Order Code RL30852
CRS Report for Congress
Received through the CRS Web
Immigration of Agricultural Guest Workers: Policy,
Trends, and Legislative Issues
Updated August 23, 2001
Ruth Ellen Wasem
Specialist in Social Legislation
Domestic Social Policy Division
Geoffrey K. Collver
Presidential Management Intern
Domestic Social Policy Division
Congressional Research Service ˜ The Library of Congress

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Immigration of Agricultural Guest Workers: Policy,
Trends, and Legislative Issues
Summary
Proposals to revise U.S. immigration policy on agricultural guest workers are
coming from various perspectives, and several major bills have already been
introduced in the 107th Congress. Though bills were debated but not enacted in recent
Congresses, now reform appears to have more momentum. President George Bush
and Mexican President Vicente Fox established a Cabinet-level immigration working
group that is expected to offer a guest worker program as part of its package.
Although the current mechanism for bringing in agricultural guest workers, the
H-2A nonimmigrant visa, has experienced a modest surge in recent years, the 28,560
H-2A nonimmigrants admitted in 1999 comprise only a tiny fraction of the 1.2 million
farm workers in the United States. While 61% of farm workers in the United States
worked in fruit, nut, or vegetable production, a disproportionate number of H-2A
workers – 42% – worked in tobacco cultivation. States in the southeastern United
States account for more than half of all H-2A job certifications.
Agricultural employers argue that the H-2A visa in its current form is
insufficiently flexible, entails burdensome regulations, and poses potential litigation
expenses for employers. They point out that the growing cycle is the actual deadline
and that workers must be available when the crops are ready or food costs will rise.
Proponents of this view support extensive changes that they believe would increase
the speed with which employers could hire foreign workers and reduce the
government’s ability to delay or block such employment. Proponents of an expanded
program express concern that the large number of illegal aliens in agriculture, in
combination with stepped up Immigration and Naturalization Service enforcement,
is resulting in an unstable workforce and a potential labor shortage.

Opponents of revising the H-2A visa requirements contend that there is a surplus
of U.S. farm workers and that a sufficient number of seasonal agricultural workers
would continue to be available in the unlikely event that illegal immigration is
significantly curbed. While many agree that the H-2A process has excessive
administrative paperwork, opponents also argue that much of the streamlining
proposals, such as further reductions in filing deadlines and relaxation of employment
certification procedures, would weaken protections for domestic workers and make
foreign workers more vulnerable to exploitation. They warn that an expansion of the
H-2A visa would suppress wages of domestic workers and exacerbate “unfair”
working conditions for all workers.
Some of the opponents as well as supporters of expanding the H-2A visa agree
that unauthorized farm workers who meet certain conditions should be allowed to
legalize their immigration status. While some see a legalization provision as an
essential part of the legislation, others view it as a deal breaker. Any “amnesty” for
illegal migrants, they maintain, only fosters further flows of illegal aliens. Another
option – rather than legalizing the current unauthorized work force – would establish
ground rules for guest workers employed in agriculture for a specified period of time
over several years to adjust in the future to legal permanent residence.

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Contents
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
H-2A Nonimmigrant Visa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Procedures and Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Labor Certification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Required Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Enforcement and Penalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Visa Processing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Trends in H-2A Certifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Legislation in Recent Congresses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Legislation in the 104th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Legislation in the 105th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Legislation in the 106th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Legislation in the 107th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Current Issues and Debate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Is there an adequate supply of domestic farm workers? . . . . . . . . . . . . . . 12
Is the H-2A visa responsive to the work force needs of agriculture? . . . . . 13
Should alien guest workers be able to adjust to LPR status? . . . . . . . . . . . 13
Are domestic farm workers sufficiently protected from adverse effects of foreign
workers? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
What benefits should employers provide agricultural guest workers? . . . . 14
Can DOL develop and maintain a registry of the farm labor force? . . . . . 15
List of Figures
Figure 1. H-2A Jobs Certified and Visas Issued, FY1989-FY1999 . . . . . . . . . . . 5
Figure 2. H-2A Jobs Certified by Principal Activity . . . . . . . . . . . . . . . . . . . . . . 6
Figure 3. H-2A Jobs Certified by State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
List of Tables
Appendix A. FY1999 H-2A Workers Approved, by State and Crop . . . . . . . . 16

