THE WEST INDIES (BWI) TEMPORARY
ALIEN LABOR PROGRAM: 1943-1977
PREPARED FOR THE
SUBCOMMITTEE ON IMMIGRATION
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1978
95TH CONGRESS I
COMMITTEE ON THE JUDICIARY
JAMES 0. EASTLAND, Mississippi, Chairman
EDWARD M. KENNEDY, Massachusetts STROM THURMOND, South Carolina
BIRCH BAYH, Indiana CHARLES McC. MATHIAS, JR., Maryland
ROBERT C. BYRD, West Virginia WILLIAM L. SCOTT, Virginia
JAMES ABOUREZK, South Dakota PAUL LAXALT, Nevada
JAMES B. ALLEN, Alabama ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, JR., Delaware MALCOLM WALLOP, Wyoming
JOHN C. CULVER, Iowa
HOWARD M. METZENBAUM, Ohio
DENNIS DECONCINI, Arizona
PAUL HATFIELD, Montana
FRANCIs C. ROSENBERGER
Chief Counsel and Staff Director
JAMES 0. EASTLAND, Mississippi, Chairman
EDWARD M. KENNEDY, Massachusetts PAUL LAXALT, Nevada
JAMES ABOUREZK, South Dakota
I. Introduction: The BWI Program-_ ----------------- 1
II. 1943-47: The World War II Period----- --------------- 2
International Agreements------------- -------------- 4
Legislative Authority -------------------- 6
Employment Exoerience of BWI/Bahamian Workers, 1943-47_ 8
III. 1948-51: Post-War Transition------------ -- 8
Report of the President's Commission on Migratory Labor -- 10
IV. 1951-52: Public Law 78 and Public Law 414----- ---------- 11
Preliminary Legislative Efforts and Recommendations-------- 11
Enactment of Public Law 78_ --------- 12
Public Law 414, the Immigration and Nationality Act of 1952 14
V. The BWI Program During the Bracero Period 15
1953-60: Bracero Program Expansion ------ 15
1960-64: Phasedown of the Bracero Program ----- 19
VI. 1965-66: Transition from the Bracero Program _----------- 23
U.S. Department of Labor Regulations: Action and Reaction__ 23
Immigration and Nationality Act Amendments of 1965------- 28
VII. The BWI Program During 1967-76 ----_-- -------- 28
VIII. 1977: Controversy_ --_ _-------------------- 34
Proposed Labor Department Regulations and Response ------ 34
President Carter's Undocumented Aliens Programn -----.-- 35
The Virginia Apple Growers Case_ -----__ 36
Hearings on Agricultural Labor Certification ----- 37
Appendix. Analysis and Summary of Labor Department Regulations for
Certification of Temporary Alien Agricultural Workers (20 CFR 655),
Issued March 10, 1978_ ___--------- _--------------------- 41
The subject of this report is the BWI temporary foreign worker
program which dates back to World War II and, since 1952, has
operated under the authority of the Immigration and Nationality
Act. "BWI" refers to the British West Indies, although by now some
of the offshore islands from which the workers come-notably Ja-
maica-have gained their independence.
If legislation is enacted which curtails the employment of illegal
aliens, the time may well come when it will be necessary for the United
States to look toward a lawful source of temporary workers in greater
numbers than have been authorized in recent years. In that eventu-
ality, the experience of the BWI program cannot be ignored and it
offers a possible model for new programs.
While the temporary employment of foreign workers remains highly
controversial, it is likely to become less so if we are successful in elim-
inating the current clandestine alien worker supply. It is not improb-
able that in our highly complex and industrialized society there will
always be certain kinds of jobs which, for whatever reasons, will not
attract U.S. workers in sufficient numbers. An example discussed in
this report is migratory farm labor. The choice increasingly appears
to be whether we prefer to have these and other jobs filled by illegal
aliens, as is presently the case, or by temporary workers legally
admitted to the United States under an organized and carefully con-
trolled program. The history of a successful program of this type is
traced in this study.
As a final comment, it is worth noting that contrary to what is
sometimes asserted, the termination of the Mexican bracero program
by Congress in 1964 carried no mandate to phase out temporary
alien agricultural labor. The proof of this can be found not only in
the legislative history but in the continuing vitality of the BWI pro-
gram and the retention of the H-2 provisions for over a quarter of a
century in the Immigration and Nationality Act.
This study has been prepared by Joyce C. Vialet, a specialist in
social legislation with the Education and Public Welfare Division of
the Library of Congress's Congressional Research Service.
THE WEST INDIES (BWI) TEMPORARY ALIEN LABOR PROGRAM:
I. INTRODUCTION: THE BWI PROGRAM
The BWI program is a temporary alien labor program which oper-
ates under the legislative authority of the Immigration and National-
ity Act of 1952, as amended.' Agricultural workers from the Caribbean
islands-formerly the British West Indies (BWI)-are admitted
temporarily as nonimmigrant ("H-2") workers "to perform .. tem-
porary services or labor, if unemployed persons capable of performing
such service or labor cannot be found in this country."
As with other "H-2" nonimmigrant workers, the final authority for
the admission of BWI workers rests with the Attorney General, who
has delegated his authority to the Immigration and Naturalization
Service (INS), within the U.S. Department of Justice. Controls on
the BWI workers are administered by the INS office in West Palm
Beach, Fla.2 INS regulations require that employers or employer as-
sociations petitioning for the entry of H-2 workers must include with
their applications a certification from the Labor Department "stating
that qualified persons in the United States are not available and that
the employment of the beneficiary will not adversely affect the wages
and working conditions of workers in the United States similarly
The Labor Department has issued detailed regulations outlining
the steps necessary to obtain certification for temporary foreign
workers. These include the requirement that an interstate job order
for U.S. workers at specified wage rates and conditions be placed
with the local office of the State employment service not less than 60
days before the expected date of need. An attempt is made to fill the
order first locally, then through the statewide and interstate resources
of the Federal-State employment service system. Additionally, em-
ployers must provide evidence of their independent efforts to recruit
workers. The Labor Department regulations were in the process of
revision during 1977,4 and were published in final form on March 10,
The governments of the offshore islands from which the BWI
workers come have traditionally taken an active interest in the pro-
gram since its inception during World War II. Currently, the islands
involved in the program include Jamaica, St. Lucia, St. Vincent,
Dominica, and Barbados. While there are no longer government-to-
government agreements, as there were during the war, the BWI pro-
gram operates under a tripartite agreement between the U.S. employer
1 Act of June 27,1952, Public Law 82-414, 66 Stat. 163. The provisions governing the entry of H-2 workers
are sec. 101(a)(15)(H)(ii) and sec. 214 (c).
2INS Operating Instructions 214.2(h) (2) (v).
88 CFR 214.2(h)(3)(i) (Jan. 1977).
, Proposed rules published 42 Fed. Reg. 4670 (Jan. 25, 1977). For a discussion of differences between the
proposed and final regulations, see 43 Fed. Reg. 10306-10311 (1978).
'20 CFR 655, 43 Fed. Reg. 10312-10318 (1978). See Appendix.
or, as is more frequently the case, employer association, the worker's
government, and the worker.
The British West Indies Central Labour Organisation (BWICLO)
represents the governments of the participating islands, serving a
liaison function and generally attending to the problems of the workers,
auditing employer payrolls, and negotiating with employers regarding
the terms and conditions of the workers' service. The main office of
the BWICLO is in Washington, headed by Mr. Harold F. Edwards.
There are also offices in the sugar cane area in Florida, and temporary
offices in other areas as needed. Like other H-2 workers, BWI workers
are exempt from Social Security payments, as are their employers.
BWI workers are subject to the U.S. income tax.
Over the years, the BWI workers have worked in a wide variety of
areas and crops, including shade tobacco in Connecticut, truck farm-
ing in New Jersey, cherry picking in Wisconsin, sweet corn in Idaho,
tomatoes in Indiana, asparagus in Illinois, and peas in California-to
give a partial list. A number of these crops have since been mechanized
and/or the BWI workers have been replaced by domestic workers.
In 1977, they were employed in sugar cane in Florida, and apple pick-
ing up the East Coast. Despite the reduction in the crops and areas,
the number of BWI workers admitted annually has been in the general
vicinity of 12,000 since 1960, ranging from 9,000 to 15,000. Since the
termination of the Mexican Bracero program in 1964, BWI workers
have regularly accounted for the largest single group of temporary
The following is a history of the development of the BWI program
since its origins in 1943. The emphasis throughout is on Congressional
response to the program, as reflected in both oversight and legislative
II. 1943-47: THE WORLD WAR II PERIOD
Both the Mexican bracero program and the BWI program' origi-
nated in response to the labor shortage which arose during World
War II. While the paths of the two temporary alien labor programs
diverged widely after 1947, they followed a similar pattern in the
period 1942-47, during which the BWI program may generally be
viewed as a supplement to the much larger Mexican program.
The labor shortages of World War II abruptly followed the labor
surpluses of the depression of the 1930s. As late as 1940, Secretary of
Agriculture Henry Wallace testified before a Senate subcommittee that
1.6 million fewer farm workers were needed than 10 years previously,
and that the number of farm workers far exceeded the number who
could expect to make a decent living from agriculture.2
Between 1940 and 1942, large numbers of rural farmworkers either
entered the armed forces or left the farms for the higher wages of the
growing defense industry. There were increasing complaints of short-
ages particularly in agricultural areas around defense plants. However,
according to a contemporary history, "Many of the reports of shortages
in specific areas were based, not so much on the inadequacy of a supply
sufficient to maintain full production, as on inability to continue the
I Unless otherwise noted, "BWI program" encompasses workers from both the British West Indies and
the Bahamas, although for contracting purposes they were handled separately.
2Wayne D. Rasmussen, "A History of the Emergency Farm Labor Supply Program, 1943-1947." Wash-
ington, U.S. Department of Agriculture, Agriculture Monograph No. 13, Sept. 1951, p. 14. (Henceforth cited
as Rasmussen (1951).)
peacetime methods of employment, with underemployment, unem-
ployment, and low wages." 3 The domestic farm labor, supply was
generally considered adequate by Government officials prior to the
entry of the United States into World War II in December 1941.
Requests for supplementary Mexican laborers during 1941 from groups
in Arizona, Texas, New Mexico, and California were all denied, the
latter at the request of the Governor of California.'
This situation changed in 1942. The complex sequence of events
leading to the admission of the first foreign workers, and setting the
pattern for subsequent admissions, is outlined as follows in a con-
On May 22, 1942, the Chairman of the War Manpower Commission advised the
Secretary of State of a certification by the United States Employment Service for
the immediate need of 6,000 Mexican agricultural workers. The matter of author-
izing the admission of these workers to the United States was presented to this
Service by the Department of State. That Department, in turn, was requested to
present the question of such importation to the Government of Mexico. During the
negotiations that followed an agreement, which became effective August 4, 1942,
was entered into between the two governments regarding the importation of
native citizens of Mexico to work in the United States. On September 11, 1942,
authority was granted by the Attorney General for the temporary admission under
the 9th Proviso to Section 3 of the Immigration Act of 1917, of such Mexican
agricultural workers as applied for temporary admission under the terms of the
agreement, notwithstanding their inadmissibility as alien contract laborers, with
the understanding that no such person would be permitted to enter under the
authority granted until the United States Employment Service had certified to
the need for the importation, indicating the approximate length of time their
services would be needed in this country.'
Pursuant to this agreement, the first Mexican workers entered at El
Paso, Tex., on September 27, 1942 for employment in the.sugar beet
harvest at Stockton, Calif. This was the beginning of the Mexican
Bracero program, which continued under various legal authorities
until December 31, 1964.
Bahamians entered in 1943, followed shortly by Jamaicans, consti-
tuting the origin of the BWI program which continues in operation
today, 35 years later. Bahamian workers were admitted pursuant to
an intergovernmental agreement signed March 16, 1943; Jamaicans
entered pursuant to an intergovernmental agreement signed April 2,
1943. Other groups entering from the British West Indies pursuant
to intergovernmental agreements during the war period included
natives of Barbados and British Honduras.' Of these groups, the
Jamaicans accounted for the largest numbers of foreign workers
entering during the war period, second only to the Mexicans.
The BWI workers had certain advantages over the Mexicans as a
supplementary labor supply for the East Coast. Most spoke English,
and Spanish was far less widely spoken in the East than it was in the
Southwest. They also had the advantage of proximity, being closer to
the Eastern seaboard than Mexico. The manpower shortage resulting
from the transfer of much of the domestic work force to the military
and to defense industries had been exacerbated by the gasoline and
tire shortages, which curtailed the travel of foreign as well as domestic
4 Ibid., p. 200.
5 Robert H. Robinson, "The Importation of Alien Laborers," Immigration and Naturalization Service
Monthly Review, vol. IV, Apr. 1947, p. 130.
