No to family immigration, but yes to guest workers

On April 21 President Trump announced in a tweet that, while stopping almost all kinds of legal immigration for at least two months, he was placing no limits on the continued recruitment of H-2A guest workers by growers.  Trump claimed the spreading COVID-19 pandemic made his order necessary, but he cited no evidence to show that a ban covering all forms of family-based migration would stop the virus’ spread, while leaving employer-based migration unchanged would not exacerbate the pandemic.

Trump has repeatedly declared his support for the guest worker program. In a 2018 Michigan speech he told a grower audience, “We’re going to let your guest workers come in, because we have to have strong borders, but we have to let your workers in … They’re going to work on your farms … but then they have to go out. But we’re gonna let them in because you need them … We have to have them.”

Agriculture Secretary Sonny Perdue explained the apparent contradiction. He wants Trump “to separate immigration, which is people wanting to become citizens, [from] a temporary, legal guest-worker program. That’s what agriculture needs, and that’s what we want. It doesn’t offend people who are anti-immigrant because they don’t want more immigrant citizens here. We need people who can help U.S. agriculture meet the production.”

This promise is more than election-year politics. It is a big step towards creating a captive workforce in agriculture, based on a program notorious for abuse of the workers in it, and for placing them into low-wage competition with farmworkers already living in the U.S.

It is also a step into the past. Family preference migration, in which immigrants can get residence visas (green cards) based on their family relationships, was won by the civil rights movement. Bert Corona, Cesar Chavez and others convinced Congress to end the bracero program in 1964. They fought for an immigration policy based on family unification, instead of one based on growers’ desire for a low-wage labor supply.

Especially for immigrants coming from Asia, Africa and Latin America, this new system made it possible to unite families in the U.S., settle down and become part of communities. Before that watershed step, people could come from Mexico to work as braceros, but not to stay, and not with families. Immigration quotas favoring white migration from Europe made it very hard for families in general to come from non-European countries.

When President Trump said, in a 2018 meeting with Senator Dick Durbin (D-Ill.), “Why do we want these people from all these shithole countries here? We should have more people from places like Norway,” he was voicing his nostalgia for that pre-civil rights past.

Trump has now suspended the family preference system. Whether it will be reinstated at some point is anyone’s guess. And the H-2A program, which is growing rapidly, is a direct descendant of the old bracero regime. It will continue, given its support in a Congress that is much more conservative than the one in 1964, which abolished the bracero program and established the family migration system. Even Democrats in the current Congress have introduced legislation that would greatly expand H-2A.

Although growers have claimed the coronavirus has created a labor shortage making the H-2A program vital, the program was mushrooming long before the pandemic hit. Last year the U.S. Department of Labor gave agribusiness permission to fill 257,667 jobs with workers brought almost entirely from Mexico, with H-2A visas. That amounted to 10 percent of all the jobs in U.S. agriculture.

The program is five times bigger than the 48,336 jobs certified under George W. Bush in 2005. In some states H-2A certifications now make up more than 10 percent of farmworker jobs. In Georgia growers fill a quarter of all farm labor jobs with H-2A workers.

An agricultural system in which half the workforce would eventually consist of H2-A workers is not unlikely. Florida, Georgia, and Washington are already heading in this direction. Rosalinda Guillen, director of Community to Community, a farmworker advocacy organization in Bellingham, Washington, charges that this expansion “shifts agriculture in the wrong direction, which will lead to the eventual replacement of domestic workers and create even more of a crisis than currently exists for their families and communities.”

The problem with H-2A

H-2A workers are given contracts for less than one year, they can only work for the company that contracts them, and they must leave the country at the end of the contract. If they protest abusive conditions they can be fired and deported. And because they must reapply to come back for the following season, they are uniquely vulnerable to blacklisting.

Investigators from the Centro de los Derechos de Migrante (the Migrant Rights Center, CDM) reported in a detailed study released in March, “Ripe for Reform,” that “many believed that they would not be allowed to return to work in the U.S. at all if they did not complete a contract, regardless of the reason.”

One large recruiter, CSI Visa Processing, with 12 offices in Mexico, brings more than 25,000 workers to the U.S. every year. It has them sign a pledge that authorizes a blacklist: “The boss has the right to fire me and I … will have to go back to Mexico, and the boss will report me to the authorities. This will obviously affect my ability to return legally to the United States in the future.”

“The vast majority of workers start their H-2A jobs deeply in debt,” the CDM reported, some paying bribes as much as $4,500, despite legal prohibitions on such “fees.” They are often housed in barracks on the grower’s property, miles from the nearest town, surrounded by barbed wire fences. “Some workers stated that they needed permission to leave the housing. Others indicated they were prohibited from leaving other than to buy groceries,” the CDM study found.

One worker, Mario, said he was charged $1,000 a month for a bunk bed in a barrack with 30 to 40 other workers. When some workers tried to leave, the boss illegally took their passports. “They didn’t want us to leave or go anywhere,” Mario said.