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Immigration of Agricultural Guest Workers:
Policy, Trends, and Legislative Issues
Background
Introduction
Farm work is arduous and seasonal, and it does not sustain a permanent, year-
round work force. The work life of a farm worker is relatively short; few work in
agricultural production beyond the age of 44, reportedly due in large part to the
physical demands of the work. Seasonal farm jobs, moreover, pay relatively less than
many other occupations. The migratory nature of the work poses additional
difficulties for workers who have families. As a consequence, farm work has typically
not been an attractive choice for most people entering the labor market.1
During the 20th century, U.S. agricultural producers often turned to foreign
workers as a source of labor. Between 1942 and 1964, Mexican farm workers
worked legally in the United States under the auspices of the Mexican Bracero
program, a temporary foreign agricultural worker program established initially to meet
World War II labor shortages. U.S. agricultural producers employed more than
400,000 foreign workers a year during the Bracero program’s peak in the last half
of the 1950s.
Since the end of the Bracero program, Mexican farm workers increasingly have
worked here illegally. In 1997, the U.S. General Accounting Office (GAO) estimated
that approximately 600,000 farm workers were working in the United States without
legal authorization, an estimate some consider to be a conservative figure.2 U.S.
Department of Labor (DOL) data estimate that, by 1999, over half (52%) of U.S.
farm workers were unauthorized, up from 37% in 1995.3
H-2A Nonimmigrant Visa
Since 1964, the only legal temporary foreign agricultural worker program in the
United States has been the nonimmigrant visa program known as H-2/H-2A. A
1For analysis of the composition of the seasonal farm labor force and trends in wages and
employment, see: CRS Report RL30395, Farm Labor Shortage and Immigration Policy, by
Linda Levine.
2H-2A Agricultural Guestworker Program: Changes Could Improve Services to Employers
and Better Protect Workers (GAO/HEHS-98-20), December 1997, p. 7.
3U.S. Department of Labor, Findings from the National Agricultural Workers Survey 1997-
1998, Research Report No. 8, March 2000.

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CRS-2
nonimmigrant is an alien legally in the United States for a specific purpose and a
temporary period of time, such as foreign students, tourists, or diplomats. There
are over 20 major nonimmigrant visa categories specified in the Immigration and
Nationality Act (INA), and they are commonly referred to by the letter that denotes
their section in the statute. The major nonimmigrant category for temporary workers
is the H visa.4 The temporary foreign agricultural worker program was first
authorized as the H-2 program in 1952 and amended as the H-2A program in 1986.5
The H-2A program provides for the temporary admission of foreign agricultural
workers to perform work that is itself temporary in nature, provided U.S. workers are
not available. In contrast to the H-1B nonimmigrant visa for professional specialty
workers, the H-2A visa is not subject to numerical restrictions. It is administered
jointly by the DOL’s Employment and Training Administration and the Department
of Justice’s Immigration and Naturalization Service (INS). The prospective H-2A
worker also must file an application for a nonimmigrant visa with the U.S.
Department of State (DOS) consulate abroad.
Recently, the Mexican state of Zacatecas has organized a new agency, the state
migration institute, to coordinate recruitment activities between U.S. growers, the
Mexican consulate, and workers seeking agricultural jobs in the United States. In this
pilot program the provincial government has established, potential H-2A workers
register with state officials who, in turn, assist them with the documentation needed
for an H-2A visa. The Zacatecas pilot project reportedly is aimed at reducing fraud
and illegal migration as well as matching up agricultural workers with employers in
the United States.
Procedures and Requirements
Labor Certification
The H-2A visa requires that employers conduct an affirmative search for
available U.S. workers and that DOL determine that admitting alien workers will not
adversely affect the wages and working conditions of similarly employed U.S.
workers. This process – known as labor certification – is similar but not identical to
the process required of employers who seek to bring in workers as permanent,
employment-based immigrants.6 Employers must apply to DOL for certification that
unemployed domestic workers are not available and that there will not be an adverse
4Temporary non-agricultural workers in seasonal occupations are admitted on H-2B visas.
5INA §101(a)(15)(H)(ii)(a).
6 In a 1998 audit, the Labor Department’s Office of the Inspector General concluded that “the
H-2A certification process is ineffective. It is characterized by extensive administrative
requirements, paperwork and regulations that often seem dissociated with DOL’s mandate of
providing assurance that American workers’ jobs are protected.” Consolidation of Labor’s
Enforcement Responsibilities for the H-2A Program Could Better Protect U.S. Agricultural
Workers, Report 04-98-004-03-321, March 31, 1998.

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CRS-3
effect from the alien workers’ entry.7 Employers seeking alien workers are required
to apply for certification at least 45 days in advance of the estimated date of need.
DOL is required to act on H-2A certification requests at least 30 days in advance of
the date of need, establishing a limited 15-day domestic recruitment period.
Required Benefits
Beyond the procedural requirements mentioned above, the H-2A visa has
requirements aimed at protecting the alien H-2A workers from exploitive working
situations and preventing the domestic work force from being supplanted by alien
workers willing to work for sub-standard wages. The H-2A visa requires employers
to provide their temporary agricultural workers the following benefits.
! The employer must offer the H-2A workers the same wages as similarly
situated U.S. workers, known as the “adverse effect wage rate.”
! The employer must provide the worker with an earnings statement detailing the
worker’s total earnings, the hours of work offered, and the hours actually
worked.
! The employer must provide transportation to and from the worker’s temporary
home, as well as transportation to the next workplace when that contract is
fulfilled.
! The employer must provide housing to all H-2A workers who do not
commute. The housing must be inspected by DOL and satisfy the appropriate
minimum federal standards.
! The employer must provide the necessary tools and supplies to perform the
work (unless it is generally not the practice to do so for that type of work).
! The employer must provide meals and/or facilities in which the workers can
prepare food.

