Immigration of Agricultural Guest Workers: Policy, Trends, and Legislative Issues

This report discusses the revision of U.S. immigration policy on agricultural guest workers that are coming from various perspectives, and several major bills have already been introduced in the 107th Congress.

Order Code RL30852
Report for Congress
Received through the CRS Web
Immigration of Agricultural Guest Workers:
Policy, Trends, and Legislative Issues
Updated January 24, 2003
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

Immigration of Agricultural Guest Workers:
Policy, Trends, and Legislative Issues
Summary
Several major proposals to revise U.S. immigration policy on agricultural guest
workers were introduced in the 107th Congress. Though prior Congresses had
debated but not enacted such bills, there appeared to be more momentum in 2001.
President George Bush and Mexican President Vicente Fox established a Cabinet-
level immigration working group that was expected to offer a guest worker program
as part of its package. The September 11 terrorist attacks, however, shifted the
immigration policy focus, and the 107th Congress did not act on guest worker bills.
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 by which employers could hire foreign workers and reduce the
government’s ability to delay or block employment. Proponents of an expanded
program express concern that the large number of illegal aliens in agriculture, in
combination with stepped up enforcement of immigration laws, 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 even if illegal migration abates. 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.

Contents
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
H-2A Nonimmigrant Visa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Procedures and Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Labor Certification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Required Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Enforcement and Penalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Visa Processing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Trends in H-2A Certifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Legislation in Recent Congresses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Legislation in the 104th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Legislation in the 105th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Legislation in the 106th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Legislation in the 107th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Current Issues and Debate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Is There an Adequate Supply of Domestic Farm Workers? . . . . . . . . . . . . . 13
Is the H-2a Visa Responsive to the Work Force Needs of Agriculture? . . . 14
Should Alien Guest Workers Be Able to Adjust to LPR Status? . . . . . . . . 14
Are Domestic Farm Workers Sufficiently Protected from Adverse Effects of
Foreign Workers? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
What Benefits Should Employers Provide Agricultural Guest Workers? . . 15
Can DOL Develop and Maintain a Registry of the Farm Labor Force? . . . 16
List of Figures
Figure 1. H-2A Jobs Certified and Visas Issued, FY1989-FY1999 . . . . . . . . . . . 6
Figure 2. H-2A Jobs Certified by Principal Activity . . . . . . . . . . . . . . . . . . . . . . . 7
Figure 3. H-2A Jobs Certified by State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
List of Tables
Appendix A. FY1999 H-2A Workers Approved, by State and Crop . . . . . . . . . 17

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.2 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.3 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 1995.4
1 For analysis of the composition of the seasonal farm labor force and trends in wages and
employment, see CRS Report 95-712, Immigration: The Labor Market Effects of a Guest
Worker Program for U.S. Farmers
, by Linda Levine; and CRS Report RL31614, Labor
Market Characteristics of Agricultural Workers in the United States, 1996-2000
, by Gerald
Mayer.
2 For further discussion, see CRS Report RL30395, Farm Labor Shortage and Immigration
Policy
, by Linda Levine
3 H-2A Agricultural Guestworker Program: Changes Could Improve Services to Employers
and Better Protect Workers
(GAO/HEHS-98-20), December 1997, p. 7.
4 U.S. Department of Labor, Findings from the National Agricultural Workers Survey 1997-
1998
, Research Report No. 8, March 2000.

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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
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 70 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.5 The major nonimmigrant category for temporary workers is the H visa.6
The temporary foreign agricultural worker program was first authorized as the H-2
program in 1952 and amended as the H-2A program in 1986.7
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.
In 2001, the Mexican state of Zacatecas 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,
5 For a full discussion and analysis of nonimmigrant visas, see CRS Report RL31381, U.S.
Immigration Policy on Temporary Admissions
, by Ruth Ellen Wasem.
6 Temporary non-agricultural workers in seasonal occupations are admitted on H-2B visas.
7 INA §101(a)(15)(H)(ii)(a).

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employment-based immigrants.8 Employers must apply to DOL for certification that
unemployed domestic workers are not available and that there will not be an adverse
effect from the alien workers’ entry.9 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.”10
! 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.
8 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.
9 The 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.
10 For a more complete explanation of this provision and how it works, see CRS Report
RS21015, The Adverse Effect Wage Rate (AEWR), by William Whittaker.

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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:
! 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 $1,000.11
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.12 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, 2000.13 This transfer of
11 INA § 218(g)(2); 29 CFR Part 501.
12 For more background and discussion of visa processing, see CRS Report RL31512, Visa
Issuances: Policy, Issues, and Legislation
, by Ruth Ellen Wasem.
13 Federal Register, v. 65, no. 135, July 13, 2000, pp. 43528-43534, and 43538-43544.

