Legislative Issues & Policies - Immigration: Temporary Worker Programs Introduction For some time, there has been a shortage of entry-level workers to satisfy the agricultural and non-agricultural employment needs of the horse industry. • Horse breeders, ranchers, training facilities, horse shows, trainers and others depend on seasonal and long-term foreign workers to fill labor demands not filled by American workers. • Many employers in the horse industry are also concerned that without comprehensive immigration/guest worker reform that will allow them to legitimize their current workforce and meet their labor demands, the industry could be put in an untenable situation economically. For these reasons, the issue of comprehensive immigration and guest worker reform is important to the horse industry. The U.S. Citizenship and Immigration Service, as well as State and Federal Departments of Labor, must approve the admission of any alien to the U.S. for employment. Applications are filed with both agencies. The U.S. Consulate in the alien’s country is also involved. This is a long, time-consuming and expensive process currently. H-2A Temporary Worker Programs To satisfy the need for workers, horse owners and breeding or training facilities use the “H-2A Agricultural Worker” program to bring aliens into the country as temporary, non-immigrant workers. This program allows agricultural workers to enter the United States to do seasonal labor in the horse industry. The current immigration laws do not completely satisfy the employment needs of the horse industry and make it very difficult and cumbersome to employ alien workers. The drawbacks to the current H-2A Agricultural Worker program are many. The admission process is long and cumbersome. A streamlined process would be beneficial and less costly. Another concern is the wage rate required to be paid and how it is determined. Only the H-2A agriculture worker program sets the required wage based on the “Adverse Effect Wage Rate” (AEWR). This is a flat rate that is paid across the country and is an average of all workers in a specific industry. All other temporary worker programs use the prevailing wage rate, which is determined state-by-state and region-by-region. The prevailing wage rate is also based on each individual industry and specific occupation. The H2-A program permits a worker to stay in the United States temporarily, which is defined in the law as up to ten months. Some agricultural jobs in the horse industry are for a longer period and many would like to have alien workers for a longer period. Finally, many in the horse industry are concerned that they could lose valuable alien workers during any transition period that allowed the legalization of undocumented workers, particularly if it required them to leave the country. This makes a workable H-2A program even more important. H-2B Temporary Worker Programs The H-2B worker program is used for lesser-skilled, non-agricultural workers employed in many industries, including the horse industry. It is for “temporary service or labor if unemployed persons capable of performing such service or labor cannot be found in this country.” In the racing industry individual trainers and horsemen’s associations have organized, on-going programs to employ and bring aliens into the country to work on the backstretch or at horse shows under H-2B visa programs. There is a cap of 66,000 on the number of H-2B visas that can be issued annually. Each year, once it has received enough petitions to meet the year’s Congressionally-mandated cap of 66,000, the U.S. Citizenship and Immigration Services (USCIS) announces that it will not accept any more petitions for H-2B foreign workers for the Fiscal Year. This has seemed to occur earlier each year. This affects foreign workers in many industries, including those in the horse industry who work in semi-skilled jobs at racetracks, horse shows, fairs and similar non-agricultural activities. In 2006, Congress passed legislation amending the H-2B program to provide that foreign workers who had been admitted previously under the H-2B program would not be counted against the mandated cap of 66,000. This provision expired on September 30, 2007. In January 2007, Senator Dianne Feinstein (D-California) and Senator Larry Craig (R-Idaho) introduced, “The Agricultural Job Opportunity, Benefits, and Security Act of 2007”, known as the AgJOBS bill (S. 340). The bill has been referred to the Senate Judiciary Committee. Among the original cosponsors are Senator Pat Leahy (D-VT), the Chairman of the Senate Judiciary Committee, and Senator Arlen Specter (R-PA), the Ranking Member of the Senate Judiciary Committee. The AgJOBS bill is the same bill that was passed in the last Congress by the Senate, as a part of the comprehensive immigration reform bill. This legislation is supported by a broad coalition of agricultural industries, including the AHC, worker advocates, religious, and public interest and taxpayer groups. House AgJOBS Bill Congressman Howard Berman (D-CA) and Congressman Chris Cannon (R-UT) have introduced identical AgJOBS legislation in the House, H.R. 371. H.R. 371 was referred to the House Judiciary Committee and subsequently the House Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law. AgJOBS Bill The AgJOBS bill will create a pilot program that will help identify agricultural workers without documentation and legalize the immigration status for those who have been working in the United States for two or more years. It will also provide key needed reforms to the current H-2A program. Specifically, the bill creates a pilot “blue card” program for current undocumented agriculture workers. In order to qualify individuals must demonstrate having worked in American agriculture for at least 150 work days over the