‘Close to Slavery’ or Legalization? The Farmworkers’ Hard Choice
By David Bacon
The American Prospect, November 25, 2019
In Chicano and Mexican families, the grandfathers who came to the United States as braceros (and almost all braceros were men) are mostly gone now. These farmworkers were considered only temporary migrant laborers, yet despite being denied the right to settle in this country and raise families, thousands of them eventually did just that. Their perseverance created homes and communities throughout the Southwest. From the program’s inception in 1942 to its abolition in 1964, bracero labor produced enormous wealth for the growers who employed them.
That wealth had a price. Braceros were almost all young men, recruited into a program that held them in labor camps, often fenced behind barbed wire, separate from the population around them. When their contracts ended, they were summarily shipped back to Mexico. Growers used braceros to replace local farmworkers, themselves immigrants from Mexico and the Philippines, in order to keep wages low and often to break strikes. To bring their families here, braceros had to work many seasons for a grower who might finally help them get legal status. Others left the camps and lived without legal status for years.
In 1958, economist Henry Anderson charged in a report, (for which growers got the University of California to fire him) that, “Injustice is built into the present system, and no amount of patching and tinkering will make of it a just system … Foreign contract labor programs in general will, by their very nature, wreak harm upon the lives of the persons directly and indirectly involved, and upon the human rights our Constitution still holds to be self-evident and inalienable.”
Anderson’s call helped lead to the abolition of the bracero program, but his warning cannot be buried safely in the past. Today, contract labor in agriculture is mushrooming again, with workers brought mostly from Mexico, but also from Central America and the Caribbean. States are beginning to pass laws to deal with its impact, and a new bill in Congress does what Anderson cautioned against—expand the contract labor program for agricultural labor—in exchange for the promise of legal immigration status for some undocumented farmworkers.
Debate over today’s contract labor program unfolds in a virulently anti-immigrant atmosphere, much like that of the 1950s. Many supporters of proposals to benefit undocumented migrants believe that only major concessions can give such proposals a realistic chance of enactment. But the bracero program’s history, during a similar period of deportations and nativist hysteria, may provide an idea of what the future might look like if such compromises become law.
In the Cold War era of the 1950s and early 1960s, the U.S. government mounted huge immigration raids. Farm labor activists of that era charged they were intended to produce a shortage of workers in the fields. Fay Bennett, executive secretary of the National Sharecroppers Fund, reported that in 1954, “the domestic labor force had been driven out … In a four-month period, 300,000 Mexican illegals [sic] were arrested and deported, or frightened back across the border.”
All told, 1.1 million people were deported to Mexico that year, in the infamous “Operation Wetback.” The bracero program, begun in 1942, was already in place, organizing the recruitment of contract laborers in Mexico for U.S. farmers. As the raids drove undocumented workers back to Mexico, the government then relaxed federal requirements on housing, wages, and food for braceros.
In 1956 alone, 445,197 braceros were brought to work on U.S. farms, 153,000 just in California. They made up almost a quarter of the 2.07 million wage workers on U.S. farms that year, according to the Department of Agriculture. “The availability of braceros held down farm worker earnings,” says University of California, Davis agricultural economist Philip Martin. In the decade of the 1950s, median farm wages rose from 85 cents an hour to $1.20, while wages in the cities took a bigger jump, from $1.60 to $2.60.
By law, bracero wages were not supposed to undermine wages for resident workers, and growers were supposed to offer jobs to local workers before they were allowed to bring in braceros. But activists “accused certain large growers of offering wages lower than domestic migrants will accept, in order to create an artificial labor shortage and justify a request for Mexican nationals,” wrote H.B. Shaffer in a 1959 report. The bracero program “tends to displace those [resident] workers rather than meet real labor shortages.”
Bennett agreed: “The alleged domestic labor shortage in the [rural] area is artificially created by pay rates too low for decent living.” The activists of those years who protested included future leaders of the United Farm Workers Cesar Chavez, Dolores Huerta, and Larry Itliong, as well as leading community organizers Bert Corona and Ernesto Galarza.