* See Rasmussen (1951), pp. 233-277, for a detailed account of the agreements and experiences with workers
from these areas.
workers. Finally, quoting from Rasmussen, "even if the barriers of
transportation and language had not existed there still was the fact
that Mexico limited the number of workers that could be made avail-
able and there were too few to meet the demands of the Southwest." 7
The Bahamas and the British West Indies were experiencing high
unemployment, due in part to the wartime curtailment of shipping
and tourism, and not only were well disposed to U.S. requests for
supplementary workers but, at least in the case of Jamaica, were well
organized to accommodate them. The beginnings of Jamaica's partici-
pation in the World War II program are described as follows from a
Jamaican point of view:
The involvement of the United States in the war created the need for manpower
for agriculture and munition works over and above the level which the United
States labour market could meet. Accordingly, the United States Government
turned first to nearby Jamaica (1942) and later (1944) to other Caribbean terri-
tories for her supply. The riots in Jamaica and elsewhere in the Caribbean caused
by high levels of unemployment and general distress had been quelled only a few
years earlier (1938-1939). A Centre had been created in Kingston (1938) for the
registration of the unemployed and a Labour Department with branches in certain
parts of the island had been established. When the request for contract workers
came in 1942, therefore, the institutional framework necessary for recruitment
and processing as well as for negotiating at least a modicum of protective measures
had already existed and had had some experience in dealing with the processing
of workers for employment. The institutional framework was strengthened in
1943 by the passage of the Employment of Workers Law which prohibited the
recruitment of groups of workers by private individuals for work overseas under
contract unless the recruiter was specifically licensed in that regard by a Licensing
Authority created by the Law.8
The major differences between the BWI program during the initial
five-year emergency war period and subsequently was that the United
States Government was directly involved during the war both through
intergovernmental agreements and Federal legislation. Quoting from
the 1951 Report of the President's Commission on Migratory Labor,
"In effect, the Government was the labor contractor." 9 Beginning in
1943, the Government also had the legal authority to recruit and
transport the foreign workers. A brief discussion of the international
agreements with the countries involved is followed below by a sum-
mary of the legislative authority for the emergency wartime foreign
The various formal and informal international agreements which
formed a significant part of the basis for the importation of alien
workers during the war period provided, with variations that:
(1) such laborers would be exempt from selective service; (2) such laborers
would be exempt from certain requirements of our immigration laws, such as
literacy requirements and payment of head tax or other admission charges; (3)
such laborers would be guaranteed round-trip transportation; (4) hours of work
and wages would be equal to those of domestic labor in the United States; and
(5) the foreign government would determine the number and types of laborers
who could leave that country without adversely affecting its economy.10
7 Ibid., p. 233.
8 Organization of American States, Regional Seminar on the Establishment of Migration Services in Labor
Ministries for Seasonal Migrant Workers, "National Migration Policies of Supplying Countries," Oct. 1970,
9 "Migratory Labor in American Agriculture," Mar. 1951, p. 41.
10 Senate Report No. 1515, 81st Cong., 2d Sess. (1950), p. 579.
The first and most detailed of these agreements was the formal
diplomatic accord with Mexico in mid-1942.11 The detailed Mexican-
U.S. agreement was the result, in part, of the sensitivity of the
Mexican Government due to the large-scale deportation of Mexican
nationals from the United States during the depression of the 1930s.
This led to the enactment of legislation by the Mexican Government
prescribing the conditions under which its citizens could accept foreign
employment. The 1942 agreement reflected these conditions as well as
the desire of the U.S. Government to protect its own workers from
adverse effects due to the importation of foreign labor.
The agreements with the Bahamian Government and with the
British West Indies, in which the Government of Great Britain
maintained a direct interest, generally took the form of memoranda
of understanding drawn up by representatives of the governments
involved, rather than the formal diplomatic exchange of notes which
governed the Mexican program. As indicated above, the March 1943
agreement with the Bahamas was followed in April 1943 by an agree-
ment with Jamaica and subsequently by agreements with Barbados
and British Honduras. While there were minor differences in the
agreements with the different islands, and modifications prior to their
expiration in 1947, according to a Labor Department report, "for the
most part the basic items remained intact throughout the period."
These basic provisions have been summarized as follows:
(1) Costs of transportation from the point of recruitment to the United States
and the return trip home, were to be borne by the U.S. Government. The em-
ployer would pay the costs to the worksite and back. (The first agreement with
the Bahamian Government called for it to pay the costs of transporting its citizens
to the U.S. port of entry. Because of difficulty in procuring transportation, this
was never carried out, and was modified by supplemental agreements.)
(2) Workers were to be paid the prevailing wage received by U.S. workers in
the same activity, but not to be less than 30 cents per hour. Employment was
guaranteed for three-fourths of the contract period; a subsistence allowance was
to be paid if the work guarantee was not fulfilled.
(3) The first agreements called for the workers to be employed only in agri-
cultural jobs. Later understandings allowed Jamaican workers to be employed
in any type of work which furthered the war effort. Similar agreements for the
use of Barbadian and British Honduran workers in nonagricultural work were in
force in 1944 and 1945, respectively. They were transferred to agriculture when
they were no longer needed in industrial work.
(4) Employment of the foreign workers was not to displace domestic workers,
or reduce the rates of pay of domestic workers.
(5) The imported laborer was to be exempted from the draft, and to be pro-
tected from discriminatory acts.
(6) Housing and medical care were to be equal to that received by the local
workers, or of quality approved by the Government, and to be without cost to
the agricultural workers.
(7) Amounts which were to be deducted from the workers' wages were estab-
lished, the money to be sent back to their homes for family support and savings
to be claimed by the workers upon return. Other unauthorized deductions were
prohibited. The amounts deducted varied as the programs developed during the
"1 The International Agreement of August 4,1942, as modified by the International Agreement of April 26,
1943, formed the basis for the Mexican program during the war period, although there were further amend-
ments and modifications. See U.S. Department of Labor, "The Admission of Aliens into the United States
for Temporary Employment," in Study of Population and Immigration Problems, Special Series No. 11
House Judiciary Committee, Subcommittee No. 1 (G.P.O. 1963), pp. 28-31. (Henceforth cited as Labor
Department report, House Judiciary hearings (1963).)
12 Labor Department report, House Judiciary hearings (196 3), p. 106.
In addition to the intergovernmental agreements, detailed work
*contracts were also executed between the BWI workers and the U.S.
employers, rather than with the U.S. Government, as was the case
with the Mexican workers. However, the effect was the same, since
the Government was ultimately responsible for the compliance of the
employers with the terms of the BWI agreements.13 The work contracts
were subordinate in importance to the intergovermental contracts,
and worker-employer relationship was not analogous to that existing
today between the H-2 worker and his U.S. employer. Among other
things, the international agreements provided explicitly for the
transfer of workers from one employer to another." In 1944, for in-
stance, with regard to Jamaican workers:
The British Government suggested that the transfer of workers from one
employer to another without the consent of the workers was inconsistent with the
[International] Recruiting Conventions [of 1936 and 1939, not agreed to by the
U.S.]. The [U.S.] Office of Labor replied that the workers had only one contract,
the Work Agreement with the United States Government and this Agreement was
never transferred. It was often necessary to move workers employed in harvesting
perishable crops frequently and quickly and to obtain the consent of the worker
would be impracticable and would serve no useful purpose.15
The intergovernmental agreements governing the wartime BWI
program were not renewed beyond the termination on December 31,
1947 of the special legislation, discussed below, under which the pro-
grams operated. The more formal U.S.-Mexican agreement was
continued beyond this date at the insistence of the Mexican Govern-
Temporary farm workers were first admitted pursuant to the ninth
proviso to section 3 of the Immigration Act of 1917,16 which author-
ized a waiver of exclusion to inadmissible aliens-in this case, contract
laborers-seeking temporary admission. In September 1942, the
Attorney General authorized such a waiver for Mexican agricultural
workers applying for temporary admission under the terms of the
U.S.-Mexican agreement. A certification from the U.S. Employment
Service that local workers were unavailable was required as a condi-
tion of entry. The ninth proviso was also the authority used in the
admission of the first Bahamian and Jamaican workers in 1943,
under conditions similar to those imposed in the case of the Mexican
On April 29, 1943, the 78th Congress enacted Public Law 45, author-
Izing the U.S. Government to temporarily admit "native-born resi-
dents of North America, South America, and Central America, and
the islands adjacent thereto, desiring to perform agricultural labor in
the United States." 17 Public Law 45 was the first of a series of acts
referred to as the farm labor supply appropriations acts which, to-
gether with the international agreements, formed the basis for the
emergency labor supply program operated under direct governmental
supervision from April 30, 1943 until December 31, 1947. The various
formal and informal intergovernmental agreements were recognized,
either directly or indirectly, by the special legislation.
" Ibid., p. 107;
14 See, for instance, "Memorandum of Understanding Between the War Manpower Commission and the
Governor of Jamaica". Ibid., p. 117 (#10).
Is Rasmussen (1951), p. 268.
iS Act of Feb. 5, 1917, 39 Stat. 874, 878.
Public Law 45 provided the authority and funds for the recruitment,
transportation, and placement of agricultural workers, specifying that
no funds made available for these purposes:
* * shall be used directly or indirectly to fix, regulate, or impose minimum
wages or housing standards, to regulate hours of work, or to impose or enforce
collective-bargaining requirements or union membership, with respect to any agri-
cultural labor, except with respect to workers imported into the United States
from a foreign country and then only to the extent required to comply with agree-
ments with the government of such foreign country; Provided, That nothing
herein contained shall prevent the expenditure of such funds in connection with the
negotiation of agreements with employers of agricultural workers which may
provide that prevailing wage rates shall be paid for particular crops and areas
involved and that shelter shall be provided for such workers."1
It also exempted foreign workers admitted under its authority from
a variety of provisions of the Immigration Act of 1917, including the
head tax and other fees, the literacy requirement, the prohibition
against the admission of contract laborers, and the requirement of a
bond from the employer.
The Act of February 14, 1944, Public Law 229,19 reenacted and
extended the provisions of Public Law 45, authorizing the admission
of temporary workers for agricultural employment, including employ-
ment in the processing of agricultural products. The program continued
in the Department of Agriculture, where it was administered by the
newly formed War Food Administration. Prior to 1943, and after 1947,
responsibility for farm placement was housed in the U.S. Employment
Service, and not the Agriculture Department.
In addition to Public Law 45 and Public Law 229, both of the 78th
Congress, the series of acts referred to as the farm labor supply
appropriations acts included subsequent legislation extending the
authority and funding for the program until December 31, 1947. These
were Public Law 529 (December 22, 1944; 58 Stat. 853), also of the
78th Congress; Public Law 269 (December 28, 1945; 59 Stat. 632),
Public Law 521 (July 23, 1946; 60 Stat. 600), and Public Law 707
(August 9, 1946; 60 Stat. 969), all of the 79th Congress; and Public
Law 40 (April 28, 1947; 61 Stat. 55) and Public Law 76 (May 26,
1947; 61 Stat. 109), of the 80th Congress.
Title II of Public Law 229 (February 14, 1944) contained a sep-
arate authority and appropriation for the temporary migration of
workers from foreign countries in the Western Hemisphere, specif-
ically "pursuant to agreements between the United States and such
foreign countries", for employment in the United States "with in-
dustries and services essential to the preservation, marketing or dis-
tribution of agricultural products, including the timber and lumber
industries." 0 This title was administered by the War Manpower
Commission, within the Executive Office of the President. The au-
thority and funding for this program were broadened and extended
through June 30, 1944 by Public Law 373 (June 28, 1944; 58 Stat.
547) of the 78th Congress, which provided for the employment of the
workers with "industries and services essential to the war." The pro-
gram was further extended by Public Law 124 (July 3, 1945; 59 Stat.
361). The War Manpower Commission was dismantled shortly after
17 57 Stat. 70, 73.
Is 57 Stat. 70, 72.
9 58 Stat. 11.
5o 58 Stat. 11, 17.
the end of the war, and the workers were either repatriated or, in the
case of a number of Jamaicans, transferred back to the jurisdiction of
the War Food Administration.
Employment Experience of BWI/Bahamian Workers, 1943-47
Summarizing the wartime use of temporary foreign labor, the Im-
migration and Naturalization Service stated that, "During the war
there were three programs for importation of laborers, that is, rail-
road track workers, laborers in industries essential to the war effort,
and agricultural laborers." 21 The railroad track worker program was
limited to Mexicans. The BWI/Bahamian workers were used most
extensively in the agricultural program administered by the War Food
Administration, although some BWI workers were also employed in
war-related industries in the program administered by the War Man-
power Commission. For instance, as of December 31, 1944, almost
5,000 Jamaicans had been transferred from the agricultural program
to war industry employment.22
According to a Labor Department assessment of the impact of the
BWI/Bahamian workers, "while their total numbers were not large,
the qualitative importance . was significant, particularly in agricul-
ture along the eastern seaboard." 23 In mid-1945, approximately 24,000
BWI and Bahamian workers were employed in the United States in
agriculture. Approximately two-thirds were employed in 11 States
along the east coast, led by Florida. The total number of BWI workers
involved in non-agricultural work in mid-1945 was 16,346, or about
three-quarters of the number in agricultural work at the same time.
The Bahamians did not participate in the non-agricultural program.