previous two years. With a blue card, agriculture workers would achieve a temporary legal resident status. The total number of blue cards would be capped at 1.5 million over a five-year period, and the program would sunset after five years. Blue card holders would be allowed to travel in and out of the US. The blue card holder would be required to work in American agriculture for an additional 3 years (working at least 150 work days per year) or 5 years (working at least 100 work days per year), before becoming eligible to apply for a green card to become a permanent legal resident. Before applying for a green card, participants would be required to pay a fine of $500, show that they are current on their taxes, and show that they have not been convicted of any crime that involves bodily injury, the threat of serious bodily injury, or harm to property in excess of $500. The second part of AgJOBS would create a more usable H-2A program to implement a realistic and effective guest worker program. Summary of the key H-2A Reforms: • eliminates the labor certification process and replaces it with an expedited labor condition application This bill satisfies most of the concerns of the horse industry, particularly with respect to the AEWR paid, the application process and the “regularization” of current workers, who may not have work authorization. This latter earned status adjustment program provides a transition solution to allow any undocumented workers to earn the right to legal status and avoid the need for a large importation of guest workers and a disruption in industry practices. Emergency Agriculture Relief Act On May 15, 2008 Senator Dianne Feinstein (D-CA) offered the Emergency Agriculture Relief Act (EARA) as an amendment to the Fiscal Year 2008 Supplemental Appropriations bill when the Senate Appropriations Committee considered the bill. It was adopted by a vote of 17 to 12. EARA is a compromise bill intended to provide a temporary five-year solution for agriculture’s alien worker problems until Congress can revisit the issue of comprehensive immigration reform. The EARA bill is basically the Senator Feinstein’s AgJOBS bill (S. 340). It would streamline the H-2A temporary and seasonal alien farm worker program and allow agriculture to stabilize its experienced workforce, some of whom may be undocumented. But EARA would not provide permanent legal status to undocumented workers now in the U.S. because it would “sunset” after five years. If Congress did not enact AgJOBS or comparable reforms in the next five years, the H-2A reforms would lapse and any workers legalized during the five-year period would be deemed undocumented again. But passage of this legislation would provide the horse industry with some stability during this five year period. Since this provision was added to an appropriations bill, it was subject to a point of order that it was not germane to a funding bill once the full Senate took the bill up. On May 21, during Senate consideration, Senator Robert Menendez (D-NJ) raised a point of order with respect to the EARA and it was deleted. Had Senator Menendez not raised the point of order to strike the provision, Senator Jeff Sessions (R- AL) indicated he would have. Save Our Small and Seasonal Businesses Act of 2007 Senator Barbara Mikulski (D-MD) has again introduced the “Save Our Small and Seasonal Businesses Act of 2007” (S. 988) in this Congress to provide cap relief for those using the H-2B Visa program. The bill was referred to the Senate Judiciary Committee. Representative Bart Stupak (D-MI) introduced companion legislation in the House of Representatives (H.R. 1843). H.R. 1843 was referred to the House Judiciary Committee. Both bills would exclude from the cap limit any “returning worker” who had been admitted to the U.S. as an H-2B nonimmigrant during any one of the three years immediately preceding the year of the approved start date of the current work authorization. The Senate bill would extend the “returning worker” exclusion for five years through 2012. The House bill would make the exclusion permanent. Senate Action Although the Senate CJS bill includes language extending the “returning worker” provision, the House version of the bill did not. After a conference between members of the House and Senate met to iron out the various differences between the two versions of the bill, the “returning worker” provision was struck. Like all immigration measures in this Congress, there was too much opposition to even these changes. On May 15, 2008, Senators Barbara Mikulski (D-MD) and Judd Gregg (R-NH) offered the Save Our Small Business Act to the Fiscal Year 2008 Supplemental Appropriations bill when the Senate Appropriations Committee considered the bill. It was adopted by the Committee. The provision would have exempted from the cap for the next three years any worker who has received a visa under the H-2B program in the three previous years. Many alien workers return to their previous employment each year and this provision would exempt these workers from the cap. The “returning worker” exemption expired on September 30, 2007. This change would have reinstated it and extended it for three years. Since this provision was added to an appropriations bill, it was subject to a point of order that it was not germane to a funding bill once the full Senate took the bill up. On May 22, during Senate consideration, Senator Bernie Sanders (I-VT) raised a point of order with respect to the Save Our Small Business Act and it was deleted. House Comprehensive Legislation - STRIVE Act Comprehensive immigration legislation has been introduced in the House of Representatives to reform the nation’s immigration laws. The Security Through Regularized Immigration and a Vibrant Economy Act of 2007 (H.R. 1645), called the STRIVE Act, was