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authority, however, has been deferred.14 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.15 In FY1999, DOS’s
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.16 Specifically,
the increased mechanization of the harvesting of crops, notably sugar cane, appears
to have altered recruitment patterns. In the late 1980s, there were four 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.
14 Federal Register, v. 65, no. 219, November 13, 2000, p. 67628. See also §104 of P.L.
106-1033.
15 For additional information on the data, see CRS Report RL30395, Farm Labor Shortages
and Immigration Policy
, by Linda Levine.
16 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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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.

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.17
17 In some instances, vegetable harvesting includes job certifications for mixed crop
activities, such as tobacco, hay, straw, and vegetables.

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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.
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.18 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.
18 U.S. Department of Labor, Findings from the National Agricultural Workers Survey 1997-
1998
, Research Report No. 8, March 2000.

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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.
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.

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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 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

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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 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

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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. Media reports in the
summer of 2001 indicated that this group might recommend a broad guest worker
program with Mexico. There was considerable speculation that the bi-lateral
proposal would 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 were introduced in the 107th Congress, but there was
considerable variation in scope and effect of the proposed revisions. Media reports
indicated that various other Members of Congress considered drafting legislation on
agricultural guest workers as well.
S. 1161, the “Agricultural Job Opportunity, Benefits, and Security (AgJOBS)
Act of 2001,” had some features similar to legislation with the same name in the
106th Congress (S. 1814). The bill, sponsored by Senator Larry E. Craig, included
the following major elements:
! It would have allowed 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 have allowed 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.
! It would also have allowed H-2A visa holders who are adjusting
status to work in other industries as long as the agricultural work
requirement was met.
! It would have permitted 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 have replaced 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.

CRS-12
! It would have replaced the “adverse effect wage rate”with a
requirement that employers pay the minimum wage or the prevailing
wage for agricultural workers in that area.19
! It would have allowed 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 introduced the
“H-2A Reform and Agricultural Worker Adjustment Act of 2001” (S. 1313/H.R.
2736). Although this legislation shared many major features with S. 1161, those key
elements that differed from S. 1161 are noted in italics below.
! It would have allowed 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 have allowed these temporary residents as well as their
spouses and minor children to adjust to LPR status after certain
other requirements are met.
! It would have permitted 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 have replaced the H-2A labor certification process with an
attestation process, notably streamlining the process for jobs covered
by collective bargaining agreements.
! It would have retained the “adverse effect wage rate” but would
mandate studies of it.
! It would have allowed 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 have amended 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 have required 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
.
19 The 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. For a
more complete explanation, see CRS Report RS21015, The Adverse Effect Wage Rate
(AEWR)
, by William Whittaker.

CRS-13
Although he did not introduce legislation before retiring, former Senator Phil
Gramm publicized his “prospectus” for a U.S.-Mexico guest worker program. This
prospectus outlined 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 have offered legalization or status adjustment
opportunities for foreign agricultural workers. Instead of having a direct pathway for
guest workers to become LPRs, it would have required that they return to Mexico and
apply to immigrate through the normal channels.
In addition to these broad H-2A proposals, Representative Chris Cannon
introduced a bill (H.R. 2457) that would have limited the wages that DOL may
require an employer to pay H-2A workers. The bill would have amended 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 has shaped 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. If legislation advances in the 108th
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 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

CRS-14
unauthorized migrants in the agricultural work force and assert that it is too risky to
rely on undocumented workers.20
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 baccalaureate 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.21
20 For a complete analysis and discussion of this question, see CRS Report RL30395, Farm
Labor Shortages and Immigration Policy
, by Linda Levine.
21 The 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.

CRS-15
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.22
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.23 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
22 For background on related legislation, see CRS Report RL30780, Immigration
Legalization and Status Adjustment Legislation
, by Ruth Ellen Wasem.
23 For 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.

CRS-16
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.24 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.
24 Under 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.

CRS-17
Appendix A. FY1999 H-2A Workers Approved, by State and Crop
Number
Number
workers
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, fruits, horticulture
10,279
Tobacco, diversified crops, apples, nursery, Christmas trees, sod,
Connecticut
1,613
North Dakota
Farm work, beekeeping, goatherder
22
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
Tobacco, horticulture, hay/straw, vegetables, sod, grain, fruits
Indiana
None
Tennessee
1,908

Farm machinery/work, diversified crops, cabbage, livestock,
Iowa
Poultry, dairy, farm work, farm machinery
72
Texas
1,502
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
Tobacco, produce, hay, apples, vegetables, nursery, fruits,
Maryland
Nursery, vegetables, tobacco, dairy, vineyard
320
Virginia
3,856
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, livestock
201
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.