Foundries, food processing, and lumber-in that order-accounted for
more than half of the industrial jobs.2"
III. 1948-51: POST-WAR TRANSITION
The expiration of the emergency wartime legislation at the end of
1947 marked the end of the direct participation of the U.S. Govern-
ment in the recruitment and transportation of BWI and Bahamian
workers. The Mexican program, in contrast, continued to be regu-
lated by international agreements until its termination on Decem-
ber 31, 1964.
In the case of the BWI and Bahamians, the intergovernmental
agreements of the war period were replaced by agreements between
the workers, their U.S. employers, and representatives of the BWI
and Bahamian governments. In these tripartite agreements, ac-
cording to a Labor Department description of the post-war period,
the representatives of the Bahamian and BWI governments "assumed
the role played by the [U.S.] War Food Administration with respect
to recruiting, transportation, and contract-enforcement activities."'
Until 1951, the governments of Jamaica, Barbados, and the Lee-
ward Islands contracted directly with the U.S. employers, with Great
Britain taking an active interest, and the British West Indies Central
Labour Organisation (BWICLO) serving a general liaison function.
21 Annual Report, INS, 1947, p. 14.
22 Rasmussen (1951), p. 263.
23 Labor Department report, House Judiciary hearings (1963), p. 109.
24 Ibid., p. 110.
1 Labor Department report, House Judiciary hearings (1963), p. 111.
In 1951, the Regional Labour Board was created to officially repre-
sent the participating territories, which were increased to include the
Windward Islands, Trinidad, British Guiana, and British Honduras.
Although there have been significant changes since then, including the
granting of independence to many of the territories, the Regional
Labour Board still meets annually to negotiate the terms of the Work
Agreement and the Group Insurance Policy, etc., with U.S. farmers
belonging to the West Indies Employers Association; and the BWICLO
continues its liaison functions.2 The Bahamian Government continued
to maintain separate representation until its withdrawal from the
With the lapse of the emergency legislation on December 31, 1947,
the ninth proviso of section 3 of the Immigration Act of 1917, providing
a waiver of exclusion of inadmissible aliens, including contract laborers,
again became the authority for the temporary admission of the BWI/
Bahamian workers, and remained so until the enactment of Public Law
414 in 1952. According to an INS account, the immigration status of
about 20,000 BWI workers was changed by means of an administrative
order effective January 1, 1948 to temporary farm laborers, and bonds
were required to be posted by their contractors.3
During the period 1948-51, the importation of workers from Mexico
proceeded under a frequently revised International Agreement. In
contrast to the war period, the U.S. employer paid all transportation
and recruitment expenses and, until 1951, the U.S. employer, rather
than the U.S. Government, was the contractor. During this period,
Mexican temporary workers were admitted under the ninth proviso,
as were other temporary workers, and clearance from the U.S.
Employment Service was required.
The role of the Department of Agriculture in the administration of
the foreign farm labor program ceased with the end of 1947. Farm
placement functions, including the certification of the need for tem-
porary foreign workers, reverted to the U.S. Employment Service.
Legislation was enacted in mid-1948 by the 80th Congress 4 authorizing
Federal assistance in the recruitment of foreign farm labor within the
Western Hemisphere, focusing on Mexico, but including the offshore
islands. The legislation was justified on the basis of "the limited supply
of domestic labor for agricultural employment in certain areas," and
the reported serious disorganization of private employer efforts to
recruit foreign workers, particularly from Mexico.5 Funds appropriated
under the Act were not used and were subsequently transferred to the
Public Health Service.' Public Law 893 expired on June 30, 1949.
On October 10, 1949, legislation was enacted explicitly making funds
appropriated for the Federal Security Agency's Bureau of Employ-
ment Security (including the U.S. Employment Service) "available
for cooperation with the United States Immigration and Naturaliza-
tion Service and the Secretary of State in negotiating and carrying out
agreements relating to the employment of foreign agricultural workers,
subject to the immigration laws and when necessary to supplement the
2 U.S. Senate Select Committee on Small Business, "Agricultural Labor Certification Programs and
Small Business," Hearings, 95th Cong., 1st sess., 1977. pp. 71-72.
3 "Supplemental Labor Programs," I and N Reporter, July 1961, p. 2.
4 Public Law 893, Act of July 3, 1948; 62 Stat. 1238.
5 H. Rept. No. 2379, 80th Cong., 2d sess., June 16,1948 [to accompany S. 2767, 2 U.S. Code Cong. & Admin.
News, 1948, p. 2314.
* Labor Department report, House Judiciary hearings (1963), p. 34.
domestic labor force."7 According to a subsequent Labor Department
report, this legislation was basically superfluous because "the Bureau
of Employment Security's basic grant of authority under the Wagner-
Peyser Act [of 1933] provided a sufficient legal basis to permit assisting
in the recruitment of Mexican workers,"8 and, by extension, other
foreign workers, including those from the British West Indies.
The general role of the U.S. Employment Service in performing
its dual functions of recruiting foreign workers and protecting domes-
tic workers from adverse competition was summed up as follows in a
1949 communication from the Federal Security Agency opposing
proposed legislation which would have transferred the foreign labor
certification function to the Agriculture Department:
Under the present arrangement the United States Employment Service, which
has the responsibility for maintaining a farm-placement service, makes the cer-
tifications of the unavailability of domestic labor to the Commissioner of Immi-
gration and Naturalization. The availability or nonavailability of domestic labor
is ascertained by a clearance system carried out through the facilities of the
approximately 1,800 local public-employment offices operated pursuant to the
provisions of the Wagner-Peyser Act. * *
In determining the available supply of domestic labor, with the integration of
the Farm Placement Service into the United States Employment Service, it can
draw on the registers of unemployed industrial workers and students, many thou-
sands of whom work on farms on a seasonal basis. * *
If domestic labor is to be protected, it is imperative that any program for the
importation of foreign workers be completely coordinated with the public em-
ployment service program.'
Report of the President's Commission on Migratory Labor
A report issued on March 1951 by the President's Commission on
Migratory Labor, appointed by President Harry Truman, was critical
of the post-war administration of the alien contract labor program.
Specifically, the Commission criticized the administration of the
Mexican segment of the program in terms of the failure of the respon-
sible Government agencies to adequately protect domestic farm labor.
Its conclusions in this regard were based largely on an examination of
wage rates in the occupation (cotton picking) and States (California
during the war; Texas, New Mexico, and Arkansas after the war)
most heavily impacted by Mexican workers. They found that "changes
in wages in the principal areas of employment and the principal crop
of employment have been inverse to the numbers of contract Mex-
icans." 10 The Commission generally concluded that "alien labor has
depressed farm wages and, therefore, has been detrimental to domestic
The Commission's criticism of the BWI/Bahamian program during
the post-war period focused not on its adverse impact on domestic
labor, but on the lack of "official vigilance for the protection of living
and working standards of alien farm laborers." 2 Quoting further:
For the Jamaicans and Bahamians, whose governments did not insist on inter-
governmental agreements after those of World War II terminated, we have given
7 Public Law 343; 63 Stat. 738, 741.
Labor Department report, House Judiciary hearings (1963), p. 34.
9 U.S. Senate Committee on the Judiciary, "Admission of Foreign Agricultural Workers," Hearings on
S. 272, 81st Cong., 1st sess., July 12, 1949, Washington, U.S. Govt. Print. Off., 1951, pp. 7-8. (Cited as Senate
Judiciary 1949 hearings.)
I0 U.S. President's Commission on Migratory Labor, Migratory Labor in American Agriculture, Wash-
ington, 1951, p. 58.
11 Ibid., p. 5U.
1I Ibid., p. 64.
no official scrutiny to the terms of the work contracts or to their enforcement. In
these instances, our authorities have permitted the entry of contract alien labor
on whatever terms these foreign governments were able to secure in negotiation
with private employers of the United States.13
As an example of the differences in the conditions governing the
entry of Mexican and BWI workers, the Commission noted, "The
sharp contrast between the Mexican and British West Indian deduc-
tion allowances is that the Mexican contract prohibits the withholding
of forced savings out of which the deportation costs of the alien may
be recovered if he leaves his contract or otherwise become deport-
able." Considerable deductions for this purpose were permitted
from the BWI workers' pay, and the bonds required for BWI workers
were also significantly higher than those required for Mexicans. In the
opinion of the Commission, the greater "vulnerability of the British
West Indian workers to financial discipline" was a reason why the
British West Indians deserted from their contracts much less fre-
quently than the Mexicans.15
The first of the recommendations by the President's Commission on
Migratory Labor on the subject of alien contract labor pertained to the
desirability of equal treatment of the different sending countries
based on intergovernmental agreements, as follows:
We recommend that:
(1) Foreign labor importation and contracting be under the terms of inter-
governmental agreements which clearly state the conditions and standards of
employment under which the foreign workers are to be employed. These should
be substantially the same for all countries. No employer, employer's representative
or association of employers, or labor contractor should be permitted to contract
directly with foreign workers for employment in the United States. This is not
intended to preclude employer participation in the selection of qualified workers
when all other requirements of legal importation are fulfilled."1
IV. 1951-52: PUBLIC LAW 78 AND PUBLIC LAW 414
Preliminary Legislative Efforts and Recommendations
In July 1949, the Senate Judiciary Subcommittee on Immigration
held a hearing on S. 272, permanent legislation outside the Immigra-
tion Act of 1917 which would in effect have perpetuated the legislative
authority under which the emergency farm labor program operated
during the war period. The bill would have transferred labor certifi-
cation authority to the Secretary of Agriculture, and would have
exempted temporary agricultural workers from the Western Hemi-
sphere and adjacent islands from a number of provisions of the
Immigration Act of 1917.
According to the testimony, the bill had been prompted not by
difficulties with the labor certification process-the impetus for related
legislation offered, also unsuccessfully, in 1965-but because of "the
conflict between the farmers and the Immigration and Naturalization
Service" regarding the regulations governing the importation of Mex-
ican workers.' The situation was aggravated by difficulties in rene-
gotiating the International Agreement with Mexico.
Is Ibid., p. 65.
14 Ibid., p. 48.
18 Ibid., p. 66.
1 Senate Judiciary 1949 hearings, p. 2.
The bill was opposed by the Justice Department, which argued
that "legislation of this type should be temporary rather than perma-
nent and * should conform fundamentally with the established
immigration policy of this country." 2 It was also opposed by the
Federal Security Agency, on the grounds that, "if domestic labor is
to be protected, it is imperative that any program for the importation
of foreign workers be completely coordinated with the public employ-
ment service program." 3 Although the State Department also op-
posed the bill, it noted that "there may be some need for clarification
of the statutory authority under which foreign workers are admitted tem-
porarily for employment in the United States agricultural activities."
In 1950, the Senate Judiciary Special Subcommittee to Investigate
Immigration and Naturalization considered temporary agricultural
workers in its comprehensive report entitled, "The Immigration and
Naturalization Systems of the United States." The subcommittee
found "that the agricultural labor supply in the United States, par-
ticularly in the Southwestern States, requires supplementation," and
made the following recommendation:
* * provisions should be made in permanent legislation which would permit
the admission of temporary agricultural labor in a nonimmigrant classification
when like labor cannot be found in this country. The determination of the necessity
for the importation of such labor in any particular instance should be made by
the Commissioner of Immigration and Naturalization upon application by the
interested employer before the importation and after a full investigation of the
facts and consultation with appropriate agencies.5
This recommendation was essentially enacted into law in the Immigra-
tion and Nationality Act of 1952-and remains in effect today-with
the very important omission of the Mexican agricultural labor pro-
gram. Beginning in 1951, the Mexican program was authorized by
separate legislation, Public Law 78, until its expiration on December
Enactment of Public Law 78 6
Public Law 78, authorizing the Mexican worker program, was
enacted in 1951 largely in response to the domestic farm manpower
shortage resulting from the Korean war. An amendment to the Agri-
cultural Act of 1949, it evolved from legislation (S. 984, 82d Cong.)
originally introduced by Senator Allen J. Ellender (Democrat of
Louisiana) which, he indicated, "authorized the Government to carry
out its part of the agreement reached on the importation of farm
agricultural workers at Mexico City in February ." 7 Both
Senator Ellender, the Chairman of the Senate Committee on Agri-
culture and Forestry, and Congressman W. R. Poage (Democrat of
Texas), the Vice Chairman of the House Committee on Agriculture
and sponsor of the related House bill, had been members of the U.S.
delegation to Mexico City.
As enacted, Public Law 78 was restricted in its application to
"agricultural workers from the Republic of Mexico." However, as
originally introduced, the bill applied to "agricultural workers within
2 Ibid., p. 5.
SIbid., pp. 708.
4 Ibid., p. 8.
I S. Rept. No. 1515. 81st Cong., 2d sess., 1950, p. 586.
6 Act of July 12, 1951; 65 Stat. 119.
7 U.S. Senate Committee on Agriculture and Forestry, "Farm Labor Program," hearings,
82d Cong., 1st sess., 1951, p. 8.
the Western Hemisphere." The request was made by employers of
BWI and Bahamian workers that the legislation be specifically modi-
fied to exclude the BWI program, on the grounds that the existing
arrangements were satisfactory to all concerned. Senator Spessard
Holland (Democrat of Florida) testified:
So far as the agricultural interests of Florida are concerned, they much prefer
not to have any subsidy from the Government in this connection, not to have the
Department of Labor serve as an official agency for recruiting offshore laborers.
