Immigration Reform: What’s Next for Agriculture? Philip Martin arm labor was a major concern the employer saw work-identification of agriculture in the early 1980s, documents. Employers are not required About 5% of U.S. workers, and over when enforcement of immigra- to determine the authenticity of the 50% of the workers employed on F tion laws involved the Border Patrol documents presented by workers. U.S. crop farms are unauthorized. driving into fields and attempting to There were two legalization pro- This article explains how apprehend workers who ran away. grams in 1987–88 that allowed 2.7 reforms in the past increased the availability of unauthorized farm Apprehended migrants were normally million unauthorized foreigners, 85% workers, allowing employers to returned to , and many made of whom were Mexicans, to become become complacent about farm their way back to the farms on which legal immigrants. The nonfarm pro- labor. However, federal government they were employed within days. There gram legalized 1.6 million unauthor- audits of employers, and more states were no fines on employers who know- ized foreigners who had been in the requiring employers to use the federal ingly hired unauthorized workers, and since January 1, 1982, E-Verify database to check the legal the major enforcement risk was loss of while the Special Agricultural Worker status of new hires, have increased production until unauthorized work- (SAW) program legalized 1.1 mil- worries about the cost and availability ers returned. As a result, perishable lion unauthorized foreigners. of farm workers. crops, such as citrus, that were picked Unauthorized workers continued largely by labor contractor crews to arrive in the early 1990s and pre- included more unauthorized workers sented false documents to get hired, than lettuce crews that included work- that is, forged documents or documents ers hired directly by large growers. that belonged to work-authorized per- The Immigration Reform and Con- sons. As a result, employers faced less trol Act (IRCA) of 1986 imposed federal risk of disrupted production because sanctions on employers who know- the paper chase involved in checking ingly hired unauthorized workers. In whether documents were genuine did order to avoid fines and criminal sanc- not immediately remove unauthor- tions, all newly hired workers must ized workers from the workplace as present documents to their employers had Border Patrol worker chases. to establish their identity and right Figure 1 shows that newly legal- to work. The employer and worker ized SAW farm workers were one- complete and sign an I-9 form attest- third of the crop work force in the ing that the worker presented and early 1990s, but found nonfarm jobs

Figure 1. SAWs Down, Unauthorized Up

60

50

40 Immigration Reform and Control Act Enacted National Agricultural Workers Survey Begins 30 SAW (2-year Moving Average)

Producing specialty crops, such as pears Unauthorized (2-year Moving Average) Percent of Workers of Percent 20 pictured above, involves large numbers of immigrant farm workers to fill seasonal jobs. 10

0

1985 1986 1989 1991 1992 1994 1995 1996 1997 1998 1999 2004 1987 1988 1990 1993 2000 2001 2002 2003 2005 2006 2007 2008 2009 Year

Giannini Foundation of Agricultural Economics • University of California 5 experienced employees who are dif- Figure 2. Unauthorized Share of Foreign-Born Residents by State ficult to replace. Gebbers Farms in Washington fired hundreds of work- ers after an I-9 audit and replaced them with legal H-2A guest workers.

State Laws With Congress deadlocked on immi- gration, states such as Arizona enacted laws to reduce the number of unau- thorized foreigners in an “attrition through enforcement” strategy. Arizona enacted the Support Our Law Enforce- ment and Safe Neighborhoods Act (SB 1070) in April 2010—a law that U.S.: 28% of foreign-born are unauthorized (2010) requires everyone to carry proof of Highest: 40-56% are unauthorized (19) their legal status and show this proof High: 30-38% are unauthorized (9) to police officers who stop them for Lower: 21-28% are unauthorized (11) other reasons. Unauthorized foreign- Source: Passel and Cohn, 2011, based on March 2010 CPS Lowest: Less than 20% are unauthorized (12) ers detected by police can be fined as the economy improved in the mid- 80% of tentative nonconfirmations $2,500 or jailed up to six months. 1990s. The U.S. Department of Labor’s result in the employee quitting, likely The Obama administration asked National Agricultural Worker Survey because the worker was unauthorized. a federal court to block implementa- first found that over half of the work- At the end of 2011, all federal tion of SB 1070, arguing that federal ers employed on U.S. crop farms were contractors and 18 states required immigration law prevents Arizona unauthorized in 1995, and the share some or all of their employers to use from enacting a state law that interferes of unauthorized crop workers has E-Verify to check new hires. The with federal immigration enforcement remained at about half since then. U.S. Supreme Court upheld Ari- priorities and could lead to the arrest zona’s Legal Arizona Workers Act of U.S. citizens and foreigners law- Federal E-Verify and I-9 Audits in May 2011, which requires all of fully in the United States who are not In 1996 Congress required the then Arizona’s employers to participate in carrying proof of their legal status. Immigration and Naturalization Ser- E-Verify. Most major meatpackers A federal judge agreed and issued vice to develop programs to check the have been using E-Verify for at least an injunction blocking implementa- validity of worker documents. These a decade. The House Judiciary Com- tion of the key provisions of SB 1070. programs evolved into E-Verify, the mittee approved the Legal Workforce However, a Pew poll in May 2010 current Internet-based system that Act (LWA)(HR 2164) in September found 59% support for SB 1070, employers used to check on the legal 2011 to require all U.S. employers to including two-thirds who support status of almost 16 million new hires use E-Verify to check new hires and/ requiring people to present proof in fiscal year (FY) 2010, about 30% of or job applicants within four years. of legal status to police if asked. the 50 million to 60 million new hires Today the federal government Arizona and other states that enacted made each year in the United States. enforces laws against hiring unauthor- attrition-through-enforcement immi- Employers submit Social Security ized workers by auditing the I-9 forms gration laws have mostly unauthor- numbers and immigration data to completed by newly hired workers ized foreign-born residents. Figure 2 E-Verify, and over 98% of their inqui- and their employers. Most work- shows that a band of states that trace ries result in workers being confirmed ers identified as having problematic a U-shape, from Idaho through the as work-authorized in less than five documentation quit or are terminated, southern states to North Carolina, has seconds. Employees with “tentative prompting denunciations of so-called the highest share of unauthorized for- nonconfirmations” are given a writ- “silent raids” aimed at unauthorized eigners among foreign-born residents ten notice advising them to correct workers. Some employers, such as in the state. About 28% of foreign-born their records so that E-Verify shows L. E. Cooke in Visalia, complain that persons in the United States in 2010 them to be authorized to work. Over I-9 audits require them to terminate were unauthorized, but 40% or more

