1942)
Continuing the pattern of America’s “de facto” policy toward
the Mexican worker was the Bracero Treaty of 1942. The Bracero program
was a bilateral agreement between the United States and Mexico that represented
the largest “guestworker” program in United States history and
lasted approximately 22 years. Over the course of the program some 5 million
Mexican workers entered the United States in order to supply domestic
labor during shortages caused by World War II. In 1954 Mexico refused
to renegotiate the Bracero agreement with the United States. However,
Congress immediately amended Public Law 78 (Bracero treaty) to allow the
U.S. to operate the program unilaterally despite Mexican opposition.10
Why the
opposition? Bracero laborers were recruited from Mexico to work for specific
employers on temporary contracts whose protections were rarely enforced.11
The Bracero Program contracts were controlled by the independent farm
associations and were written in English, thus many braceros signed them
without understanding the terms and rights of the agreement.12
Furthermore, guestworkers could be sent home at any time if they did not
meet the harsh demands of the employers, and the employers were freed
form the responsibilities of dealing with the domestic workers who could
file formal complaints, organize, and otherwise utilize the protections
guaranteed by their government, as a result of the program. Thus, American
agriculture grew reliant on Mexican guestworkers and the cheap labor they
represented. This dependence on foreign workers resulted in depressed
wages for domestic labor and institutionalized substandard conditions
for all workers tied to the agricultural industry.13
Furthermore,
while the Bracero program regulated legal immigration it also promoted
illegal immigration.14
Once braceros became familiar with the United States and in many cases
married and had children, it was not likely that they would simply return
to Mexico. Naturally, any stories of a better life enticed many Mexican
laborers with the same hope of employment to illegally immigrate and further
increase the number of undocumented workers in the United States.
Thus
during the recession of the early 1950’s, despite the continued operation
of the Bracero program, there was widespread scapegoating of the Mexican
workers for disease, loss of jobs, border crime, and welfare in the U.S.
As a result, in 1954 the INS deported over 300,000 Mexicans under Operation
Wetback.15
The 1956
publication of Ernesto Galarza’s Strangers in our Fields, documented
the widespread abuses of the Bracero’s rights under both international
and domestic law and marked the beginning of opposition to the Bracero
program from labor unions and civil rights groups. With the rise of the
civil rights movement in the 1960’s, Congress became concerned with
the conditions of both the domestic and Mexican farm laborer, and thus
the Bracero program was allowed to expire in 1963.
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Modern
Policy (1980 - 1996)
The early1980’s initiated a span of vigorous debate over the United
States immigration policy that may be characterized as anti-immigrant.
There is little doubt that this disposition continues today. Many feel
that the immigration of Mexicans into our country has become a “silent
invasion” and that the U.S. has lost control over its borders. Consistent
with policy of the past, undocumented members of the U.S. community have
been blamed for economic hardship and for damage that they cause as a
result of their alleged criminal conduct. California’s passage of
Proposition 187, which bars undocumented workers from obtaining health
care, education, and social services, is indicative of the prevailing
sentiment in the U.S. What the anti-immigrant movement does not take into
account is that both undocumented and documented workers have historically
served the needs of the U.S. economy and continue to do so today.
And while
the government during the 80’s and 90’s has passed symbolic
legislation indicative of anti-immigrant sentiment, it is either reluctant
to enforce it or simply provides loopholes for big business that rely
heavily on foreign labor.
This
contradiction between the economic needs of big business and current immigration
policy best characterizes the prevailing U.S. policy toward the Mexican
farmworker. The following is a brief analysis of the major legislation
during the last two decades.
Immigration
Reform and Control Act of 1986
(IRCA)
The major provisions of IRCA were: 1) to impose employer sanctions in
the form of civil fines and possible criminal penalties for the knowing
hiring or continued employment of an “unauthorized alien”; 2)
create a fairly generous amnesty program under which aliens unlawfully
in the country since before January 1, 1982 could apply for the newly
created status of “temporary resident” (if successful, such
aliens could later apply for permanent residence);16
3) to create a category of “Special Agricultural Workers” (SAW’s)
and “Replenishment Agricultural Workers” (RAW’s) who could
more easily qualify as temporary residents on the basis of having worked
in “seasonal agricultural services,” and 4) to create a new
category of non-immigrant workers (H-2A).