Today’s labor picture on U.S. farms has changed surprisingly little from that of the 1950s. Industrial agriculture in the Southwest and along the Pacific coast relies on Mexican labor, as it has for a century. About 2.4 million people presently work for wages in U.S. agriculture, a slight increase from 1956. Mexicans made up the majority of farmworkers then, and today are two-thirds of the workforce. U.S. immigration law and its enforcement have never eliminated Mexicans from the workforce, but indirectly control the conditions under which they live and work. Mexican academic Jorge Bustamante argues that a primary purpose of U.S. immigration law historically has been—and still is—to regulate the price of Mexican labor in the United States.
Depending on the period, farmworkers come across the border with visas or without them. Especially since the enactment of the North American Free Trade Agreement in 1994, the economic forces displacing people in Mexico, pushing them across the border, have made migration a necessity for survival for millions of families. During times of heavy enforcement, hundreds die on the border each year. In an earlier similar period, Woody Guthrie sang, “We died in your hills, we died in your deserts … Both sides of the river, we died just the same.”
The bracero program channeled that flow of people into a cheap and convenient system for growers. Today the H2-A visa program serves the same function. Although the bracero program was abolished in 1964, the H-2 visa on which it was based was never eliminated. In 1986, Congress again authorized an organized farm labor importation program and created the H-2A visa.
Growers recruiting H-2A workers, mainly from Mexico, must apply to the Department of Labor, specifying the type of work, living conditions, and wages workers will receive. The company must provide transportation and housing. Workers are given contracts for less than one year, and must leave the country when their work is done. While in the U.S., they’re tied to the grower that recruits them. If workers protest mistreatment, they can be legally fired and must leave the country.
In theory, growers must advertise for local workers first, and can only bring in guest workers if too few locals are available. Currently, every state is required to survey wages every year to establish an Adverse Effect Wage Rate (AEWR)—a minimum wage for H-2A workers that theoretically won’t undercut the wages of local farmworkers.
Legal-service agencies, farmworker unions, and advocates have criticized the program for years, calling it “close to slavery,” and charging extensive and systematic violations of all of these requirements. A host of articles have documented those violations.
Farmworker Justice, a national farmworker advocacy group, has criticized the H2-A program for creating “a captive workforce that is deprived of economic bargaining power and the right to vote.” The United Farm Workers has warned against Trump administration proposals to further weaken the regulations “that require U.S. citizens and legal residents to be offered these jobs first … This drastic move could replace local U.S. workers with foreign H-2A workers.”
As was the case in the 1950s, however, U.S. immigration policy today is intended to impede the entry of undocumented migrants, and uses the resulting shortage to force growers into using the H2-A visa program. In one celebrated case, federal immigration authorities used the E-Verify system to identify 550 undocumented workers on the huge Gebbers ranch in eastern Washington. Citing the legal prohibition on employing them, authorities forced Gebbers to fire them all. The company was then required to use the H2-A program to recruit workers from Mexico, and even Jamaica, to replace those who’d lost their jobs.
Many immigrant rights activists view the 2010 Gebbers action as a trial run for an enforcement tactic that today has become more common, one that proposed legislation would make mandatory on every U.S. farm. Its purpose is not to deny labor to growers. It is to return to an earlier system for managing it. In this particular, 2019 is beginning to look like 1956. At the same time as H-2A employment is rising, deportations are increasing. The Trump administration deported 256,000 people in 2018, just slightly more than the number of people brought to the U.S. under H-2A visas.
According to the National Agricultural Workers Survey, about half of the country’s 2.4 million farmworkers are undocumented. As the flow of workers across the border was reduced by immigration enforcement under President Obama, and even more under President Trump, finding labor became an increasing problem for growers.
Trump’s fulminations against migrants and his drive to build a border wall create the impression that he seeks to restrict immigration across the board. But when growers appeal for workers, his response is different. At a Michigan rally in February 2018, he told supporters, “For the farmers … it’s going to get good … We’re going to have strong borders, but we have to have your workers come in … We’re going to let them in ’cause you need them … We have to have them.”
For many years, the H2-A program saw little use by growers: In 1992, fewer than 10,000 visas were issued. That number had tripled by 2005, and under Obama and now Trump it has mushroomed. Last year, growers were certified to bring in 242,762 H-2A workers—a tenth of the total agricultural workforce and an increase of more than 100,000 since 2014, when the number of such workers was 139,832. Georgia brought in the most—32,364, compared with its non–H2-A workforce of 48,972, according to the Department of Agriculture. Florida brought in 30,462, compared to 96,247. California’s 18,908 H2-A workers are fewer in comparison to its huge workforce of 377,593, but that was an increase of 70 percent in just two years.