! The employer must provide workers’ compensation insurance to the H-2A
workers.
H-2A workers, however, are exempt from the Migrant and Seasonal Agricultural
Worker Protection Act that governs agricultural labor standards and working
conditions as well as from unemployment benefits (Federal Unemployment Tax Act)
and Social Security coverage (Federal Insurance Contributions Act). Farm workers
in general lack coverage under the National Labor Relations Act provisions that
ensure the right to collective bargaining.
Enforcement and Penalties
The Secretary of Labor has the authority to investigate and impose penalties
upon H-2A employers to assure compliance with the program's contractual
obligations. The regulations provide for the following enforcement actions:
7The labor market test required for H-1B temporary professional workers, known as labor
attestation, is less stringent than labor certification. Attestation was part of a compromise
package on H-1B visa that included annual numerical limits in the Immigration Act of 1990
(P.L.100-649). See: CRS Report RL30498, Immigration: Legislative Issues on
Nonimmigrant Professional Specialty Workers (H-1B) Workers, by Ruth Ellen Wasem.

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CRS-4
! denial of labor certifications against any person for a violation of the H-2A
obligations of the INA or the regulations;
! administrative proceedings to recover unpaid wages, the enforcement of
contractual obligations, and the assessment of a civil monetary penalty against
violators of the H-2A obligations or the regulations;
! temporary or permanent injunctive relief; and
! specific performance of contractual obligations.
Concurrent enforcement actions may be taken to assure compliance with the
contractual obligations and the law and regulations. Civil monetary penalties may be
assessed for each violation of the work contract or the regulations. The penalty may
be up to $1,000 for each violation against each worker. Further, any interference with
the DOL’s investigative actions or enforcement authority is cause for a civil monetary
penalty not to exceed $1,000.8
Visa Processing
After DOL approves the labor certification petition, the employer files a petition
with INS for named or unnamed alien beneficiaries. When INS approves the petition,
it forwards the notice of the approval to the appropriate DOS consular office. The
alien who is the intended beneficiary then applies for the H-2A visa at the consular
office abroad. DOS issues the visa for a period up to 1 year in duration. Extensions
of the H-2A visa may be granted for up to a total of 3 consecutive years.
In an effort to streamline the process, the Clinton Administration proposed a
regulatory change to transfer authority to adjudicate as well as certify H-2A requests
from INS to DOL, which was to take effect on July 13, 2000.9 This transfer of
authority, however, has been deferred.10 Under the proposed regulations, INS would
continue to retain the authority to adjudicate requests by aliens to extend their H-2A
status, as well as to make determinations about an alien’s admissibility to the United
States at a port of entry. Expedited procedures are provided for administrative review
of denials of certification, as well as for a new determination if an application is
rejected on the grounds that U.S. workers are available and this proves to be untrue.
Trends in H-2A Certifications
The number of H-2A workers has always been small in relation to the total
number of hired U.S. farm workers. In 1999, almost 1.2 million workers were
employed as farm workers and agricultural service workers.11 In FY1999, DOS’s
8 INA § 218(g)(2); 29 CFR Part 501.
9Federal Register, v. 65, no. 135, July 13, 2000, p. 43528-43534, 43538-43544.
10Federal Register, v. 65, no. 219, November 13, 2000, p. 67628. See also §104 of P.L. 106-
1033.
11 For additional information on the data, see CRS Report RL30395, Farm Labor Shortages
(continued...)

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CRS-5
Bureau of Consular Affairs issued 28,560 H-2A visas to foreign agricultural workers,
and many of these workers may have ended up working at several locations
authorized to employ H-2A workers. The DOL certified 41,827 jobs for H-2A
workers.
The trends in H-2A job approvals and visas issued were upward over the past
decade. Since FY1995, the number of approved H-2A certifications has been
increasing steadily. As Figure 1 illustrates, the gap between jobs certified by DOL and
visas issued by DOS has narrowed considerably over the past decade, due in part to
a shift away from recruitment of agricultural workers from certain Caribbean
countries where a visa is not required for entry to the United States.12 Specifically, the
increased mechanization of the harvesting of crops, notably sugar cane, appears to
have altered recruitment patterns. In the late 1980s, there were 4 times as many H-2A
workers from the Caribbean as Mexico. By FY1999, 96% of all H-2A visas issued by
DOS went to workers from Mexico.
Figure 1. H-2A Jobs Certified and Visas Issued, FY1989-FY1999
Thousands
50
41,827
40
H-2A jobs certified
30
28,560
20
H-2A visas issued
10
0
1989
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
Source: CRS presentation of data from DOL Employment and Training Administration
and DOS Bureau of Consular Affairs.
11(...continued)
and Immigration Policy, by Linda Levine.
12 This convergence could be attributable to several other factors as well, such as: H-2A
workers are less likely to work multiple jobs; employers are more likely to actually obtain the
number of H-2A workers they are certified for; and the H-2A program is operating more
effectively, providing more efficient linkages between certified employers and available H-2A
workers.

