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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: Immigration and Naturalization
(4 of 13)
Box: 28
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
THE WHITE HOUSE
WASHINGTON
February 18, 1986
MEMORANDUM FOR BRANDEN BLUM
LEGISLATIVE ATTORNEY
OFFICE OF MANAGEMENT AND BUDGET
FROM:
ASSOCIATE COUNSEL JJR TO THE PRESIDENT
JOHN G. ROBERTS
SUBJECT:
DOJ and DOA Responses to House Judiciary
Committee Requests Concerning Temporary
Agricultural Worker Provision of
Immigration Reform Legislation
Counsel's Office has reviewed the above-referenced responses and
finds no objection to them from a legal perspective.
ID #.
CU
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
0 . OUTGOING
H . INTERNAL
I * INCOMING
Date Correspondence
Received (YY/MM/DD)
/
/
Name of Correspondent:
James C. mur
MI Mail Report
User Codes: (A)
(B)
(C)
Subject: DOJ + DOA responses to House Judiciary
Committee requests concerning
temporary agricultural washer
provision of immigration refarm legislation
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency
(Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
CUHOLL
ORIGINATOR 86,02,07
/ /
creat 18
Referral Note:
R 86,02,07
586,02,11
Referral Note:
/
/
/ /
Referral Note:
/ /
/
/
Referral Note:
/
/
/
/
Referral Note:
ACTION CODES:
DISPOSITION CODES:
A Appropriate Action
I Info Copy Only/No Action Necessary
A Answered
C Completed
C Comment/Recommendation
R R. Direct Reply w/Copy
B Non-Special Referral
S Suspended
D Draft Response
S For Signature
F Furnish Fact Sheet
X Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = Initials of Signer
Code = "A"
Completion Date = Date of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
EXECUTIVE OFFICE OF THE PRESIDENT
SPECIAL THE PRESIDENT UNITED
OFFICE OF management AND BUDGET
WASHINGTON, D.C. 20503
February 6, 1986
LEGISLATIVE REFERRAL MEMORANDUM
SPECIAL
TO:
Department of Agriculture
Department of Justice
Department of Labor
Department of Health & Human Services
Department of State
Council of Economic Advisers
Small Business Administration
SUBJECT: Department of Justice and Department of Agriculture responses
to House Judiciary Committee requests concerning temporary
agricultural worker provision of immigration reform
legislation.
The Office of Management and Budget requests the views of your
agency on the above subject before advising on its relationship
to the program of the President, in accordance with OMB Circular
A-19.
Please provide us with your views no later than February 11, 1986.
(NOTE -- We have not yet received the Department of Labor's draft
answers to the committee's questions. Its response will
be forwarded for review upon receipt.)
Direct your questions to Branden Blum (395-3454), the legislative
attorney in this office.
James C. Murr for
Assistant Director for
Legislative Reference
Enclosure
CC: Fred Fielding
Tara Treacy
Sarah Brentlinger
Andrea Hoffman
John Cooney
Mike Margeson
Phil Hanna
STATE DEPARTMENT
DEPARTMENT OF AGRICULTURE
OFFICE OF THE DEPUTY SECRETARY
WASHINGTON, D.C. 20250
FEB 5 1966
To:
Branden Blum
From: Pat Quinn GHO
Re:
USDA Responses to House Judiciary Committee Questions
Attached are the Department of Agriculture's (USDA) responses to questions sent
to Deputy Secretary John R. Norton on January 23, 1986 by House Judiciary
Committee Chairman Rodino (D-NJ).
Of the 27 questions forwarded to us on January 23, 16 had been received
previously by DOL, INS, and USDA. Of those 16, consensus inter-agency responses
have been developed for 13 (#'s 1,3,4,5,6,7,8,13,14,16,17,18,21). On three (3)
questions (#'s 2,19,20), no agreement has been reached, but response options
have been developed.
Attached for review and distribution are USDA's responses for the new questions
(#'s 9,10,11,12,15,22,23,24,25,26,27) and the option responses for the three
questions which remain in dispute (#'s 2,19,20).
USDA will stand by its agreement to the consensus responses for the remaining
13 questions, finalized by Greg Leo (INS), Jude Muskett (DOL) and myself on
January 23.
Should you have any questions regarding this, or related matters, please let me
know.
Dept. of Agriculture
DRAFT
IMMIGRATION QUESTIONS
House Subcommittee (1/23/86): Draft Reponses
#12) All Administration witnesses testified on September 30, 1985 that workers
admitted under a seasonal worker program should be restricted to
employment in "truly perishable commodities."
The Administration believes that the term "perishable" should be defined
by the Secretary of Agriculture in regulation. That definition should be
consistent with one now contained in the Perishable Agricultural
Commodities Act (PACA).
#22) An exemption for agricultural employers from employer sanctions generates
its own set of volatile political and policy problems which might
considerably exceed those created by the "guestworker" debate. Most
interest groups (aside from portions of the AFL-CIO) would oppose such an
exemption. This opposition which would include, of course, agricultural
producers, might well ensure the demise of immigration reform legislation.
More importantly, the exemption is an unsound policy option for a number
of reasons:
1) It undermines the fundamental intent of "immigration control"
legislation because this represents a conscious choice not to
deal with a significant portion of the enforcement problem, since
15% of all illegal aliens are employed in agriculture.
2) Agricultural employers would inevitably become the target of
increased INS/Border Patrol internal enforcement.
3) A substantial illegal flow of Mexican farmworkers would continue
to be encouraged by the magnet of job opportunities in the
agricultural sector.
4) An exemption might retard changes in labor-management and movement
toward mechanization which could benefit the fresh fruit and
vegetable industry over the long term.
#23) The so-called "50 percent rule" has been eliminated in every version of
immigration reform legislation considered by the House or Senate since
1980. There has been near unanimous agreement among Democrats and
Republicans that the 50 percent rule does not genuinely benefit U.S.
farmworkers and serves as an obstruction to the H-2 program's effective
use. The 50 percent rule is not a requirement of the non-agricultural H-2
program.
The Administration has consistently supported the 50 percent rule's
elimination in favor of the S.1200/HR 3810 language requiring employers to
hire U.S. workers "until the date the aliens departed for work with the
employer." This language ensures that U.S. workers will receive priority
in hiring until the last feasible moment.
2
It must be remembered that during the H-2 certification process:
1) employers are required to advertise for and recruit available U.S.
workers for 80 days; 2) DOL's interstate clearance system is utilized to
locate, recruit and refer U.S. workers for 80 days; 3) DOL must certify
that U.S. workers are not available prior to the importation of H-2
workers; 4) employers then sign a contract with H-2 workers which requires
them to guarantee to pay the H-2 workers 75% of the contract period
wages.
Thus, post-certification referrals (i.e. referrals under the 50 percent
rule) force the H-2 employer either to hire additional, unneeded labor or
break his H-2 contract with the foreign workers. This is an unfair,
unnecessary and workable system which must be eliminated.
#24) The generosity of immigration reform legislation's amnesty/legalization
program has never had any relationship to "grower pressures for the
adoption of a new, foreign worker program." There are no recent
developments which suggest that has changed.
In crafting reforms to the H-2 program and in passing the Wilson-Panetta/
Morrison programs, Congress has, of course, considered this option. Most
Members have concluded that, aside from the broader policy implications of
an extremely generous legalization program, it is a short term solution at
best. Uncertainties abound: How many undocumented workers will be
eligible? How many will qualify? How many will remain in farmwork and
for how long?
#25) Yes. The Administration strongly advocates inclusion of a seasonal worker
program for perishable commodities in HR 3810. The absence of any program
for perishable commodities would have catastrophic consequences for our
fresh fruit and vegetable industry; it might also ensure the demise of
immigration reform legislation in the 99th Congress.
While not identical to the Administration's proposal, the Wilson amendment
does have a number of similarities; including:
1) Limited duration: Wilson is much shorter (3 years) than the
Administration plan (7-22 years).
2) Limited number of workers: A continuous cap of 350,000 in Wilson,
while the Administration proposal would remain uncapped for two
years before declining over time.
3) MSPA labor standards, particularly regarding job disclosure
requirements, are contained in both.
4) The Wilson Program is self-financed by grower contributions
(approx. 11%), as required under the Administration proposal.
The Administration regards a seasonal worker program for perishable
commodities as an essential component of balanced immigration reform
3
legislation. The Wilson program is similar fundamentally to the
Administration's proposal and would be supported if the alternative would
be "the adoption of no perishable crop program at all."
#26) The Administration would strongly oppose any change to HR 3810's "housing
allowance" provision as it applies to the H-2 program for the following
reasons:
1) The Administration has consistently supported the concept of a
housing allowance during the past 4 years and has specifically
supported HR 3810's language which was included in both the House
and Senate passed bills in the 98th Congress.
2) The Administration and the Congress have supported this provision
because housing is not presently available in sufficient numbers,
particularly in the West. New units are expensive to construct and
are now prohibited in many areas by local zoning ordinances.
3) HR 3810's language, drafted primarily by Congressmen Lungren (R-CA)
and Mazzoli (D-KY) is specifically intended to address concerns
that H-2 workers will not be properly housed. The language of
HR 3810 would not allow H-2 employers to substitute payment of a
housing allowance unless "suitable housing is otherwise available
in the proximate area of employment." Thus, if it is determined
that such housing is not available in the "proximate area," the
employer must provide for the housing itself.
4) The Administration cannot emphasize too strongly that HR 3810's
housing allowance provision is fundamental to the acceptance of H-2
as a viable program for growers throughout the nation.
#27) No. The Administration feels that it is far too early in the legislative
process to eliminate the transition program as a policy option.
The Administration has supported the Transition Program that was
eliminated from HR 3810 for more than four years. It has never been
controversial; in fact, nearly all House Judiciary Committee Democrats
as well as Congressmen George Miller (D-CA) and Howard Berman (D-CA) have
consistently supported the Transition Program.
Passage of a seasonal worker program for perishable commodities in the
House cannot be assumed and is not probable at this time. Thus, a
reformed H-2 program will likely become the only alternative for
perishable crop producers. The Transition Program is essential to ease
the difficult adjustment from a predominantly illegal workforce to the
highly-structured H-2 program.
The Administration would regard the Transition Program as unnecessary if
the House were to pass a viable seasonal worker program for perishable
commodities.
4
9.
How many farms are there in the United States today? How many ten
years ago? How many farms today are fruit and vegetable farms? How
many ten years ago? How many fruit and vegetable farms use hired
labor today? What are the projected numbers of all farms and of fruit
and vegetable farms ten years from now? How many are projected to use
hired labor ten years from now?
The only data available on hired labor use on all fruit and vegetable
farms in the United States is from the 1978 and 1982 Censuses of
Agriculture. Comparable labor data were not collected in the 1974
Census. According to Census data there were about 2,479,000 farms in
the United States in 1978. The number of farms declined by about 9.6
percent to 2,241,000 farms in 1982.
In 1982, there were about 115,000 fruit and vegetable farms, down
about 8 percent from 125,000 farms reported in 1978.
In 1982, about 57,000 fruit and vegetable farms employed hired labor,
down about 7 percent from the 62,000 farms using hired labor in 1978.
The number of farms using contract labor declined from 32,000 in 1978
to 23,000 in 1982, a drop of about 27 percent.
The Economic Research Service has projected the number of farms in the
United States in 1995 at about 1,890,000. No estimates are available
for the number of fruit and vegetable farms or for farms using hired
labor in 1995. However, if recent trends continue for the next ten
years, the number of fruit and vegetable farms and the number of these
farms using hired labor in 1995 is likely to be below current levels.
But, because the average size of these farms is expected to increase,
we do not expect the amount of hired labor used on these farms in 1995
to drop below current labor use. Unanticipated increases in machine
harvesting of fruit and vegetable crops could reduce labor
requirements on these farms by 1995.
5
10. Which fruit and vegetable crops are harvested by machines? Which
are harvested by hand? Which account for the bulk of all hired
labor?
Major vegetable crops produced in the United States are white
potatoes, sweet corn, tomatoes, green peas, lettuce, snap beans,
dry onions, cabbage, cucumbers, melons, asparagus, broccoli, and
carrots. Machines are used to harvest varying amounts of some of
these crops, while other crops are completely harvested by hand.
Virtually all commercially produced white potatoes, carrots, and
green peas are mechanically harvested. About 80 to 90 percent of
snap beans and sweet corn, but only 50 percent of dry onions and
tomatoes are harvested by machines. The major crops exclusively
harvested by hand are broccoli, lettuce, and melons. More than
80 percent of cucumbers and cabbage, and more than 95 percent of
asparagus are hand harvested by field workers. There are several
other important vegetable crops produced on a smaller scale which
are hand harvested. Although the total acreage of these minor
crops is relatively small, the availability of harvest labor is a
critical issue for producers. The expenditures for labor on all
vegetable and melon farms comprise about 9.6 percent of the total
labor expenditures on all U.S. farms.