6 Giannini Foundation of Agricultural Economics • University of California workers who responded to the job Table 1. Average Annual Employment on Crop Farms, 2001–2010 offer were not hired. In many cases, U.S. Crop CA Crop U.S. CA Total Total U.S. workers seeking farm jobs want Year Farms Farms Support Support U.S. CA to go to work right away, not 30 days 2001 563,580 189,192 274,652 156,136 838,232 345,328 in the future, so many U.S. workers 2002 555,075 186,335 266,888 151,334 821,963 337,669 who are hired do not show up when the employer calls them to go to work. 2003 555,926 184,247 270,101 156,615 826,027 340,862 Employers must offer the higher 2004 555,437 178,844 268,106 153,778 823,543 332,622 of the federal or state minimum wage, 2005 548,715 177,003 280,336 166,012 829,051 343,015 the prevailing wage in the area, or the adverse effect wage rate (AEWR)—the 2006 540,682 172,267 283,589 169,717 824,271 341,984 average hourly earnings of crop and 2007 538,528 172,222 287,457 175,985 825,985 348,207 livestock workers reported by farm 2008 536,507 174,697 290,855 178,862 827,362 353,559 employers to USDA’s NASS during the previous year. The AEWR, which 2009 531,096 170,041 279,642 166,885 810,738 336,926 ranges from $9 to $12 an hour, is usu- 2010 528,867 170,068 287,480 177,168 816,347 347,236 ally the highest of the three wages. In addition to offering the higher- 2009-10 -46,703 -27,271 19,205 28,808 -27,498 1,537 –2001-02 than-minimum wage AEWR, farmers % Change -6% -11% 5% 11% -2% 0% seeking DOL certification to employ Source: Quarterly Census of Employment and Wages H-2A workers must offer free and approved housing to out-of-area of the foreign-born residents in states the program, U.S. workers and H-2A workers. such as Arizona, Alabama, and Geor- state and local police share the fin- This housing requirement is diffi- gia that enacted laws against illegal gerprints of persons they arrest with cult to satisfy in California and other migration in 2011 are unauthorized. DHS, which can ask police to hold states where labor-intensive farm- Alabama’s HB 56 is considered the suspected unauthorized foreigners. ing occurs largely in metro coun- “toughest” state law against unauthor- ties. Most farmers in such areas do ized foreigners, with Arizona-style Legal Guest Workers not offer housing to their employees, police and E-Verify requirements. If federal enforcement and state laws and zoning laws make it hard to con- This law also voids contracts entered reduce the availability of unauthor- struct new farm worker housing. into by unauthorized foreigners, ized farm workers, can farmers hire Requirements for supervised recruit- makes it unlawful to hire or rent to legal guest workers? The H-2A pro- ment, the AEWR, and providing unauthorized foreigners, and requires gram allows farmers to request cer- housing for workers convinced many schools to obtain and report data tification from the U.S. Department farmers, especially in California, that on the legal status of school chil- of Labor (DOL) to employ legal guest the H-2A program is “unworkable.” dren and their parents (but not turn workers. DOL certified over 95% of Farmers supported bills in Congress away unauthorized children). Suits employer requests for H-2A workers during the 1990s that would have have blocked the implementation of within 45 days, allowing over 7,000 created alternative guest worker pro- parts of HB 56, but some unauthor- farm employers to fill almost 95,000 grams that eliminated the search for ized foreigners left the state, prompt- jobs with H-2A workers in 2010. In U.S. workers, reduced the AEWR, and ing complaints of labor . some cases, one H-2A worker fills more eliminated the housing requirement. The U.S. Department of Home- than one U.S. farm job in the United These guest worker bills were not land Security (DHS) deports about States; the number of visas issued to enacted. However, in December 2000, 400,000 unauthorized foreigners H-2A workers averages 55,000 a year. after the elections of Presidents Fox and a year. The main target of internal In order to be certified to employ Bush, both of whom embraced legaliza- enforcement efforts are foreigners H-2A workers, farm employers must try tion for unauthorized workers and new who committed U.S. crimes, but DHS to recruit U.S. workers by posting the guest worker programs, farm worker agents take into custody other unau- job with a State Workforce Agency and advocates and farm employers negoti- thorized foreigners they encounter advertising it in local media. Employ- ated the Agricultural Job Opportunity when searching for criminals. Under ers record the reasons why the U.S. Benefits and Security Act (AgJOBS).