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CRS-6
Various factors have accounted for the increase in H-2A job certifications that
began in 1996, most obviously the tighter U.S. labor market and growing familiarity
of employers with the H-2A application process. Presumably, the booming economy
has provided the domestic agricultural work force with alternatives to farm
employment, which in turn prompted growers to rely more on foreign sources of
labor. Since a growing portion of farm workers in the United States are unauthorized,
i.e., illegal aliens, employers might be more cautious in their hiring practices. For
some employers, the H-2A process – even if considered cumbersome – might seem
preferable to the risk of legal sanctions for hiring unauthorized workers, especially
now that new verification systems using Social Security numbers are going on line.
In addition, there have been increased applications from newly participating states,
and returning participants have requested certifications for new crops and services.
Work in tobacco overwhelmingly dominated the H-2A jobs certified in FY1999,
accounting for about 42% of all certifications. Following at some distance were
vegetable harvesting (21%) and apple harvesting (10%), as Figure 2 illustrates. Other
principal crop and livestock activities were: nursery/horticulture, farm machinery
(custom combine), sheep herding, and fruit (other than apple) harvesting.13
Figure 2. H-2A Jobs Certified by Principal Activity
Nursery Horticulture 6.0%
All other 12.9%
Custom Combine 4.0%
Sheep Herding 3.0%
Other Fruit 1.2%
Apples 10.3%
Tobacco 42.1%
Vegetables 20.5%
Source: CRS presentation of data from DOL Employment and Training Administration.
13In some instances, vegetable harvesting includes job certifications for mixed crop activities,
such as tobacco, hay, straw, and vegetables.

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CRS-7
The pattern for H-2A workers by crop activity differed from the general pattern
of U.S. agricultural workers. Specifically, 61% of agricultural workers were employed
in fruit, nut, or vegetable production during 1997-1998. Field crops, of which
tobacco is one, accounted for only 16% of farm worker employment.14 It appears that
H-2A workers have been disproportionately employed in field work such as tobacco.

As presented in Figure 3, states in the southeastern United States accounted for
more than half of all H-2A job certifications in FY1999. North Carolina led in H-2A
use, with 10,475 job certifications or 25% of the total. Following North Carolina in
number of approved job certifications in 1999 were Georgia (5,825) and Virginia
(3,856). The other states receiving more than 1,000 H-2A job certifications were
Kentucky, New York, Tennessee, Connecticut, Texas, Arkansas, Nevada, and South
Carolina.
Figure 3. H-2A Jobs Certified by State
All other 18.9%
North Carolina 25.0%
South Carolina 2.5%
Nevada 2.5%
Arkansas 3.1%
Texas 3.6%
Georgia 13.9%
Connecticut 3.9%
Tennessee 4.6%
New York 5.5%
Virginia 9.2%
Kentucky 7.2%
Source: CRS presentation of data from DOL Employment and Training Administration.
The interrelationship between crop activity and states with the largest numbers
of H-2A workers is apparent in more detailed data presented in Appendix A.
Tobacco is the leading crop in most of the top states with certified H-2A jobs, states
mostly in the Southeast. On the other hand, H-2A jobs in the cultivation and
harvesting of apples, other fruits, and vegetables are spread throughout the United
States. As measured by jobs certified, H-2A use has become more diversified by state
and activity. For example, from FY1996 to FY1999, the number of states receiving
at least one H-2A job certification increased from 31 to 47.
14U.S. Department of Labor, Findings from the National Agricultural Workers Survey 1997-
1998, Research Report No. 8, March 2000.

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CRS-8
Legislation in Recent Congresses
In recent years, there have been legislative efforts to modify or supplement the
H-2A temporary agricultural program. Agricultural employers have long complained
that the program is overly cumbersome, while farm labor advocates have argued that
it provides too few protections for U.S. workers. The only legislation enacted dealt
with expediting the processing of H-2A applications.
Although media reports at the close of the 106th Congress indicated that a new
temporary agricultural worker program with a legalization provision would be
included in the FY2001 appropriations bill, it was not in the final agreement. The
following is a brief overview of the recent legislative efforts concerning the H-2A
program.
Legislation in the 104th Congress
A legislative measure to replace the labor certification requirement with a labor
condition attestation was proposed but not adopted in the 104th Congress. DOL
would have been authorized to enforce the attestations in response to complaints that
they were not being met or that they misrepresented the facts. This bill would have
supplemented the H-2A program with a large-scale, pilot temporary agricultural
worker program. Opponents, including organized labor, argued that it would result
in temporary foreign workers taking jobs from U.S. workers and remaining in the
country as illegal immigrants. The measure was approved by the House Agriculture
Committee, but it was defeated when offered as a House floor amendment to an
omnibus immigration bill.
Instead, the 104th Congress mandated a GAO review of the existing program to
determine if it provided an adequate supply of agricultural labor in the event of
shortages of domestic workers. In its report issued in December 1997, GAO found
that no national agricultural labor shortage then existed or was likely in the near
future. They did state, however, that “localized labor shortages may exist for specific
crops or geographical areas.”
Legislation in the 105th Congress
Legislation to supplement and eventually replace the current H-2A visa was
adopted by a vote of 68-31 on July 23, 1998, as a Senate floor amendment to S.
2260, the FY1999 Commerce, Justice, State (CJS), and Judiciary appropriations bill.
It proved controversial during conference negotiations, and was not retained in the
final law. Opinions differed widely on the likely impact of the Senate-passed provision
on both U.S. workers and illegal immigration.
The Senate amendment would have established a nationwide system of registries
to be maintained by DOL. These registries would have operated both as a database
of currently available, legal U.S. workers and as the gateway to the employment of
foreign workers. If domestic workers were not available through the registries, the
employer could petition for H-2A workers to make up the shortage. Another
departure from current practice would have allowed H-2A workers to apply for legal