The amnesty
and SAW programs were short- term programs that ended in 1988. However,
the employer sanctions and agricultural worker provisions established
significant long-term changes in the laws regulating the hiring practices
of the agricultural industry. These provisions continue to be a source
of debate today.
Employer Sanctions
Before IRCA, the knowing employment of undocumented workers was not illegal.
However since the passage of IRCA, all employers are required to verify
that new employees possess documentation that demonstrate authorization
to work. The employer must swear under the penalty of perjury that the
document “reasonably appears on its face to be genuine,” and
that the worker is either a United States citizen, lawful permanent resident,
or alien for three years or one year after the employment terminates,
whichever occurs first.17
Furthermore, as a result of the fears that the new employer sanctions
in IRCA would result in discrimination against “foreign looking”
workers, IRCA further prohibited discrimination on the basis of national
origin or citizenship status.
What
have the employer sanctions of IRCA accomplished? First, there is little
doubt that IRCA has led to the proliferation of falsified documents.18
However, if the primary goal of these employer provisions was to prevent
illegal worker employment, there is little evidence that employer sanctions
have done this. The employer’s good faith defense for inspecting
documents and limited resources for enforcement have basically turned
the employer sanctions into mere rhetoric.
H-2A Program
The other long-term provision of IRCA was the creation of a new category
of non-immigrant workers known commonly as the H-2A workers. The term
“H-2A” came from the section where the provision creating this
new category of immigrant workers is found. H-2A guestworkers represent
laborers that are granted a special visa for temporary work in the United
States. Guestworker programs like the H-2A program and the old Bracero
program were designed to supply temporary foreign labor to U.S. employers
in the event of a domestic labor shortage.
Furthermore,
IRCA provided that if the non-immigrant workers in the H-2A program did
not meet the needs of agribusiness employers, IRCA authorized the use
of “replenishment agricultural workers” once the Secretaries
of Agriculture and Labor determine that a shortage of agricultural workers
exist. Thus, rather than being forced to increase wages and improve conditions
in order to attract domestic labor, agribusiness had a second option for
cheap labor. This generous provision effectively illustrates the political
power of U.S. agribusiness.
Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA)
of 1996 sought to reduce the amount of illegal immigration from Mexico
into the United States. Most if not all of its provisions were designed
to achieve this end. And although the entire bill is not discussed in
full here, the two following provisions illustrate the gist of the bill.
First,
Congress sought to gain more control over the U.S.-Mexico border. Thus,
the United States increased the amount of border patrol agents, constructed
additional physical barriers, improved technology, improved border crossing
identification cards (machine-readable), increased civil penalties for
illegal entries, and automated entry-exit control systems (which will
record entries and departures and be able to identify non-immigrants who
overstay their visas).
Secondly,
Congress sought to curtail document fraud within the United States. IIRIRA
substantially increased criminal penalties for fraudulent use of government-issued
documents. Furthermore, the act expanded the definition of document fraud
to include anyone who "prepares, files or assists another person
in preparing or filing an application for benefits with knowledge or in
reckless disregard of the fact that such application was falsely made"
or "destroys travel documents en route to the USA after having presented
such documents to board a common carrier to the USA."
Significance
What is the real significance of these two pieces of legislation? Both,
the Immigration Reform and Control Act of 1986 and the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 sought to address the
issues concerning the flood of illegal immigration into the U.S. However,
the continuing dependence on undocumented agricultural workers by U.S.
agribusiness is evidence of the inability of these acts to achieve this
end.
What
these acts have achieved is a way for agribusiness to justify the need
to bring in more foreign guestworkers. Growers contend that as a result
of IRCA and IIRIRA: 1) examining employment documents too closely opens
the farmers to discrimination charges, 2) not examining them closely enough
could result in being reprimanded for hiring illegal workers and, 3) the
Immigration Responsibility Act of 1996 cracks down on illegal farm workers
to a degree that may potentially create labor shortages.
However,
considering the high unemployment rate for domestic farmworkers, it appears
that the more likely “growers dilemma” is the dependence on
undocumented laborers and the cheap labor they provide along with the
unwillingness to increase wages and improve conditions in an effort to
attract domestic labor first.
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Newly
Proposed Legislation
If history has taught us anything, it has taught us that the Mexican laborer
has been an integral part of agricultural development in the United States.