Giannini Foundation of Agricultural Economics • University of California 7 AgJOBS would legalize unauthorized Workforce Act (HR 2895), which mechanization, and union activi- foreigners who have done farm work, would grant an unlimited number of ties. Or will the coming years be and make it easier for farm employers 10-month W-visas to foreigners who more like the late 1980s, when legal- to hire guest workers under the H-2A could move from one farm employer to ization, continued unauthorized program, repeating the legalization and another. Farm employers certified by migration, and the spread of labor guest worker changes of IRCA in 1986. USDA to hire W-visa workers would contractors, custom harvesters, and pay Social Security and the Federal other intermediaries negated the The Road Ahead Insurance taxes on effects of federal employer sanctions AgJOBS was not enacted despite bipar- the wages of W-visa workers to cover laws, allowing the employment of tisan support. Instead, Republicans the cost of administering the program. unauthorized workers to increase. in Congress and states introduced W-visa workers would pay for their Farmers are reacting to the Con- bills and enacted laws that use an own transportation and housing in gressional stalemate on immigration enforcement-first strategy to deal with the United States, but would receive a and new enforcement efforts in dif- unauthorized migration. As Table 1 refund of their Social Security contribu- ferent ways. Some are constructing shows, more crop farmers in California tions as an incentive to return home. housing for farm workers and begin- and throughout the U.S. have turned None of the bills mandating E-Verify ning to hire workers under the cur- to labor contractors to obtain workers; or creating new guest worker programs rent H-2A program, reasoning that employment has been stable, but an is likely to be enacted in 2012. This investments in recruit- increasing share of workers are brought means that a major farm labor challenge ment and housing will provide legal to farms by labor contractors and other arises from the effects of long-time fed- and stable workers. Others hope to intermediaries who are willing to act eral and new state enforcement efforts. persuade Congress and state legisla- as risk absorbers in the event of labor For example, fences and vehicle barriers tures to exempt agriculture from new and immigration law enforcement. have been erected on one-third of the immigration enforcement efforts and However, stepped-up enforcement of 2,000 mile Mexico-U.S. border, slowing create new guest worker programs. current laws without a new or revised the influx of unauthorized Mexicans Suggested Citation: guest worker program could leave and other foreigners; only 375,000 Martin, Philip L. 2011. "Immigration agriculture with too few workers. were apprehended in FY2011—down Reform and Agriculture.” ARE Update Republicans in Congress who want from 1.2 million in FY2006. Deporta- 15(2):5-8. University of California to increase enforcement are trying to tions of foreigners, almost 400,000 Giannini Foundation of Agricultural deal with labor concerns by in FY2011, exceeded the number of Economics. making it easier for farmers to hire legal foreigners apprehended just inside guest workers under new programs. U.S. borders for the first time. Philip Martin is a professor in the Department of Fewer new entrants means fewer The American Specialty Agriculture Act Agricultural and Resource Economics at (HR 2847) would retain the current new farm workers, since many rural UC Davis. He can be reached by e-mail at H-2A program and provide up to Mexicans find their first U.S. job in [email protected]. 500,000 new H-2C visas a year to for- agriculture. If states require employ- eign farm workers who could stay in ers to check new hires with E-Verify, For additional information, the United States up to 10 months a and if state and local police detain the author recommends: year. To hire H-2C workers, farmers the persons they encounter who do Mines, Richard and Philip L. Martin. could simply attest that they are abiding not have proof of their legal status, 1983. Foreign Workers in Selected by program regulations rather than farm employers may find fewer new California Crops. California Agri- engage in supervised recruitment, and workers appearing to replace those culture 37, 3-4 (March): 6-8. they could give H-2C workers housing who move on to nonfarm jobs. Martin, Philip and Linda Calvin. vouchers rather than provide them with 2010. Immigration Reform: What housing. H-2C workers could be paid What Is Next? Does It Mean for Agriculture and the higher of the federal or state mini- Agriculture is at another farm labor Rural America? Applied Economic mum wage or the prevailing wage crossroads. The question is whether Perspectives and Policy 32(2): 232- rather than the AEWR. the next few years will turn out to 253. The second approach to make it be like the mid-1960s, when the end Rural Migration News. Quarterly. easier for farmers to hire legal guest of the ushered in a http://migration.ucdavis.edu/rmn/ workers is the Legal Agricultural 15-year era of rapidly rising wages,

8 Giannini Foundation of Agricultural Economics • University of California