introduced by Representatives Luis Gutierrez (D-IL) and Jeff Flake (R-AZ). The STRIVE Act tries to satisfy both segments of Congress on the immigration debate. To satisfy the “border-security, enforcement-first” proponents, many of the broader, reform provisions cannot be implemented until the Secretary of the Department of Homeland Security has certified that improvements in border surveillance technology are being implemented; that the systems and infrastructure necessary to carry out improvements to immigration document security are ready to use; and that the first phase of Electronic Employment Verification System requiring the participation of critical infrastructure employers has been implemented. The bill also provides for strict enforcement provisions, like hiring more border patrol agents, the use of new technologies, tamper-proof identification cards to replace social security cards, more federal detention space, a new electronic system for employers to electronically verify a worker’s employment authorization and increased penalties on employers and workers who operate outside the system. New H-2C Program - In the reform category, the STRIVE Act would initiate a new guest-worker program for “H-2Cs” that would replace many of the non-immigrant alien worker categories included in existing programs, including the current H-2B temporary workers program. These H-2Cs would be year-round workers who could be admitted for three years. This new program would include the horse industry’s non-agricultural H-2B workers, but would not include current H-2A workers. The H-2A program would continue under the AgJOBS provisions of the bill. The H-2C visa would be valid for three years and renewable for another three. An employer would still have to give U.S. workers the job opportunity first, document that American workers are not available and document that alien workers world not displace U.S. workers or adversely affect their wages or working conditions. Alien workers would have to complete criminal- and terrorism-related background checks, pay a $500 application fee, undergo a medical exam and show admissibility to the U.S. New Employment Verification Requirements - The bill would create a system for employers to electronically verify a worker’s employment authorization and establish criminal penalties for employers and workers who operate outside the system. It would set up strong enforcement procedures. Employers would have to verify the employment authorization of all new workers either electronically or telephonically. Earned Legalization for Undocumented Workers - Once the Secretary of DHS has made the required certification mentioned earlier, the STRIVE Act would authorize the initiation of a program providing conditional nonimmigrant status for undocumented immigrants (and their spouses and children) in the U.S. This would be the mechanism to allow undocumented workers to legalize their status. This status would be valid for six years. This would allow any aliens without proper documentation to regularize their status and remain in the U.S. and continue working. To be eligible an alien must, among other things: • Establish continuous presence in the U.S. on or before June 1, 2006; This provision could eventually allow such aliens able to earn U.S. citizenship. But such workers would have to satisfy other additional requirements and would have to go to the back of the line for permanent visas; the current immigrant backlogs would have to be cleared before qualified conditional nonimmigrant visa applicants (and their families) could adjust to permanent resident status. AgJOBS Bill Included in STRIVE The STRIVE Act also includes the entire AgJOBS bill (H.R. 371), introduced by Congressmen Howard Berman (D-CA) and Chris Cannon (R-UT), in January and described above. Senate Action on Comprehensive Bill The Senate debated comprehensive immigration reform for two weeks in late May, 2007 and then again in late June, but was unable to agree to final consideration. On both occasions, the debate was contentious. When it appeared that the various amendments being offered were as much to delay the final consideration of the bill as they were to improve it, Majority Leader Harry Reid (D-NV) attempted to end debate by calling for a cloture vote. This is a procedural move to cut-off debate and requires sixty votes for approval. When only 46 Senators voted for this action, Senator Reid pulled the comprehensive bill from the floor. A Piece-Meal Approach Efforts continue in both the House and Senate to pass various bills that would deal with particular pieces of the immigration problem under our current immigration system. Such bills include the Emergency Agricultural Relief Act, the AgJOBS bill, extension of the H-2B returning worker provisions, heightened border security, increasing the number of temporary visas available annually and streamlining the application process. It remains to be seen if there is sufficient will to pass these bills individually. AHC Position The AHC supports broad, comprehensive immigration reform that will streamline the H-2A and H-2B requirements and provide a regulated way for the millions of alien workers in the U.S. to work their way to legal status. Nonetheless, given the difficulty of passing comprehensive legislation in this Congress, the AHC supports passage of EARA and/or the Save Our Small and Seasonal Business Act if at all possible. The Horse industry does not oppose stricter enforcement or tightened border security as long as the legislation includes broader reforms making it possible to hire legal alien workers and hold on to current workers who are so valuable. Perhaps the only possibility is a series of bills dealing with the various parts of this broad issue. |
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