More labor is used in the production of fruit and tree nuts than
is used to produce vegetables and melons. Fruit and tree nut
farms account for about 17 percent of the total labor costs in
U.S. agriculture. Citrus is the single largest user of harvest
labor of all fruit and tree nut crops. Almost all citrus is
harvested by hand. Other leading fruit crops are apples, grapes,
peaches, pears, plums and prunes. About 95 percent of the apple
crop is hand harvested and nearly all pears are picked by hand.
Some, but not all, grapes used to make wine, juice, and raisins
are harvested with machines, but all grapes for the fresh market
are harvested by hand. About three-fourths of all grapes are
harvested by field workers. Over one-half of all plums and
prunes are machine harvested, but only 10 to 15 percent of
peaches are mechanically harvested. Mechanical harvesting
technologies are used extensively in tree nut crops. Nearly all
almonds and walnuts and over one-half of pecans are harvested by
machines.
6
11. What technological changes are projected for fruit and vegetable crops
during the next decade? What will the impact of these changes be on
the need for labor?
The development of mechanical technologies for harvesting U.S. fruit
and vegetable crops progressed steadily in the 1940's, 1950's, and
1960's. Since then, both the rate of development of new harvesting
technologies and increases in the rate of use of harvesting machines
on farms have declined.
Much of U.S. agricultural production is now mechanized. However, the
harvest of some fruit and vegetable crops is still done by field
workers because: (1) the product is easily damaged during harvest, and
when it is damaged its quality and value is severely reduced; (2) the
limited production of some crops provides only a small market for
expensive specialized machines; (3) the per farm acreage of some crops
is not large enough to make high-cost machines economically feasible
for small farm operators; (4) some crops ripen at uneven rates on a
given tree, field, or plant which complicates harvesting by machines;
(5) additional research is required to fully develop mechanized
harvesting machines for some crops, such as watermelons and asparagus;
and (6) there has been an adequate harvest work force comprised of
American and legal and illegal foreign national workers.
Commercially available equipment could be used to harvest nearly all
carrots, potatoes, and processed citrus and tomatoes, if growers found
the machines to be cost effective. However, additional research and
development would be required to develop machines needed to fully
mechanize the harvest of most other fruit and vegetable crops.
Furthermore, before the harvest of other fruit crops could be fully
mechanized even by the machines currently on researcher's drawing
boards, many orchards would have to be replanted with dwarf or
semi-dwarf trees. The adoption by growers of available harvesting
machines for wine grapes would also require considerable replanting or
re-trellising of vines. Replanting of orchards may ultimately reduce
production costs, but the capital required and production and revenue
loss for years until the new orchards reach fruit-bearing stage may
mean that replanting and mechanical harvesting are not currently cost
effective for most growers.
15. What were total U.S. agriculture sales in 1984?
a. What percentage of those sales were fruits and vegetables?
b. What was the total value of U.S. farm exports in 1984?
C. Which crops accounted for the largest share of those exports?
d. What was the total value of fruit and vegetable exports?
e. What is their projected share of U.S. farm exports ten years from
now?
f. What was the total value of U.S. farm imports in 1984?
g. Which crops account for the largest share of those imports?
h. What was the total value of fruit and vegetable imports?
i. What is their projected value and share of total imports ten years
from now?
In 1984, cash receipts from the sale of agricultural commodities
totaled $141.8 billion. Fruits and vegetables accounted for 10.7
percent of U.S. agricultural sales.
The total value of U.S. agricultural exports in 1984 was $37.8
billion. Grains, feeds, and oilseeds and related products accounted
for the largest share (67.6 percent) of agricultural exports. The
value of U.S. fruit and vegetable exports in 1984 was $2.8 billion.
Fruit, vegetable, and nut exports accounted for about 8 to 9 percent
of total U.S. agricultural exports between 1981 and 1985, up from 6 to
7 percent in the late 1970's. Exports of bulk commodities (grains and
oilseeds) have been particularly hard-hit by a combination of
inflexible commodity programs and a strong dollar. The net result has
been an increase in the share of fruits, vegetables, and nuts in total
agricultural exports relative to bulk commodities. Over the next
decade the dollar is expected to weaken from the high levels of
1984-1985. Accordingly, while U.S. foriegn sales of fruits,
vegetables, and nuts will increase, their share of total agricultural
exports could fall to 7 to 8 percent by the mid-1990's as bulk
commodities' share of exports increases.
The total value of U.S. agricultural imports in 1984 was $19.3
billion. Animals and animal products, coffee, fruits, vegetables, and
sugar-related products accounted for the largest share (62.5 percent)
of total imports. The value of U.S. fruit, nut, and vegetable imports
was $3.7 billion. The United States became a net importer of fruits,
vegetables, and nuts in 1984. The turnaround from the historical net
export position for the United States can be tied directly to the
strong value of the dollar and a loss of competitiveness in foreign
markets, as well as in U.S. fruit, vegetable, and nut markets.
Imports are currently very price competitive. Fruit, vegetable, and
nut imports now comprise nearly 18 percent of total agricultural
imports, up from 8 to 10 percent over the 1970's. If the foreign
exchange value of the dollar falls, the portion of fruit, nut, and
vegetable imports in the total agricultural import bill will fall.
Given the expected weakening of the dollar over the next decade,
fruit, nut, and vegetable imports as a proportion of the total imports
could decline to 12 to 14 percent.
8
#2
Question
(Seasonal Worker Logram)
Option A: Non-Specific
"The Administration believes that the wage and working condition requirements
of the H-2 program and its successer should also apply to any other foreign
agricultural worker program except for such variations as may be required by
structural differences.
Option B: Specific:
The Administration believes that the wage and working condition requirements of
the H-2 program and its successor should also apply to any other foreign
agricultural worker program except for such variations as may be required by
structural differences. The following protections should be included in any
foreign agricultural worker program:
A. Adverse Effect Wage Rate: as required under the H-2 program.
B. Workman's Compensation or an equivalent insurance.
C. MSPA shall apply to any such field harvest laborers admitted under
such a program with regard to job disclosure, working
conditions, housing, transportation and wage determination.
The following H-2 provisions would be inappropriate for a seasonal worker
program for structural reasons:
A. Written contract: The Administration's support for a limited seasonal worker
program is based upon the fact that the H-2 program contractually binds
employers and foreign workers, thereby limiting the workers freedom of movement.
In perishable agriculture, workers must be transferred quickly to respond to the
harvest cycle and the climatic fluctuations within a geographical region over a
period of several months. This is particularly true of smaller producers with
short-term needs for relatively large numbers of harvest workers.
We believe requiring a written contract under these circumstances is not
reasonable, but we do strongly support inclusion of MSPA's iob disclosure
requirements which would provide the workers with prior notice of the terms and
conditions of their employment. This job disclosure provision is designed to
ensure the essential worker protections provided by a written contract.
B. Guaranteed Employment for at least 75% of their contract period: While the
so-called "three-quarter guarantee" is a reasonable requirement of the H-2
program, its application to a seasonal worker program would be wholly
inappropriate.
The Administration's program would not guarantee employment for a specific
period, but would, instead, allow the worker to move freely among approved
employers. Workers would not be bound to a particular employer; they would be
free to seek the most attractive wages and working conditions within an area of
employment.
Again, with the largely perishable, short-season, labor-intensive
commodities, a "three-quarter guarantee" would severely impair worker movement
in response to weather emergencies and the harvest cycle.
Questions
#19+20
(H-2 Program Reform)
Option A: Non-Specific
"All Administration witnesses testifed on September 30 to the fact that the
Administration prefers the temporary worker reforms contained in S.1200 to those
contained in H.R. 3080.
The Administration has placed emphasis on its long-term goal that the H-2
program be improved to discourage long-term dependence upon an alternative
program for perishable commodities. The Administration believes that H-2 should
eventually become the only temporary foreign worker program for all agricultural
commodities."
Option B: Specific
"All Administration witnesses (DOL/DOJ/USDA) testified on September 30 to the
fact that the Administration strongly prefers the temporary worker reforms
contained in S.1200 to those contained in H.R. 3080.
The Administration has placed emphasis on its long-term goal that the H-2
program be streamlined and continuously improved to discourage long-term
dependence upon an alternative program for perishable commodities. The
Administration believes that H-2 should eventually become the only temporary
foreign. worker program for all agricultural commodities.
With the exception of H-2 regulatory authority, the Administration has endorsed
S.1200's H-2 reforms as a prudent first step toward a streamlined H-2 program
which can eventually address the needs of all agricultural commodities.
The following changes to the Section 301 of H.R. 3080 would be required in order
for the legislation to be consistent with the Administration position regarding
H-2 reform:
1. Acceptance of H-2 Applications
2. Expedited Appeal of Denial of Certification
3. Attorney General Expedited Review when Workers are not Actually Available
4. Length of Stay of H-2 Workers
5. Permitting Presentation of Countervailing Evidence
6. Treatment of Associations Acting as Employers
7. Treatment of Association (Member Violations)
8. Transfer of Workers Among Employers Permitted
9. Disqualification Limited to One Year
R
C. The requirement that an H-2 employer provide transportation from the
employee's residence to the place of employment and return should be maintained
in the successor program. It is not feasible, however, to transpose this
requirement to the seasonal worker program where a foreign worker may have
several employers during his sojourn in the U.S.
We favor instead, a plan where the U.S. government, using funds contributed by
program users, would reimburse the government of the sending country for the
cost of internal transportation within that country, provided the worker's
transportation to the first place of employment in the United States was paid by
a U.S. employer, or association of employers, either directly or through an
agent.
Internal transportation within the U.S. would be negotiable between the worker
and subsequent employers. The government would issue with the visa a
non-negotiable voucher to be used only with specified carriers to return the
workers to his home country.
D. A bilateral agreement with the source country: The Administration proposal is
multilateral and would not be limited to Mexico as a source country. However,
cooperation wuth all source countries -- particularly Mexico -- will be an
important component of the program's development.
U.S. Department of Justice
Immigration and Naturalization Service
DRAFT
Office of the Commissioner
425 Eye Street N.W.
Washington, D.C. 20536
CO 703.785
Honorable Peter W. Rodino, Jr.
Chairman
Committee on the Judiciary
House of Representatives
Washington, D.C. 20515
Re: Temporary Worker Provisions of Immigration Reform Legislation.
Dear Mr. Chairman:
Enclosed are the responses of the Department of Justice to the questions
submitted regarding the temporary agricultural worker aspects of immigration
reform legislation. In addition, enclosed are materials explaining the
tentative Administration proposal on this issue.
As Deputy Secretary of Agriculture Norton, Assistant Secretary of Labor Baroody
and I testified before the House Immigration Subcommittee last September, the
Administration has developed a statement of principles of a proposed temporary
agricultural worker program which we think is the best approach to a very
difficult area. Following the meeting that Norton, Baroody and I had with you
last summer, the three departments have worked diligently to solidify in detail
provisions of such proposal, but have not reached final concurrence. However,
we did reach tentative agreement on a number of elements, which can be of
assistance to the Judiciary Committee.
Clearly, the agriculture worker issue is one of the most difficult obstacles
toward accomplishing passage of immigration reform legislation. The single
overriding principle must be that we cannot allow this issue, or any other, to
prevent passage of a bill. As we have discussed, the flow of illegal aliens
continues to increase by dramatic proportions. For example, during mid January
- in San Diego in one twenty-four hour period we apprehended 3, 249 illegal
aliens, an all time record for a one day period. The trend of border appre-
hensions along the Mexican border is up 40%. If this trend continues at the
present level, as there is every expectation that it will, we will apprehend
over 1.6 million during the last year. The three basic elements that are
required to deter illegal aliens are: 1) Increased border enforcement: much of
which has been accomplished by budget enhancements in the last several years.
2) Employer sanctions to demagnetize the job market which draws illegal aliens
to this country, and 3) The SAVE program which will prevent illegal aliens from
accessing the unemployment, welfare and other benefit programs. Although, most
illegal aliens come to this country to work, like others if they lose their
jobs they often will access benefit programs.