They much prefer to continue their present course of dealings, under which they
pay the transportation costs themselves, and deposit bonds guaranteeing the
return of the laborers who are in for a season and who are then sent back to the
Bahamas or to Jamaica, as the case may be. They are quite willing to have con-
tinued the present set-up which they have found eminently satisfactory.8
Senator Ellender readily accepted amendatory language excluding
the BWI program,9 and the bill as introduced on the House side (H.R.
3048, 82d Cong.) initially limited applicability to "agricultural workers
from foreign countries on the mainland of the Western Hemisphere."
Congressman Poage commented:
There was one principle which everyone who has visited a country courthouse
recognizes, and that is, "do not argue with the court when it is ruling with you."
It seems that the West Indies Government is ruling with us. Why in the world
should we then take it upon ourselves to argue with a situation that is working
out perfectly satisfactorily today.
It was for that reason that we left the West Indies out. We could not see any
reason in the world to disturb a satisfactory situation.10
The exclusion of the BWI program was strongly opposed only by
the Department of State, primarily on the grounds that it would
leave the United States open to possible charges of discriminatory
treatment of certain groups of alien workers, and "may be detrimental
to this Government's broader foreign-policy interests." They also
noted that exclusion of the British West Indies from the bill would
"impede this Government in any efforts which may prove necessary
to facilitate this program in the future." However, the State Depart-
ment representative also indicated that "we are not implying that
the Department of State is recommending that any changes be made
in the existing operations of the West Indian program." 12
As enacted on July 12, 1951, Public Law 78 established the basic
framework under which the Mexican bracero program operated
until the mid 1960's, as refined by subsequent amendments and
international agreements. Public Law 78 authorized the Secretary
of Labor to take certain steps to recruit and transport Mexican
workers, pursuant to international agreements, subject to the following
SEC. 503. No workers recruited under this title shall be available for employ-
ment in any areas unless the Secretary of Labor has determined and certified
that (1) sufficient domestic workers who are able, willing, and qualified are not
available at the time and place needed to perform the work for which such workers
are to be employed, (2) the employment of such workers will not adversely affect
the wages and working conditions of domestic agricultural workers similarly
SIbid., p. 16.
t1 U.S. House of Representatives Committee on Agriculture, "Farm Labor," Hearings, 82d Cong., Is
sess., 1951, p. 32.
1 Ibid., p. 68.
12 Ibid., p. 73.
employed, and (3) reasonable efforts have been made to attract domestic workers
for such employment at wages and standard hours of work comparable to those
offered to foreign workers.
Among other things, the legislation, in combination with the
revised 1951 International Agreement which followed it, provided
that the U.S. Government establish and operate reception centers
at or near the Mexican border; provide transportation, subsistence,
and medical care from the Mexican recruiting centers to the U.S.
reception centers; and guarantee performance by employers in matters
relating to transportation and wages, including all forms of
U.S. employers were required to pay the prevailing wages in the
area, and to guarantee the workers employment for three-fourths
of the contract period. Additionally, they were required to provide
the workers with free housing and adequate meals at a reasonable
cost, and they were responsible for the round-trip cost of transportation
to the U.S. Government-operated reception centers. They were
also required to reimburse the Government for essential expenses
of the program, including penalties for workers not returned to the
During the course of the debate on Public Law 78, the Labor
Department argued that domestic workers should be provided with
the same benefits as those provided foreign workers, including free
transportation, housing, and basic medical benefits. Congressman
Poage argued against this position, as follows:
It seems to me that this very provision is one of the greatest safeguards that
you can provide for American labor. If it, in fact, costs the employer more to
bring in foreign labor, then no matter what kind of laws you write he is not going
bring in foreign labor, as long as American labor is available.13
The exact extent of the cost differential is not clear. For instance, under
the terms of Public Law 78, U.S. employers were not required to post
bonds, and the workers-limited to adult males-were also exempt
from both social security and income tax withholding provisions.
Public Law 414, the Immigration and Nationality Act of 1952 14
All other temporary workers, including those entering under the
BWI program, have been admitted under the terms of Public Law 414,
the Immigration and Nationality Act of 1952, since it went into effect
on December 24, 1952. Temporary alien workers, referred to as H-2
workers, are included in one of the categories of nonimmigrants
defined under section 101(a) (15) (H), as follows:
(H) An alien having a residence in a foreign country which he has no intention of
abandoning . (ii) who is coming temporarily to the United States to perform
other temporary services or labor, if unemployed persons capable of performing
such service or labor cannot be found in this country.
The H-2 temporary labor provision is administered by the Attorney
General in consultation with "appropriate agencies of Government,"
under section 214(c), as follows:
The question of importing any alien as a nonimmigrant under section 101(a) (15)
(H) in any specific case or specific cases shall be determined by the Attorney
General, after consultation with appropriate agencies of the Government, upon
Is Ibid., p. 16.
14 Act of June 27, 1952; 66 Stat. 163; 8 U.S.C. 1101 et seq.
petition of the importing employer. Such petition shall be made and approved be-
fore the visa is granted. The petition shall be in such form and contain such in-
formation as the Attorney General shall prescribe. The approval of such a petition
shall not, of itself, be construed as establishing that the alien is a nonimmigrant.
According to the House report on the 1952 Act, the purpose of the
section 101(a)(15)(H) temporary worker provision and section 214(c),
which provides for its administration by the Attorney General, was to
"grant the Attorney General sufficient authority to admit temporarily
certain alien workers, industrial, agricultural, or otherwise, for the
purpose of alleviating labor shortages as they exist or may develop in
certain branches of American productive enterprises, particularly in
periods of intensified production." 15
Regulations published by the Justice Department's Immigration
and Naturalization Service require Labor Department certification of
the unavailability of domestic workers as a prerequisite for admitting
H-2 workers, thus following the pattern established during the initial
period of the temporary foreign labor programs, and after 1947. How-
ever, Labor Department certifications in the case of H-2 workers are
advisory only, and may be overridden by the Justice Department,
which has final authority. The H-2 provisions differed in this respect
from those governing the bracero program, under which the role of the
Labor Department was considerably more extensive. This difference
was explained as follows by a Labor Department representative during
In all foreign-labor programs we have the responsibility for certification as to
need and as to the conditions of employment. In other words, we certify that the
conditions of employment of the temporary entrants will not adversely affect
domestic workers similarly employed.
In the Mexican program, we also have responsibility for carrying out the
international agreement and the standard work contract. What this means is that
we have the compliance responsibility. ...
In the other foreign-labor programs, our only responsibility is the certification
as to the need for the workers, and that they will not adversely affect the domestics.
Responsibility for the enforcement of that contract then falls within the purview
of the Immigration and Naturalization Service.'1
V. THE BWI PROGRAM DURING THE BRACERO PERIOD
1953-60: Bracero Program Expansion
The use of alien contract labor was more extensive in the period
immediately following the enactment of the separate legislative
authorities for the bracero and BWI programs than during the World
War II. According to a University of California study,
* * the 1954 contract labor program was approximately three times its wartime
emergency average and exceeded the wartime peak year by 120 percent. . In
national proportions, alien contract farm labor was approximately 2 percent of all
hired farm labor in wartime but had risen to approximately 6 percent in 1954.1
During the remainder of the decade, the BWI program was increas-
ingly eclipsed by the expansion of the bracero program. Statistics on
the admission of Mexicans, British West Indians, Bahamians, and
other foreign agricultural workers during the period 1942-64 are shown
15 H. Rept. No. 1365, 82d Cong., 2d sess., 1952, pp. 44-45.
1R House Judiciary hearings (1963), p. 2.
SVarden Fuller, "Labor Relations in Agriculture," Institute of Industrial Relations, University of
California, Berkeley, 1955, pp. 44-45.
in Table 1. BWI admission figures are not an entirely accurate indica-
tion of the number employed during a given year, because during
this period many were admitted for periods of up to three years.
Nonetheless, they are dwarfed by the Mexican figures, which rose
steadily after the enactment of Public Law 78 until a peak of 445,197
in 1956, and remained over 400,000 until 1959, when they began to
TABLE 1.-FOREIGN WORKERS ADMITTED FOR TEMPORARY EMPLOYMENT IN U.S. AGRICULTURE, BY YEAR AND
Year Total Mexicans West Indians Bahamians Canadians Others
19422.... -._. ---- 4,203 4,203 -- ---------- (3)
1943 - 65,624 52,098 8, 828 4,698 (3)
1944 ------------------- 84, 419 62, 170 16, 574 3,048 1,414 4 1,213
1945 ------ 73, 422 49,454 17,291 2,100 4,055 4522
1946 --------- 51,347 32,043 11,081 2,690 5,533 ----
1947 30, 775 19,632 1,017 2,705 7,421
19485 44,916 35,345 2,421 1,250 5,900....----
1949 ------------------ 112,765 107, 000 1,715 1,050 3,000 ------------
1950 -.-. 76, 525 67,500 4, 425 1,800 2,800 ..
1951 --------- 203,640 192,000 6,540 2,500 2,600 ------
1952 ------------ 210, 210 197 100 4,410 3,500 5,200 ----
1953 215, 321 201 380 4,802 2,939 6,200 ---------
1954 320,737 309033 2,159 2,545 7,000 --- ----
1955 ---------411,966 398,650 3,651 2,965 6,700 --
1956 ------- 459,850 445,197 4, 369 3,194 6,700 5390
1957 ------- 452,205 436,049 5,707 2,464 7,300 685
1958-------- 447,513 432, 857 5,204 2,237 6,900 6 315
1959 --------------- 455,420 437,643 6,622 2,150 8,600 6405
1960 .---------------. 334,729 315,846 8,150 1,670 8,200 863
1961...------ 310,375 291,420 8,875 1,440 8,600 640
1962 ------------- 217,010 194,978 11,729 1,199 8,700 8 404
1963 -- 209,218 186,865 11, 856 1,074 8, 500 923
1964 ----- ---- 200,022 177,736 7 14, 361 (7) 7,900 25
1 This does not include small number of Basques and other workers.
2 Data for 1942-47 were obtained from USDA reports.
3 Not available.
4 Newfoundlanders transported.
5 Data for 1948-61 were compiled by Bureau of Employment Security, U.S. Department of Labor.
6 Includes 390 Japanese in 1956; 652 Japanese and 33 Filipinos in 1957; 315 Japanese in 1958; 400 Japanese and 5
Filipinos in 1959; Japanese only in 1960 and 1961; 279 Japanese and 125 Filipinos in 1962; Japanese only in 1S63-64.
Bahamians included with British West Indians.
Source: "The Migratory Farm Labor Problem in the United States," 87th Cong., 2d sess., S. Rept. No. 1225, Washington,
p. 10, 1962; and "Farm Labor Market Developments," Bureau of Employment Security, U.S. Department of Labor, Janu-
ary 1964 and January 1965. U.S. Department of Agriculture, Termination of the Bracero Program, Agricultural Economic
Report No. 77, Washington, June 1965, p. 5.
Public Law 78 was extended three times during this period: for
two years in 1953 without amendment; for 3, years in 1955 with
only minor amendments; and for 2 years in 1958.2 International
agreements were renegotiated with Mexico throughout this period with
more or less difficulty. In 1954, for instance, there was a heated dispute
between the United States and Mexico regarding Mexico's contention
that the prevailing wage determination by the Labor Department
was too low. This was also the period of Operation Wetback; more
than one million apprehensions of illegal aliens were made in 1954,
and most of the apprehended aliens were sent back to Mexico.
The few discussions of the BWI/Bahamian program during this
period were generally favorable, as indicated by the following ex-
amples. During consideration of the extension of the bracero program
SSee Labor Department report, House Judiciary hearings (1963), pp. 36-41, for a summary of amendments
and revisions in the international agreements.
in 1953, Senator Holland pointed out to Mr. Robert Goodwin, the
Director of the Labor Department's Bureau of Employment Security,
that, in contrast to the Mexican program, under the BWI program:
The Government has not been put to any large expense, does not have to
exercise this supervision to the degree that prevails with reference to the Mexican
labor, and it has been more satisfactory both to the ones employed and the
employers, has it not, than has been the case with reference to the areas employ-
ing the Mexican labor and the Mexican laborers themselves?3
Mr. Goodwin concurred, but indicated that Mexico would not
agree to a similar simplified arrangement, or to an elimination of the
international agreement. He noted further that, "We had some very
undesirable developments prior to this program in terms of Mexico
refusing to permit them to come in, or refusing to allow employers
to recruit in Mexico until certain payments were made, that sort of
A series of House Judiciary Committee reports commented briefly on
the BWI program. In late 1954, a special subcommittee of the House
Committee on the Judiciary examined the British West Indies program
as part of an overall consideration of the H-2 temporary worker
program. They concluded:
* * That the program of recruiting agricultural laborers in the British
West Indies progresses satisfactorily, and it is beneficial to both American em-
ployers and the laborers. It also greatly contributes to the improvement of the
economic situation of the British islands, due to the fact that the laborers send
home a substantial proportion of their earnings in dollar currency.5
This was in marked contrast to their recommendation elsewhere in the
same report regarding the use of temporary alien workers from the
British Virgin Islands on the Virgin Islands of the United States:
"it is believed that a truly effective solution of the whole problem
might be achieved through a locally applicable British-American
agreement, patterned upon the Mexican-American agreement
presently in effect." 6
In a subsequent report in 1957, Subcommittee No. 1 of the House
Judiciary Committee reiterated its earlier finding "that the importa-
tion of agricultural workers from the British West Indies is beneficial
for agricultural interests in the United States." Quoting further:
There are now approximately 8,000 British West Indies workers in this country
employed in Connecticut, Florida, Illinois, Indiana, Maine, Maryland, Michigan,
Minnesota, New Hampshire, New Jersey, New York, and Wisconsin. The British
West Indies program provides employers in the United States with the needed
workers at the time when their services are required and the program does not af-
fect adversely similar categories of domestic workers. No complaints from labor
unions have been registered. The number of abscondees among the British West
Indies workers has been found to be very low and on an annual basis it rarely
exceeds 300 "missing" workers some of whom are being apprehended. Around 100
annually are being forced to depart from the United States pursuant to the
breach of contract.
