Putting our Immigration Policies to work

The legislation introduced today is comprehensive, landmark, and bipartisan and hopes to provide long term solutions for the serious problems facing farmers and farm workers alike.


-US Senator Larry Craig,
on the AgJOBS legislation

The Agricultural Job Opportunities, Benefits, and Security Act (AgJOBS) builds upon years of discussion and ideas from growers, farm worker advocates, and various groups and organizations, including several Latino groups, focused on the issue of immigration. The legislation intends to provide for a more stable, secure, safe, and legal American agricultural work force and food supply.

This bill is a practical and achievable approach to resolve the seriously flawed farm labor program our country currently operates under. It will head off a growing crisis that threatens American agriculture, workers, and consumers. This landmark bipartisan legislation hopes to provide long term solutions for the serious problems facing farmers and farm workers alike.

The AgJOBS bill would provide a two-step solution: For the short term, on a one-time-only basis, experienced, trusted workers with a significant work history in American agriculture would be allowed to stay here legally and earn adjustment to legal status. For the long term, the currently broken and cumbersome H-2A legal guest worker program would be overhauled and made more streamlined, practical, and secure.

Legislative Update: Securing Our Borders

But because of a failure of government--and it is important I say this: It is not American agriculture's fault. It is a failure of government to appropriately and necessarily police our borders and devise and cause to work a reasonable, flexible, transparent guest worker program that brings us to the crisis American agriculture is beginning to experience as we speak.

Floor Speech: AgJOBS and Secure Borders
Watch (streaming) or Read - September 29, 2006

Press Release: Craig Praises Border Fence Signing
Read - October 26, 2006

Press Release: Craig Votes for Secure Fence Bill, Funding
Read - September 29, 2006

Committee Statement: Utilizing the National Guard for Border Patrol
Read - May 17, 2006

Press Release: Craig Praises Plan to Secure Border
Read - May 15, 2006

Floor Speech: Border Security
Listen (16:11, 9.26 MB), Watch (streaming), or Read - March 30, 2006

Press Releases:
Craig Calls for Smarter Border Control - March 30, 2006

Legislative Update: Immigration Reform

Press Release: Immigration Reform Clears Senate
Read - May 25, 2006

Bill Summary: AgJOBS Provisions Included in the Comprehensive Immigration Reform Act
Read (PDF, 22KB) - March 27, 2006

Floor Speech: The Immigration Reform Bill
Watch (streaming) or Read - April 7, 2006

Floor Speech: The Benefits of Immigration
Listen (11:42, 6.71 MB), Watch (streaming), or Read - April 6, 2006

Floor Speech: Immigration Reform Bill
Watch (streaming) or Read - April 5, 2006

Floor Speech: Immigration and AgJOBS
Listen (13:59, 8.03 MB), Watch (streaming), or Read - April 4, 2006

Feds Help Counties with Illegal Immigration Costs - November 16, 2005

AgJOBS Receives Majority Vote - April 19, 2005

Editorial Column:
AgJOBS - The "Ag-ceptional" Solution - April 14, 2005

My Testimony before the Senate Foreign Relations Committee:
The US & Mexico: Immigration Policy & The Bilateral Relationship - March 23, 2004


