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PDF or in Word Thumbnail Summary Proposed Federal Legislation to Legalize Undocumented Farm Workers: The Agricultural Jobs, Opportunity, Benefits, and Security Act of 2003 (“AgJOBS”)
By
Bill Beardall
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The U.S. Senate version of the bill
is S. 1645, introduced September 23, 2003
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The U.S. House version is H.R.
3142, introduced September 23, 2003 The information below is a highly simplified summary of the most basic provisions in the proposed law. Consult a more thorough analysis to get all the significant details. Although the bills, as introduced, reflect a final agreement negotiated among the key employer and worker groups, enactment is not guaranteed.
The Agjobs Bill Has Two Basic Components: 1) A program for undocumented agricultural workers to first gain temporary resident status and then subsequently earn permanent resident immigration status; and 2) A revision of the H-2A temporary foreign agricultural worker program that will make the program easier for employers to use, while strengthening workers’ remedies against abuse.
Part One: Earned Legalization for Undocumented Agricultural Workers: Under the proposed law, agricultural workers who currently lack permanent immigrant status could adjust their status in a two-step process beginning 6 months after passage. “Agricultural work” generally includes farm work or the raising of livestock, but does not include most processing of agricultural products nor meat and poultry processing. Ø Step One: The worker files an application for temporary resident status. Eligibility depends on proving recent agricultural work experience in the U.S.: o The worker must prove he/she has performed at least 100 days of agricultural work in the US during any 12 month period between February 2002 and August 2003; o The normal immigration law “bars” against gaining immigration status due to unlawful presence would be waived. o A worker who is granted temporary resident status will have work authorization and will temporarily be treated like a lawful permanent resident (“green card” holder). Ø Step Two: A worker who has been granted temporary status can earn permanent resident immigration status by fulfilling a prospective agricultural-work requirement. o The worker must perform at least 360 work days of agricultural employment in the U.S. during the 6 year period ending August 31, 2009; o At least 240 of those days must be worked within the first 3 years ending August 31, 2006; o The worker must perform at least 75 days of work in each of three different years. Ø Proof of Employment: The procedures for proving employment history were written to take into account the absence of complete and accurate work records for many undocumented workers. Employers of temporary resident workers will be required to keep and furnish employment records. Ø Rights and Protections for Temporary Resident Workers and Their Families: o During the period of temporary resident status, workers will generally have the same rights as lawful permanent residents, including all employment rights and eligibility for federally funded Legal Services. o Temporary resident workers who are fired without just cause or who get injured on- the-job may still get credit toward the prospective work requirement for the work they lost as a result. o During the period of temporary resident status, the farmworker’s spouse and minor children who are living in the U.S. may remain in the U.S. but are not eligible for work authorization (unless they are work authorized on some other basis). o The spouse and minor children may adjust to permanent resident status once the farmworker adjusts to permanent resident status.
Part Two: Changes to the H-2a Temporary Foreign Agricultural Worker Program The proposed law would make a number of significant changes in the “H-2A” guestworker program which presently allows agricultural employers to hire approximately 42,000 foreign farm workers annually on temporary work visas. Some of these changes were sought by employer interests; others were sought by worker advocates. Changes will take effect one year after the bill is enacted. Ø The Most Significant Changes to the H-2A program: o The application process will be streamlined in ways that reduce employers’ paperwork, limit government oversight of the application process, and reduce the effort employers’ must make to first try finding U.S. farm workers, before they are allowed to hire H-2A guestworkers. o The Adverse Effect Wage Rate (AEWR), which is one of the three minimum wage rates for H-2A workers, will be frozen at its 2002 level for three years, while Congress studies whether the formula for determining the AEWR should be modified. o The requirement that employers provide free housing for H-2A workers will be modified to permit some employers to give workers a monetary housing allowance instead. o H-2A workers will be protected by new transportation safety requirements. o For the first time H-2A workers will be able to sue in federal court (and not just local state courts) to enforce their employment rights under the H-2A contract and regulations. Ø Other Current Worker Protections under the H-2A Program Remain Unchanged: o These include: the “three quarters” minimum-work guarantee; the “50% rule” (job preference for U.S. workers); mandatory workers compensation; the requirements for reimbursing workers’ transportation costs; the prohibition against use of H-2A workers as strike breakers; and the general rule against discriminating in favor of H-2A guestworkers. (As under current law, H-2A workers will continue to be excluded from coverage under the Migrant and Seasonal Agricultural Worker Protection Act.)
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