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Critique of H-2A farmworker visa program


Congress held hearings this week on the seasonal agricultural worker program called H-2A. Testimony by the president of Farmworker Justice included this: “More than one million undocumented farm workers are making U.S. agriculture productive. We need to stabilize the workforce and keep agriculture productive by allowing undocumented workers to obtain legal immigration status and by improving wages and working conditions. “

The program currently brings in about 30,000 workers a year, somewhat more than 1% of America's farm workforce.

Summary of Testimony: Bruce Goldstein, President, Farmworker Justice, before the Judiciary Subcommittee on Immigration Policy and Enforcement April 13, 2011
04/13/2011

Mr. Chairman and Members: Thank you for the opportunity to testify about the H-2A agricultural guestworker program.

The H-2A program is deeply flawed and should not be a vehicle for filling the nation’s 2 to 2 ½ million jobs on farms and ranches. In addition, Congress should not get mired in previously-fought battles.. Many agribusiness groups lobbied in the 1990’s for changes to “streamline” the H-2A program by cutting worker protections and reducing government oversight. Their legislation would have created a system of exploitable guestworkers and set their wages and other job terms at unconscionably low levels. These efforts failed, as did efforts of farmworker advocates to pass their own policy proposals. Recognizing the need for a policy solution and the inadequacy of the H-2A program, growers and workers reached a compromise, known as the AgJOBS bill. That compromise would allow eligible undocumented farmworkers to earn legal immigration status, revise the H-2A program in balanced ways, and provide America with a stable, productive and decently-treated farm labor force.

The Bush Administration, in its last few days, made drastic, anti-worker changes to the H-2A program: the wage formula changes reduced earnings by $1.00 to $2.00 per hour, key recruitment protections for US workers were eliminated, and government oversight in an already abusive program was restricted.

Fortunately, the Department of Labor under Secretary of Labor Solis reversed these harmful changes, although for more than one year, thousands of U.S. farmworkers and guestworkers at H-2A employers suffered low wages and other harm. The Department also instituted additional common-sense protections, such as a surety bond requirement for labor contractors, a requirement to disclose job terms to workers by the time of the visa application, and increased opportunity for US workers to learn about H-2A employers’ jobs via an online job posting.

The Bush administration failed to understand that the H-2A program cannot and should not be a solution for meeting the bulk of agriculture’s labor needs. Undocumented workers constitute anywhere from 52% to 70% of the agricultural workforce. Deporting the large number of undocumented farmworkers is not feasible and would harm our agricultural production. Currently, the H-2A program only provides 3-5% of the agricultural workforce. Even if it were desirable, the H-2A program cannot be expanded rapidly enough to provide a replacement workforce for the current unauthorized workforce. DOL, DHS and the State Department do not have the capacity to handle such a huge deportation and massive new influx of guestworkers. Employers would not have their needed workforce in a timely manner, and crops would rot in the fields. Such efforts would be a vast waste of taxpayers’ money.

Even today, with such a small percentage of the total workforce, DOL needs more resources to adequately police the H-2A program.

Abuses continue in the H-2A program because it is inherently flawed. The worker is tied to a single employer. H-2A workers can only work for the one employer that obtained their visa. The employer holds the power and makes the decisions about whether workers can come to the United States, whether they can continue working, and whether they can return in the future. In fear of deportation or not being called back in the following year, workers are extremely reluctant to challenge unfair or illegal treatment.

No matter how many years they work under the H-2A program, guestworkers never obtain the opportunity to become permanent immigrants. They never get the right to vote. The H-2A program’s restrictions are not consistent with our nation’s commitment to economic and political freedom. Ours is a nation of immigrants, not a nation of guestworkers.

Many guestworkers also fear seeking better treatment because they arrive in the U.S. deeply in debt after borrowing large sums of money to pay recruiters for the opportunity to work. If they lose their job, they will not earn enough to repay their loans and their families will suffer. While the small numbers of H-2A workers who are under collective bargaining agreements can file a grievance and obtain arbitration, the vast majority have no such opportunity.

Once employers decide to apply for guestworkers, there are financial incentives to reject U.S. workers who apply for jobs and to impose conditions on them that cause them to quit or be fired. The H-2A employer does not pay Social Security or the Unemployment Tax on the guestworkers’ wages, but must do so on the U.S. workers’ wages. Unfortunately, the main job preference for U.S. workers, known as the “50% rule,” is not adequately enforced.

Despite improved protections, and unionization of some H-2A employers, it is our understanding that systemic problems in the H-2A program persist, and that more oversight by the Department of Labor is needed. Employers frequently fail to pay the wages owed, often relying on a “piece-rate” pay method to increase productivity standards to unrealistic levels and cheat workers out of their hourly wage guarantees. Another all-too-common violation is the failure of H-2A employers to pay the transportation costs home for migrant workers who complete the contract season. Many employers apply to DOL for an artificially long season, for example from April to November, even though few people are needed for that length of time. When the workers begin to leave at the end of the summer due to lack of work, many employers contend that the workers are “abandoning” their employment before the end of the contract and are therefore not entitled to the payment of their transportation costs. Most workers know that if they complain, they are not likely to be called back the next year. Worker abuses also encompass violence and intimidation. My written testimony includes the complaint of H-2A workers hired to pick strawberries at Bimbo’s Best Produce in Louisiana. In addition to violations of their basic workplace protections, these workers experienced frequent verbal abuse and feared for their safety due their employer’s violence.

In conclusion, the H-2A program abuses are rampant and should be cleaned up. The H-2A program should not and cannot be the principal mechanism in our free market economy for hiring farmworkers. More than one million undocumented farmworkers are making U.S. agriculture productive. We need to stabilize the workforce and keep agriculture productive by allowing undocumented workers to obtain legal immigration status and by improving wages and working conditions. Rather than repeating past battles on immigration policy, Congress should embrace the hard-fought AgJOBS compromise. Thank you for this opportunity.

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