Frequently Asked Questions

Senator Larry Craig Answers Questions on AgJOBS and Earned Adjustment

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Amnesty doesn't work. Why try it again?
Amnesty doesn't work. That's why I never have supported it. The country has tried amnesty in the past and it's failed. Our current immigration law is flawed and enforcement has been a miserable failure. The government has pretended to control the borders while the country has looked the other way and ignored the problem. That's precisely why we need to try a new, innovative approach like AgJOBS.
How can you justify rewarding people who came here illegally by allowing them to become legal?
The only workers who apply for the adjustment program will be those who want to become law-abiding in every respect. They will have to register with the government and verify their continued employment. Their adjustment to legal status will be complete only after they earn it with continued, demanding labor in agriculture for the next 3-5 years. If an adjusting worker breaks other laws, he or she is out. The Adjustment Program would be there to benefit hard-working, known, trusted farm workers who did and will obey our laws in every other way. This is not a reward, but rehabilitation.
Won't the promise of status adjustment encourage more illegal immigration?
Not in our AgJOBS bill. If someone wants to enter the United States to take advantage of our bill, they are already too late. To begin applying for adjustment, the worker must have been here before December 31, 2005 with a substantial record of work in agriculture. We are talking about stabilizing the current farm work force - working with persons who already are here.
Why should agriculture get this special treatment?
That's the sector of our economy most impacted by illegal immigration. The crisis in agriculture must be addressed immediately - and it took us years just to get agreement between growers and labor, between key Republicans and Democrats, on this new approach. If AgJOBS works - and I believe it will - it will help us figure out how to solve the much bigger problem of 11 million illegal aliens in this country.
Illegal aliens have broken the law. Why not just round them up and deport them?
(1)We can't, as a practical matter. Monthly population surveys from the U.S. Census Bureau show there are more than 8.7 million illegal aliens in the United States. That's the consequence of looking the other way for decades. Finding and forcibly removing all of them would make the War on Terrorism look cheap and would disrupt communities and work places to an extent most Americans simply wouldn't tolerate. If a law has failed, you can ignore it or fix it. Looking the other way only encourages more disrespect for the law. We need a new, innovative solution. AgJOBS is the pilot program.
(2)Up to 85 percent of all farm workers are here illegally. If we could round up and deport every illegal farm worker, that would be pretty much the end of American agriculture - the end of our safe, secure, home-grown food supply. That's how I first got involved in this issue, because agriculture is critical to the economy of Idaho - and the nation. We need to bring these workers out of the shadows, out of the underground economy, and turn them into law-abiding workers.
Won't more illegals to sneak across the border, claim they were already here as farm workers, and abuse this new program?
Unlike the 1986 program - which was amnesty and was very different - our bill requires workers to provide documentary proof that they already were established here as farm workers - for example, tax records or employers' records.
Once this wave of "adjusting workers" settle in, what's to prevent the demand for ANOTHER amnesty program in a few years?
Our bill would help stabilize the farm work force in the short term so that American farmers can adjust to the economy of the 21st Century for the long term. The Adjustment Program would give us the time we need to reform and significantly grow the other program in the bill, the H-2A Program, which employs legal, temporary "guest workers" who enter the U.S. only under government supervision and leave when the work is done. Because the H-2A Program has been broken for decades, there's been no effective vehicle for workers to come here legally to work in agriculture when domestic workers aren't available.
Aren't these illegals stealing jobs from Americans?
I hear about that in other industries. I don't know that I've ever received one complaint from an American citizen who wanted to do the physically demanding labor of a migrant farm worker and felt an illegal alien had kept him or her out of that job. But I have heard from farmers who have gone out of business because they couldn't find a legal work force. This is why many of our legal visa programs are industry-specific - because the economy and labor markets are different for different industries. This is precisely the reason to try the AgJOBS solution in agriculture.
How will this bill help us control our borders?
We can't possibly seal off thousands of miles of borders and coastlines. But we can control them better and improve our homeland security. Thousands of AgJOBS workers would be registered with, and in a job program supervised by, the federal government. This would be a major step forward toward a longer-term, more comprehensive solution.
Who's going to pay for the medical bills and social services for adjusting workers?
Remember, in the AgJOBS Adjustment Program, we are talking only about workers who already are here, with substantial jobs in agriculture. So, AgJOBS does not add one bit to this burden. In fact, if anything, it starts helping to provide relief. When these workers gain legal status, they will be in a better position to earn more and do more to provide for themselves than they can today.

Summary of Significant Provisions

AgJOBS provides a two-step approach to a stable, legal, safe, agricultural work force: I. Streamlining and expanding the H-2A legal, temporary, guest worker program, and making it more affordable and workable — the long-term solution, which will take time to implement; II.Outside the H-2A program, a one-time adjustment to legal status for experienced farm workers, already working here, who currently lack legal documentation — the bridge to allow American agriculture to adjust to a changing economy.

I. Reforms of the H-2A Program

AgJOBS restructures and reforms the H-2A program by

(1) streamlining the program's administrative procedures, including revamping the current burdensome and labor certification process,

(2) reforming the requirements for H-2A employers, including an immediate reduction and gradual elimination of the Adverse Effect Wage Rate,

(3) overhauling the framework for handling disputes between workers and employees; and

(4) streamlining the processes for the admission of H-2A aliens.