During the bracero program, workers were employed directly by growers, and hired through grower associations. Today, however, the three largest employers of H2-A workers are labor contractors: the North Carolina Growers Association, which accounts for 11,609 workers; the Washington Farm Labor Association (WAFLA) with 5,163; and Fresh Harvest, with 4,237. Some employers with operations in Mexico, like Fresh Harvest and Driscoll’s (the world’s largest berry company), offer H2-A visas to workers they first employ in fields south of the border. Other large H2-A employers include Washington state’s Zirkle Fruit Company, which alone brought in 4,169 pickers.
Also unlike the bracero era, when recruitment was jointly managed by the U.S. and Mexican governments, recruitment today is privatized. No one knows for sure who all the recruiters are, how they recruit people in Mexico, or their arrangements with U.S. growers. The largest recruiter may be a company called CSI, formerly Manpower of the Americas, which claimed to have recruited 30,000 Mexican workers in 2017 and is closely tied to WAFLA. In the 1990s, Manpower of the Americas maintained a legal blacklist of workers who would be denied employment—including those who’d been involved in worker activism, who protested bad conditions, or who just worked too slowly. Today, the CSI website warns, “CSI shares candidate [worker] records with companies to select whomever they see fit.”
Republicans have introduced a number of bills in recent years to make the H2-A program more grower-friendly. But the most far-reaching bill dealing with H2-A workers was introduced in Congress at the end of October by Zoe Lofgren, a Democrat from Silicon Valley, and Dan Newhouse, a conservative Republican from Washington’s Yakima Valley. Newhouse receives more campaign contributions from agribusiness than any other industry. The Farm Workforce Modernization Act of 2019 essentially ties legalization for undocumented farmworkers and guest worker programs together. This compromise bill guarantees growers a labor supply at a price they want to pay, while at the same time providing a pathway to legal residence for many undocumented farmworkers.
Last Thursday, the House Judiciary Committee approved the bill and sent it to the House floor.
Today, about half the agricultural workforce, or 1.25 million people, are undocumented, and would be able to apply for legal immigration status (the “green card”) if they’ve done farmwork for two years before the bill’s passage. Those who’ve lived in the U.S. more than ten years would have to wait four years before getting a green card, and those with less than ten years would have to wait eight years. Other requirements include fines, fees, and record checks.
Applicants, while they could get jobs outside of farm labor, would have to put in a minimum of 100 days a year in the fields while they wait to be accepted into the program. That might not be easy, since many farmworkers struggle to find that much work in the course of a year.
The bill makes it mandatory that growers use the E-Verify database to detect and turn away future job applicants who might not have legal status. That database has been criticized for many years for inaccuracy, and for providing a pretext for refusing to hire people based on race and nationality. The bill includes language barring such discrimination. Employers, however, also have a long history of accusing workers of lacking immigration status as a pretext for firing them because of union and workplace activism.
Since half of current workers have no legal status, an even more predictable impact of the mandatory use of E-Verify would be to make it harder for employers to find workers they can legally hire. The half of the workforce that’s currently undocumented would eventually shrink as people applied for green cards, gained legal status, and found better-paying jobs elsewhere. The other half of the workforce—people who are citizens or have legal immigration status—will shrink as well over time, particularly because the average age of farmworkers has increased from 28 in 2000 to 38—the average age today.
With the mandatory use of E-Verify, growers would have two choices. They could increase wages and encourage direct, year-round employment to make their jobs attractive to workers living in rural communities. Or they could use the H2-A program much more extensively to fill their labor needs.
The Farm Workforce Modernization Act has several provisions to make the second alternative attractive. It suspends for one year the increase in the Adverse Effect Wage Rate, which would otherwise increase with inflation, and changes how it is calculated. After ten years, the AEWR would be evaluated, and could be abolished altogether. The net effect would be to bring down H2-A wages, so they’re closer to the minimum wage. That could not only affect H2-A workers directly, but also make it more difficult for resident farmworkers to raise their own wages.