All interviewees in the CDM report suffered violations of basic labor laws, including receiving wages less than the minimum for H-2A workers and the denial of required breaks. Eighty-six percent reported that companies wouldn’t hire women or paid them less when they did. Half complained of bad housing, and a third said they were not provided needed safety equipment. Forty-three percent were not paid the wages promised in their contracts.

“Fraud and misrepresentation about wages were very common,” according to the CDM.

One worker reported getting paid $1.25 per hour after illegal kickbacks. Another got $400 for a seven-day week, working 11 hours a day. Underpayment over the lifetime of his contract was $11,000. Multiplied by the dozens of workers in an average crew picking fruit or harvesting vegetables gives an idea of the illegal profits available to employers who seemingly have little fear of consequences.

That lack of fear is understandable given the virtual absence of enforcement. In 2019, out of 11,472 employers using the H-2A program, the Department of Labor filed cases against only 431 (3.73 percent), and of them only 26 (0.25 percent) were barred from recruiting for three years, with an average fine of $109,098.

After one H-2A worker, Honesto Silva, collapsed in a field in Washington State three years ago, and later died, 70 of his co-workers refused to go into the fields. The company, Sarbanand Farms, fired them, and threw them out of the labor camp. Because the H-2A regulations require workers to leave the country if they are terminated, firing effectively meant deporting them.

Washington’s new union for farmworkers, Familias Unidas por la Justicia, supported that protest and others by H-2A workers – in 2018 at Crystal View farm and in 2019 at the King Fuji apple ranch. According to Edgar Franks, organizer for Familias Unidas, most of the workers who participated in the Crystal View and King Fuji strikes were not working for the company in the following season.

Favors for growers, COVID for workers

Since his election, Trump has continually tried to make the H-2A program more accessible and profitable for growers. Earlier this year the government dropped a restriction to allow growers to recruit only workers who’d been recruited in the past. Then it suspended a regulation barring growers from keeping workers in the U.S. beyond the end of their old contracts.

Another promised rule change would relax the requirement that companies advertise jobs first to local residents before applying for H-2As. The most important promise was to cut the wage that growers must pay H-2A workers, the Adverse Effect Wage Rate. Set high enough, in theory, not to undermine the prevailing wages of local farmworkers, it actually puts a ceiling on them. If local workers demand wage increases, growers can hire H-2A workers instead.

Low wages put enormous pressure on all farmworkers to go to work, even during the coronavirus crisis.  Farmworker families are among the poorest in the U.S., with an average annual income between $17,500 and $20,000-below the official poverty line. Increasing that pressure during the COVID-19 crisis is the fact that half of the country’s 2.5 million farmworkers-those without legal status-were written out of all the relief programs passed by Congress.  A quarter of a million H-2A workers were written out of the relief bills as well.

The coronavirus crisis adds risk to inequality. Like everyone, H-2A workers must try to maintain the recommended six feet of distance between people in housing, transportation and working conditions. But the CDM report concludes: “That will be impossible under conditions H-2A workers typically experience in the United States.” There is no testing for them as they enter the country nor while they’re here.

Employers are not required to provide health insurance to H-2A workers. If they stop working because they get sick, the conditions of their visa require them to leave the country. Once in Mexico they then have to find medical care, while their families and communities face the danger of infection.

Uncomfortably close

As Congress began discussing bailout and relief packages in March, however, unions and community organizations began drafting proposals and demands. Thirty-six groups signed a letter drafted by the Washington, D.C. advocates Farmworker Justice, calling for more protections for H-2A workers. Recommendations include safe housing with quarantining facilities, safe transportation, testing of workers before entering the U.S., social distancing at work, and paid treatment for those who get sick. In Washington State Columbia Legal Services filed suit, together with the United Farm Workers, Familias Unidas por la Justicia and Community2Community, a farmworker organizing project, to force the state to set health standards for H-2A workers.

The H-2A program, as changed by the administration, will not likely revert to its pre-pandemic state, however. And H-2A regulations were clearly ineffective in protecting workers before the crisis. Fourteen years ago conditions of H-2A workers were described in a report by the Southern Poverty Law Center, “Close to Slavery.” CDM counsel Mary Bauer, who authored that report, charges, “I haven’t seen any significant improvement in 30 years. Abuse is baked into a structure in which workers are vulnerable, and where there’s always a new supply of workers to replace the old, the sick or those who complain and protest. A program that gives workers virtually no bargaining power creates a perfect storm of vulnerability in the context of this pandemic.”

The CDM report makes the same point. “The problem with protecting workers merely by promulgating regulations,” it emphasizes, “is that regulations cannot overcome the profound power imbalance between employer and worker.”

In the 1960s the Chicano civil rights movement campaigned not to regulate guest worker programs, but to abolish them. Activists fought for an immigration system based on family unification instead. That is the change President Trump now wants to reverse with a tweet.

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This piece originally ran in Capital & Main