Streamlining the H-2A Program's Administrative Procedures

  • The time consuming and contentious up-front labor certification process is replaced by an "attestation" process, whereby an employer can file a fax-back application form agreeing to abide by the requirements of the H-2A program. Fax�back approval of the application should occur in 48 to 72 hours. H-2A workers can be employed within 28 days of initiating the application process compared to 60 days or more in the current program.
  • The interstate clearance order is replaced by a local job order. Use of the interstate clearance system is not required.
  • Advertising and positive recruitment must take place in the local labor market area.
  • Agricultural associations can continue to file applications on behalf of members, and, if appropriately structured, can transfer workers among members.

Reform of the Requirements for Employing H-2A Workers

  • The open-ended statutory prohibition against "adversely affecting" U.S. workers that has been the basis for Department of Labor regulations and law suits against employers is eliminated, and replaced with a clear, specific, limited set of employer obligations.
  • The Adverse Effect Wage Rate is frozen for 3 years, and thereafter indexed by a methodology that will lead to its gradual replacement with a prevailing wage standard.
  • Employers may elect to provide a housing allowance in lieu of housing to workers who are entitled to employer-provided housing if the governor of the state determines that there is adequate rental housing available in the area of intended employment.
  • Inbound and return transportation and subsistence is required on the same basis as under the current program, except that trips of less than 100 miles are excluded, and no reimbursement is required to workers whom an employer is not required to provide housing or a housing allowance.
  • The same employment guarantee, and requirements for provision of a copy of the job order and pay stub are required as in the current program.
  • The motor vehicle safety standards required for U.S. workers are also required for H-2A workers.

Reform of the Petitioning and Admission Process

  • AgJOBS establishes standards for processing petitions and admission of H-2A aliens intended to assure that farmers obtain their workers on time, while at the same time assuring border security and the integrity of the H-2A program. Petitions for admission of H-2A workers must be processed and the consulate or port of entry notified within 7 days of receipt.
  • Petitions extending aliens' stay or changing employers are valid upon filing.
  • Employers may apply for the admission of H-2A aliens to replace aliens who abscond or are terminated for cause, upon notification of the Department of Homeland Security.
  • The Department of Homeland Security is required to remove H-2A aliens who abscond.
  • The bar on admission of aliens who have been previously present in the U.S. is waived on a one-time basis for aliens who apply for H-2A visas, and remains waived so long as the alien is not again illegally present in the U.S.
  • H-2A aliens will be provided with secure, counterfeit resistant identity and employment eligibility documentation upon admission.

Enforcement Provisions of the H-2A Program

Effective protection of the rights of U.S. and foreign workers is an important element in any politically acceptable foreign worker program. AgJOBS provides such protections while protecting law-abiding employers from legal harassment.

  • The federal Migrant and Seasonal Agricultural Worker Protection Act (MSPA) is not extended to H-2A workers. In addition, U.S. workers are precluded under MSPA from suing employers for violations of the H-2A program requirement that they abide by other labor laws. Under current law, employers are subjected to double jeopardy for MSPA and H-2A program violations.
  • Emphasis is placed on administrative enforcement of the H-2A program requirements by the U.S. Department of Labor, with only limited recourse to the courts.
  • A limited federal right of action is available to foreign workers to enforce the economic benefits required under the program (payment of wages when due, provision of housing and housing allowance and standards; transportation and subsistence reimbursement; the employment guarantee; motor vehicle safety requirements; and discrimination protection for workers violations), and any benefits expressly offered by the employer in writing. A statute of limitations of three years is imposed.
  • Either party can require informal resolution through mediation if a lawsuit is filed.
  • Damages available to workers under the federal right of action are limited to actual damages. Statutory damages are not available (i.e. payments for paperwork violations, torn screens or dirty dishes), as they are under the MSPA. Since no damages can be recovered, there will be no incentive to sue on non-economic issues.
  • Lawsuits in state court under state contract law alleging violations of the H-2A program requirements and obligations are expressly preempted. Such state court lawsuits have been the venue of choice for litigation against H-2A employers in recent years.
  • The scope of liability for transportation safety is clarified.