However, it has also taught us that the Mexican worker has been exposed
to poor conditions time and time again. Thirty-five years after the demise
of the Bracero program, with the knowledge of the problems facing the
current H-2A system and the poor conditions confronting millions of farmworkers,
Senators Gordon H. Smith (R-Ore.), Bob Graham (D-Fla.) and Rep. Richard
Pombo(R-Ca.)19
have managed to come up with new proposals that
actually weaken the already inadequate protections provided by past and
current agricultural worker programs. And although the following evaluation
examines S. 1814, the same sentiments can be applied to any legislation
with analogous goals.
S. 1814 - The Agriculture Jobs Opportunity
and Benefits Act 1999 (AgJobs)20
and S. 1815 - The Farmworker Adjustment Act
S. 1814 and S.1815 are
Senate bills that were introduced on October 27, 1999 by Senators Smith
and Graham in an effort to address problems in the existing seasonal farm
labor system better known as the H-2A program. Backed by the agricultural
industry, S. 1814 and S. 1815 are very lopsided bills that heavily favor
large-scale growers and will not improve the lives of agricultural workers
in the United States. Furthermore, these bills would be detrimental to
small farms that cannot afford to hire the “cheap labor” S.1814
and S. 1815 ultimately provide for agribusiness.
In an
effort to give an informative account and evaluation of these bills, the
testimony before the Senate Immigration Subcommittee by Senator Smith
on the goals of S. 181421
will be used to further articulate the position held by the Rural Coalition
opposing the Agricultural Jobs Opportunity Benefits and Security Act and
similar legislation.22
Amnesty?
“First, we provide an opportunity for workers already in the U.S.
to earn legal status. To reduce the need for temporary guest workers and
immediately address the illegal worker crisis, workers who meet specific
requirements are eligible for immediate, legal ‘adjustment status.’
The workers who qualify for adjustment status can earn permanent residency
status in the U.S. if they continue to meet specific employment requirements
for five of the next seven years.” - Senator Smith
The proposed
“amnesty” for undocumented workers appears to be a generous
provision at first glance. However, this provision is far from any sort
of true amnesty. In order for a worker to earn the right to apply for
legal permanent resident status, he must have performed agricultural employment
in the United States for at least 880 hours or 150 days, whichever is
lesser, during the 12-month period prior to October 27 1999. The workers
who qualify for this “adjustment status” may then earn permanent
residency status in the U.S. if they continue to perform 1,040 hours or
180work days for five of the next seven years. This provision is problematic
for several reasons.
First,
it is unlikely that an undocumented worker could prove with any sort of
documentation that he performed the requisite amount of hours to even
qualify for adjustment status. The fact that he is undocumented in the
first place makes this difficult. However, in the case that the worker
can provide enough documentation to gain “adjustment status,”
even more troubling is the difficulty of finding work for six months out
of the year. Many harvests may only last for 3 months at a time. Thus,
in most instances the reality is that most farmworkers cannot achieve
residency status in the US, which brings us to the real problem of S.
1814.
Many
organizations opposing Senator Smith’s bill refer to this provision
as a sort of indentured servitude for workers seeking US residency. Senator
Smith addresses this accusation saying, “The indentured servitude
is the status quo. The indentured servitude are those who simply say keep
them illegal, keep them down, make sure they don’t have the benefits
that other workers in America do, and we will somehow suggest we are on
their side. The way out of indentured servitude is to give them a legal
path to follow.”23
Senator
Smith further acknowledges that there is a “shameful story to be
told in this country when it comes to agriculture workers” and is
correct in saying that the status quo is a form of indentured servitude.
However, rather than addressing the problems that the Senator himself
acknowledges, S. 1814 merely exacerbates the current status quo. “Adjusted
workers” that are desperate to satisfy the five year work requirement
for residency are not likely to complain about working conditions, wages
or mistreatment for fear of being fired or other employer reprisals, regardless
of their legal status. Thus, this proposal would give employers an immense
amount of power over workers’ immigration and economic status and
does not address the concerns it purports to solve. This five year “wait
and see” program is simply too long and rather than guaranteeing
permanent legal status for those who work for to achieve this end, it
may result in a life similar to indentured servitude for many “adjusted
workers.”
Labor Shortage?