The bill would allow growers to use federal programs for farmworker housing to build barracks for guest workers. Growers historically have complained that requiring them to provide housing adds to the cost of hiring H2-A workers. Subsidizing H2-A housing encourages the program to expand, while limiting those subsidies restrains it. Washington state’s Department of Commerce ruled that growers could use state farmworker housing funds for barracks, and subsidizing that cost is a significant factor of the program’s rapid growth there.
In California, this year the United Farm Workers sponsored AB 1783, a bill preventing growers from using state farmworker housing funds for guest worker dormitories. The California bill’s author, Assemblymember Roberto Rivas (a son and grandson of UFW members) argued that his bill “phases out state support of the federal H-2A program. These types of programs—such as the Bracero programs, which aimed to secure a temporary agricultural workforce—have historically limited farmworker rights and been criticized for abuse.” The bill passed and was signed by Governor Gavin Newsom in October.
While the bill now in Congress wouldn’t invalidate the new California law, it would allow growers to tap federal funds instead, with some restrictions.
The old justification for both the bracero and H2-A programs was that growers needed workers on a temporary basis to fill transitory labor needs, and therefore didn’t threaten the more permanent jobs of local workers. The Farm Workforce Modernization Act alters this assumption by setting a three-year duration for the H2-A visa, moving it more toward a visa for longer-term employment. (Currently, the H2-A visa is good for one year only. Some 60,000 H2-A visas would be available over three years for permanent employment, which dairies in particular want, and this cap could eventually be removed.)
The bill does contain some pro-worker changes in the H2-A program. Ten thousand holders of H2-A visas per year would be able to transfer from the employer that recruited them to another employer, which is presently not allowed. H2-A workers would be covered by the Migrant and Seasonal Agricultural Workers Protection Act (AWPA), offering some protection from abuses.
Employers could sponsor 40,000 farmworkers, including both undocumented and H2-A workers, for green cards each year. Many workers want residence status badly, but giving employers the power to petition also makes workers more vulnerable to them. H2-A workers could petition themselves, but would have to have worked for ten years in the program first—not a requirement for employer petitions.
Predicting all the long-term impacts of the bill is impossible, but some effects are very likely. The pressure on people in Mexico to migrate will still push people to come, since the conditions that displace people are very deep, and changing them would require reordering the relationship between the U.S. and Mexico. As early as 1949, Ernesto Galarza, pioneering farmworker organizer, author, and scholar, argued that the Mexican migrant “is forced to seek better conditions north of the border by the slow but relentless pressure of United States agricultural, financial and oil corporate interests on the entire economic and social evolution of the Mexican nation.” That pressure has only grown stronger in the past 70 years.
Increasing wages substantially in U.S. fields would make jobs more attractive to resident farmworkers, and perhaps lead to a mixed workforce of both local residents and migrants. The federal bill, however, would effectively keep farmworker wages close to the minimum. That, together with the impact of E-Verify and turnover in the workforce, is a recipe for pressing employers, willingly or unwillingly, to use the H2-A system. Last year’s total number of certified H2-A applications was almost a quarter of a million, which could easily increase at the rate seen in the last ten years. In addition, the number of permanent jobs held by H2-A workers will increase.
An agricultural system in which half the workforce would eventually consist of H2-A workers is not unlikely. Florida, Georgia, and Washington are already approaching this situation.
Competition for housing in farmworker communities would also become more intense. Soledad, in the Salinas Valley, put a moratorium on H-2A housing last September, after the local Motel 8 was converted into living quarters for contract workers. At the same time, residents complained that they were evicted from a rental complex when owners found it preferable to rent the apartments to H-2A contractors. In Santa Maria, farmworkers say rents increased drastically as growers outbid residents to house the 800 workers they brought into the valley. According to the University of California’s Philip Martin, fair-market rent for a two-bedroom house in Salinas is $1,433, while the current state minimum wage only produces $1,920 a month.
What makes the likely expansion of the H2-A program a risk worth taking for some farmworker advocates is the prospect that more than one million people could gain legal status from the bill’s legalization provisions. For many farmworkers living in fear of taking their kids to school or making a trip to the grocery store, the need for legal status is overwhelming and immediate.
Farmworker Justice and the United Farm Workers, which both criticized the program when the Trump administration announced prospective rule changes, helped negotiate the Farm Workforce Modernization Act with growers and Republicans.
According to Farmworker Justice, “If enacted, this legislation would alleviate that fear [of deportation] by providing farmworkers and their families with an opportunity to earn legal immigration status. With legal status and a path to citizenship, farmworkers would be better able to improve their wages and working conditions and challenge serious labor abuses.”
