Some Illegals to Get Legal Status after Only Four Months in the U.S.

By David North on April 29, 2013

An illegal alien, with the right work history, would not even need to be in the United States when he applies for legal status under one provision of the Gang of Eight's big immigration bill, S.744.

The same alien could get legal status even though his entire life experience in the United States consisted of a single four-month visit.

Are these rules set up for Nobel Prize winners? It might make sense for them.

No, thanks to the enormous power of the agri-business lobby, these are the proposed terms for the farm part of the amnesty program; special rules set up for illegal farm workers — rules established to reduce the wages paid by the big farming interests by flooding the ag labor markets with more alien workers.

Once again the massive power of the ag employers' lobby shines through the details of the rural part of the legislative package (S.744), just as it did a quarter of a century ago when Congress enacted the Immigration Reform and Control Act (IRCA) with similar unreasonable gifts to the agricultural sector.

The potential for fraud under S.744 is immense, just as it was under IRCA, as noted in an earlier CIS Backgrounder. This is particularly true this time because there is no requirement in the bill that the alien farm workers be interviewed by government officials.

Instead of pressing agri-business to enter the 20th century (if not the 21st century) in its labor practices, the Gang of Eight is trying to give the fruit and vegetable growers (and dairymen) two huge, and different, opportunities to continue to exploit farm workers.

One deals with the illegal aliens who have worked in the fields and barns in the past, and the other (subject of a future blog) relates to a new and quite relaxed nonimmigrant worker program for agriculture. Both are designed to expand the ag labor force, and thus together create two bites at the apple for the employers.

Regarding aliens who have been farm workers, Section 2211 of S.744 would create a special amnesty program for them and provides them with "blue cards". This provision is in addition to the proposed mainline amnesty; thus there would be two separate and distinct programs that would be available to some illegal aliens with farm work experience; in other words, there also would be two bites at the apple for some of these workers.

But the apple presented to the growers is like the ones you see winning the blue ribbon at county and state fairs, luscious, attractive, and delicious; the one provided to the workers is one of the less appetizing kind, like those fated for the cider mill.

How would an illegal alien get the blue card (which turns to dust after eight years) and how would he convert that to a green card, giving him permanent legal status? And how do these farm worker provisions compare to the rest of the proposed amnesty?

Who Qualifies for the Blue Card?

Getting the blue card would be much easier than getting the green card (later) in this program, which fits the growers' needs neatly. They want an instant supply of farm workers right away — what happens to those workers in the future is of little concern.

To get the blue card, according to S.744, one must have:

[P]erformed agricultural employment in the United States for not fewer than 575 hours or 100 work days during the 2-year period ending on December 31, 2012. ...

and is not ineligible under paragraph (3) or (4) of section 245(b) of the Immigration and Nationality Act.

The last clause bars aliens with certain criminal records and provides the Secretary of DHS with numerous ways to waive some of those provisions.

The initial requirement is a very modest one, as one might expect, and calls for only a small amount of actual farm work experience. The 575 hours, if worked in 40-hour weeks, could be accomplished in a little less than 15 weeks (less than four months) — out of the 104 weeks in two years. Further, if the other measure, 100 work days (which must be at least 5.75 hours each), is used, that would indicate 20 five-day weeks in a period of 104 weeks.

But what is more interesting is what is left out of these requirements: Does the worker need to be in the United States any length of time when not doing farmwork? Does he need to be in the United States when the application is filed?

The answers are, in each case, apparently not.

This non-requirement mirrors similar provisions in the fraud-strewn program for Special Agriculture Workers (SAWs) in the old IRCA program (which I reviewed at the time for the Ford Foundation.)

This time around, as before, the farm worker provisions are much easier to meet (legitimately or not) than those of the mainline amnesty, and thus the blue card program will attract the bulk of the fraudulent applications, just as the SAW program did last time. In the proposed mainstream amnesty program an applicant must be in the United States at the time of the application, must have been here (except for brief visits to other nations) since December 31, 2011, and must meet some other conditions. Though these requirements are modest, they are more significant than those in the blue card program.

Moving from the Blue Card to the Green Card Is More Difficult

Perhaps the least attractive part of the temporary blue card program is the requirement to continue to do agricultural work in order to secure the permanent green card. This is a brand new concept and was not a feature of IRCA. It represents a coup for the growers, as it would indenture the blue cards to farm work, if not to a particular farmer.

As noted earlier, the blue card would last for eight years, and during those years, in order to move to a green card, the alien must have, according to Section 2212 of S.744:

(A) during the eight-year period beginning on the date of the enactment of this Act, performed not less than 100 work days of agricultural employment during each of 5 years;


(B) during the five-year period beginning on the date of the enactment of this Act, performed not less than 150 work days of agricultural employment during each of three years.

So the alien would need to spend about 40 percent of his time performing farm work over five years, or about 60 percent of his time for three years; either requirement would eliminate the possibility of a full-time, non-seasonal job outside of agriculture. You might call it part-time involuntary servitude.

There is one other way out of the blue card situation, and that is if the worker becomes disabled, or for other reasons cannot do ag work, the Secretary, at her discretion, can lift the five or three-year obligations. Those decisions should be interesting, as agribusiness would want there to be few of them, and many of the farm workers would want them. There would be competing pressures on the government from opposite directions.

What happens at the end of the eight years if no waiver has been arranged, and the required farm work has not been performed? Apparently the card holder lapses into illegal status, but if something like the current leadership of DHS is in place then, it is doubtful that there will be many deportations.

Blue card carriers, however, have one slight advantage over mainstream amnesty applicants under S.744; some of them can seek naturalization after 10 years, not after 13 years. How meaningful this will be, given the slow rate that IRCA's SAWs applied for naturalization, remains to be seen.

In short, Congress has once again bowed to Big Agriculture and may open up an easy path to legalization — if partially indentured legalization — for illegal aliens who have done a bit of, or a lot of, farm work, in the past.