“The second part of our bill is to actually improve and streamline
he current H-2A guest worker program by creating a national registry for
matching workers with jobs. To make the H-2A program more efficient for
workers and employers, the bill creates a computerized registry system
that ensures legal, domestic workers will be hired first for all agricultural
jobs. Only after the Department of Labor (DOL) determines that a shortage
of domestic workers exists could adjusted workers be recruited. If the
DOL further determines that a shortage of adjusted workers exists, H-2A
workers could then be recruited. This ensures that employers hire workers
already in the US before recruiting temporary, foreign guest workers.”
- Senator Smith
The sponsors
of this bill feel that there is a need to streamline the current H-2A
program in order to address the agricultural “labor shortage”
that confront growers. However, it is relatively clear that there is no
overall shortage of farmworkers that would require the importation of
more H-2A guestworkers. According to the Department of Labor in 1994,
“the U.S. farm labor system is characterized by an oversupply of
workers.” At any one point in the year an astounding 12 percent of
farmworkers in the U.S. were not working. Furthermore, migrant workers
who traveled for work averaged only 25 weeks of farm work annually.24
However, a recently released survey found that farmworkers averaged only
24 weeks per year in 1996-1998.25
Similarly,
the trend in wages for farmworkers does not follow the normal pattern
of an industry with a labor shortage, in which case wages would usually
increase. According to the U.S. General Accounting Office (GAO), the average
hourly wage rate for farmworkers between 1989 and 1995 fell 8.5 percent
to $6.06 an hour. The average hourly wage paid by the piece rate fell
by 16.9 percent.26
Moreover,
contrary to the testimony of Senator Smith, this “streamlining”
would not ensure that domestic workers would be hired first, but rather
would make it easier for growers to access foreign guestworkers to the
detriment of the domestic labor force.27
Most farmworkers do not currently use the Department of Labor offices
to find work. In fact, most workers probably would not know to register
in order to find work. This ensures that large-scale growers would easily
be able to bypass domestic workers for foreign laborers because H-2A employers
would not be obligated to hire domestic workers not found in the new registry.
By adding
workers to the pool of available labor for agricultural producers, the
authorized importation of more foreign agricultural workers would keep
wages for agricultural workers, and thus labor costs for agricultural
producers, below what they would be without such interventions.28
Thus, adding more H-2A guestworkers would have the effect of pushing the
one million legal farm workers and their families deeper into poverty.
Furthermore, the benefits received by large farm operators would not only
come at the expense of the farmworker but also the small-scale farmer
who cannot compete with the large producers because they do not have access
to large amounts of cheap labor.
Senator
Smith further states that the DOL must first determine that a labor shortage
exists before H-2A workers may be recruited in order to ensure that domestic
labor is hired first. This statement is somewhat misleading. The role
of the Secretary of Labor under the current program is to certify that
“the employment of the alien in such service or labor will not adversely
affect the wages and working conditions of workers in the United States
similarly employed.”29
Under the proposed legislation the Secretary’s role would be relegated
to merely approving employer applications that meet criteria provided
in Section 301(a), none of which include the responsibility to ensure
that the hiring of the H-2A worker does not adversely affect the domestic
workforce.
Senators
Smith and Graham are correct in saying that the current H-2A program is
flawed. However, rather than amending the current H-2A law to allow more
guestworkers into the country, Congress needs to first address the conditions
of farmworkers already working in this country. As many labor organizations
have recommended, steps should be taken to increase farmworkers’
wages and improve their working conditions, to enforce laws regulating
the rights of farmworkers and to legalize the immigration status of farmworkers
presently working in this country so that growers will not have to hire
illegal workers.
Increased Protections?
“Third, Senator Graham, Senator Craig and I are providing enhanced
worker protections. This bill improves the inhumane working and recruiting
practices that victimize current undocumented workers in the US. It gives
all adjusted farmworkers the standard protection under US labor law that
they lack as undocumented workers. The bill also provides H-2A workers
with enhanced worker protections, including better wages, housing and
transportation benefits, and coverage under the Migrant Seasonal Agriculture
Worker Protection Act. Under the new legislation, all labor protections
included in the current H-2A program are preserved.” - Senator Smith
First,
S. 1814 does not improve the working conditions or recruiting practices
that victimize undocumented workers. Although in theory “adjusted”
farmworkers are provided protections that undocumented workers are not
eligible to possess, as stated previously, the “adjusted” farmworker
provision creates an environment that does not encourage such workers
to use these protections.