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CRS-9
permanent residence (LPR) status under the current numerical limits after 4
consecutive years of employment for periods of 6 months in H-2A status.
Legislation in the 106th Congress
P.L. 106-78, the FY2000 Agriculture, Rural Development, Food and Drug
Administration, and Related Agencies Appropriations Act, § 748, amended the INA
to reduce from 60 to 45 days the maximum period of time prior to need that
employers must file H-2A labor certifications; and increased from 20 to 30 days the
minimum days in advance of need before DOL must act on H-2A certification
requests. DOL had already amended its regulations, effective July 29, 1999, to reduce
from 60 to 45 days the period of time prior to need that employers must file labor
certifications. In combination, the two changes shortened the domestic recruitment
period to 15 days, a move not favored by DOL. The Clinton Administration
reportedly would have preferred that the H-2A program be streamlined through
administrative rather than legislative changes.
Legislation that formed the basis of a bipartisan compromise that failed to be
accomplished in the final days of the 106th Congress was S. 1814, the "Agricultural
Job Opportunity Benefits and Security Act of 1999" that Senator Gordon Smith
introduced. It evolved from legislation passed by the Senate in the 105th Congress,
with the notable addition of language providing for “amnesty,” i.e., the legalization
of unauthorized guest workers. A companion bill to S. 1814 (H.R. 4056) was
introduced in the House. Another Senate bill (S. 1815) included only the amnesty title
of S. 1814. On May 4, 2000, the Senate Judiciary Committee’s Immigration
Subcommittee held a hearing on S. 1814.
S. 1814 consisted of three interrelated parts that would have authorized, in
addition to the amnesty provision, a system of agricultural registries and revision of
the current H-2A visa, as described briefly below:
! Title I would have established a time-limited amnesty program for aliens who
have worked here illegally in seasonal agriculture, and who continue to do so
for a specified time. To be eligible to participate in a temporary status, they
must have worked for 150 days during a 12-month period prior to October 27,
1999. They could have applied to adjust to lawful permanent resident status,
outside existing numerical limits, after working in seasonal agriculture for 180
days during 5 of the next 7 years.
! Title II would have required the Department of Labor to maintain a system of
agricultural worker registries that would list U.S. citizen and immigrant
workers as well as workers participating in the amnesty program. The legal
status of workers listed on the registry would have been guaranteed.
Agricultural employers seeking H-2A workers would first have been required
to apply for workers from this registry before their H-2A applications could be
considered.
! Title III would have streamlined the current H-2A program by, among other
things, eliminating the domestic job search requirement – which would have
been replaced by use of the agricultural registry – and allowing employers to

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CRS-10
offer a housing allowance in lieu of the guaranteed housing currently required.
S. 1814 was the subject of considerable controversy, with then House
Immigration Subcommittee Chairman Lamar Smith characterizing the amnesty
program as “indentured servitude.” In support of his bill, Senator Gordon Smith said,
“We should not have illegal workers. We should have a legal system.”
A related bill, the "Agricultural Opportunities Act" (H.R. 4548), would have
established a pilot "H-2C" alien agricultural worker program to supplement the
existing H-2A program. Like S. 1814/H.R. 4056, H.R. 4548 would have required
DOL to maintain a system of agricultural worker registries containing a database of
authorized U.S. workers. Under H.R. 4548, agricultural employers would have had
to apply for registry workers before being allowed to import H-2C workers. Unlike
S. 1814/H.R. 4056, however, H.R. 4548 would not have provided amnesty. On
September 20, 2000, the House Judiciary Committee completed its markup of H.R.
4548 and ordered the bill reported, as amended, by a vote of 16-11. No further action
was taken once the bill was reported.
Legislation in the 107th Congress
On February 16, 2001, President George Bush met with Mexican President
Vicente Fox, and immigration was a major part of their discussions. As a result, the
two presidents established a Cabinet-level working group to develop "an orderly
framework for migration that ensures humane treatment [and] legal security, and
dignifies labor conditions." U.S. Secretary of State Colin Powell, Mexican Foreign
Minister Jorge Castaneda, U.S. Attorney General John Ashcroft, and Mexican Interior
Secretary Santiago Creelto are leading the group. Recent media reports indicate that
this group may recommend a broad guest worker program with Mexico. There is
considerable speculation that the bi-lateral proposal may cover temporary employment
in sectors of the economy in addition to agriculture and may include an avenue for the
guest workers to become LPRs.
Several H-2A reform bills have been introduced thus far in the 107th Congress,
but there is considerable variation in scope and effect of the proposed revisions.
Media reports indicate that various other Members of Congress are drafting
legislation on agricultural guest workers as well.
S. 1161, the “Agricultural Job Opportunity, Benefits, and Security (AgJOBS)
Act of 2001," has some features similar to legislation with the same name in the 106th
Congress (S. 1814). The bill, sponsored by Senator Larry E. Craig, includes the
following major elements:
! It would allow foreign agricultural workers to become legal temporary
residents if they worked 150 days in any consecutive 12-month period during
the 18 months prior to July 4, 2001 and are otherwise admissible as
immigrants.
! It would allow these temporary residents to adjust to LPR status after working
150 days annually in 4 years over a 6-year period and after certain other
requirements are met.