The British West Indies program has been found to operate satisfactorily in all
other respects and has the additional merit of being beneficial to the economy of
the British West Indies, a neighbor of the United States.7
a U.S. Senate Committee on Agriculture and Forestry, "Extension of the Mexican Farm Labor Program,
Hearings, 83d Cong., 1st sess., 1953, p. 28.
1 Ibid., p. 29.
a H. Rept. No. 1570, 84th Cong., 1st sess., 1955, p. 137.
* Ibid., p. 131.
7 H. Rept. No. 780, 85th Cong., 1st sess., 1957, p. 2.
Finally, in a 1958 report entitled," Immigration Problems on the
Southeastern Sea Border," a special subcommittee of the House
Committee on the Judiciary noted its earlier positive findings regarding
the BWI program, but sounded a note of warning in the context of
rising industrial unemployment:
However, this special subcommittee deems it necessary to stress that the rise
of unemployment in the United States might quite likely result in the reversing
of the trend of recent years, which trend was marked by the movement from farm
to nonfarm employment. In the event that such reversal materializes, the supply
of domestic farm labor will increase in proportion to the apparently diminishing
employment opportunities in the industry. Even if such reversal of the trend of
the past should be but temporary-as it is hoped-it will necessitate the cur-
tailment of the importation of all foreign labor, including the British West Indian
It is recommended that the Immigration and Naturalization Service remain
in close contact with the United States Employment Service for the purpose of
immediate adjustments of the size of the foreign farm labor force in strict con-
formity with the changing supply of domestic farm labor.8
In May 1959, Secretary of Labor James P. Mitchell reportedly
issued regulations which guaranteed BWI contract laborers certain
minimum standards of free housing and transportation.9 These stand-
ards were adopted in the 1960 BWI contract, as indicated in a May
1960 press release by the Department of Labor reporting that Assistant
Secretary of Labor Newell Brown met with and congratulated the
British West Indies Employers Committee on their cooperation in
meeting the Department's request for contract revisions. The press
release is of particular interest as an indication of similarities and dif-
ferences between the BWI and bracero programs before and after 1960.
* * the new [BWI] contract brings it into essential conformity with contracts
of the other major foreign worker programs. The principal changes cited by
Brown are that (a) employers henceforth will pay the major portion of the workers'
cost of transportation between jobs in this country, and (b) workers will be guar-
anteed employment for at least three-quarters of the normal hours of work during
the contract period. Other changes in the contract represent mainly a formal
recognition of what were already the normal practice. They include provision of
free housing for the workers, and assurance that food would be provided at cost.10
Mr. Brown "emphasized the Department's satisfaction that em-
ployers have agreed to meet the minimum standards prescribed for
the much larger Mexican program," and indicated that in some
respects it was well ahead of the Mexican program, particularly
regarding accident insurance."
The Assistant Secretary of Labor indicated that at that time the
BWI workers constituted approximately 6,500 of the 450,000 foreign
agricultural workers admitted each year. However, despite their rela-
tively small numbers, he noted that the BWI workers had "a signifi-
cant impact on the farm labor market in Florida, and some of the
States in the north-central and middle-Atlantic regions." 12
8 H. Rept. No. 1368, 85th Cong., 2d sess., 1958, p. 5.
* "Mexican, Foreign Worker Programs," Congress and the Nation: 1945-1964, Washington, Congressional
Quarterly Service, p. 765.
1o U.S. House of Representatives Committee on Education and Labor, "Migratory Labor," Hearings,
87th Cong., 1st sess., 1961, p. 135. (Cited as House Education and Labor hearings (1961).)
1960-64. Phasedown of the Bracero Program
By the end of the 1950s, the bracero program was coming under
increasing attack by labor and welfare groups, including a four-
member consultants' group appointed by Secretary of Labor James
P. Mitchell.13 It was argued that the braceros were adversely affecting
the wages and working conditions of domestic workers, particularly
in certain areas and occupations. This position was presented by Sec-
retary of Labor Arthur J. Goldberg who noted that in "bracero-
dominated areas," of which they had identified 80, the prevailing
wage standards offered no protection to domestic workers since the
prevailing wage was in fact set by the braceros themselves. Quoting
And what happens there is that the wage level, which we have been able to fix
since the standard was adopted, has remained stationary for 10 years at a time
when throughout the country the domestic farm-labor rate has been increasing.
And there is no domestic labor really available at the wages which prevail there.
I think the increase in the wages of domestic farm labor since 1946, if I remember
correctly, has been 46 percent throughout the country--46 percent wage increases.
Yet in these areas, the wage has remained stationary.14
Secretary Goldberg indicated that the Kennedy Administration was
not advocating termination of the bracero program. However, they
were seeking several substantive and controversial amendments.
One of them-the statutory limitation of braceros to temporary or
seasonal agricultural work, excluding the operating of machines
and certain processing functions-was adopted. However, an amend-
ment requiring that the wages offered braceros be based on 90 per-
cent of the statewide or national average, in order to afford protec-
tion to "bracero-dominated areas", was dropped in conference. As
noted below, a related measure was adopted administratively the
following year. The 1961 legislation extended Public Law 78 through
December 31, 1963 and contained the last substantive amendments
made to this legislation.
During the course of the 1961 Senate hearings on the bracero pro-
gram, Senator Eugene McCarthy (Democract of Minnesota), a critic
of the program, observed that "in the House report and the hearings
thus far in the Senate there is no reference made to the importation of
Jamaican workers." 15 In response to Senator McCarthy's question
as to whether the Jamaican program was based on a private agreement
with a foreign government, Secretary Goldberg replied:
Yes; except that I must say that the Jamaican Government which does super-
vise the program from their end has seen to it that the standards are much in
excess of what the Mexican labor standards are. Their wage rates are much higher,
and we have not had as a consequence the reaction to the Jamaican program that
we have had to the Mexican program. And this proves, I think, the essential
point of these amendments we have, that if the wage rate is a proper wage rate-
it is a question of economics-there will be braceros used, but much of the strong
feeling and impact will be eliminated, and it will really be a supplementary pro-
gram, because the wage rates being paid the Jamaican workers who come in-
and their number is very small in comparison with the number of Americans-
apparently has not prejudiced the position of the domestic worker to the degree
that the Mexican program has.
13 U.S. Senate Committee on Agriculture and Forestry, "Extension of Mexican Farm Labor Program,"
Hearings, 87th Cong., 1st sess., 1961, pp. 267-284.
14 Ibid., p. 230.
1Ibid., p. 235.
Senator MCCARTHY. Certainly there has not been unfair competition under the
standards that prevail with the domestic worker.
Secretary GOLDBERG. No.1'
In testimony in 1961 before the House Select Subcommittee on
Labor, Mr. Harold F. Edwards, who continues in his position as
chief liaison officer of the British West Indies Central Labour Organi-
sation (BWICLO) today, began by stressing that "the British West
Indies program is for supplemental labor needed only when American
citizens are not available." 1 He noted that the program could be
judged to be about 95 percent effective, as measured by the fact that
about 95 percent of the employers filed repeat requests and about 95
percent of the workers requested to come back. Mr. Edwards credited
the success of the program-which was unquestioned during the course
of his testimony-in part to the close liaison work performed by the
representatives of the BWI Governments. In response to a question by
Congressman James O'Hara (Democrat of Michigan) as to "what
steps you take and what your processes are to protect the interests
of the British West Indies workers," the following exchange took
Mr. EDWARDS. Before we would sign a contract, we inspect the housing, and
the work conditions offered by the employer. If by chance the contract is not
followed, then we would withdraw the workers from the employer.
The men are told the address and the telephone number of their nearest liaison
officer, and they are entitled to call him collect if there is a problem arising at
any time, and the liaison officer will visit those men immediately or as quickly
as possible, and most camps are seen by a liaison officer at least once, and pos-
sibly twice, a month.
Mr. O'HARA. And if you found that an employer was not abiding by the terms
of the contract, you would first, I suppose, attempt to get him to abide by the
terms of the contract, and then if he refused or failed to do so, you would with-
draw the workers?
Mr. EDWARDS. Yes, sir. We would remind him of his obligations. That has
usually happened to do the trick. We have had to withdraw on a few occasions,
but in the last 9 years, I can only think of three times'
As an indication of the scope of the program, Mr. Edwards said
that "between January 1951 and December 1960 the average number
of [BWI] workers engaged in agriculture each month was 6,246." 19
In response to a question as to the type of agriculture in which the
workers were employed, Mr. Edwards replied:
It is easier to tell you what we don't work in, sir. We don't work in cotton,
but we have worked in everything else, and we do work in every kind; citrus in
Florida, sugar cane in Louisiana, on ranches in Texas, apples in Michigan, toma-
toes, Indiana, peas and corn in Wisconsin, shade tobacco in Connecticut, potatoes
and cranberries in New Hampshire and New Jersey.20
President John F. Kennedy indicated in October 1961 that he was
signing the legislation extending the bracero program through Decem-
ber 31, 1963 reluctantly:
The adverse effect of the Mexican farm labor program as it has operated in
recent years on the wage and employment conditions of domestic workers is clear
and cumulative in its impact. We cannot afford to disregard it. We do not con-
done it. Therefore, I sign this bill with the assurance that the Secretary of Labor
16 Ibid., pp. 235-236.
,7 House Education and Labor hearings (1961), p. 126.
18 Ibid., p. 142.
9 Ibid., p. 127.
20 Ibid., pp. 142-143.
will, by every means at his disposal, use the authority vested in him under the
law to prescribe the standards and to make the determinations essential for the
protection of the wages and working conditions of domestic agricultural workers.21
In response to this direction, the Labor Department held public
hearings in all States using foreign workers, and in May 1962 set an
adverse-effect rate for each State which employers were required to
offer foreign workers. In the majority of cases, the adverse-effect rates
were higher than the prevailing rates. Where piece-rates were paid,
the hourly earnings had to equal the established adverse-effect rates.
Since U.S. employers were required to offer domestic workers wages
equal to those offered to foreign workers as a prerequisite for labor
certification, these adverse-effect wage scales were also applicable to
domestic workers in cases where farmers intended to seek foreign
workers. Adverse-effect rates continue to be published annually in the
Federal Register, the most recent on August 9, 1977.22
Also in 1962, the Department of Labor issued a bulletin stating that
Mexican workers could not remain in the United States for periods
exceeding 6 to 9 months. AFL-CIO President George Meany wrote to
the Secretary of Labor strongly urging on behalf of the AFL-CIO that
the BWI workers be allowed to remain on a year-round basis. He also
took the opportunity to warmly praise the BWI program, noting, for
instance, that "It is well known that the standards of the BWI pro-
gram improve the lot of domestic workers in regard to housing, work-
men's compensation, and racial matters." He expressed the opinion
that, through the program, "the United States is making a substantial
aid contribution to the West Indies at no cost to the American tax-
payer, at no loss of self-respect to the West Indians, but merely as a
fair return for a fair day's work on the part of law-abiding and ambi-
tious West Indian workers." Mr. Meany concluded his comments to
the Secretary of Labor with the observation that, "The Government
of Jamaica would not be opposed to a treaty similar to that between
Mexico and the United States, and it is believed that most of the
American employers would not be opposed to such action." 23
In 1963, the Kennedy Administration proposed a 1-year extension
of the bracero program. A 2-year extension was defeated in the House
on May 29, 1963 by a vote of 158-174. On August 15, a 1-year exten-
sion with amendments favored by the Labor Department but opposed
by the growers, passed the Senate by a vote of 62-25. An unamended
1-year extension passed the House on October 31 by a vote of 173-160,
and the Senate agreed to the House provisions, by 50-36, on December
4, 1963. The bill, extending Public Law 78 until December 31, 1964
without amendment, was signed into law December 13, 1963 (Public
After the House defeat in May of the 2-year extension, the legislative
alternatives presented to the proponents of the bracero program were
quite limited. They were essentially given their choice of a 1-year
21 Quoted in S. Rept. No. 391 88th Cong., 1st sess., 1963, p. 13.
22 42 Fed. Reg. 40192 (1977); the adverse effect rates are defined here as "the minimum wage rates which
the Department has determined must be offered and paid by the employers of temporary alien agricultural
workers. The purpose of the adverse effect rates, and thus of this rule, is to prevent the employment of such
aliens from having an adverse effect on the wages of U.S. workers who are similarly employed." The
methodology for determining the adverse effect rate is reprinted in part from 41 Federal Register 2501S
(June 22, 1976). The methodology has changed since 1962, but the purpose remains the same.