Secondly, the bill does not provide H-2A workers with enhanced worker
protections, including better wages, housing and transportation benefits.
To the contrary, the Graham bill substantially weakens worker protections
in place under the current law.30
Required Wages - Section 304(a)
Under current law, H-2A employers are required to pay the adverse effect
wage rate (AEWR), which is the annual average hourly wage rate for field
and livestock workers in the same state where the H-2A worker is employed.
Under
S. 1814 the AEWR requirement would be eliminated. H-2A employers would
only have to pay the prevailing wage in a particular crop. This will often
be the prevailing piece rate rather than an hourly rate. Where undocumented
workers are already used, this would have the effect of solidifying already
depressed rates.
Requirement to Provide Housing - Section
304(b)
Current law stipulates that H-2A employers must provide housing at no
charge to the worker who cannot reasonably return to their residence within
the same day. The housing must comply with federal standards and employers
may not request a security deposit.
S. 1814 would allow employers to substitute a housing voucher for free
housing mandated by the current law. This provision puts the burden on
the worker to secure housing, as the employer is only required to make
a “good faith” effort to assist the worker in identifying and
locating housing in the area of intended employment. Furthermore, S.1814
allows employers to charge workers for security deposits, maintenance,
and utilities.
Reimbursement of Transportation - Section
304(c)
As with the other provisions, this section of S.1814 contains many gaps
that benefit the grower and hurt both the domestic and foreign agricultural
worker. As the United Farm Workers of America points out, under current
law there is an obligation for employers to advance transportation to
U.S. workers if it is the prevailing practice among farmers in that area
or if transportation is being provided for H-2A workers. Under S. 1814
the employer would be free to provide transportation to H-2A workers and
not for U.S. workers.31
Furthermore,
after a worker has completed 50 percent of the contract period, the employer
must reimburse the worker for the travel from the place the worker is
from. The Department of Labor has determined that this definition encompasses
the place where the worker was actually recruited (generally his home),
not where the employer deems the worker to have been recruited.
S. 1814
would make the place where the alien is issued the H-2A visa as the aliens
place of residence. Moreover, reimbursement of transportation is limited
to distances greater than 100 miles and is only available to individuals
living in grower provided housing or housing provided through vouchers.
Thus, under the AgJobs bill, “a worker can be recruited in his home
in southern Mexico, told to report to the U.S. consulate in Calexio to
be issued his visa and then travel to the Imperial Valley, a journey of
hundreds of miles and not receive any transportation reimbursement (the
Imperial Valley is less than 100 miles of Calexio).32
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Conclusion
The current U.S. policy concerning agricultural labor does not work and
current legislation seeking to import more foreign guestworkers is not
the answer. The agricultural policy in this country has consistently created
a vicious cycle that needs to be broken. The vicious cycle simply stated
is this.
Undocumented
workers continue to perform much of the low-wage labor in certain sectors
of the economy, such as agriculture. The wages and working conditions
in these sectors are generally insufficient to attract legal workers and
US citizens, in which immigrant laborers are concentrated. Agribusiness
will not raise wages or improve working conditions because of the supply
of undocumented workers who have no way to demand these minimal rights.
America in turn blames this “silent invasion” for many of its
ills and seeks to deport these laborers. Then when there is a “labor
shortage” agribusiness attempts to recruit guestworkers who similarly
will not seek improved working conditions. Domestic farmworkers are often
left with no choice but to accept these poor working conditions because
others are readily accessible. Thus, conditions remain the same and many
domestic workers are left without work.
Senator
Smith is correct in saying that the status quo is unacceptable for all
parties involved. Growers should not have to break the law by hiring undocumented
workers or have to risk losing crops because of a complicated and expensive
process necessary to bring in foreign guestworkers in the event of a genuine
labor shortage in a particular region. However, before efforts can be
made to “streamline” the current guestworker system, it is imperative
to first provide the domestic farmworker with full access to job opportunities
across the land while at the same time improve wages and working conditions
in the fields. Improving the lives of the millions of people who have
contributed so much to the growth of this nation will work to strengthen
this country as a whole.
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Federal
Legislation and Regulations
Treaty
of Guadalupe -Hidalgo
Mexican
Revolution of 1910
Bracero
Agreement
H-2A
Definition
Pombo
Bill H.R. 4548
S.