These three elements will give substantial ability to limit illegal immigra4
tion, to control our borders and at the time preserve our heritage of legal
immigration. As you know, currently over 500,000 legal immigrants, mostly from
Asia and Latin America, are entering* the United States each year. An additional
60-70 thousand refugees are admitted yearly. When illegal immigration esti-
mated at about 500,000 net per year approaches the level of legal immigration
we must be concerned about the erosion of our legal system. Therefore, we must
proceed this year to enact Immigration Reform Legislation.
With respect to the agricultural provisions we are aware of the number of
options before your committee: 1) the Wilson Schumer, Panetta and Berman,
apparently focusing on a green card for agriculture workers E apparently a
supplemental legalization program for agriculture: 3) the discussion of the
exemption of agriculture (perishable growers) from employer sanctions; 4)
streamlined H-2 provisions alone to allow growers to use temporary workers; 5)
the Administration's proposal set forth in the attachments and the previous
testimony given.
We believe the Administration approach is a balanced one and a middle ground
between many of the other alternatives noted. Therefore, we believe the
Judiciary Committee and others in Congress should give strong consideration to
this proposal.
Again it is most importantly that we make the tough decisions among the above
alternatives and move a bill on to House passage, to Conference and prompt
enactment into law. We look forward to working with the Judiciary Committee in
the weeks and months ahead to accomplish our mutual goal.
Best regards
Sincerely,
Alan C. Nelson
Commissioner
Honorable Alan C. Nelson
Commissioner
Immigration and Naturalization Service
1. Some observers of the old Bracero program claim that it provided Mexico
with a necessary safety value and that, accordingly, it served to deter
illegal immigration. Other observers claim the opposite: that the pro-
gram, by exposing Mexican workers to the relatively high wages of the
United States, acted to increase illegal immigration. What effect do you
think the Bracero program had, and from an enforcement standpoint, is a
large, foreign agricultural program a good or bad idea?
Like many other controversial programs, persuasive arguments can be made on
both sides. It is plain that illegal immigration increased after the Bracero
program was terminated. It will not serve our purpose here, to fan the flames
of controversy regarding the Bracero program. We must regain control of large
scale illegal immigration, a significant portion of which goes into agri-
cultural employment. Many growers have become dependent on this labor. An
important consideration in fashioning a prudent and balanced solution to this
situation is the need to provide growers an efficient means to obtain legal
foreign workers when needed to supplement the domestic workforce while pro-
tecting job opportunities for American Workers and ensuring basic worker
protections. We have proposed to allow for legal entry of foreign workers
based on established need. The program will not be "large" in relation to the
need and we will be able to enforce it. Any seasonal worker program for
perishable commodities must have strong monitoring and worker protections and
must be based on a finding that American workers are not available prior to any
admission being allowed.
2. The other body recently passed legislation to allow 350,000 guestworkers
into the United States. To ensure that they return to their home country,
the legislation requires that 20% of their wages be placed in escrow to be
paid when the worker returns. Mr. Nelson, do you believe that provision
will effectively induce workers to return.
Yes, I believe it will in coordination with employer sanctions, increased
enforcement, and if we have strong provisions to monitor these programs. See
attached material on draft proposed Administration program with other aspects
intended to induce workers to return to their home countries.
Many undocumented workers in agriculture are annual migrants who return home of
their own volition. The withholding of a portion of wages to be paid after
their return adds a strong inducement to depart at the end of the employment
period.
3. Does it make any difference from an enforcement standpoint whether the
spouses and children of foreign agricultural workers are allowed to
accompany them to the United States?
Yes, it does -- returning to their families is another inducement to go home.
We also would be concerned about the economic burden on our rural community
resources; housing, educational and health services for example. Workers
without accompanying families will have more mobility and send money back home
to support their families. This will constitute far less of a risk of over-
stay.
4. What percentage of undocumented workers in the U.S. are perishable crop
farmworkers?
The lack of adequate data on the size of the illegal immigrant population in
the U.S., the number of undocumented workers, and their occupational distri-
bution is well known. On the basis of available data, the Administration
offered a "cautious speculation" in 1982 that not more than 15 percent of all
Mexican undocumented workers in the U.S. are likely to be employed in the
agricultural sector. USDA has suggested in March 1983 testimony before the
House immigration subcommittee that 300,000 - 500,000 undocumented aliens work
in U.S. agriculture each year, principally in seasonal harvest work in the
Southwest and along the West Coast.
5. Please list with specificity the foreign worker protections that you would
deem essential to any foreign agricultural worker program Congress might
enact.
In addition, here are some of the foreign worker protections that were
contained in the Bracero program. Please tell me in each case whether
these protections should be included in any new program.
A. Written contract
B. Guaranteed employment for at least 7.5% of their contract period
C. Employer-provided housing
D. Free tools and equipment
E. Meals provided at cost
F. Paid transportation to and from the U.S.
G. A written agreement with each source country
The Administration favors application of all Federal and State laws protecting
American migrant and seasonal agricultural workers to foreign agricultural
workers in the U.S. Additionally, the Administration believes that the wage
and working condition requirements of the H-2 program and its successor should
also apply to any other foreign agricultural worker program except for such
variations as may be required by structural differences. The following pro-
tections should be included in any foreign agricultural worker program:
1. Adverse Effect Wage Rate: as required under the H-2 Program.
2. Workmen's Compensation or an equivalent insurance.
3. Housing, provided or paid for by the employer.
4. Free tools and equipment.
5. Meals provided at cost.
The following H-2 provisions would be inappropriate for a seasonal worker
program for structural reasons:
A. Written contract: The Administration has proposed a limited seasonal
worker program (see attachment) in recognition of the fact that the H-2
program contractually binds employers and foreign workers, thereby limiting
the worker's freedom of movement. In perishable agriculture, workers must
be transferred quickly to respond to the harvest cycle and the climatic
fluctuations within a geographical region over a period of several months.
This is particularly true of smaller producers with short-term needs for
relatively large numbers of harvest workers.
We believe requiring a written contract under these circumstances is not
reasonable, but we do strongly support inclusion of MSPA's job disclosure
requirements which would provide the workers with prior notice of the terms
and conditions of their employment. This job disclosure provision is
designed to ensure the essential worker protections provided by a written
contract.
B. Guaranteed Employment for a least 75% of their contract period: While
the so-called "three-quarter guarantee" is a reasonable requirement of the
H-2 program, its application to a seasonal worker program would be
inappropriate.
The Administration's proposed program would not guarantee employment for a
specific period, but would, instead, allow the worker to move freely among
approved employers. Workers would not be bound to a particular employer;
they would be free to seek the most attactive wages and working conditions
within an area of employment.
Again, with largely perishable, short-season, labor-intensive commodities,
a "three-quarter guarantee" would severely impair worker movement in
response to whether emergencies and the harvest cycle.
C. The requirement that an H-2 employer provide transportation from the
employee's residence to the place of employment and return should be
maintained in the successor program. It is not feasible, however, to
transpose this requirement to the seasonal worker program where a foreign
worker may have several employers during his time in the U.S.. Under the
Administration's proposed program, the government would issue, with the
visa, a non-negotiable voucher to be used only with specified carriers to
return the workers to his home country, provided the worker's trans-
portation to the first place of employment in the United States was paid by
a U.S. employer, or association of employers, either directly or through an
agent. Internal transportation within the U.S. would be negotiable between
the worker and subsequent employers.
D. A bilateral agreement with the source country: The Administration
proposal is multi-lateral and would not be limited to Mexico as a source
country. However, cooperation with all source counties--particularly
Mexico--will be an important component of the program's development.
6. The Bracero Program of the 40's and 50's is generally viewed as having been
a very bad program in terms of worker protections. What are some of the
key differences between the Administration's proposal and the Bracero
program that cause you to believe your program will not result in such
abuses?
During the 40's and 50's worker protections for migrant and seasonal agri-
cultural workers in the U.S. generally were inadequate. Since those days,
worker protection legislation has been enacted by Congress and by the States.
The Administration believes that these laws and the wages and working condition
requirements of the H-2 program and its successor should also apply to any
other foreign agricultural worker program except for such variations as may be
required by structural differences.
7. Please describe the existing mechanisms and avenues available to an H-2
worker who believes he or she is being treated unfairly by his employer.
Should a new mechanism be created in this bill to handle such complaints?
Should H-2 workers have the right to legal services attorneys?
H-2 workers who believe they are being treated unfairly by employers have
access to existing mechanisms and avenues available to all agricultural workers
in the United States. These include the State Employment Service complaint
system; the Department of Labor's Employment Standards Administration (ESA)
farm specialists, who handle only agricultural worker labor law enforcement
matters; ESA Wage and Hour investigators; and numerous State enforcement
mechanisms. In addition, the majority of H-2 agricultural workers admitted to
the U.S. (the roughly 9,000 "British West Indians," principally from Jamaica
and Barbados) have access to representatives of the British West Indies Central
Labour Organization (BWICLO), who are stationed in the areas where these
workers are employed. The BWICLO representatives are responsible for liaison
activity between workers and employers for a number of matters, including
complaint resolution. We believe that foreign governments have an active
interest in the welfare of their workers abroad, and that through consulates
and other possible mechanisms they will provide adequate representation for
their nationals in this country. There is, therefore, no need to extend U.S.
taxpayer supported legal services to these foreign agricultural workers.
8. A comprehensive 1980 study of the Bracero program by the Congressional
Research Service states:
"The bracero program by itself did not prove to be a solution to the problem of
large scale illegal entry from Mexico. On the contrary, as it was administered
during the early stages, the existence of the bracero program appeared to make
the problem worse. It was not until sharply increased enforcement measures
were combined with a greatly expanded program that it was possible to divert
most of the illegal flow into legal channels. However,
both these measures
were effected at a considerable price, in terms of apparent effect on domestic
and agricultural workers, stemming from the expanded program, and the ill will
created in the Mexican American community by "Operation Wetback." Please
respond
We agree with the need for incentives for aliens to return to their home
country. The withholdings from wages, the other aspects of the attached
Administration draft proposal and a bar to future participation in the program
of those who violate the terms of their admission are felt to be sufficient to
ensure compliance.
The presence of the employer sanctions provisions of both bills will prevent
temporary agricultural workers from finding other types of employment.
Both bills provide for increased enforcement activities in the interior of the
United States which are directed at employers. This increased enforcement
capability will allow the program to be closely monitored.
9. Under your proposal, who would contract with foreign workers, the U.S.
Government or individual U.S. employers?
Employers would be responsible for the Employment relationship with the worker.
The U.S. Government would be involved in developing the agreements with foreign
governments and the general procedures to be followed. As stated earlier
employers of seasonal workers must meet the job disclosure requirements under
MSPA and will be responsible to the worker and the U.S. Government for meeting
the terms and conditions of employment required for participation in the
Program.
10. Describe how the costs associated with your program would be paid. Who
would shoulder the burden, the U.S. taxpayer or the grower? How much
would your proposal cost?
The program will be financed by participating employers who will be required to
pay approximately 11% of the wages paid to foreign workers (the equivalent of
what they would pay in FICA and FUTA taxes if there workers were covered) into
a trust fund. The Attorney General would have the authority to raise the
employer contribution, if necessary, to cover the cost of program operations.
This serves Two Purpose - The Adjustment of the Wage Rate to Equalize the
differential with services workers, and to pay the costs to the Government of
the Administration of the program. Start up costs have not yet been calcu-
lated.
See attached draft Administration proposal.
11. Under your proposal would foreign workers be eligible for unemployment
compensation? Cash assistance? Medicaid? Would Social Security taxes be
withheld?
We oppose making foreign workers eligible for any type of direct or indirect
Federal assistance. Rather, this program has been designed to ensure that
workers are continuously employed while in the U.S. H-2 workers are currently
not eligible for unemployment compensation, cash assistance, and medicaid;
employers of H-2 farmworkers are exempt from FICA and FUTA. Neither H.R. 3080
nor S. 1200 would change that policy. Similarly, foreign workers under the
Administration's proposed program would neither benefit from, nor be required
to contribute to these programs.
As mentioned previously, workmen's compensation would be provided to all
foreign and U.S. agricultural workers at Employer Expense.
12. Would it or would it not be possible under your proposal, for foreign
workers to be recruited and admitted even if no formal agreement regarding
workers rights has been reached with the sending country?
Yes, it would be possible, but sending countries which require exit permits
could restrict the departure of their nationals. We believe, however, that a
bi-lateral agreement would be in the interest of both the U.S. and the sending
country.
13. Would your proposal allow undocumented aliens already in the United States
participate in the program? Would it encourage or discourage such
participation?
Possible in the first year only, but more development is needed on this issue.
There is concern that registration of such workers in the United States would be
inducement for others to enter illegally in order to register. Therefore, it
is possible that undocumented workers should be required to return home, (as we
believe most do anyway, on an annual basis), and be legally admitted in order
to participate.