The UFW says, “The bill addresses the pervasive fear faced every day by the immigrant farm workers who perform one of the toughest jobs in America. The bill also includes significant new protections and rights for groups of farm workers previously excluded from basic rights.”
Farmworker unions and advocates are divided over support, however. Rosalinda Guillen, director of Community to Community, a farmworker advocacy organization in Bellingham, Washington, argues that “this bill doesn’t address the needs of most farmworkers who are already here. It 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.”
Ramon Torres, president of Familias Unidas por la Justicia, the new independent union for farmworkers in Washington state, says his experience helping H2-A workers protest labor violations makes him doubt the bill will change their situation. “Employers will continue to have the power to punish and deport these workers if they resist,” he says. “We know they’ll do this because it’s what they’re doing now. Growers complain they can’t find enough workers, but the reason they can’t is that conditions and wages are so bad we have people living in garages and sleeping under trees. Organizing the union is the only thing that has worked to change conditions here for the better, but there is no protection for the right to organize in this bill.”
Agribusiness is also divided, chiefly over whether the bill provides enough change in the H2-A program. California Farm Bureau Federation President Jamie Johansson told AgNet West, “This comprehensive legislation contains key elements that address current and future workforce needs … Improvements to the H-2A program would make it much more flexible and valuable to California farm employers and employees.”
The senior vice president for public policy for the United Fresh Produce Association, Robert Guenther, favored the bill because it would keep workers tied to agricultural jobs. The legalization program “requires them to keep working in agriculture for a period of time which actually increases depending on the number of years they have been working in agriculture,” he claimed. Because there is no cap on the numbers of H2-A workers, he added, “past issues with getting enough workers in during various growing seasons will be mitigated.”
The American Farm Bureau Federation, however, was not satisfied. Produce Blue Book reported that Will Rodger, director of policy communications, complained that the bill did not have enough work visas for agriculture, and that E-Verify use would make too few workers available. “We want the bill to correspond to reality, and there’s no way the H2-A numbers will work,” he said.
The most radical pro-immigrant and pro-worker proposals are being made outside of Congress, however. Two Democratic presidential candidates want changes that go far beyond the bill’s legalization provisions. For months, Julián Castro has advocated for “an inclusive roadmap to citizenship for undocumented individuals and families who do not have a current pathway to legal status.” He has many recommendations for taking down current barriers to immigration, including strengthening the family reunification program. (Restrictionists and some employers have argued for years that family reunification visas should be replaced by ones that allow people to enter the country based only on their ability to work and the need for their labor.)
Castro supports changes to “strengthen labor protections for guest workers and end exploitative practices which hurt residents and guest workers, provide work authorization to spouses of participating individuals, and ensure guest workers have a fair opportunity to become residents and citizens.” He would “reconstitute the U.S. Immigration and Custom Enforcement (ICE)” and begin examining the roots of forced displacement and migration.
Bernie Sanders released his immigration program on November 7, which calls for “a path to legal residency or citizenship for most undocumented immigrants in the country today.” Of all the candidates, he is the most critical of guest worker programs, saying he “rejects the exploitation of workers and the use of visas for cheap, foreign labor. We must increase opportunities for qualified individuals to take steps towards permanent residency.”
Sanders asserts that guest workers “have been routinely cheated out of wages, held virtually captive by employers who have seized their documents, forced to live in unspeakable inhumane conditions and denied medical benefits for on-the-job injuries,” in programs he calls “close to slavery.” He notes he voted against creating ICE, and against the Comprehensive Immigration Reform Act of 2007 because it expanded guest worker programs.
In the end, the fate of the Farm Workforce Modernization Act may be overtaken by election politics. Since the original comprehensive immigration bills were introduced under President George W. Bush, common wisdom in Washington holds that passing an immigration bill is practically impossible during a presidential campaign.
The differences between Donald Trump and his supporters, and the progressive wing of the Democratic Party are so great that the election, rather than legislation, will basically decide the direction for U.S. immigration policy. The flow of many Mexican and Central American migrants across the border will either be increasingly imprisoned in a system of cheap and disposable labor by growers, or it will be integrated into families and communities able to fight for rights, legal status, unions, and a better standard of living.