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CRS-11
! It would also allow H-2A visa holders who are adjusting status to work in
other industries as long as the agricultural work requirement was met.
! It would permit an annual renewal of the temporary work visa for up to 3
consecutive years, after which workers would return for a pro-rated period
before reapplying.
! It would replace the H-2A labor certification process with a labor attestation
process similar to the H-1B process, notably streamlining the process for jobs
covered by collective bargaining agreements.
! It would replace the “adverse effect wage rate”with a requirement that
employers pay the minimum wage or the prevailing wage for agricultural
workers in that area.15
! It would allow employers to provide housing allowances rather than housing
itself in areas where the governor of the state determines that housing for
migrant workers is available.
Senator Ted Kennedy, chairman of the Senate Committee on the Judiciary
Subcommittee on Immigration, and Representative Howard Berman have introduced
the “H-2A Reform and Agricultural Worker Adjustment Act of 2001" (S. 1313/H.R.
2736). Although this legislation shares many major features with S. 1161, those key
elements that differ from S. 1161 are noted in italics below.
! It would allow foreign agricultural workers to become legal temporary
residents if they have worked in agriculture for at least 90 days in the 18-
month period prior to July 2001 and are otherwise admissible as an immigrant.
! It would allow these temporary residents as well as their spouses and minor
children to adjust to LPR status after certain other requirements are met.
! It would permit an annual renewal of the temporary work visa for up to 3
consecutive years, after which workers would return for a pro-rated period
before reapplying.
! It would replace the H-2A labor certification process with an attestation
process, notably streamlining the process for jobs covered by collective
bargaining agreements.
! It would retain the “adverse effect wage rate” but would mandate studies of
it.
! It would allow employers to provide housing allowances rather than housing
itself in areas where the governor of the state determines that housing for
migrant workers is available.
! It would amend the Migrant and Seasonal Agricultural Worker Protection Act
to include H-2A workers and to give all agricultural workers the right to
collective bargaining.
! It would require employers to pay a user fee equivalent to the taxes for
unemployment benefits (Federal Unemployment Tax Act) and Social Security
coverage (Federal Insurance Contributions Act) to fund projects aimed at
improving farm labor-management issues and conditions.
15The adverse effect wage rate is the minimum wage that must be paid to both foreign and
domestic agricultural workers when the employer is using nonimmigrant workers. It is
intended to be sufficiently high to prevent job substitution by foreign workers and is calculated
annually on a state-by-state basis by the U.S. Department of Agriculture.

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CRS-12
Although he did not introduce legislation before the August recess, Senator Phil
Gramm has publicized his “prospectus” for a U.S.-Mexico guest worker program.
This prospectus outlines a series of elements, including:
! the expansion of the guest worker program beyond the agricultural sector;
! a 6-month grace period in which unauthorized workers could apply for guest
worker visas and employers would not be penalized for having hired illegal
workers;
! the option for an annual renewal of the temporary work visa for up to 3
consecutive years, after which workers would return to Mexico for a year
before reapplying;
! the establishment of a computer registry to monitor the entry and exit of guest
workers;
! the issuance of identification cards for all guest workers to use as employment
authorization cards;
! the strengthening of enforcement and penalties for employment of illegal aliens;
and
! the requirement that employers show a good faith effort recruit to U.S.
workers and offer guest workers the same pay and benefits given to other
workers in the same job.
The Gramm prospectus would not offer legalization or status adjustment
opportunities for foreign agricultural workers. Instead of having a direct pathway for
guest workers to become LPRs, it would require that they return to Mexico and apply
to immigrate through the normal channels.16
In addition to these broad H-2A proposals, Representative Chris Cannon has
introduced a bill (H.R. 2457) that would limit the wages that DOL may require an
employer to pay H-2A workers. The bill would amend the INA to replace the
“adverse effect wage rate”with a requirement that employers pay the minimum wage
or the prevailing wage for agricultural workers.
Current Issues and Debate
A range of issues and controversies is shaping the debate over agricultural guest
workers. The questions that follow are not meant to be exhaustive, but to convey the
main cleavages in legislative discussion. As legislation advances in the 107th
Congress, additional questions may arise.