23 George Meany, "The British West Indian Agricultural Labor Program," Apr. 24, 1962. Reprinted in
Congressional Record, Sept. 13, 1965, pp. 23528-23529.
extension, with or without amendments, or nothing. In bringing the
bill to the Senate floor, Senator Ellender promised that he would not
seek a further extension of the program in 1964.
However, it was generally assumed by proponents of the program
during the 1963 debates that, barring insuperable objections by the
Mexican Government, the importation of Mexican workers would
continue under the authority of Public Law 414, the Immigration and
Nationality Act. During House hearings in 1963, an INS official, Mr.
Irvin Shrode, indicated that "through an agreement, I think an
executive agreement made a number of years ago between the com-
mittees involved, no effort has been made to extend Public Law 414 to
Mexican national workers so long as a special statute is on the books,
to wit, Public Law 78." 24 In response to questioning, Mr. Shrode
agreed that, in the absence of Public Law 78, there was nothing in
Public Law 414 that would prohibit the importation of Mexican labor.
The point was also made in a 1963 Senate report that:
If Public Law 78 should not be extended, they [Mexican farmworkers] could
also enter as nonimmigrants under sections 101(a) (15) (H) and 214 of the Immigra-
tion and Nationality Act (8 U.S.C. 1101(a) (15) (H) and 1184).25
A discussion of the relationship between Public Law 78 and Public
Law 414 also occurred during the August 15, 1963, Senate debate on
the unamended 1-year extension of Public Law 78 reported by the
Senate Committee on Agriculture and Forestry. Senator Spessard
Holland commented at some length on the differences between the
importation of temporary foreign workers under Public Law 414, with
which he indicated he was very familiar in connection with the BWI
program widely used in Florida; and Public Law 78, which he believed
to be more desirable for the Mexican situation. This was followed by
an exchange between Senator Holland and Senator Allott of Colorado:
Mr. ALLOTT. If Public Law 78 should not be extended, there would be nothing
to prevent employers in the western part of the country from using Public Law
414 for the importation of labor. Is that correct?
Mr. HOLLAND. Nothing at all, until such time as the abuses might again become
so evident that perhaps the Mexican Government would take the same position
it did prior to the enactment of Public Law 78. 2
In fact, however, on December 19, 1964, Secretary of Labor Willard
Wirtz published regulations which made it clear that it was not the
intention of the Labor Department that the bracero program continue
under the auspices of Public Law 414. In promulgating the regulations,
Secretary Wirtz expressed the hope that the use of foreign workers
"will be very greatly reduced, and hopefully eliminated." The Con-
gressional reaction to the regulations, and administrative results
under them are discussed in the following section.
As indicated in Table 1, the number of braceros admitted annually
decreased steadily during the period under discussion above, 1960-64.
According to a Department of Agriculture study, this was "mainly
because of increased labor saving technology-particularly the
mechanization of the cotton harvest, a tightening of the certification
of need for braceros, and more rigid enforcement of wage guarantees
24 U.S. House of Representatives Committee on Agriculture. "Mexican Farm Labor Program," Hearings
88th Cong., 1st sess., 1963, p. 53.
25 S. Rept. No. 391, 88th Cong., 1st sess., 1963, p. 2.
26 Congressional Record, Aug. 15, 1963, p. 15187.
to imported and domestic workers." 27 In contrast, the number of
BWI admissions steadily increased during the same period. According
to a Department of Labor representative, "the increased use of British
West Indians as opposed to the decreased use of other foreign workers,
is directly attributable to the increased sugar cane acreage in Florida
where sugar cane is not mechanized." 2s
VI. 1965-1966 TRANSITION FROM THE BRACERO PROGRAM
U.S. Department of Labor Regulations: Action and Reaction
On December 19, 1964, Secretary of Labor Willard Wirtz announced
a three-step program he planned to pursue in connection with the
legislative termination of the bracero program, as follows:
First, there will be no administrative extension of the situation existing under
Public Law 78.
Second, the responsibilities of the Secretary of Labor under Public Law 414
will be strictly administered in accordance with the Regulations which are being
issued today ...
Third, an active domestic labor recruitment program has been instituted and
must be continued.'
There had been little serious expectation of a formal extension of
Public Law 78 by either legislative or administrative means, and there
was little objection to an expended domestic recruitment program,
although apparently it proved to be of limited success. However, there
was considerable surprise and consternation at the new regulations
regarding the certification of temporary workers pursuant to Public
Secretary Wirtz made his intentions clear in his statement accom-
panying the revised regulations:
The issuance of the new Regulations is essential to the orderly administration of
Public Law 414, but it does not imply that there will be any large scale use of
foreign workers in the future. To the contrary, it is expected that such use will be
very greatly reduced, and hopefully eliminated.2
The regulations required that, as a prerequisite for requesting foreign
workers, employers must offer domestic workers wages which were
substantially higher than the adverse effect wages employers pre-
viously had been required to offer domestic workers in order to petition
for Mexican or other foreign workers. The regulations also required
that U.S. workers be offered other benefits, such as minimum housing,
transportation, and insurance, which had generally been offered to
braceros. In addition, certification was limited to 120 days, to emphasize
"that the only justification for bringing in labor is to meet special
peak conditions in the highly seasonal agricultural industry."
The regulations were the subject of hearings before the Senate
Committee on Agriculture and Forestry on January 15 and 16, 1965.
Secretary Wirtz indicated that he interpreted the Congressional in-
tent in ending the bracero program as a desire to reduce the country's
27 U.S. Department of Agriculture, Termination of the Bracero Program, Agriculture Economic Report
No. 77, June 1965, p. 7.
25 House Judiciary hearings (1963), p. 17.
1 U.S. Department of Labor Year of Transition: Seasonal Farm Labor 1965, A Report from the Secre-
tary of Labor , pp. H-3, H-4.
2 Ibid.. p. H-4.
dependence on imported labor. He expressed his complete agreement
with this goal in view of rising unemployment and the generally de-
pressed wages and working conditions in agriculture as compared to
the rest of the economy. He indicated further that the regulations were
intended to be a very strict interpretation of the statutory requirement
in Public Law 414 that "unemployed persons capable of performing
such services or labor cannot be found in this country," in order for
foreign workers to be admitted.
In a key question, Senator Kuchel of California asked the Secretary
I share your desire to have the maximum number of our fellow citizens again
fully employed who are now unemployed, but I do not see the difference between
that condition which was a condition precedent under Public Law 78, and Public
Law 414 and the sections to which you refer. In other words, what would the
difference be between your conceded duty under the law to make those decisions
under Public Law 78 last year and under the Immigration Act this year? 4
Secretary Wirtz replied, in part:
I think it goes very close to the heart of the most difficult problem here. And
the answer to it would necessarily include these factors. It would include the
factor of the intention of the Congress in terminating Public Law 78, which with
its legislative history I think can only be interpreted as requesting or as indicating
a proposed different treatment of this situation with the legislative record being
quite clear, of clear indications, that the Congress wanted this importation if not
stopped completely, certainly cut way down, and this would be a large part of my
answer to your question. A fuller part of it would necessarily include recognition
of the fact that we are taking a much closer look at this situation today than we
did perhaps in the accumulated experience under Public Law 78, and I make the
point not from sentiment but from straight economics that our largest concern,
so far as the Department of Labor is concerned, is that we may in this country let
unemployment become a reality because we first let it become a habit, and there
has been now almost 7 years of unemployment over 5 percent. I think that it is
time we look again to see what we can do to lick that problem.5
In addition to definitively preventing a resurfacing of the bracero
program under the legislative authority of Public Law 414, the Labor
Department regulations also had a significant impact on the BWI
program which had been operating under the authority of that act
since 1952. The implications of the new regulation for the BWI
program were outlined at the Senate hearings by Mr. George H.
Wedgeworth, President of the Sugar Cane Growers Cooperative of
Florida, who said that the new criteria made it clear "that the Secre-
tary of Labor has set out on a path for the complete elimination of the
program." I Later that year, 600 British West Indians were approved
by the Labor Department to cut sugar cane in Florida for 2 months,
according to Senator Holland, only "after extraordinary and intensive
recruitment failed to turn up domestic workers. ... The amount of the
expenditure was enormous." 7
In the spring of 1965, the Labor Department's regulations were
unsuccessfully challenged in court in the Florida case of Chase Glades
Farms v. Wirtz, Civil No. 65-86 (M. D. Fla., filed May 5, 1965). Florida
celery growers filed an action to restrain and enjoin the Secretary of
Labor from refusing to extend certification for celery cutters from
4 U.S. Senate Committee on Agriculture and Forestry, "Importation of Foreign Agricultural Workers,"
89th Cong., 1st sess., 1965, p. 69.
* Ibid., p. 141. See pp. 141-142 for a summary of their objections.
7 Congressional Record, Sept. 13, 1965, p. 23512.
April 30 to June 15, 1965, arguing that the Labor Department's ac-
tion in refusing to extend the certification was arbitrary, capricious,
and would cause irreparable losses of the celery crop. The trial court
refused to issue a restraining order on the grounds that the Secretary
of Labor was performing an advisory function which was not subject
This court concludes that under the law . the Secretary of Labor, his sub-
ordinates and the agencies of the Department of Labor are not vested with any
authority to grant or deny the admission or the continuance in this country of
any nonimmigrant laborer. Because of that, the determinations made by the Sec-
retary of Labor in connection with such matters are solely advisory and can be
accepted or rejected by the Attorney General in the exercise of his statutory
authority on this subject. The giving of such advice is not subject to injunction.8
Finally, Senator Holland sponsored an amendment, accepted in
committee, to the Food and Agriculture Act of 1965, which would
have legislatively transferred the advisory certification responsibility
regarding the importation of foreign farm workers from the Depart-
ment of Labor to the Department of Agriculture. A heated Senate
debate on this provision occurred in response to a floor amendment
offered by Senator Bass of Tennessee to delete section 703, containing
Senator Holland's committee amendment, from the bill. Senator
Bass' amendment, deleting the transfer of the certification function
from the Labor Department to Agriculture, passed by a vote of 46 to
45, with the initial tie vote broken by Vice President Hubert
The chief proponents of the transfer of the certification authority
from Labor to Agriculture were Senators from Florida and California,
according to Senator Holland, "the two States most affected by the
present arbitrary actions of the Secretary of Labor." 1 While there
was considerable discussion of the jurisdictional issues involved, in
terms of both Cabinet-level Departments and committee responsibili-
ties, many of the key issues were, as Senator Harrison Williams noted,
similar to those raised during the recent debates over the bracero
program." These included the issues of whether there were, in fact,
sufficient domestic farm workers without a supplementary foreign
farm labor program; and whether such a program would have an
adverse impact on domestic agricultural wages and working conditions.
These arguments were restated in the specific context of what Senator
Holland and his supporters saw to be the arbitrary and capricious
actions of, quoting Senator Holland, "this idealistic, evangelistic
Secretary of Labor, who thinks he has authority to set wages."'2
Senator Holland was particularly disturbed by the disruption of the
BWI program, which was widely used in Florida; as well as with what
he saw to be the violation of the express Congressional intent that
Mexican workers be admitted under Public Law 414 after the expira-
tion of Public Law 78." It was generally argued that the Secretary of
Agriculture not only would be more sympathetic to the needs of agri-
culture, but was also in a better position to gauge those needs and
8 Quoted ibid., p. 23511; the case is summarized and discussed by Senator Holland on p. 23510.
0 Food and Agriculture Act of 1965, Congressional Record, Sept. 13, 1965, pp. 23504-23530.
to Ibid., p. 23509.
11 Ibid., p. 23515.
1 Ibid., p. 23509.
3 Ibid., p. 23512.
evaluate them for the Attorney General. In defense of the Secretary
of Labor, Senator Muskie (Democrat of Maine) argued that despite
an initial determination to eliminate the foreign workers Secretary
Wirtz had clearly adopted a more realistic attitude as the year had
progressed; "when we were able to demonstrate that there were not
sufficient laborers available the Secretary authorized importation of
Canadian workers." He opposed the transfer of certification authority
to the Department of Agriculture, stating "I do not think it is admin-
istratively sound to place a labor supply and working condition ques-
tion in the hands of the Secretary of Agriculture or any department or
agency head other than the Secretary of Labor." 14
As noted above, this position prevailed by a one vote margin, and
Secretary Wirtz's regulations remained in effect. In a monograph
entitled "Year of Transition," summarizing the transition from the
bracero program, Secretary Wirtz noted that there was an 83 percent
reduction in the use of foreign farm labor in 1965 compared to 1964,
although it was harder to determine the increase in the number of
domestic workers employed. Summarizing the impact of the new regu-
lations on the BWI program in Florida, Secretary Wirtz estimated
that the total man-months dropped from 81,000 in 1964 to 64,000 in
A Department of Labor representative recently traced the regula-
tions in effect as of December 1977 back to the 1965 regulations, as
revised in 1967, noting that they "have changed little in the inter-
vening decade." 16 As will be discussed below, major and very contro-
versial revisions in these regulations were proposed in January 1977;
final regulations were published March 10, 1978.