14. How are "perishable commodities" defined in your proposal? Would workers
be allowed to engage in activities other than harvest (e.g., processing
activities, transportation, packing and freezing?)
Workers admitted under "The Administration's program would be restricted to
employment in field harvest labor of truly perishable commodities. A defini-
tion consistent with the one now contained in the Perishable Agricultural
Commodities Act (PACA), adjusted to meet this "truly perishable" intent is
feasible.
15. Former Secretary of Labor Ray Marshall has said: "If in future years we
establish a clear and pressing need for additional workers, it would be
better to admit such workers as immigrants with full legal rights than
admit them as questworkers with seriously circumscribed rights." What do
you think of the idea of admitting foreign workers as immigrants rather
than as nonimmigrants?
A number will qualify as immigrants under proposed legalization. Beyond those
so qualifying, believe that the admission of aliens as permanent residents to
perform agricultural labor would adversely affect the U.S. labor force. As
permanent residents, these workers would be free to seek non-agricultural
employment in the off-season or to leave agriculture altogether. U.S. workers
in non-agricultural occupations would be impacted by the entry of these workers
and would not be protected by the labor certification provisions of the law as
they now are. In addition such a policy would not provide an adequate or
stable labor force for agricultural producers. Unless the current preference
system were radically changed, the limitation on visa numbers by country and
the sharing of visas with other preferences would most likely not allow for the
timely admission of an adequate number of agricultural workers. There is
currently a delay of almost two years in the admission of sixth preference
immigrants because available visas are oversubscribed. An influx of agri-
cultural worker applicants and their families would create larger backlogs and
an even longer waiting period.
16. Once the Administration decides on the specifics of its proposal, will
legislative language -- in the form of a bill or amendment -- be sent over
for introduction?
We have attached to this response provisions of a draft seasonal agricultural
worker program favored by the Administration. Final agreement has not been
reached but we would be pleased to draft this program in the form of an amend-
ment to H.R. 3810 for consideration by the Congress along with the other
proposals being considered.
One factor is paramount. The difficulty of resolving this hard issue on
agricultural workers must not slow down or deter the Judiciary Committee and
full House from making-up an immigration bill which is critical for our
nation. The House should delegate all agricultural program considerations
before it - vote accordingly - pass out a bill - and proceed promptly to
conference with the Senate.
17. Does the Administration prefer S. 1200 to H.R. 3810 with regard to agri-
cultural workers? If so why?
The Administration believes that the "H-2" or "N" provisions of S. 1200 which
are essentially those agreed to in conference last year represent a refinement
of the concepts embodied in H.R. 3810 H-2 provisions. Specifically S. 1200
addresses the need of agricultural producers who may experience unforseen
emergencies as a result of weather conditions or the failure of referred
workers to arrive or perform satisfactorily. Such measures would not be
precluded by regulation under H.R. 3810, but we believe that agricultural
producers whose economic lives are at stake at harvest time should have the
security of these provisions in statute. S. 1200 also provides that members of
an agricultural association may not be penalized unless actual complicity in a
violation is established. By its silence on this issue, H.R. 3810 would allow
continuation of the current policy of holding members of an association
'jointly and severally liable' for violations in which they may have had no
part.
Although we support the version of the H-2 program in S. 1200 we would as
announced in the attached Administration Statement of Principals delete the
requirement that the Attorney General approve all regulations for this program,
giving the authority for the labor certification provisions to the Secretary of
Labor. We would eliminate the provision which would allow H-2 workers in the
country to seek employment upon termination of their contract. We have no
objection to allowing H-2 workers to remain in the country to accept pre-
arranged employment with another certified employer if there is a brief in-
terval between jobs.
We favor the seasonal worker program attached to this response rather than the
program now contained in S. 1200, and oppose the agricultural labor Transition
Program in that bill.
18. What type of H-2 modifications do you support? Why keep two separate
programs? Why not simply make your program applicable to both perishable
and nonperishable commodities?
The Administration supports the H-2 provisions in S. 1200, with the changes
noted in our response to the previous question. We believe that this program
will eventually provide for the needs of all agricultural producers. We have
been persuaded, however, that many producers of perishable commodities who have
come to depend on undocumented labor may find it difficult, if not impossible
to immediately adjust to he requirements of that program. We therefore, have
proposed the limited Seasonal Worker Program (attached to this response) which
would allow producers of perishable commodities to make the transition to an
H-2 type program.
19. Professors Philip Martin and Mark Miller conducted a study of the Swiss,
French and West German guestworker programs. They concluded:
The fundamental flaw of postwar Western European questworker
policies was the implicit assumption that the economic man
could be divorced from the purposes of public policy from the
social, political, and cultural being. It is true that with-
out the manpower supplied by questworkers programs, labor
shortages would most probably have impeded the postwar economic
growth of Western Europe. The short and middle-term economic
benefits accruing to Europeans, however, were mitigated by
largely unforeseen long-term problems. First, the countries
became dependent upon foreign workers to provide manpower for
key industries. Second, recourse to foreign workers probably
retarded some needed rationalization of industry and re-
structing of the labor force. Third, foreign worker employ-
ment tended to depress wages and to deteriorate working condi-
tions in low-skilled job categories. Fourth, as foreign
workers become long-term residents, they and their dependents
required important social service and governmental infras-
tructure expenditures. Fifth, foreign worker employment in-
volved hidden overhead costs stretching from additional
employer paperwork to the necessity of biligual supervision
and job training. With the recession of the mid-1970's of
course, high unemployment of indigenous workers made quest-
worker programs appear even less like assets to the economy
of Western Europe. To what extent did you evaluate European
programs before deciding that a guestworker program would be
needed here? Do you disagree with the conclusion of Martin
and Miller? If not, what makes you think your program would
not lead to the same problems they describe.
There are important differences between the proposed temporary foreign worker
programs for agriculture and the European guestworker programs. The European
programs studied by Professors Martin and Miller permitted foreign workers to
reside in the receiving countries for several years. The worker could work
year-round in nonfarm jobs. Many of these workers eventually brought their
families or formed families during their stay. We are quite mindful of the
attachments such guestworkers develop to the host country's labor market and
social service costs inherent in such arrangements. We have developed the
basic structure of a seasonal worker program to specifically avoid such pro-
blems. Workers will be admitted only for seasonal farmwork. They would not
be allowed to bring dependents and would be required to return home for a
specified period each year, and would not be eligible to participate after a
certain number of years.
20. In light of the extremely controversial and divisive nature of the foreign
agricultural worker issue, would it not be in the best interests of
passing immigration reform legislation to exempt growers from employer
sanctions?
As a matter of fairness and consistency employer sanctions should apply to all
segments of the economy. The Administration supports the policy embodied in
the current law that when U.S. employers are unable to find needed workers in
this country, aliens may be admitted for such work provided that wages and
working conditions of similarly employed domestic workers are not adversely
affected. We have developed our proposal for a limited seasonal agricultural
worker program in accordance with this policy to meet the particular needs of
producers of perishable commodities at this time. Our proposal allows time for
this important industry to make the necessary adjustments which will be re-
quired by passage of employer sanctions covering all employers while affording
strong protections to domestic workers.
However, as noted in our response to Question 16, passage of a reform bill must
again be slowed by debate over the agricultural worker issue. If a compromise
temporary agricultural worker program cannot be agreed to and passage of a bill
is endangered, this option of exemption only growers of perishable commodities
from employer sanctions may be a viable alternative. It is absolutely
essential, in any event, that the open field search warrant provisions be
dropped from the bill.
21. Growers representatives have urged us to incorporate into H.R. 3810 the
language of S. 1200 regarding liability to agricultural associations and
members of such associations. How, specifically, does that language in S.
1200 alter the prevailing rules regarding master-servant relationships and
accountability? Absent such language, what would the Government have to
prove to impute the liability of a member to the association and vice-
versa? Does the language shift any burdens of proof or of production of
evidence from the defendant to the Government?
If an association is a joint employer with its employer members the current
rule requires that the association and its members agree to be "jointly and
severally" liable for compliance with the H-2 labor certification. We under-
stand that this rule frustrates the participation of associations as joint
employers in the H-2 program because of concern by growers that they may be
held liable for violation's of which they are innocent. The participation of
associations as joint employers provides for more rational use of H-2 labor by
allowing the transfer of workers among members as the need arises.
The provisions of S. 1200 are intended to insure that liability may only be
imputed to parties when they participated in or had knowledge of and derived
benefit from the violation. They do not alter the master-servant relationship
between employer and employee. Neither are the burden of proof or production
of evidence shifted. Under S. 1200 the government would, however, have to
establish additional elements of a violation ie. The participation or know-
ledge of and benefit from a violation before liability could be imputed.
22. Should the so-called "50 percent rule" be retained? Why or why not?
We believe that the "50 percent rule" should not be retained in the H-2A
program, because its application could put an employer in a position of having
to choose between violating the terms of certification or terminating a foreign
worker in violation of the employment contact. Termination of the H-2 worker
while not required by the rule becomes necessary as a practical matter if there
is not sufficient housing for the H-2 workers on board and the U.S. worker
applicants. The H-2 worker must then of course be repatriated since his
admission was contingent on the specific certified employment.
23. Do you believe it would be wise to loosen the continuous residency re-
quirements for agricultural workers so that more would be able to
legalize, thereby decreasing grower pressures for the adoption of new,
foreign worker programs?
No. some agricultural workers, of course, will legalize under other provisions
of the legislation we believe that many of the undocumented workers in agri-
culture are true migrants who desire to live in their countries and work
periodically or seasonally in the U.S. Such aliens may not desire permanent
resident status. Also as indicated in our response to question 15, as permanent
residents, aliens would be free to seek work in other sectors with potential
adverse affects on those labor markets, and they might abandon agricultural
employment altogether.
This runs contrary to the purpose of immigration control is S.1200 and H.R.
3810. It would create a magnet to draw additional illegals to this country.
For these reason we feel it is in advisable.
24. From both administrative and substantive standpoints, should the
Department of Justice be given authority to reject Department of Labor
regulations?
It is sound administrative policy for regulatory authority to reside with the
agency responsible for the administration of a program. Consultation with the
Departments of Agriculture and Justice by the Labor Department prior to the
issuance of regulations will, we believe, be sufficient for the inclusion of
the substantive views of those agencies with respect to the labor certification
process.
25. Would you urge the House, in considering H.R. 3810, to support the
Wilson amendment to S. 1200 if the alternative would be the adoption
of no perishable crop program at all?
We urge the House to incorporate the provisions of the Administration's pro-
posed seasonal agricultural worker program into H.R. 3810 as a reasonable
compramise and a workable program. As noted above there is a pressing need for
immigration reform which controls illegal entry.
It is essential that the differences on agricultural worker issues not again
stop progress on immigration reform. If a compromise along the lines of the
Administration proposal cannot be realized let the House vote its will on all
proposals, including the Wilson Amendment, the Schumer Compromise, the various
H-2 approaches and the exemption on a temporary or permanent basis of perish-
able growers from employer sanctions.
26. Should H-2 users be required to provide housing?
We believe that H-2 and temporary Agricultural workers who work beyond a
reasonable community distance from their residence should be provided safe and
healthy housing. Because many growers do not now have such housing we believe
that an allowance to the worker to cover the cost of housing known to exist in
the proximate area, or paid directly to the housing provider would be appro-
priate. Controls and monitoring should be applied to assure that decent
housing is utilized by these agricultural workers if not directly provided by
the growers
27. The Subcommittee recently deleted the transition worker program from
the bill. Do you believe that was wise?
Yes, the Agricultural Labor Transition Program as introduced in H.R. 3080
contained two very serious flaws. (1) By making eligible any alien who has
worked illegally in U.S. agriculture for 90 days since January 1, 1980, a
number of aliens far in excess of the job opportunities available would be
eligible to register. Additionally, since it would be very difficult to detect
fraudulent documents, even more aliens than are eligible could be registered.
(2) By providing for registration of undocumented workers in the U.S.
the bill would induce illegal entry for the purpose of registration.
Trust fund for program administration
- Employer contributes equivalent of FICA/FUTA Tax (about 11% of alien
worker wages)
- Government provides return transportation for aliens from this fund
Trust fund to encourage repatriation
- 20% of wages withheld from aliens
- payable at U.S. consulate in home country
Secretary of State negotiates agreements with participating countries
- allocates visas among participating countries
AG will determine effective date between 12-18 months from enactment to
avoid disruption of the harvest.
- qualified employers will be exempt from employer sanctions prior to
effective date.