1814
S.
1815
HR
4056
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References and External Links
Thomas
- Legislative Search
The
Farmworkers Website
Mexico
Connect
Azteca
Web Page
California
Rural Legal Assistance Foundation
Catholic
Migrant Farmer Network
Cesar
E. Chavez Institute for Public Policy
United
Stated Department of Agriculture
The
Farmworker Justice Fund
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Footnotes
1.
Walter Fogel, Illegal Alien Workers in the United States, 16 Indus. Rel.
243, 246 (1977).
2.
Gerald P. Lopez, Undocumented Mexican Immigration: In Search of a Just
Immigration Law and Policy, 28 UCLA L. Rev. 615, 642 (1981).
3.
The Border: Mexican Immigrant Labor History (PBS broadcast, Sept. 21,
1999).
4.
The Border: Mexican Immigrant Labor History (PBS broadcast, Sept. 21,
1999) (citing Rudolfo Tuiran, Past and Present of the Mexican Immigration
to the United States).
5.
James F. Smith, A Nation that Welcomes Immigrants? An Historical Examination
of United States Immigration Policy, 1 U.C. Davis J. Int'l L. Pol'y 227,
243 (1995).
6.
The Border: Mexican Immigrant Labor History (PBS broadcast, Sept. 21,
1999).
7.
Id.
8.
1 U.C. Davis J. Int'l L. Pol'y 227, 244 (1995).
9.
Manuel Garcia y Griego, The Importation of Mexican Contract Laborers to
the United States, 1942-1946: Antecedents, Operation and Legacy, Working
Papers in the U.S. - Mexican Studies, U.C. San Diego 1, 6-11 (1981)
10.
Id. at 11.
11.
Daniel Rothenberg, Agriculture's Cynical Answer to Farm Workers' Poverty,
Chicago Tribune, November 4, 1999.
12.
Garcia y Griego, at 24.
13.
Daniel Rothenberg, Agriculture's Cynical Answer to Farm Workers' Poverty,
Chicago Tribune, November 4, 1999.
14.
1 U.C. Davis J. Int'l L. Pol'y 227, 247 (1995).
15.
Garcia y Griego at 28.
16.
INA § 245A, codified at 8 U.S.C. § 1255a (1988).
17.
INA § 274A(B), codified at 8 U.S.C. § 1324a(B) (1988).
18.
Martha Banningan, Amnesty Program for Illegal Immigrants Spurs Increase
in Fraudulent Documents, Wall St. J., Jan 25 , 1988 at 33.
19.
H.R. 4548
20.
Also referred to as the Graham bill.
21.
The same analysis applies to S. 1815 and H.R. 4548.
22.
Testimony before the Senate Immigr. Subcomm.: S. 1814 - The Agricultural
Jobs Opportunity Benefits and Security Act, 106th Cong. (May 4, 2000)
(statement of Sen. Gordon H. Smith).
23.
Id.
24.
Letter from Robert D. Evans, Director, American Bar Association, to Hon.
Spencer Abraham, Chairman, Subcommittee on Immigr. (May 3, 2000) citing
U.S. Department of Labor, Research Report No. 5, Migrant Farmworkers;
Pursuing Security in an Unstable Labor Market (1994).
25.
U.S. Department of Labor, Research Report No. 8, Findings from the National
Agricultural Workers Survey: 1997-1998 (March 2000).
26.
U.S. General Accounting Office, No. GAO/HEHS-98-20, H-2A Agricultural
Guestworker Program: Changes Could Improve Services to Employers and Better
Protect Workers (1997).
27.
S. 2337 . Similarly, last year the McConnell amendment, sponsored by Mitch
McConnell (R-Ky), made it easier for growers to access foreign labor over
domestic workers by reducing recruitment time for domestic workers to
a minimal 3 days despite RC and other farmworker organizations' opposition.
28.
Report of the Commission on Agricultural Workers. November, 1992. U.S.
GPO: 1993 O-332-456: QL 3.
29.
Testimony before the Senate Immigr. Subcomm., 106th Cong. (May 4, 2000)
(statement of Marcos Camacho, Gen. Counsel, United Farm Workers, AFL-CIO).
30. Id.
31. Id.
32. Id.
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