Statistical data on the BWI program are not consistent, making it
difficult to measure the impact of the 1965-1967 regulations on the
program. For instance, one important difference resulting from the
1965 regulations was the restriction on the individual certifications to
120 days. Previously workers were admitted in some cases for up to
three years, so yearly admissions were not an accurate reflection of the
actual yearly work forces.
Foreign workers admitted for temporary employment in U.S. Agri-
culture, 1942-72, are shown in Table 2. BWI entries in the same U.S.
Government series for 1973-77 follow: 1973-11,924; 1974-11,346;
1975-11,668; 1976-9,944; 1977-13,300. As another measure, peak
number of West Indian Agricultural Workers by State, 1960-76, are
shown in Table 3; the source of these statistics is the BWICLO.
14 Ibid., p. 23529.
15 Report of the Secretary of Labor , p. 3, p. 6, p. 9.
16 U.S. Senate Select Committee on Small Business, "Agricultural Labor Certification Programs and
Small Business," Hearings, 95th Cong., 1st sess., 1977, p. 29.
TABLE 2.-FOREIGN WORKERS ADMITTED FOR TEMPORARY EMPLOYMENT IN U.S. AGRICULTURE, BY
YEAR AND NATIONALITY, 1942-72
British West Japanese and
Year Total Mexican Indian 12 Canadian Filipino
19423 .........- ----------- --- 4,203 4,203 ............ INA .
1943 .......---- --------------- 65, 624 52,098 13,526 INA .- ..
1944 ...................--------- 3, 206 62, 170 19, 622 1,414 .
1945 ------------------------- 72,900 49, 454 19, 391 4, 055 -----.... -
1946... .. -------...- 51,347 32, 043 13,771 5,533 ...........
1947------------------------- 30,775 19, 632 3,722 7,421 ......
1948 .------------------ --- 44,916 35,345 3,671 5,900 ........
1949 -----....--------------------- 112,765 107,000 2,765 3,000 .
1950 .....-- ---------------------- 76,525 67,500 6,225 2,800- --
1951 .........-------------------. 203,640 5192,000 9,040 2,600 _..-----------
1952 .........------ --.. ---------. 210, 210 197, 100 7, 910 5,200
1953 .............--------------- --215,321 201,380 7,741 6,200 .......
1954 ...... ----- --------------------- 320,737 309, 033 4,704 7,000 ..
1955 ...............-------------- 411,966 5398,650 6,616 6,700 --
1956 ...... ...--- -----------------. 459,850 445,197 7,563 6,700 390
1957 -......----------------------- 452,205 5436,049 8,171 7,300 685
1958 .-------------------------.- 447, 513 5432,857 7,441 6,900 315
1959 ---------------------------- 455, 420 437,643 8,772 8, 600 405
1960 ............ .-----------. 334,729 5315,846 9,820 8,200 863
1961 ----------------------------- 310,375 5291,420 10,315 8,600 40
1962 -.......------------------- 217, 010 94,978 12, 928 8,700 404
1963 ---------------------------- 209, 218 186, 865 12, 930 8,500 923
1964 -----------------------. 200,022 5 177, 736 14,361 7, 900 25
1965 ........------- ------------.. 35,871 20,284 10,917 4,670 0
1966 -.....---- ----------------- 23, 524 8,647 11,194 3,683 0
1967 -.......- .....----------- ---- 23,603 6,125 13,578 3,900 0
1968 ------------------------------ 13,323 0 10,723 2,600 0
1969.............------------------ 15,830 0 13,530 2,300 0
1970-...-.....-..-------------------- 17,474 0 15,470 2,004 0
1971-....-.----------------------- 13,684 0 12, 143 1, 541 0
1972 ---. ......-------------------- 12,526 0 11,419 1,107 0
1 Due to carryover of workers from year to year, the number admitted is sometimes less than peak employment.
2 Includes Bahamians.
s Data from 1942 through 1947 were obtained from reports prepared by the U.S. Department of Agriculture.
Data from 1948 through 1972 were compiled from administrative reports of the Manpower Administration, U.S. Depart-
ment of Labor.
5 Admitted under Public Law 78.
Source: U.S. Department of Labor, Rural Manpower Developments, fall, 1973, p. 20.
TABLE 3.-PEAK NUMBER OF WEST INDIAN AGRICULTURAL WORKERS BY STATE, 1960-76
Con- Mas- New West
nect- Flor- Mary- sachu- Mich- Hamp- New New Ver- Vir- Vir-
Total icut ida Maine land setts igan shire Jersey York mont ginia ginia Other
1960.... 13, 629 1,533 8,997 ...--- 17 ...... 281 32 674 300 --... 102 ...... 1,693
1961 ...- 13,773 1,567 9,663 --.-- 16 .... 172 33 875 310 .-.._ 261 --..... 876
1962 .... 15,471 1,565 11,668 .....- 20 --.. 144 29 693 456 ...- 369 ....... 527
1963 .... 15,937 1,628 12,727 -.. 8--... 218 39 451 299 --..... 564 ....... 3
1964 ... 16,841 1, 845 13,020 ...---. 8 -.. 211 21 629 300 ..-..-. 804 ...._.. 3
1965 :..: 15,265 777 13,099 ..... 7 1 I--... 577 247 30 524 ...... 3
1966 .... 10,135 50 8,762 ...----------- 25 .--- 17 --..... 647 60 374 200 ...-
1967 .... 11,401 89 9,056 -........ 56 ....- 150 ....-- 910 147 665 328 ....
1968 .... 10,602 96 8,711 ........ .. 80 ..-..- 52 ....--. 802 145 440 276 ....
1969 ... 10, 909 89 8,230 -....----- 140 ....-. 60 ...... 1,044 124 756 466 .---
1970.... 11,887 303 9,319 1 .----.. 88 -----.. 22 ...--.. 944 165 638 407 ...-
1971 ... 12,244 92 9,050 40 ..- 188 ... 210 ..... 1,105 234 492 833 ...-
1972.. 11,425 86 8,276 51..... 218 ..... 238 ....- 1,154 237 720 443 2
1973..... 12,837 103 8,639 105 182 286 ....... 309 ..-.. 1,595 213 887 515 3
1974 .... 12,582 104 8,224 176 124 334 ...... 289 ...... 1,788 323 759 458 3
1975 .... 12, 813 93 8,427 206 184 345 --..... 228 ..-. 1, 570 303 927 526 4
1976 .... 10,958 76 8,052 224 ...-- 305 ---._. 269 ..... 996 233 473 326 4
Source: British West Indies Central Labor Organization.
It will be noted that the BWICLO figures show 1964 as the peak
year, compared to 1970 as measured by the U.S. Government figures
based on yearly admissions. A significant number of the workers still
present in 1965 were those fulfilling contracts entered into before the
December 1964 regulations went into effect. The drop between 1965
and 1966 in the BWICLO statistics, and in the admission of BWI
workers in 1965 compared to 1964, would both appear to reflect the
impact of the more stringent regulations. However, the increasing
use of mechanization in agriculture during this period was also a
contributing factor and, as noted earlier, the figures would have been
far lower had it not been for increased unmechanized sugar cane
acreage in Florida.
Immigration and Nationality Act Amendments of 1965 '
During hearings on the far-reaching 1965 amendments to the
Immigration and Nationality Act, the AFL-CIO urged that the
amendments specify that immigrants be admitted only for permanent
jobs and not for jobs which were temporary or seasonal in nature.'8
Largely in response to this request, the amended definition for sixth
preference immigrant status expressly restricts eligibility "to qualified
immigrants who are capable of performing specified skilled or unskilled
labor, not of a temporary or seasonal nature" (sec. 203 (a)(6)). Despite
George Meany's praise for the BWI program in 1962, the AFL-CIO
also requested that the following proviso be added to section 214(c):
Provided, That nothing in this section shall be construed as authorizing the
importation of any alien as a nonimmigrant under section 101(a) (15) (H) for the
purpose of employing the alien in the production of agricultural commodities or
The combined effect of these amendments proposed by the AFL-CIO
to the immigrant and nonimmigrant labor provisions would have been
to completely shut off the Immigration and Nationality Act as a
means of importing alien seasonal agricultural labor. However, the
proposed amendment to section 214(c) was not accepted. The House
report on the 1965 legislation addressed itself to the issue of foreign
agricultural workers, as follows:
The committee has given much thought to the practice of importing foreign
labor to work in agricultural endeavors. Inasmuch as the Agricultural Act of
1949, as amended, has not been extended, it is the firm position of the committee
that the provisions of the Immigration and Nationality Act, pertaining to tem-
porary admission of laborers, shall not be abused.
As the bill specifies, the committee has required the Attorney General to
submit reports on each preference immigrant admitted to the United States for
the purpose of undertaking gainful employment. Likewise, the committee states
that the exercise of discretion by the Attorney General in the temporary labor
field will be scrutinized thoroughly.
The bill makes specific provision that skilled or unskilled labor of a temporary
or seasonal nature is not entitled to any preference under the selective system.20
VII. THE BWI PROGRAM DURING 1967-1976
Summing up the use of the temporary foreign workers on U.S.
farms in 1967, the Senate Subcommittee on Migratory Labor noted
17 Act of October 3, 1965, Public Law 89-236; 79 Stat. 911.
II U.S. House of Representatives Committee on the Judiciary, "Immigration," Hearings, 89th Cong.,
1st sess.. 1965, p. 322.
SIbid.. p. 323.
20 H. Rept. No. 745, 89th Cong., 1st sess.. 1965. pp. 14-15.
that 5 percent fewer man-months of foreign labor were used than in
1966, and that cutbacks were reported for strawberries, sugar cane,
and tomatoes. Eleven States used foreign workers in 1966 and 1967,
with three-quarters of the total reported by Florida in 1967, where
additional BWI workers were brought in because of an urgent citrus
situation. Sugar cane continued to be the crop requiring the highest
number of foreign workers, in Florida and elsewhere.' As indicated
in Table 2, BWI workers constituted the largest number of temporary
alien farm workers, as they have since 1966.
During the late 1960's, the BWI program was subject to some
criticism during the course of the Senate Subcommittee on Migratory
Labor's extensive investigation of migratory farm labor problems in
the United States. For instance, during May 1969 hearings, former
Assistant Secretary of Labor Stanley Ruttenberg was critical of what
he saw to be the increasing laxity of the administration of the temp-
orary labor program under Secretary of Labor George Shultz.2 How-
ever, the BWI program was generally viewed as being decidedly less
of a problem than either the increasing number of illegal aliens or
"green card" commuters. The latter are legally admitted aliens who
live in Mexico or Canada and commute to work in the United States.
As a brief indication of the foreign policy implications of the BWI
program, in November 1970, the Organization of American States
(OAS) held a week-long seminar in Kingston, Jamaica on the subject
of the Establishment of Migration Services in Labor Ministries for
Seasonal Migrant Workers.3 Quoting from the conclusions reached
by the Seminar:
From the presentation and the discussions of the Seminar, it is clear that the
primary issues faced by the Caribbean and Central American countries, Mexico,
and Panama continues to be that of development and employment. ....
While the consensus of the Seminar placed proper emphasis on internal devel-
opment in each country as the major solution for resolving unemployment, it
was nevertheless agreed that migration, both temporary and permanent, has
contributed and will in the future continue to contribute to the realization of the
goals of development programs. ...
Seasonal agriculture migration has played a constructive role in meeting the
needs of both sending and receiving countries. The volume has varied consid-
erably, but the outlook does not hold promise for any measurable expansion and
may even contract with further mechanization and other changes in methods of
The following two recommendations would appear to be of par-
ticular interest to the United States, as a receiving country:
The lessons of experience have demonstrated that organized programs for
seasonal migrant workers, rather than spontaneous movement, are in the best
interest of the workers, the employers, and the governments of both the receiving
and the sending countries. ...
All basic arrangements should be negotiated in the first instance between the
governments of the sending and receiving countries, or on a multilateral basis in
In part because of rising unemployment, the BWI program has been
the subject of considerable scrutiny during the 1970's by government
1 S. Rept. No. 1006, 90th Cong., 2d sess., 1968, p. 12.
2 U.S. Senate Committee on Labor and Public Welfare, "Migrant and Seasonal Farmworker Powerless-
ness," 91st Cong., 1st and 2d sess., 1970, Part 5-B, pp. 2546-2547.
8 Nov. 9-13,1970. The United States was represented by Stanley M. Knebel of the Farm Labor and Rural
Manpower Services, U.S. Department of Labor.
SOAS, Final Report, p. 8.