DRAFT
17 JAN 1986
ADMINISTRATION PROPOSAL
(a) ESTABLISHMENT- OF SEASONAL AGRICULTURAL WORKER PROGRAM.
The Attorney General, in consultation with the Secretary of Agriculture and
the Secretary of Labor, shall by regulation establish a program (hereafter in
this section referred to as "the program") for the admission into the United
States of seasonal agricultural workers to perform field labor harvesting
perishable commodities as defined by the Secretary of Agriculture consistent
with the definition in the Perishable Agriculture Commodities Act.
(b) AUTHORIZATION OF EMPLOYERS.
(1) NATURE OF EMPLOYER.
A request for authorization to employ seasonal agricultural workers
under this program may be approved if the request is made by an agri-
cultural producer of perishable commodities or an association of such
producers, provided that the requirements of subsection (b) (2) are met
and approval is not precluded by the provisions of subsection (c).
(A) The employer may be represented by an agent but must accept
responsibility for the certifications required in subsection
(b) (2).
(B) An employer with a need for workers at separate, distant loca-
tions (as defined by the Attorney General in regulation) shall
submit a request for each location.
(2) REQUIREMENTS FOR APPROVAL.
The requesting employer must certify to the Attorney General the
following:
(A) NEED FOR WORKERS.
The total number of seasonal agricultural workers under this
program required for the harvest of perishable commodities in
each month and the perishable commodities to be harvested, and
that
(B) EMPLOYMENT OF DOMESTIC WORKERS.
(i) The employer will make a good faith effort to recruit
domestic workers (as required by the Attorney General in
regulations) in the area of intended employment, including
the placing of job orders with the State employment service,
and will accept for employment able, willing and qualified
workers referred by the employment service for the harvest-
ing of perishable commodities as long as seasonal agricul-
tural workers under this program are employed in the
harvest, and
1
DRAFT
(ii) In the case of a request for authorization by an employer
who has employed seasonal agricultural workers under this
program in the previous 12 months, the employer will report
on the results of efforts to employ domestic field harvest
workers, and
(C) WAGES AND WORKING CONDITIONS.
The employer will provide to nonimmigrant and domestic field
harvest workers such wages and working conditions (required by
the Attorney General in regulation) as will not adversely affect
the wages and working conditions of similarly employed domestic
workers, including:
(i) HOUSING.
The provision of housing or payment of rent for housing for
workers who reside beyond a reasonable commuting distance,
and
(ii) WORKERS COMPENSATION.
If this employment is not covered by State worker's compen-
sation law, the employer will provide insurance at no cost
to the worker covering injury and disease arising out of, or
in the course of the worker's employment, which will provide
benefits at least equal to those provided under the State
worker's compensation law for comparable employment, and
(D) JOB INFORMATION DISCLOSURE.
The employer will, upon request, disclose in writing to non-
immigrant and domestic field harvest workers, when an offer of
employment is made, the place of employment, the wage rates, the
employee benefits to be provided, and any costs to be charged for
each of them, the crops to be harvested and the anticipated
period of employment, and
(E) NOTICE TO ATTORNEY GENERAL OF EMPLOYMENT.
The employer will notify the Attorney General of the entering
into and termination of an employment relationship with a non-
immigrant seasonal agricultural worker under this program not
later than 72 hours from the time the relationship is both
entered into and terminated, and
(F) COMPLIANCE WITH RULES.
The employer will comply with the rules established by the
Attorney General in regulation governing authorization to employ
seasonal agricultural workers under this program, and not with-
standing any other provision of law, will allow the Attorney
General access to fields and records for the purpose of verifying
such compliance.
2
DRAFT
(3) EXEMPTION FROM SANCTIONS.
Prior to the effective date of this section, a requesting employer who
meets the requirements of this subsection, shall be exempt from penal-
ties inposed under Section 274A with respect to job opportunities
identified in clause (2) (A).
(c) SUSPENSION OF AUTHORIZATION.
The Attorney General shall not approve a request for authorization or
shall suspend authorization to employ seasonal agricultural workers under
this program if any of the following conditions exist:
(1) LABOR DISPUTE.
There is a strike or lockout in the course of a labor dispute which,
under the regulations, precludes such authorization, or
(2) VIOLATION OF TERM OF PREVIOUS AUTHORIZATION.
(A) IN GENERAL.
If the Attorney General has determined, after notice and oppor-
tunity for a hearing, that the employer at any time has:
(i) substantially violated an essential term or condition of
subsection (b) with respect to the employment of domestic or
nonimmigrant workers, or
(ii) has not paid any penalty for such violation which has been
assessed by the Attorney General.
(B) SUSPENSION LIMITED TO ONE YEAR.
No employer may have its authorization denied or suspended under
clause (A) for more than one year for any violation described in
that clause.
(C) EXPEDITED PROCEDURES.
The Attorney General shall provide for an expedited procedure for
the review of a suspension of authorization under subsection
(c) (2) not later than 72 hours after the time the request for
review is received.
(d) ROLES OF AGRICULTURAL ASSOCIATIONS.
(1) FILING BY AGRICULTURAL ASSOCIATIONS.
A request for authorization to employ seasonal agricultural workers
under this program may be filed by an association as an agent for its
member producers of perishable commodities.
3
DRAFT
(2) ASSOCIATIONS ACTING AS EMPLOYERS.
If such as association is a joint or sole employer of seasonal agri-
cultural workers under this program, the authorization obtained under
this section by the association may be used for job opportunities of
any of its members requiring such workers to perform field harvest
labor.
(3) MEMBER'S VIOLATION DOES NOT NECESSARILY DISQUALIFY ASSOCIATION OR
OTHER MEMBERS.
If an individual member of such an association is determined to have
committed an act that under subsection (c) (2) results in the suspen-
sion of authorization with respect to the member, the suspension shall
not apply to the association or other member unless the Attorney
General determines that the association or other member participated
in, or had knowledge of and derived benefit from the violation.
(4) ASSOCIATION'S VIOLATION DOES NOT NECESSARILY DISQUALIFY MEMBERS.
If an association as a joint employer, or sole employer is determined
to have committed an act that under subsection (c) (2) results in the
suspension of authorization with respect to the association, the
suspension shall apply only to the association and not to any indi-
vidual member of the association unless the Attorney General deter-
mines that the member participated in, or had knowledge of and derived
benefit from, the violation.
(e) MISCELLANEOUS PROVISIONS
(1) AUTHORITY.
The Attorney General is authorized to take such actions, including
imposing appropriate penalties and seeking appropriate injunctive
relief and specific performance of contractual obligations, as may be
necessary to assure employer compliance with the terms and conditions
of authorization under subsection (b).
(2) APPROPRIATE DOCUMENTATION.
The Attorney General and the Secretary of State shall provide for visas
and such other secure documents as may be necessary to carry out this
section and to verify authorization to be legally employed in the
United States.
(3) COVERAGE UNDER OTHER EMPLOYMENT LAWS.
Seasonal agricultural workers under this program shall be fully pro-
tected by all Federal and State laws and regulations governing the
employment of domestic migrant and seasonal agricultural workers and
other nonimmigrant agricultural workers, except where such provisions
of law or regulation are inconsistent with the provisions of this
section.
4
DRAFT
(4) UNION MEMBERSHIP.
A nonimmigrant worker admitted under this section may join a union and
fully participate in union activities so long as such activities are
not inconsistent with provisions of the Immigration and Nationality
Act.
(f) NUMERICAL LIMITATIONS.
The Commission on Temporary Agricultural Worker Programs shall determine
the number of workers to be admitted under this section for the duration of
the program.
(1) DETERMINATION FACTORS.
The Commission shall determine the number of workers to be admitted
based on data provided by employers requesting authorization to employ
seasonal agricultural workers under this program, the results of
recruitment efforts by such employers, information on historic labor
needs, the abundance and marketability of crops and other factors as
the commission may determine necessary.
(2) ANNUAL REDUCTION OF NUMERICAL LIMITATIONS.
The total number of workers determined by the Commission to be admitted
in the calendar year beginning after the first twelve months from the
effective date of the program shall be the base number for the purpose
of determining the maximum number of workers to be admitted in future
years. The Commission shall determine the maximum number of workers to
be admitted in succeeding calendar years by reducing the base number
from 5 to 20 percent each year.
(g) ENTRY OF SEASONAL AGRICULTURAL WORKERS.
(1) LENGTH OF STAY.
A foreign worker may not be admitted to the United States as a seasonal
agricultural worker under this program for a period of more than 9
consecutive months. An admission period shall be deemed completed upon
expiration of the visa, or on the date the worker applies for payment
of withheld wages under Subsection (i) (3) (B), if that date is earlier
than the visa expiration date.
(2) LENGTH OF ABSENCE.
A foreign worker may not be readmitted to the United States as a
seasonal agricultural worker under this program for at least 6 months
from the completion date of the previous admission period under clause
(1).
5
DRAFT
(3) MAINTENANCE OF STATUS.
TO maintain status as a seasonal agricultural worker under this
program, the worker must be seeking work with, or working for an
employer-authorized by the Attorney General under subsection (b) and
may not go without such employment for longer than 15 days. The
expiration date of the visa notwithstanding, a worker who has been
unable to find authorized employment for 15 days must depart the United
States.
(4) LIMIT OF ELIGIBILITY.
A foreign worker will not be eligible to participate in this program
when the aggregate of the workers previous admission periods total
forty five months.
(h) PENALTIES FOR NON-COMPLIANCE BY WORKER.
A seasonal agricultural worker under this program who fails to maintain
status is subject to the following penalties as determined by the Attorney
General:
(1) Deportation from the United States as provided for in the Immigration
and Nationality Act,
(2) The cost of deportation under clause (1) shall be deducted from the
wages withheld under subsection (j) (2) (B).
(3) Ineligible for admission as a seasonal agricultural worker under this
program for 5 years.
(i) ALLOCATION AND USE OF VISAS.
(1) WORKERS IDENTIFIED BY EMPLOYERS.
In the first year following enactment of this section employers may, in
accordance with procedures established by the Attorney General,
identify foreign workers whom they have employed in the past and whom
they wish to be considered for admission as seasonal agricultural
workers under this program. In the second year following enactment,
such identified workers who are otherwise eligible for admission,
shall receive preference in the allocation of visas up to the limit of
visas allotted by the Secretary of State under subsection (k) (2) to
their country of origin.
(2) WORKERS REFERRED BY FOREIGN GOVERNMENTS.
(A) If, after visas have been issued to eligible workers who have been
identified by employers under subsection (i) (1), there are addi-
tional unused visas allotted to a country, workers referred by
that country's government who are otherwise eligible for admis-
sion may be issued the remaining visas.
6
DRAFT
(B) In the calendar year beginning after the first 12 months from the
effective date, and for the duration of the program, visas shall
be made available to workers referred by participating foreign
governments in accordance with agreements approved by the
Secretary of State under subsection (k).
(3) SPOUSES AND CHILDREN.
A spouse or child of a seasonal agricultural worker under this program
is not entitled to a nonimmigrant visa by virtue of such relationship,
but may qualify independently as a seasonal agricultural worker.
(4) MAY NOT ADJUST STATUS.
A seasonal agricultural worker under this program may not adjust or
change status under section 245 or section 248.
(5) NOT ELIGIBLE FOR FEDERAL ASSISTANCE.
A seasonal agricultural worker under this program is not eligible for
any program of financial assistance under federal law.
(j) TRUST FUND.
(1) ESTABLISHMENT.
The Attorney General shall establish by regulation a trust fund to
provide funds for the administration of the program and to provide a
monetary incentive for seasonal agricultural workers in the program to
return to their country of origin. The Attorney General shall promul-
gate regulations as necessary to carry out this subsection, including
the delegation of collection and disbursement authority to other
appropriate agencies of the Federal Government.
(2) PAYMENTS INTO TRUST FUND.
In the case of employment of a seasonal agricultural worker under the
program:
(A) EMPLOYER PAYMENT.
The employer shall pay into the trust fund estblished under this
subsection an amount equivalent to the employer's cost under the
Federal Insurance Contributions Act (FICA) and the Federal Unem-
ployment Tax Act (FUTA) for similarly employed domestic workers,
but not less than 11 percent of the wages of the worker.
(B). WORKER PAYMENT.
There shall be deducted from the wages of the worker and paid into
such trust fund an amount equivalent to 20 percent of the wages of
the worker.
7
DRAFT
(3) USE OF AMOUNTS IN TRUST FUNDS.
(A) EMPLOYER PAYMENTS AND INTEREST.
Funds provided under paragraph (2) (A) and interest thereon, shall
be used for the purpose of administering the program, including:
(i) TRANSPORTATION.