Is there an adequate supply of domestic farm workers?
This question dominates the debate over an agricultural guest worker program.
Employers argue they must go abroad because there is not an adequate supply of farm
workers in the United States, and advocates for farm workers contend there is a
surplus. Opponents of broadening the H-2A visa maintain that a sufficient number of
16For a copy of the Gramm prospectus, see: http://gramm.senate.gov/.

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CRS-13
seasonal agricultural workers will continue to be available, even in the unlikely event
that illegal immigration is curbed. Employers point to the large number of
unauthorized migrants in the agricultural work force and assert that it is too risky to
rely on undocumented workers.17

Is the H-2A visa responsive to the work force needs of
agriculture?
Many argue that the H-2A visa in its current form is insufficiently flexible, entails
burdensome regulations, and poses potential litigation expenses for employers.
Proponents of this view support extensive changes – particularly moving from labor
certification to labor attestation – that they believe would increase the speed with
which employers could hire foreign workers and reduce the government’s role in
delaying or blocking such employment.
Opponents to statutory changes argue that the attestation process may be
adequate for the H-1B visa because those foreign workers must meet educational and
work experience requirements, but that an attestation process would be an insufficient
labor market test for jobs that do not require a bacalaureate education and skilled
work experience. They already express concern that the recently enacted legislation
reducing the number of days DOL has to process labor certifications will undermine
the integrity of the process.
Some maintain that employers who have collective bargaining agreements with
their domestic workers should be afforded a streamlined attestation process.
Proponents of this position argue that collective bargaining agreements would enable
the local labor-management partnerships to develop the labor market test for whether
foreign workers are needed.
Should alien guest workers be able to adjust to LPR status?
Supporters of an “amnesty” for those unauthorized farm workers in the United
States argue that those who have been working in the fields thus far should be
allowed to legalize their status before the United States expands the admission of new
guest workers. Supporters maintain it is only fair to provide LPR status to those
already here before admitting new workers. On the other hand, others assert it is
unfair to allow those who entered illegally to jump ahead of the millions of people
waiting abroad for an LPR visa. Opponents to a legalization program warn that it
would only serve as a magnet for future flows of migrants hoping for another
legalization program.18
17For a complete analysis and discussion of this question, see: CRS Report RL30395, Farm
Labor Shortages and Immigration Policy, by Linda Levine.
18The Immigration Reform and Control Act of 1986 included a provision that legalized 1.1
million farm workers – known as the “special agricultural workers” (SAWs) – and added a
formula-based program for future admissions of farm workers – referred to a “replenishment
agricultural workers” (RAWs) – that was never triggered.

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CRS-14
Rather than provide a blanket legalization, many would establish ground rules
for unauthorized workers currently employed in agriculture for specified periods of
time over several years to adjust to legal permanent residence. Others maintain that
even “earned” legalization undermines the temporary nature of guest worker visas
because, they argue, it fosters hope of future amnesties. Some opponents label such
proposals as “indentured servitude.” Still others express concern that the work
histories required by some proposals are too high a threshold for most migratory farm
workers to meet and will result in raised expectations of LPR status that the foreign
workers will not be able to achieve.19
Are domestic farm workers sufficiently protected from
adverse effects of foreign workers?
Supporters of protections for domestic farm workers maintain that these workers
already face depressed wages and rough working conditions, with an unemployment
rate well above the national average and most living below the poverty level. A larger
and less restrictive guest worker program, they assert, would only further drive down
employment, wages, and working conditions of domestic farm workers.
Others argue that the current H-2A requirements are over-protective of workers
and have the potential to create situations in which the foreign workers get better
treatment than domestic workers.20 For example, they are especially critical of the
adverse effect wage standard, arguing that it ensures that employees at sites with H-
2A workers get above-average wages and that it ultimately has an inflationary effect.
Some offer the expansion of collective bargaining rights to agricultural workers
as the best protection for domestic farm workers. Advocates of this view assert that
as employers recognize and negotiate contracts with labor organizations, the wages
and working conditions for all farm workers will improve.
What benefits should employers provide agricultural guest
workers?
Some question whether the current set of required benefits that employers
provide H-2A workers makes sense in today’s economy. Some stakeholders see the
program requirements as burdensome to verify and would prefer a standard in which
employers attest that they are providing the same benefits to foreign workers that they
now provide to domestic workers. While some would replace the requirement to
provide housing and transportation, for example, with housing and transportation
vouchers, others maintain that vouchers are useless in rural areas where housing and
transportation are not available. The latter often argue that foreign as well as
domestic farm workers should have better compensation, and broader benefits (such
19For background on related legislation, see: CRS Report RL30780, Immigration
Legalization and Status Adjustment Legislation, by Ruth Ellen Wasem.
20For a synthesis of research studies on the labor market effects, see: CRS Report 95-712,
Immigration: Labor Market Effects of Temporary Alien Farm Worker Programs, by Linda
Levine.

