(As usual, I am not an expert on this stuff, so don't view this as infallible information)
As we keep hearing, illegal immigrants pour into our country not only because they face extreme poverty at home, but also because there are jobs waiting for them here. That many of the jobs are illegal is in part due to the incredible difficulty of making them legal. Jobs most frequently filled by illegal immigrants are in the health care industry, the hotel and resort industry,restaurants, and in those old standbyes, housekeeping and domestic work of various kinds (think Kerik), landscaping and agriculture.
Below I'll try to give you a short version of what employers need to do to obtain permission to legally hire foreign workers for low-paying agricultural jobs. You'll see that it is bureaucracy to the max, but it's only the government responding to the loudest voices against immigration. It appears that the burdensome regs make it tempting not just for people who'd exploit illegal immigrants but for those who just can't afford to jump through all these hoops to go the illegal route. It's not just the money, it's the time. Your harvest may be dead on the fields before you can get your workers. In addition, if during any of this it's discovered that there are U.S. workers working under conditions less satisfactory than those described below as requirements for foreign workers, the application for employing the foreign workers will be rejected. It seems altogether plausible to me that the fear of being found with U.S. employees working under conditions different from below would discourage a farmer from making an application. For instance, if the Department of Labor decides that the going rate you have to pay is above the minimum wage, you have to pay everyone that rate. You can't pay U.S. citizens or anyone else the minimum wage if it is lower than what the Department of Labor says you should pay. This means that you don't have money left to pay many people more than the DOL rate if you want to give raises.
To work legally, both employer and potential employee need to apply to the U.S. government. According to the guidelines provided by the US Department of Labor (this is separate from Immigration regulations), in order to legally hire agricultural workers, an employer
...must agree to engage in independependent positive recruitment of U.S. workers which means an active advertising effort in at least newspapers and radio equivalent to efforts conducted by employers who don't use H-2A workers in areas where there might be US workers available. Employers can ONLY specify qualifications essential to the job and required by employers of U.S. citizen employees as well.
Wages must be the same as for U.S. workers and must be at least as high as all minimum wages or prevailing hourly wage whichever is higher. The employers should consult with the Dept of Labor regional office to decide what that rate is. Similarly piece rate bases must be approved. If as work progresses piece rate wages result in lower rates than the standard hourly wage, then they must be supplemented to meet the equivalent hourly level, again at the prevailing rate for the same crop or activity.
The employer has to provide free housing to all workers not reasonably able to return to their residences the same day. Such housing "must be inspected and approved according to appropriate standards. Housing provided by the employer shall meet the full set of relevant department of labor standards and other relevant standards. Under some circumstances rental housing meeting the same standards can be provided."
The employer has to provide either three meals a day or "free and convenient cooking and kitchen facilities." There can be charges for the provided meals.
The employer is responsible for the following kinds of transportation:
"After the worker has completed fifty per cent of the work contract period, the employer must reimburse the worker for the cost of transportation and subsistence from the place of recruitment to the place of work if such costs were borne by the worker. The employer must provide free transportation between the employer's housing and the worksite for any worker who is provided housing. Upon completion of the work contract, the employer must pay economic costs of a worekrs subsistence to the place of recruitment." There are some varioations to this depending on where the worker goes.
The employer must provide workers comp insurance if required by state law. If the state doesn't require it, the employer must provide equivalent insurance and prove it to the regional administrator (whoever that is).
The employer must provide all tools and supplies necessary for the work unless common practice for the area and job for worker to have some of his own.
The employer must guarantee employment for at least 3/4 of work period or pay him for that much if he can't employ him the whole time.
"The employer must hire any qualified and eligible U.S. worker who applies for a job until fifty percent of the period of the work contract has elapsed."
The employer can't employ immigrant labor to fill jobs vacant because of strikes or labor disputes.
Employers granted temporary foreign agricgultural labor certification have to pay $100 plus "$10 for each job opportunity certified up to $1000 for each certification.
Employers have to keep records of earnings. Workers have to get complete statements of hours worked and earnings. Workers have to be paid at least twice monthly or more often if prevailing habit to do so. All workers have to have copies of job orders or contract.
And the employers haven't even applied yet for certification! To do this, they have to
...submit a complete labor certification application with the appropriate regional administrator and local authority at least forty five calendar days before the first date on which the workers are needed. IF the application is accepted within the required framework, the regional administrator will make a certification determination thirty days before the workers are needed. BUT employers are encouraged "consult with the U.S. Department of Labor, Employment and Training Administration and others for guidance and assistance well before the forty five days and to submit their application before 45 days as well to allow for "review, discussion and amendment if necessary."
When an application is ACCEPTED for consideration, that's just what it's accepted for: consideration, meaning the regional administrator willinform the employer of specific efforts expected of them re recruiting US workers;
"will require that the job order be placed into appropriate intrastate and interstate clearances; and
"may require the employer to engage in independent positive recruitment efforts within a multi'state region of traditional or expected labor supply if the regional administrator determines there is a sufficient supply of labor to be recruited."
If the employer receives approval, he finds himself paying more, as much as $2.00 an hour, for the foreign worker than he would for a domestic worker because of the additional requirements.
THEN the employers have to find the workers in Mexico (or wherever, but usually Mexico) and the workers, still in Mexico have to find them. I haven't figured out how this works. In any case, to get a H-2A visa, the potential worker has to supply the American consulate in his area of residence with a copy of the potential employer's certificate of approval for hiring foreign agricultural workers (remember the process I described above?) In addition, he must submit two application forms, two identical photos and proof that he meets the minimum job requirements described in the employer's application. Then you have to wait for approval. If you have a family, they have to fill out H-4 applications. It apparently takes years to get an H-4 visa. H-2A visas are good for 364 days. If you don't go home and you get caught, you can't get another visa.
There is absolutely no path to citizenship for Mexican agricultural workers who go through the process to enter the country legally.
So here are some interesting statistics:
In 2002, only 2% of the agricultural workers in Arizona were legal.
In 2002, only 41,000 foreign agricultural workers in the United States were legal. There are an estimated 2.5 MILLION farm workers in the country. You think there'd be any U.S. food to eat without those illegal immigrants?
Some links for this article;
www.azcentral.com/special03/articles/0207guestworker08.html