Funds under paragraph (2) (A) may be used to provide or pay for
the cost of transportation to return seasonal agricultural
workers under this program to their country of origin. Such
cost may only be incurred for a worker once during a period of
admission.
(ii) ATTORNEY GENERAL MAY INCREASE PAYMENT.
If the funds provided under paragraph (2) (A) will not be
sufficient to cover the cost of administering this program
including the cost of transportation for workers, the Attorney
General may by regulation, increase the employer payment.
(B) WORKER PAYMENTS.
Amounts described in paragraph (2) (B) paid into the trust fund with
respect to a worker and interest thereon shall be paid to the
worker if:
(i) the worker applies for payment within 30 days of the last day
of employment in an admission period at a United States
consulate in the country of origin, and
(ii) the worker has complied with the terms and conditions of the
program, including the obligation to be continuously employed
(or actively seeking employment) in the harvest of perish-
able commodities.
(k) AGREEMENTS WITH FOREIGN GOVERNMENTS.
(1) Within one year of enactment of this section the Secretary of State
shall negotiate and conclude agreements with foreign governments for
participation in this program. The negotiations shall include
consideration of:
(A) The role of foreign governments and others in referring workers for
admission under this program,
(B) Recruitment of foreign workers within their country of origin by
U.S. employers. The Secretary of State shall not agree to the
establishment of recruitment or worker screening locations in the
proximate area of the border without prior concurrence of the
Attorney General,
8
DRAFT
(C) The need for a contract or treaty between governments concerning
the implementation and operation of this program,
(D) The number or proportion of available visas to be allocated for
nationals of participating countries,
(E) The terms and conditions of employment of seasonal agricultural
workers under this program, and
(F) Procedures for handling payments of withheld wages to returning
workers within their home countries.
(2) COUNTRY ALLOCATIONS.
After each determination of the total number of workers to be, admitted
by the Commission on Temporary Agricultural Worker Programs under sub-
section (f), the Secretary of State shall determine the number of visas
within the total number to be made available to nationals of each
participating country.
(3) EXPANSION OF CONSULTATES.
The Secretary of State is authorized to take such steps as may be
necessary in order to expand and establish consultates in foreign
countries participating in this program.
(1) EFFECTIVE DATE.
The provisions of this section shall be effective and implemented by
regulation between twelve and eighteen months from enactment on a date
determined by the Attorney General to have minimal impact on harvest
activities. The Attorney General shall, before the effective date,
provide by regulation for employers to identify workers as provided in
subsection (i) (1) and request authorization to employ seasonal
agricultural workers under this program as provided in subsection
(b).
9
DRAFT
ADMINISTRATION PROPOSAL
S1200 (as passed)
DISCUSSION
(a) ESTABLISHMENT OF SEA-
Similar, but permiss-
The statement of principles specifies field
SONAL AGRICULTURAL WORKER
able work includes
harvest work only. USDA and DOL have agreed
PROGRAM. - The Attorney
planting, cultural
that the definition of perishable commodities
General, in consultation
practices, production,
should be consistent with the PACA definition.
with the Secretary of
cultivation, growing
Agriculture and the
and harvesting. There
Secretary of Labor,
is no reference to
shall by regulation
PACA.
establish|a proram
(hereafter in this
section referred to as
"the program") for the
admission into the
United States of seasonal
agricultural workers to
perform field labor
harvesting perishable
commodities as defined
by the Secretary of
Agriculture consistent
with the definition in
the Perishable Agriculture
Commodities Act.
- I
DRAFT
ADMINISTRATION PROPOSAL
S1200
DISCUSSION
(b) AUTHORIZATION OF
EMPLOYERS.
(1) NATURE OF EMPLOYER. -
S.1200 is unclear on this
The Administration proposal makes clear that
A request for authoriza-
issue. It says an alien
only producers (growers) may be authorized to
tion to employ seasonal
may be imported by a peti-
employ aliens. Farm labor contractors should
agricultural workers
tioner which employes or
not be authorized because this program is de-
under this program may
contracts for the employ-
signed for growers who have been dependent
be approved if the
ment of individuals. Sub-
on illegal labor. Contractors have been required
request is made by an
sequent provisions equate
to register under MSPA which outlaws employment
agricultural producer
petitioner with employer,
of illegals. A grower could use a contractor
of perishable commodities
and specify that an employer
as an agent but must be responsible as the
or an association of
petition is not required
employer.
such producers, provided
for a visa.
that the requirements of
subsection (b) (2) are met.
and approval is not pre-
cluded by the provisions
of subsection (c).
(A) The employer may be
No provision.
represented by an agent
but must accept responsi-
bility for the certifica-
tions required in subsec-
tion (b) (2).
(B) An employer with a
No provision.
Separate request from multi-farm businesses
need for workers at
would facilitate administration and control.
separate, distant loca-
tions (as defined by the
Attorney General in reg-
ulation) shall submit a
request for each location.
DRAFT
ADMINISTRATION PROPOSAL
S1200
DISCUSSION
(2) REQUIREMENTS FOR
Similar
APPROVAL. - The requesting
employer must certify to
the Attorney General the
following:
(A) NEED FOR WORKERS. -
Similar
These data are needed by the Commission for
The total number of seasonal
initial determination of numbers to be
agricultural workers under
admitted. They would also be useful for
this program required for
monitoring although it is not recommended
the harvest of perishable
that employer authorizations be limited by
commodities in each month
numbers, months, or crops.
and the perishable commodi-
ties to be harvested, and
that
(B) EMPLOYMENT OF DOMESTIC
WORKERS.
(i) The employer will make
Similar, but requires
Employment preference for U.S. workers throughout
a good faith effort to re-
employment of U.S.
the harvest will be controversial. Arguments in
cruit domestic workers (as
workers only until
favor:
required by the Attorney
work activity commences.
- U.S. migrants under H-2 and by custom are
General in regulations) in
recruited well in advance of need in their home
the area of intended em-
bases. The may be overlooked by employers and
ployment, including
displced by aliens if required recruitment is
the placing of job orders
local and short-term. The problem increases
with the State employment
with distance from Florida and Texas.
service, and will accept
- H-2 type recruitment is not acceptable to
for employment able, willing
perishable growers to say they cannot predict
and qualified workers
needs in advance.
referred by the employment
- As a practical matter, employers will usually
service for the harvesting
hire all the workers they can get at the peak of
of perishable commodities
the harvest (subject to available housing).
as long as seasonal
- Quarantees that available U.S. workers would not
agricultural workers under
be displaced by aliens.
this program are employed
Arguments against:
in the harvest, and
- May require inordinate turnover of labor.
- Unfair to foreign workers who may be displaced.
- :tay be unacceptable to foreign cover ment.
DRAFT
ADMINISTRATION PROPOSAL
S1200
DISCUSSION
(ii) In the case of a
Similar
request for authorization
by an employer who has
employed seasonal agricul-
tural worker under this
program in the previous
12 months. The employer
will report on the results
of efforts to employ
domestic field harvest
workers, and
(C) WAGES AND WORKING
Similar.
CONDITIONS. - The em-
ployer will provide to
foreign and domestic
field harvest workers
such wages and working
conditions (required
by the Attorney General
in regulations) as will
not adversely affect
the wages and working
conditions of similarly
employed domestic
workers, including:
(i) HOUSING. - The
Similar.
Alternatives to employer paying directly to housing
provision of housing
provider are: employers pay, allowance to the
or payment of rent for
worker, or employer pays allowance to the worker
housing for workers
only if suitable housing is available in the
who reside beyond a
proximate area. The Administration proposal
reasonable commuting
provides the greatest assurance that workers will
distance, and
be adequately housed.
DRAFT
ADMINISTRATION PROPOSAL
S1200
DISCUSSION
(ii) WORKERS COMPEN-
Similar.
SATION. - If this
employment is not
covered by State
worker's compensation
law, the employer
will provide insurance
at no cost to the
worker covering injury
and disease arising
out of, or in the
course of the worker's
employment, which will
provide benefits at
least equal to those
provided under the
State worker's
compensation law for
comparable employment,
and
(D) JOB INFORMATION
Similar.
DISCLOSURE. The em-
ployer will, upon
request, disclose in
writing to nonimmigrant
and domestic field
harvest workers,
when an offer of
employment is made,
DRAFT
ADMINISTRATION PROPOSAL
S1200
DISCUSSION
the place of employment,
the wage rates, the
employee benefits to
be provided, and any
costs to be charged
for each of them, the
crops to be harvested
and the anticipated
period of employment,
and
(E) NOTICE TO ATTORNEY
Similar.
GENERAL OF EMPLOYMENT.
The employer will
notify the Attorney
General of the entering
into and termination of
an employment relation-
ship with a nonimmigrant
seasonal agricultural
worker under this program
not later than 72 hours
from the time the relation-
ship is both entered into
and terminated, and
- 6 -
ADMINISTRATION PROPOSAL
S1200
DISCUSSION
(F) COMPLIANCE WITH RULES.
The employer will comply
with the rules established
by the Attorney General
in regulations governing
authorization to employ
seasonal agricultural
workers under this program,
and not withstanding any
other provision of law,
will allow the Attorney
General access to fields
and records for the
purpose of verifying
such compliance.
(c) SUSPENSION OF
Similar, but only
AUTHORIZATION. - The
provides for sus-
Attorney General shall
pension of authoriza-
not approve a request
tion.
for authorization or
shall suspend
authorization to
employ seasonal
agricultural workers
under this program
if any of the following
conditions exist:
(1) LABOR DISPUTE.
Similar.
Definition of labor dispute for this
There is a strike
purpose will be controversal. Should
or lockout in the
be consistent with definition in II-2
course of a labor
successor program.
dispute which, under
the regulations,
precludes such
authorization, or
DRAFT
ADMINISTRATION PROPOSAL
S1200
DISCUSSION
(2) VIOLATION OF
TERM OF PREVIOUS
AUTHORIZATION.
(A) IN GENERAL. -
Similar, but limits
Liability for previous violation should
If the Attorney
liability to violation
not be limited. Appeals process could
General has deter-
within previous 2 years.
take longer than 2 years.
mined, after notice
and opportunity
for a hearing, that
the employer at any
time has:
(i) substantially
violated an essential
term or condition of
subsection (b) with
respect to the
employment of domestic
or nonimmigrant
workers, or
(ii) has not paid
any penalty for
such violations
which has been
assessed by the
Attorney General.
DRAFT
ADMINISTRATION PROPOSAL
S1200
DISCUSSION
(B) SUSPENSION -
LIMITED TO ONE YEAR. -
Similar.
No employer may
have its authorization
denied or suspended
under clause (A) for
more than one year
for any violation
described in that
clause.
(C) EXPEDITED PRO-
Similar, but provides
CEDURES. The
for de novo admini-
Attorney General
strative hearing, pre-
shall provide for
cedence on district
an expedited pro-
court docket for de novo
cedure for the
determination with
review of a sus-
burden on the AG to
pension of authori-
sustain the suspension.
zation under sub-
section (c) (2) not
later than 72 hours
after the time the
request for review
is received.
DRAFT
ADMINISTRATION PROPOSAL
S1200
DISCUSSION
(d) ROLES OF
Similar.
Provision in subsection (d) are similar
AGRICULTURAL
to provisions in the S.1200 N visa (H-2)
ASSOCIATIONS.-
program. Current H-2 provision makes
(1) FILING BY
all members of an association jointly
AGRICULTURAL
and severally liable for violations
ASSOCIATIONS.-
thus discouraging the formation of associa-
A request for
tions and the participation of associations
authorization to
employers.
employ seasonal
agricultural
workers under this
program may be filed
by an association
as an agent for
its member procedures
of perishable commod-
ities.
(2) ASSOCIATIONS
ACTING AS EMPLOYERS.-
Similar.
If such as associa-
tion is a joint or
sole employer of
seasonal agricultural
workers under this
program, I the authoriza-
tion obtained under
this section by the
association may be
used for job opportuni-
ties of any of its
members requiring
such workers to per-
form field harvest
labor.
DRAFT
ADMINISTRATION PROPOSAL
S1200
DISCUSSION
(3) MEMBER'S VIO-
Similar.
LATION DOES NOT
NECESSARILY DISQUALIFY
ASSOCIATION OR OTHER
MEMBERS. - If an
individual member of
such an association
is determined to have
committed an act that
under subsection (c) (2)
results in the suspension
of authorization with
respect to the member,
the suspension shall
not apply to the associa-
tion or other member un-
less the Attorney General
determines that the
association or other
member participated
in, or had knowledge
of and derived benefit
from the violation.