II. One-time Earned Adjustment

  • Pilot program to allow certain undocumented agricultural workers to legalize their immigration status in the United States.
  • The first step requires that undocumented agricultural workers apply for a "blue card" if they can demonstrate that they have worked in American agriculture for at least 150 work days within the previous two years before 12/31/05.
  • The second step requires that after a "blue card" holder can demonstrate that they have worked in American agriculture for an additional 150 work days per year for 3 years, or 100 work days per year for 5 years, they will then be eligible for a green card.
  • Employment will be verified through employer issued itemized statements, pay stubs, W-2 forms, employer letters, contracts or agreements, employer sponsored health care, time cards or payment of taxes.
  • This program will be capped at 1.5 million blue cards in five years (without a per year cap) and sunset after five years.
  • Individuals may participate in employment other than agriculture so long as the worker satisfies the 100 or 150 workdays each year.
  • Blue card holders (including spouses and children) will be allowed to travel in and out of the United States.
  • Spouses of blue card workers will be eligible to apply for their own work permit and their employment will not be limited to agricultural employment.
  • Aliens participating in the program will be required to pay a fine of $500, show that they are current on their taxes, and 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 Department of Homeland Security will determine the adequate application fee necessary to offset the costs of this pilot program.
  • To avoid backlogs, aliens who receive a green card under this program will be exempt from the overall numerical limitations on visas (i.e., 675,000 visas) and the country numerical limitations for Mexico, India, China and the Philippines.
  • Requires the Department of Homeland Security to report annually on the program's use and performance.

The Need for AgJOBS Legislation - Now

Americans need and expect a stable, predictable, legal work force in American agriculture. Willing American workers deserve a system that puts them first in line for available jobs with fair, market wages. All workers deserve decent treatment and protection of basic rights under the law. Consumers deserve a safe, stable, domestic food supply. American citizens and taxpayers deserve secure borders, a safe homeland, and a government that works. Yet we are being threatened on all these fronts, because of a growing shortage of legal workers in agriculture.

To address these challenges, a bipartisan group of Members of Congress, including myself and Senator Ted Kennedy (MA) and Representatives Chris Cannon (UT) and Howard Berman (CA), introduced the Agricultural Job Opportunity, Benefits, and Security (AgJOBS) Act. This bipartisan effort built upon years of discussion and suggestions among growers, farm worker advocates, Latino and immigration issue advocates, Members of both parties in both Houses of Congress, and others.

The Problems:

Of the USA's 1.6 million agricultural work force, more than half is made up of workers not legally authorized to work here - according to a conservative estimate by the Department of Labor, based, astoundingly, on self-disclosure in worker surveys. Reasonable private sector estimates run to 75 percent or more.

With stepped up documentation enforcement by the Social Security Administration and the Bureau of Immigration and Customs Enforcement (the successor to the old INS), persons working here without legal documentation are not leaving the country, but just being scattered. The work force is being constantly and increasingly disrupted. Ag employers want a legal work force and must have a stable work force to survive - but federal law actually punishes "too much diligence" in checking worker documentation. Some growers already have gone out of business, lacking workers to work their crops at critical times.

Undocumented workers are among the most vulnerable persons in our country, and know they must live in hiding, not attract attention at work, and move furtively. They cannot claim the most basic legal rights and protections. They are vulnerable to predation and exploitation. Many have paid "coyotes" - labor smugglers - thousands of dollars to be transported into and around this country, often under inhumane and perilous conditions. Reports continue to mount of horrible deaths suffered by workers smuggled in enclosed truck trailers.

Meanwhile, the only program currently in place to respond to such needs, the H-2A legal guest worker program, is profoundly broken. The H-2A status quo is slow, bureaucratic, and inflexible. The program is complicated and legalistic. DOL's compliance manual alone is over 300 pages. The current H-2A process is so expensive and hard to use, it places only about 30,000 - 50,000 legal guest workers a year -- 2 percent to 3 percent of the total ag work force. A General Accounting Office study found DOL missing statutory deadlines for processing employer applications to participate in H-2A more than 40 percent of the time. Worker advocates have expressed concerns that enforcement is inadequate.

