By: Yvette DeLaGuardia, Staff Member

On April 12, 2013, U.S. Senators and key stakeholders in agriculture work came to an agreement on immigration reform.[1] The substance of the agreement is a new guest worker program designed to phase out the current H-2A program.[2]

Under the existing H-2A program, U.S. employers can apply for the authorization to employ foreign nationals for agricultural work of a "temporary or seasonal nature."[3] Qualified H-2A applicants are those employers who are able to "demonstrate that there are not sufficient U.S. workers who are able, willing, qualified, and available to do the temporary work."[4] Pursuant to the current H-2A program, hired agriculture workers are given temporary, non-immigrant status that lasts for a maximum of three years.[5] Generally, the agriculture worker has to leave the United States at the end of the three-year term and is eligible to seek readmission if he/she has been absent from the country for three uninterrupted months.[6] Stakeholders of agriculture work complain the H-2A program is difficult to use and that its restrictions fail to accomodate agriculture work that lasts year round.[7]

The proposed guest worker program, however, would authorize agricultural guest worker visas that last for three years and that could be used year-round.[8] While the number of permissible visas for the guest workers would be capped at 337,000 in a three-year period,[9] the proposed guest worker program still receives praise from many agricultural employers for accommodating year-round employment and for relieving the stress often associated with the fear of immigration audits.[10]

The fear of immigration audits likely stems from the difficulty U.S. agriculture employers have recruiting U.S. employees willing to do the extremely arduous, low-paying labor coupled with the fact that it is relatively easy for undocumented aliens to provide seemingly legitimate documentation. The source of this fear raises interesting questions relating to the reasons the government has implemented guest worker programs. Is the refusal of the American people to take agriculture jobs so significant that the government has been forced to create guest worker programs? Opponents of the proposed guest worker program suggest that, if that is the case, the "obvious solution" to the deficit of "legal laborers" in agricultural work is simply to offer better wages.[11]

I am not so sure I agree that offering better wages is the "obvious solution" to the shortage of U.S. agriculture workers; there seems to be something more than a mere lack of financial incentive at play. While the jobs guest workers are hired to perform help to advance our agriculture industry and to stock our grocery store shelves, I do not think performing manual agricultural labor is what a lot of Americans envision as their American Dream, nor as one of the opportunities in the pursuit of that end.

______________________

[1] See Statement from Jerry Kozack, President and CEO, National Milk Producers Federation (Apr. 12, 2013), http://www.nmpf.org/latest-news/press-releases/apr-2013/nmpf-welcomes-agriculture-labor-immigration-reform-agreement.

[2] Sarah Murray,

Agricultural Visa Program Finds Accord

The Wall Street Journal

(Apr. 12, 2013, 9:06 PM), http://online.wsj.com/article/SB10001424127887324010704578419171812641366.html.

[3] 8 C.F.R. § 214.2 (2011).

[4] U.S. Citizenship and Immigration Services, http://www.uscis.gov/portal/site/uscis (last visited April 15, 2013).

[5]

Id.

[6]

Id.

[7] Charles Abbott,

Farm Workers, Governors and Senators Reach Immigration Pact

The Denver Post

(Apr. 12, 2013), http://www.denverpost.com/politics/ci_23015125/farm-workers-growers-and-senators-reach-immigration-pact; See also Alan Bjerga,

Farmwork Accord on Visas, Wages Moves Immigration Bill

Businessweek.com

(Apr. 13, 2013), http://www.businessweek.com/news/2013-04-12/farmworker-accord-on-visas-wages-moves-immigration-bill.

[8] Murray,

supra

note 2.

[9] Dan Wheat,

Wages, Visa Caps Worked Out In Immigration Deal

Capital Press

(Apr. 15, 2013), http://www.capitalpress.com/content/djw-immigration-041513.

[10] Kirk Semple,

Focus On Dairy Farmers in Immigration Debate

The New York Times

(Apr. 12, 2013), http://www.nytimes.com/2013/04/13/nyregion/in-immigration-debate-a-focus-on-new-york-dairy-farmers.html?pagewanted=all&_r=0.

[11]

Id.