- 11 -
DRAFT
(4) ASSOCIATION'S
Similar.
VIOLATION DOES NOT
NECESSARILY DISQUALIFY
MEMBERS. - If an
association as a joint
employer, or sole
employer is determined
to have committed an
act that under sub-
section (c) (2) results
in the suspension
of authorization
with respect to
the association,
the suspension shall
apply only to the
association and not
to any individual
member of the
association unless
the Attorney General
determines that the
member participated
in, or had knowledge
of and derived benefit
from, the violation.
- 12 -
DRAFT
ADMINISTRATION PROPOSAL
S1200
DISCUSSION
(e) MISCELLANEOUS
PROVISIONS -
(1) AUTHORITY.
Similar.
The Attorney
General is authorized
to take such actions,
including imposing
appropriate penalties
and seeking appro-
priate injunctive
relief and specific
performance of con-
tractual obligations,
as may be necessary
to assure employer
compliance with
the terms and
conditions of
authorization
under subsection
(b).
(2) APPROPRIATE
DOCUMENTATION. - The
Similar, but no
Attorney General and
reference to Secretary
the Secretary of State
of State.
shall provide for visas
and such other secure
documents as may be
necessary to carry out
this section and to
verify authorization
to be legally employed
in the United States.
DRAFT
ADMINISTRATION PROPOSAL
S1200
DISCUSSION
(3) COVERAGE UNDER
No provision.
It should be established for the record (in
OTHER EMPLOYMENT LAWS.-
response to a question from the House sub-
Seasonal agricultural
committee) that the AG would find the
workers under this
following provisions of the current H-2
program shall be fully
program inconsistent with the provisions
protected by all
of this program:
Federal and State
- written contract
laws and regulations
- 3/4 guarantee
governing the employ-
- transportation
ment of domestic
migrant and seasonal
agricultural workers
and other nonimmigrant
agricultural workers,
except where such
provisions of law or
regulation are in-
consistent with the
provisions of this
section.
(4) UNION MEMBERSHIP.-
No provision.
A nonimmigrant worker
admitted under this
section may join a
union and fully
participate in union
activities SO long as
such activities are
not inconsistent
with provisions of
the Immigration and
Nationality Act.
DRAFT
ADMINISTRATION PROPOSAL
S1200
DISCUSSION
(f) NUMERICAL
LIMITATIONS.-
- Numerical limitations
The Commission established by S.1200 would
The Commission
are determined by the AG
need to be extended for the life of this
on Temporary
after consultation with
program and introduced into HR 3180.
Agricultural
USDA and DOL.
Worker Programs
- 350,000 cap
The establishment of numerical limitations by
shall determine
- Program sunsets in 3 years
region and month would require the Government
the number of
- AG establishes agricultural
to manage the supply of labor with precision (and
workers to be
employment regions and
be responsible for local inbalances). Such
admitted under
numerical limitations by
attempts might interfere with, rather than
this section for
region, by month. AG may
facilitate the working of a relatively free
the duration of
adjust regional limit upwards
agricultural labor market. It seems more likely
the program.
on petition by employer. Must
that workers will arrive when and where they are
decide on petition within 72
needed, if employers, associations or their
(1) DETERMINATION
hours.
agents undertake to recruit them.
FACTORS. - The
Commission shall
determine the
number of workers
to be admitted
based on data
provided by
employers
requesting
authorization
to employ sea-
sonal agricultural
workers under
this program, the
results of re-
cruitment efforts
by such employers,
information on
historic labor
needs, the abun-
dance and market-
ability of crops
and other factors
as the commission
may determine
- 15 -
DRAFT
ADMINISTRATION PROPOSAL
S1200
DISCUSSION
(2) ANNUAL REDUCTION
OF NUMERICAL LIMITA-
TIONS. - The total
number of workers
determined by the
Commission to be ad-
mitted in the calendar
year beginning after
the first twelve months
from the effective date
of the program shall be
the base number for the
purpose of determining
the maximum number of
workers to be admitted
in future years. The
Commission shall deter-
mine the maximum number
of workers to be ad-
mitted in succeeding
calendar years by
reducing the base
number from 5 to 20
percent each year.
DRAFT
ADMINISTRATION PROPOSAL
S1200
DISCUSSION
(g) ENTRY OF SEASONAL
Similar, but period of reference
Administration proposal provides for multiple
AGRICULTURAL WORKERS. -
is calendar year.
entry during an "admission period", allowing
(1) LENGTH OF STAY. -
aliens to return home for brief periods, with-
A foreign worker may not
out requiring a new visa for readmission.
be admitted to the United
States as a seasonal
agricultural worker
under this program
for a period of more than
9 consecutive months. An
admission period shall be
deemed completed upon ex-
piration of the visa, or on
the date the worker applies
for payment of withheld
wages under Subsection (i)
(3) (B), if that date is
earlier than the visa ex-
piration date.
(2) LENGTH OF ABSENCE. -
Requires absence of 3 months
A foreign worker may not
between admissions.
be readmitted to the
United States as a
seasonal agricultural
worker under this
program for at least 6
months from the com-
pletion date of the
previous admission
period under clause (1).
- 17 -
DRAFT
ADMINISTRATION PROPOSAL
S1200
DISCUSSION
(3) MAINTENANCE OF
No provision.
STATUS. - To maintain
status as a seasonal
agricultural worker
under this program, the
worker must be seeking
work with, or working
for an employer autho-
rized by the Attorney
General under sub-
section (b) and may not
go without such employ-
ment for longer than
15 days. The expira-
tion date of the visa
notwithstanding, a
worker who has been un-
able to find authorized
employment for 15 days
must depart the United
States.
(4) LIMIT OF
No provision.
The forty five month limitation equals five
ELIGIBILITY. - A
maximum admission periods of 9 months each.
foreign worker will not
be eligible to parti-
cipate in this program
when the aggregate of
the workers previous ad-
mission periods total
forty five months.
DRAFT
ADMINISTRATION PROPOSAL
S1200
DISCUSSION
(h) PENALTIES FOR NON-
Similar, but no provision for
COMPLIANCE BY WORKER. -
recovering cost of deportation.
A seasonal agricultural
worker under this pro-
gram who fails to main-
tain status is subject
to the following penal-
ties as determined by
the Attorney General:
(1) Deportation from the
United States as pro-
vided for in the Immi-
gration and Nationality
Act,
(2) The cost of deporta-
tion under clause (1)
shall be deducted from
the wages withheld under
subsection (j) (2) (B).
(3) Ineligible for ad-
mission as a seasonal
agricultural worker
under this program for
5 years.
(i) ALLOCATION AND USE
OF VISAS. -
(1) WORKERS IDENTIFIED
Preference given to workers
S1200 encourages attachment to the U.S. labor
BY EMPLOYERS. - In the
previously employed under this
market.
first year following en-
program by total length of
An alternative to legal admission of aliens in
actment of this section
employment.
the first year would be registration of undocu-
employers may, in ac-
mented workesr in the U.S.
cordance with procedures
Arguments in favor:
established by the At-
- Minimum disruption of customary employer
torney General, identify
practices.
- Minimum inconvenience to aliens.
- 19 -
DRAFT
ADMINISTRATION PROPOSAL
S1200
DISCUSSION
foreign workers whom
Arguments against:
they have employed in the
- Would encourage illegal entry
past and whom they wish
- difficult to apply numerical limitation
to be considered for ad-
- logistical problems for secure, hands-on
mission as seasonal agri-
registration
cultural workers under
- problem of apprehended aliens who are not
this program. In the
registered, but may be eligible
second year following en-
- relatively high cost for short term acquisi-
actment, such identified
tion of real property, mobile equipment and
workers who are otherwise
staffing costs.
eligible for admission,
shall receive preference
in the allocation of
visas up to the limit
of visas allotted by
the Secretary of State
under subsection (d) (7)
to their country of
origin.
(2) WORKERS REFERRED BY
FOREIGN GOVERNMENTS. -
(A) If, after visas have
No provision.
beem issued to eligible
workers who have been
identified by employers
under subsection (i) (1),
there are additional un-
used visas allotted to a
country, workers referred
by that country's govern-
ment who are otherwise
eligible for admission
may be issued the remain-
ing visas.
DRAFT
ADMINISTRATION PROPOSAL
S1200
DISCUSSION
(b) In the calendar year
No provision.
beginning after the first
12 months from the ef-
fective date, and for the
duration of the program,
visas shall be made
available to workers re-
ferred by participating
foreign governments in
accordance with agree-
ments approved by the
Secretary of State under
subsection (k).
(3) SPOUSES AND CHILD-
Similar.
REN. - A spouse or
child of a seasonal
agricultural worker
under this program is
not entitled to a non-
immigrant visa by virtue
of such relationship,
but may qualify inde-
pendently as a seasonal
agricultural worker.
(4) MAY NOT ADJUST
Similar, but with exception
STATUS. - A seasonal
for immediate relatives.
agricultural worker
under this program may
not adjust or change
status under section
245 or section 248.
DRAFT
(5) NOT ELIGIBLE FOR
AG must identify programs for
FEDERAL ASSISTANCE. -
which aliens would be ineligible.
A seasonal agricultural
worker under this pro-
gram is not eligible
for any program of
financial assistance
under federal law.
ADMINISTRATION PROPOSAL
S1200
DISCUSSION
(j) TRUST FUND. -
Similar, but without provision
(1) ESTABLISHMENT. -
for delegation.
The Attorney General
shall establish by
regulation a trust
fund to provide
funds for the ad-
ministration of the
program and to pro-
vide a monetary in-
centive for seasonal
agricultural workers
in the program to
return to their
country of origin
upon expiration of
their visas under
the program. The
Attorney General
shall promulgate
regulations as
necessary to carry
- 2
DRAFT
ADMINISTRATION PROPOSAL
S1200
DISCUSSION
out this subsection,
including the dele-
gation of collection
and disbursement
authority to other
appropriate agencies
of the Federal
Government.
(2) PAYMENTS INTO
Similar, but no reference to
TRUST FUND. - In the
FICA/FUTA
case of employment of
a seasonal agricul-
tural worker under
the program:
(A) EMPLOYER PAYMENT. -
The employer shall pay
into the trust fund
estblished under this
subsection an amount
equivalent to the em-
ployer's cost under
the Federal Insurance
Contributions Act (FICA)
and the Federal Unem-
ployment Tax Act (FUTA)
for similarly employed
domestic workers, but not
less than 11 percent of
the wages of the worker.
DRAFT
ADMINISTRATION PROPOSAL
S1200
DISCUSSION
(B) WORKER PAYMENT. -
Similar.
There shall be deducted
from the wages of the
worker and paid into
such trust fund an
amount equivalent to
20 percent of the wages
of the worker.
(3) USE OF AMOUNTS IN
TRUST FUNDS. -
(A) EMPLOYER PAYMENTS
Similar.
AND INTEREST. - Funds
provided under para-
graph (2) (A) and interest
thereon, shall be used
for the purpose of ad-
ministering the program,
including
(i) TRANSPORTATION. -
No provision.
Alternatives include (1) no transportation pro-
Funds under paragraph
vided by the government as in S1200 and (2) Round
(2) (A) may be used to
trip transportation.
provide or pay for the
cost of transportation
(1) A return trip voucher provided by the govern-
to return seasonal
ment would be the most equitable and administra-
agricultural workers
tively feasible way to assure prompt departure of
under this program to
alien.
their country of origin.
- 24 -
DRAFT
ADMINISTRATION PROPOSAL
S1200
DISCUSSION
Such cost may only be
(2) Arguments in favor of government financed
incurred for a worker
round trip:
once during a period of
- Assures arrival of aliens
admission.
- Cost of transportation shared by all employers
through trust fund contributions.
(ii) ATTORNEY GENERAL
Arguments against:
MAY INCREASE PAYMENT. -
- Planning problem for government of where to
If the funds provided
send workers. If burden is on employers to
under paragraph (2) (A)
recruit and pay transportation (through associ-
will not be sufficient
ations/agents) it will assure that aliens
to cover the cost of
arrive at time and place needed.
administering this
- Potential for government financing one way or
program including the
round trip for someone who never works in
cost of transportation
authorized employment.
for workers, the
- H-2 employers must pay round trip for all U.S.
Attorney General may
and foreign workers.
by regulation, increase
the employer payment.
(B) WORKER PAYMENTS. -
Similar.