The Solution - AgJOBS Reforms:

AgJOBS legislation provides a two-step approach to a stable, legal, safe, ag work force: (1) Streamlining and expanding the H-2A legal, temporary, guest worker program, and making it more affordable and used more - the long-term solution, which will take time to implement; (2) Outside the H-2A program, a one-time adjustment to legal status for experienced farm workers, already working here, who currently lack legal documentation - the bridge to allow American agriculture to adjust to a changing economy.

H-2A Reforms: Currently, when enough domestic farm workers are not available for upcoming work, growers are required to go through a lengthy, complicated, expensive, and uncertain process of demonstrating that fact to the satisfaction of the federal government. They are then allowed to arrange for the hiring of legal, temporary, non-immigrant guest workers. These guest workers are registered with the U.S. government to work with specific employers and return to their home countries when the work is done. Needed reforms would:

  • Replace the current quagmire for qualifying employers and prospective workers with a streamlined "attestation" process like the one now used for H-1B high-tech workers, speeding up certification of H-2A employers and the hiring of legal guest workers.
  • Participating employers would continue to provide for the housing and transportation needs of H-2A workers. New adjustments to the Adverse Effect Wage Rate would be suspended during a 3-year period pending extensive study of its impact and alternatives. Other current H-2A labor protections for both H-2A and domestic workers would be continued. H-2A workers would have new rights to seek redress through mediation and federal court enforcement of specific rights. Growers would be protected from frivolous claims, exorbitant damages, and duplicative contract claims in state courts.

The only experience our country has had with a broadly-used farm guest worker program (used widely in the 1950s but repealed in the 1960s) demonstrated conclusive, and instructive, results. While it was criticized on other grounds, it dramatically reduced illegal immigration while meeting labor market needs.

Adjustment of workers to legal status:

To provide a "bridge" to stabilize the ag work force while H-2A reforms are being implemented, AgJOBS would create a new earned adjustment program, in which farm workers already here, but working without legal authorization, could earn adjustment to legal status. To qualify, an incumbent worker must have worked in the United States in agriculture, before January 1, 2005, for at least 100 days in a 12-month period over the last 18 months prior to the bill's introduction. (The average migrant farm worker works 120 days a year.)

This would not spur new immigration, because adjustment would be limited to incumbent, trusted farm workers with a significant work history in U.S. agriculture. The adjusting worker would have non-immigrant, but legal, status. Adjustment would not be complete until a worker completes a substantial work requirement in agriculture (at least 350 days over the next 3 years or 500 days over 5 years) and pays a fine of $500.

It is estimated (based on current workforce statistics) that approximately 500,000 workers would be eligible to apply. Their spouses and minor children would be given limited rights to stay in the U.S., protected from deportation. The worker would have to verify compliance with the law and continue to report his or her work history to the government. Upon completion of adjustment, the worker would be eligible for legal permanent resident status. Considering the time elapsed from when a worker first applies to enter the adjustment process, this gives adjusting workers no advantage over regular immigrants beginning the legal immigration process at the same time.

AgJOBS would not create an amnesty program. Neither would it set the bar impossibly high for workers. Eligible workers who are already are in the United States could continue to work in agriculture, but now could do so legally, and prospectively earn adjustment to legal status. Adjusting workers may also work in another industry, as long as the agriculture work requirement is satisfied.

AgJOBS is a Win-Win-Win approach.

Workers would be better off than under the status quo. Legal guest workers in the H-2A program need the assurance that government red tape won't eliminate their jobs. For workers not now in the H-2A program, every farmworker who gains legal status finally will be able to assert legal protection - which leads to higher wages, better working conditions, and safer travel. Growers and workers would get a stable, legal work force. Consumers would get better assurance of a safe, stable, American-grown, food supply - not an increased dependence on imported food. Law-abiding Americans want to make sure the legal right to stay in our country is earned, and that illegal behavior is not rewarded now or encouraged in the future. Border and homeland security would be improved by bringing workers out of the underground economy and registering them with the AgJOBS adjustment program. Overall, AgJOBS takes a balanced approach, and would work to benefit everyone.

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