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CRS-15
as healthcare and Social Security), and that foreign workers should be covered by the
Migrant and Seasonal Agricultural Worker Protection Act and the collective
bargaining provisions of the National Labor Relations Act.
Can DOL develop and maintain a registry of the farm labor
force?
Some advocates for revising the H-2A program offer the establishment of a
registry of U.S. farm workers available for employment as the key component of the
alternative to labor certification.21 Supporters maintain that this option would
prioritize the employment of domestic farm workers, would assure the employers that
the workers are authorized to work, and would streamline the H-2A process. Others
express concern that the agricultural labor force does not lend itself to an automated
registry system, given that farm workers probably are on the losing side of the “digital
divide.” They question whether a plan hinging on farm workers “searching the web”
for employment is viable. Skeptics of this option also ask whether the U.S.
Employment Service or any other government entity is willing and able to reach out
to workers on an on-going basis to ensure that the registry is inclusive and up-to-date.
Some argue that adequate funding for the registry is essential for its effectiveness and
that Congress should appropriate money or institute a fee that employers who hire
foreign workers would pay to establish and maintain the registry.
21Under this option, employers would first go to a U.S. Employment Service automated
registry to find domestic farm workers; if an insufficient number were available when and
where the employer needed them to work, the employer would seek to hire guest workers.

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CRS-16
Appendix A. FY1999 H-2A Workers Approved, by State and Crop
No. workers
No. workers
State
Crop/Agricultural Work
approved
State
Crop/Agricultural work
approved
Alabama
Horticulture, fruit, sweet potatoes, sheep
364
Nevada
Onions/garlic, irrigation, sheepherder, livestock
1,063
Alaska
Sheep shearer
6
New Hampshire Apples, diversified crops, vegetables
318
Arizona
Sheepherder, citrus, farm machinery
92
New Jersey
Fruits, nursery
54
Arkansas
Vegetables, livestock, farm machinery
1,313
New Mexico
Farm work, sheep shearing
9
California
Sheepherder onions, grapes
514
New York
Apples, nursery, greenhouse, cabbage, cranberry
2,304
Colorado
Sheep, livestock, farm machinery, orchard work
186
North .Carolina Tobacco, hay/straw, vegetables, Christmas trees,
10,279
fruits, horticulture
Connecticut
Tobacco, diversified crops, apples, nursery,
1,613
North Dakota
Farm work, beekeeping, goatherder
22
Christmas trees, sod, dairy/poultry, vegetables
Delaware
None
Ohio
Horticulture, vegetable, tobacco, fruits
551
D. C.
None
Oklahoma
Farm machinery, strawberries, farm work
447
Florida
Strawberry, tomato, horticulture, trees, sugar
237
Oregon
Nursery, sheepherder, farm work
137
Georgia
Vegetables, fruits, tobacco, pecans, sod, hay
5,845
Pennsylvania
Nursery, Christmas trees
39
Hawaii
None
Rhode Island
Apples
12
Idaho
Sheepherder/shearing, irrigation, farm worker
807
South Carolina Fruits, vegetables, horticulture, grain
1,040
Illinois
Horticulture
26
South Dakota
Sheepherder, farm machinery, livestock
8
Indiana
None
Tennessee
Tobacco, horticulture, hay/straw, vegetables, sod,
1,908
grain, fruits
Iowa
Poultry, dairy, farm work, farm machinery
72
Texas
Farm machinery/work, diversified crops,
1,502
cabbage, livestock, vegetables, horticulture,
citrus, berries
Kansas
Farm machinery nursery
200
hay, apples, sod, sheepherder
Kentucky
Tobacco, vegetables, horticulture, sod, hay/straw
3,029

Louisiana
Farm work, horticulture, nursery, sugar cane
784
Utah
Sheepherder, sheep shearing
162
Maine
Apples, blueberries, horticulture
416
Vermont
Apples, diversified crops, poultry, dairy
418
Maryland
Nursery, vegetables, tobacco, dairy, vineyard
320
Virginia
Tobacco, produce, hay, apples, vegetables,
3,856
nursery, fruits, Christmas trees, vineyard, sod
Massachusetts
Apples, diversified crops, tobacco, vegetables
737
Washington
Sheepherder
13
horticulture, farm work, sod
West Virginia
Apples, tobacco
93
Michigan
Horticulture, Christmas trees, vegetables
180
Wisconsin
Grain, dairy, vegetables
10
Minnesota
Grain, horticulture, vegetables
36
Wyoming
Sheepherder, sheep shearing, wool grading,
201
livestock
Mississippi
Fruits, horticulture, fish, vegetable, soybean
438

Missouri
Goat herding, dairy
8
Montana
Irrigation, sheepherder, farm work/machinery
261
Nebraska
Potatoes, farm work, livestock, dairy
60
Source: CRS presentation of U.S. DOL/ETA data. In most cases, the data in this chart are from hand counts of regional files. DOL does not guarantee the accuracy
of these data but maintains that they are a reasonable indicator of key H-2A activity in each state.

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