Amounts described in
paragraph (2) (B) paid
into the trust fund
with respect to a
worker and interest
thereon shall be paid
to the worker if:
(i) the worker applies
for payment within 30
days of the last day
of employment in an ad-
mission period at a
United States consulate
in the country of
origin, and
(ii) the worker has
complied with the terms
and conditions of the
program, including the
- 5
DRAFT
ADMINISTRATION PROPOSAL
S1200
DISCUSSION
obligation to be con-
tinuously employed (or
actively seeking employ-
ment) in the harvest of.
perishable commodities.
(k) AGREEMENTS WITH
Sense of Congress that the
FOREIGN GOVERNMENTS. -
President establish an advisory
(1) Within one year of
commission to consult with
enactment of this section
Mexico and other countries re-
the Secretary of State
garding the operation of the
shall negotiate and con-
program.
clude agreements with
foreign governments for
participation in this
program. The negotia-
tions shall include
consideration of:
(A) The role of foreign
governments and others
in referring workers
for admission under
this program,
- 26 -
DRAFT
(B) Recruitment of
foreign workers with-
in their country of
origin by U.S. em-
ployers. The Secre-
tary of State shall
not agree to the
establishment of
recruitment or
worker screening
locations in the
proximate area of
the border without
prior concurrence
of the Attorney
General,
(C) The need for a
contract or treaty
between governments
concerning the imple-
mentation and opera-
tion of this program,
(C) The number or pro-
portion of available
visas to be allocated
for nationals of par-
ticipating countries,
(E) The terms and con-
ditions of employment of
seasonal agricultural
workers under this pro-
gram, and
- 27 -
DRAFT
ADMINISTRATION PROPOSAL
S1200
DISCUSSION
(F) Procedures for
handling payments of
withheld wages to
returning workers
within their home
countries.
(2) COUNTRY ALLOCATIONS. -
The AG in consultation with the
After each determination
Secretaries of State and Agri-
of the total number of
culture will determine visa al-
workers to be admitted
location among participating
by the Commission on
countries including Caribbean
Temporary Agricultural
Basin countries.
Worker Programs under
subsection (f), the
Secretary of State shall
determine the number of
visas within the total
number to be made
available to nationals
of each participating
country.
(3) EXPANSION OF
Similar.
CONSULTATES. - The
Secretary of State is
authorized to take such
steps as may be neces-
sary in order to ex-
pand and establish
consultates in foreign
countries participating
in this program.
- 28 -
DRAFT
ADMINISTRATION PROPOSAL
S1200
DISCUSSION
(1) EFFECTIVE DATE. -
Similar, but no provision for
The provisions of this
identifying workers or proces-
section shall be imple-
sing requests prior to effective
mented beginning on the
date.
first day of the twelfth
month beginning after the
date of enactment of this
section, except that the
Attorney General may,
before that date, by
regulation, provide for
employers to identify
workers as provided in
subsection (i) (1) and
request authorization to
employ seasonal agricul-
tural workers under this
program as provided in
subsection (b).
- 29 -
STATEMENT OF PRINCIPLES
Seasonal Worker Program
The Administration supports the creation of a seasonal worker
program to address the particular labor needs of growers of perishable
commodities.
Any workers admitted under such a program would be admitted only for
the purpose of doing field harvest labor for truly perishable
commodities.
MSPA shall apply to any such field harvest laborers admitted under
such a program with regard to job disclosure, working conditions,
housing, transportation and wage determination.
Two years after the effective date of any such program, the
Agricultural Worker Commission will set a cap on the total number of
workers to be admitted in the subsequent year; on an annual basis
thereafter, the statute will provide that the Commission lower the cap
by not less than 5% nor more than 20%; the Commission would have the
discretion to determine the precise percentage decline within that
range and could, for one year only, suspend the decline altogether if
exceptional circumstances warranted such suspension.
In setting the cap and subsequent rates of decline, the Commission
will consider labor market conditions and the abundance of crops.
State Department concerns with respect to the operation of such a
program in foreign countries will be appropriately addressed.
H-2 Program
DOL, acting independently and in response to recommendations from
the Agricultural Workers' Commission, will take meaningful steps to
improve the H-2 program as a workable and acceptable means of meeting
shortages in the domestic agricultural labor market.
The Administration supports S. 1200's temporary worker reforms
except that the Secretary of Labor will issue the regulations
governing labor certification under this program after meaningful
consultation with the Departments of Justice and Agriculture. Both the
regulatory authority provision and the consultation requirement will be
statutory.
Search Warrant Provision
The Administration strongly restates its opposition to the
imposition of an open field search warrant requirement over
immigration law enforcement officers.
OUTLINE OF ELEMENTS
Agricultural Worker Programs
Immigration Reform Legislation
A. H-2 Program
1. Adopt S.1200's H-2 reforms (Section 122) with the following changes:
2. The Secretary of Labor shall issue regulations implementing this
Section, after formal consultation with the Secretary of Agriculture
and the Attorney General.
3. There will be statutory authority for the consultation process.
4. A memorandum of understanding between DOL, USDA and DOJ will be
developed which specifically outlines this consultation process. It is
agreed that the memorandum will provide for meetings, the exchange of
written proposals, and an opportunity for substantive comment on such
proposals prior to, and subsequent to, USDL's issuance of an ANPR,
Proposed Rule, or Final Rule.
5. DOL, acting independently and in response to recommendations from the
Agricultural Workers' Commission, will take meaningful steps to improve
the H-2 program as a workable and acceptable means of addressing
shortages in the domestic agricultural labor market.
-1-
B. Seasonal Worker Program for Perishable Crops
The elements of this Program shall include:
1. Length of Stay Provisions
(a) A foreign worker's length of stay in the United States under this
program would be limited to 9 consecutive months.
(b) Each foreign worker participating in this program would be
required to return to his home country for not less than a 6-month
period prior to returning to the United States under this
program.
(c) No foreign workers can participate in this program for more than 5
calendar years. It is noted that these need not be consecutive
calendar years.
2. Cap on the Number of Eligible Workers
(a) There shall be no cap on the total number of workers participating
in this program for a period of two years following the effective
date of the program.
(b) The Agricultural Worker Commission, as created by S.1200, shall
establish the numbers admitted based on market information
including the abundance and marketability of crops, historic labor
-2-
needs, job orders placed by participating growers and other
factors as determined by the Commission.
(c) Two years after the effective date of the program, the Commission
established by this legislation will established a cap on the
number of workers allowed to participate in this program. The
Commission will determine on an annual basis the number of workers
to be admitted for each successive year.
3. Length of Program
(a) This program will last for a period of not more than twenty two
years, nor less than seven years from date of enactment. On an
annual basis after the initial cap is established, the statute
will provide that the Commission lower the cap by not less than 5%
nor more than 20%; the Commission would have the discretion to
determine the precise percentage decline within that range and
could, for one year only, suspend the decline altogether if
exceptional circumstances warranted such suspension.
(b) In setting the cap and subsequent rates of decline, the Commission
will consider the items noted in 2 (b) above.
4. Definition of Perishable Seasonal Workers
(a) The Secretary of Agriculture shall define the term "perishable" in
regulation; the definition shall be the PACA definition and
-3-
clearly limit this program to the provision of field harvest labor
for truly "perishable" commodities.
(b) Growers of other than perishable commodities must use the H-2
program. It is a goal of this legislation to continuously review
and improve the workability of the H-2 program SO that perishable
commodities growers will shift to the H-2 program and/or reduce
dependence on foreign workers.
5. Recruitment
(a) Recruitment emphasis for the first year of the program will focus
on domestic efforts to assimilate current perishable commodities
workers into the program. After a one year period of negotiation
with foreign governments, emphasis will shift to off-shore
recruitment efforts.
(b) Recruitment shall be conducted at dispersed locations within
supplying nations. No recruitment shall occur in the proximate
area of the border ports of entry. Growers of perishable
commodities will be required to pay a "transportation allowance"
to be used to buy worker transportation to and from the sending
country. This will be comparable in all ways possible to the
housing allowance provision precluding cash payment of the
allowance. Such allowance shall come from the 11% fee or the AG
by regulation can require additional allowances only in the event
that the fund is found insufficient to cover the cost of the
-4-
program, including transportation.
(c) Recruiting through grower associations is encouraged. The AG by
regulation can specify all recruiting of perishable commodities
workers must be done through a recognized Grower Association if
other recruiting arrangements are not satisfactory.
6. Operational Considerations
(a) Associations must report and verify arrival and departure of all
participating visa holders in this program.
(b) The Government will have the clear ability to audit and monitor
the arrival and departure of program participants.
(c) There shall be no bar from participating in the H-2 program for
those holders of Seasonal Worker Program Visas who have fulfilled
the terms and obligations of their participation in that program
during the previous year. Transition of these individuals to the
H-2 program should be encouraged by certified participants in the
H-2 and perishable programs.
7. Attorney General's Role and Responsibilities
(a) The Attorney General, with the involvement and assistance of the
Departments of Labor and Agriculture, will accomplish the
development of regulations governing this program and will conduct
-5-
a test of local labor markets to conduct this program. The
Attorney General will in a similar way develop regulations
governing the collection and dispersal of transportation payments
and will review perishable commodities workers' wages to keep them
as much as possible in line with wages paid in the H-2 program
within that locality. As necessary, the Attorney General, with
the assistance of the Departments of Labor and Agriculture, will
develop by regulation means to determine local labor needs to
assure that foreign workers are not displacing willing, qualified
American workers.
(b) The Attorney General will start-up this program in coordination
with the establishment of employer sanctions. This will provide
for a six to nine month period to write and publish appropriate
regulations.
8. Protections that Workers will Return to Sending Countries
(a) Refer to B (1) (a), (b) and (c) above which set forth worker
length of stay periods of nine months each year, a six month
"repatriation" period and five year maximum participation.
(b) The program shall provide for withholding deduction of 20% of the
temporary agricultural employees' salary and transmittal of such
amount to the home country. Regardless of whether the visa has
expired, the worker must leave the United States within 15 days of
last verifiable employment. Penalty for non compliance is:
-6-
- A five year bar from the program,
- Forfeit of the 20% withholding trust fund deposits, and
- Deportation from the United States as provided for in the
Immigration and Nationality Act.
9. Cost of Program
an aquivalem
The cost of this program will be recovered through the deduction of A the
FICA/FUTA allowance from the workers' wages. It is understood that
this is approximately 11% of the wages paid. This money will be
established in a pool administered by the Attorney General for the
purposes of Administration, Enforcement and to pay transportation
costs.
10. Other Provisions
(a) The method of determining the wages of seasonal workers under the
terms of this program shall provide that wages are not lower than
the minimum wage and shall meet all state and local wage laws.
(b) All state and federal labor laws governing working conditions
shall apply to holders of seasonal worker visas as issued under
the terms of this program.
-7-
(c) All certified employers under this program shall provide workmen's
compensation protection to visa holders in a manner equivalent to
that which would be provided an American worker in similar
circumstances.
(d) To start up this program, one year after enactment, qualified
harvesters of perishable commodities will be preferred. After a
year, when negotiations are concluded with foreign governments for
participation in this program, this preference will be reviewed in
light of international agreements related to this program. It is
contemplated that successful perishable program workers will be
offered the opportunity to participate in the perishable
commodities workers program after successfully completing the
first year.
(e) Union Membership and Labor Dispute Provision: a seasonal worker
may join a union if he wishes. Other Department of Labor
regulations related to labor disputes apply.
(f) A spouse or child of a seasonal agricultural worker is not
entitled to a seasonal worker visa by virtue of such relationship,
but may participate in the program if qualified as such a worker.
11. State Department's Responsibilities
(a) Within a year of enactment, the State Department shall conclude
negotiations with the foreign governments concerning the following
-8-
matters:
- The role of foreign governments and others in referring workers
for participation in this program.
- The need for a contract or treaty between governments
concerning the implementation and operation of this program.
- Allocation of number of available temporary worker slots among
interested foreign countries.
- Quality of working conditions of foreign nationals who will
work under this program.
- Procedures for handling payments to returning workers within
their home countries.
(b) The State Department shall establish the process of visa issuance
in the sending countries. As part of this process, efforts shall
be pursued to develop machine readable visas and to obtain and
install appropriate equipment.
(c) The State Department and INS shall work together in the
development of a secure identifier for participants in the
alien worker
program, probably similar to existing identifying cards such as
the alien registration card.
currently in use.
-9-
(d) The State Department will provide a detailed estimate of the costs
of implementing the provisions of this program to the Office of
Management and Budget & not later than six months after enactment of
this program.
12. Additional Provisions of Agreement
(a) There will be no requirement that INS officers obtain a search
warrant prior to entry into open fields or other outdoor
agricultural operations.
(b) There will be no transitional agricultural worker program.
-10-