' Ibid., pp. 4-5.
and private groups, the courts, and most recently, by several Con-
gressional committees. The following is a brief chronological summary
of these inquiries and developments. The major issues considered in-
clude the central question of whether or not foreign workers are, in
fact, displacing U.S. workers and/or having an adverse effect on wages
and working conditions. Attention has also focused on more specific
issues concerning the labor certification process, such as wages, the
expanding use of the interstate clearance system, and the time frame
in which the certification process occurs.
In the early 1970's, a public complaint was filed by the Migrant
Legal Action Program with the Secretary of Labor alleging that the
Labor Department's Rural Manpower Service exploited domestic mi-
grant farm workers. One of the subjects examined by the Department
of Labor's Special Review Staff was the certification of foreign workers
for temporary agricultural employment. Writing in 1972, the Special
Review Staff found:
Foreign workers now account for only about one percent of the total seasonal
worker employment and are restricted to very few crop activities, primarily
planting and harvesting sugar cane and picking citrus fruit in Florida, harvesting
potatoes in Maine, and picking apples in New England, New York, Virginia and
West Virginia. The number of foreign workers used in each State for apple harvest
is insignificant when compared to the total employment within the State. This
crop is not dominated by foreign workers in any area. Sugar cane harvest in Florida
is dominated by foreign workers, and some adjustments would be required if
foreign workers were no longer available.6
They identified problems with the system, particularly in relation
Wages or earnings of foreign workers have been a particular problem. While
the adverse wage requirements have provided a minimum hourly earning level,
they have been difficult to administer in reference to piece rates. Wage surveys
normally do not translate piece rates into hourly earnings. Since most foreign
workers are paid piece rates, it is difficult to determine whether the minimum
hourly rate is being maintained. There is evidence that indicates that foreign
workers do depress earnings.7
A related point was made by the U.S. General Accounting Office
(GAO) in 1976, regarding wage calculations during the 1974 apple
harvest in New Hampshire.
Also in 1972, an unsuccessful attempt was made by the United
Farm Workers (UFW) to organize sugar cane cutters in Florida.
According to a press report:
Union officials in Florida charge that the growers are making only a perfunctory
recruiting effort to obtain American workers. In fact, the union says, the industry
does all in its power to keep Americans from taking cane cutting jobs in order to
keep labor costs for this work as low as possible.
A union organizer was quoted as saying, "But the main thing is that
the working conditions of the cane cutters are deliberately kept so bad
that Americans will not apply for the jobs."
Representatives of the growers denied the allegations, saying that
they had been unable to get U.S. cane cutters since 1946, that "there
is a social taboo on this kind of work." s A U.S. District Court in
SU.S. House of Representatives, Committee on Education and Labor, "Oversight Hearing on Department
of Labor Certification of the Use of Offshore Labor," 94th Cong., 1st sess., 1975, p. 343. (Cited as House
Education and Labor hearing (1975).)
7 Ibid., p. 341.
* Philip Shabecoff, "Florida Cane Cutters: Alien, Poor, Afraid," New York Times, Mar. 12, 1973, p. 24.
Florida refused to grant the injunction the UFW sought against the
bringing in of foreign workers, on the grounds that the necessary
efforts had been made to hire U.S. workers.9
In 1974, the Labor Department won a case of major importance,
Elton Orchards, Inc. v. Brennan.1o Elton Orchards, a New Hampshire
apple grower, challenged the validity of the Department of Labor's
action in requiring it to use inexperienced Louisiana workers, while
other New Hampshire apple growers were permitted to use experienced
West Indian labor. The U.S. District Court in New Hampshire had
found for the plaintiff, and ordered an equitable distribution of the
experienced farm workers." The U.S. Court of Appeals reversed this
decision on December 19, 1974. Quoting from the case:
At issue is the interstate clearance system for recruitment of agricultural
workers (ICS) established by 20 C.F.R. 602.2 and 602.9, under authority of the
Wagner-Peyser Act, 29 U.S.C. 49 et seq. The ICS is one element of a complex
statutory structure designed to facilitate the employment of domestic workers
for seasonal agricultural labor, and to permit the use of foreign nationals tempo-
rarily admitted to the United States to work for a specific employer if domestic
workers are unavailable.12
As a Labor Department official, Mr. David Williams, subsequently
noted, the Court upheld "the adequacy of the system as it applies to
the certification procedure for temporary foreign workers." Mr.
Williams also observed that "the most significant finding by the Court
states that the employers' reliance upon experienced crews of British
West Indians is subordinate to Congressional policy that domestic
workers rather than aliens be employed wherever possible." 13 The
key passage from the decision to which he clearly refers follows:
We recognize that appellee's business depends on the proper harvesting of its
crop during the brief span of weeks when the apples are ready, and that there may
be good reason for appellee's wish to be able to rely on the experienced crews of
British West Indians who have performed well in the past, but here that pref-
erence collides with the mandate of a Congressional policy. To recognize a legal
right to use alien workers upon a showing of business justification would be to
negate the policy which permeates the immigration statutes, that domestic workers
rather than alien be employed wherever possible."
A similar point was made in November 1977 by Secretary of Labor
Ray Marshall, in the context of current unemployment problems
rather than legislative policy:
One question that has been raised is whether you should import foreign workers
just because they can do a better job than available domestic workers. We don't
believe that is a reasonable consideration. The relevant question is whether there is
an adequate available supply of domestic workers who can do the work. With
American unemployment at 7.0 percent, it is unrealistic to apply intricate stand-
ards of quality in making the decision whether to import foreign workers.1'
Also in 1974, the U.S. General Accounting Office (GAO) reviewed
the labor certification of foreign workers for New Hampshire's 1974
apple harvest. They surveyed 15 growers, 8 of whom hired only
domestic workers. Generally speaking, the GAO was critical of the
9 United Farm Workers Union v. Kleindienst, Civil No. 72-1439 (S.D. Fla., filed Feb. 26,1973).
10 508 F. 2d 493 (1st Cir. 1974).
11 Elton Orchards, Inc. v. Brennan, 382 F. Supp. 1049 (D.N.H. 1974).
12 508 F. 2d 493, 495 (1st Cir. 1974).
Is House Education and Labor hearings (1975), p. 5.
14 508 F. 2d 493, 500 (1st Cir. 1974).
15Remarks before the Annual Meeting of the International Apple Institute, Hilton Head, South Carolina,
Nov. 17, 1977, U.S. Department of Labor News, pp. 3-4.
Labor Department's certification procedures in the somewhat limited
area in which they surveyed. Quoting from the conclusions:
The Department of Labor delayed the certification of foreign workers for the
1974 apple harvest because it was concerned that due to high unemployment
qualified domestic workers might be available. Federal regulations clearly state
that temporary foreign workers be admitted to the United States only when do-
mestic workers are not available. The New Hampshire employment agency did not
give Labor the required information concerning either worker availability or
recruitment efforts of the State agency or of growers who requested foreign workers.
Although still uncertain about the availability of domestic workers, Labor began
certifying foreign workers to avoid seriously disrupting the harvest.
Three growers requesting foreign workers did not advertise for domestic workers,
and the State employment agency did not make reasonable efforts to recruit
domestic workers. The State agency did not interview job applicants or screen
applicant signup sheets. Also, the State agency generally did not make referrals
to growers until after foreign workers had arrived in New Hampshire.
Growers employing foreign workers paid less money for each bushel picked than
growers who hired only domestic workers. These lower rates may adversely affect
growers' ability to hire domestic workers.16
In 1975, the Labor Department indicated there was an intensification
of the Federal monitoring of the pre-certification process; and agreed
to certification by August 1, provided certain conditions were met."
In March 1975, the Labor Department's certification of the use of
offshore (BWI) labor was the subject of an oversight hearing by the
House Subcommittee on Agricultural Labor, under the chairmanship
of Congressman William Ford (Democrat of Michigan). A major
issue raised during the hearings was, quoting from Congressman Ford:
How can you explain to me that you have British West Indians picking apples
within an hour's driving distance of this capital with the kind of unemployment
we have in Baltimore, Philadelphia, and Washington?
Why is it cheaper to import somebody from the British West Indies and pay
all of the expenses entailed than it is to recruit somebody from here or Baltimore
to go out there and pick those apples? I"
Mr. David Williams, Deputy Director of the Department of Labor's
U.S. Employment Service, indicated that, despite the rising unem-
ployment rate in the major metropolitan areas, "the certification of
availability, nonavailability, of workers in areas such as Virginia,
West Virginia, and Maryland, is due primarily to the test of avail-
ability of workers who are qualified, willing, and able at the time and
place the work is to be performed." 19
Several related points were made by a subsequent witness, Mr.
Bert E. Perry, Monitor Advocate, Virginia Employment Commission,
who indicated that the number of foreign workers "has been increasing
primarily because of the increasing orchards that are being planted." 20
In response to questions regarding the certification of foreign workers
in spite of high unemployment, Mr. Perry outlined the intra-and
interstate recruitment efforts in some detail. Regarding long-distance
recruitment efforts, he noted, "the requirements for unemployment
compensation don't require a person to leave his home to get a job";
local workers, however, would be disqualified from unemployment
6I U.S. Comptroller General of the United States, letter report to Honorable James C. Cleveland, B-
177486, Feb. 6, 1976, pp. 9-10.
17 Ibid., pp. 10-11.
1' House Education and Labor hearings (1975), p. 10,
20 Ibid., p. 78.
compensation if they refused a job.21 The following exchange, on the
subject of apple picking, is relevant:
Mr. FORD. What in your opinion could be done to change the situation so that
agriculture in Virginia would be providing more job opportunities for the in-
digenous Virginians than is now the case?
Other than the obvious--of raising the pay.
Mr. PERRY. To jump on that comment, if you will note the average hourly rate
for 1974 for that particular area-we are speaking about picking apples-that
$3.94 average rate was not bad. I would hope that everybody could make that
Mr. FORD. I would say that for that area of Virginia that is very good.
Mr. PERRY. That is very good.
Mr. FORD. Then why is it that local people won't do it?
Mr. PERRY. There are a lot of local people doing it. There are just not too many
local people left that are not working in agriculture. There were some people out
of work up there. The unemployment increased last year.
Mr. FORD. Couldn't you haul somebody from Richmond? Why isn't a crew
leader able to make money by bringing people from Richmond to northern Virginia
for $3.94 an hour? 22
Mr. Perry indicated that crew leaders would come into Richmond
and Petersburg to recruit domestic workers for the apple harvest, but
wouldn't go to the Winchester area.
We have tried time and time and time again to get them to go to the Winchester
area. They don't like big camps. They prefer the smaller camps.23
Earlier in the hearings, Congressman Ford expressed concern that
farm labor contractors reportedly would not bring crews into sugar
cane and increasingly, into fruit picking along the East Coast, ap-
parently because of the known preference of the employers for foreign
Another area of concern in the 1975 hearings was the fact that hourly
adverse-effect rates had not been published in the Federal Register
by the Department of Labor during that period for Florida. This was
due to the fact that the sugar wage rates determined under the Sugar
Act had previously been higher than the Labor Department's adverse-
effect rates, and were accepted as the operative rate.25 In general,
considerable controversy and confusion have surrounded the wage
issue in recent year, both for apples (bushel versus hourly rates) and
sugar cane. Two Federal Court of Appeals cases were decided in 1976
relating to the adverse effect wage rates and prevailing wage rates
for sugar cane in Florida.2"
In 1976, testimony was heard by the Senate Judiciary Subcommittee
on Immigration and Naturalization from Mr. Fred Burrows, Execu-
tive Vice President of the International Apple Institute, in strong
support of the BWI program. Noting that "several witnesses have
indicated that the alien worker has an adverse effect on the wages
and working and housing conditions of U.S. workers," he stated that,
21 Ibid., p. 80.
22 Ibid.. p. sO.
33 Ibid., p. 81.
24 Ibid., pp. 13-14.
25 Ibid., pp. 15-16.
26 Florida Sugar Cane League, Inc. v. Usery, 531 F. 2d 299 (5th Cir. 1976); William8 v. Usery, 531 F. 2d 305
(5th Cir. 1976).
"this is definitely not true relative to the legal imported BWI's used'
in the apple harvest." Quoting further:
Rather the opposite is true. Growers using the BWI's must provide all their
U.S. workers with at least the same wage rates, housing and working conditions.
as those provided the aliens. Further, they must pay all their workers-U.S.
domestics and alien-at least the adverse effect rates, established by the U.S..
Department of Labor. These guaranteed rates in 1975 ranged from $2.34 per
hour in Maryland to $2.54 in Vermont compared to the 1975 agricultural minimum
wage of $1.80 per hour. The W-H [Wage and Hours] law would require growers
not using the BWI's to pay their U.S. workers only the lower $1.80 rate.
Most applepickers work on a piece rate basis, and in 1975 those rates ranged
from 27 cents to about 45 cents per bushel. A good picker, working on a piece
rate basis, can earn considerably above the adverse effect rates and the agricultural
minimum. Growers using BWI's must pay a picker at least the adverse effect
rate even though he does not pick enough bushels to justify the adverse effect
VIII. 1977: CONTROVERSY
In 1977, a series of events occurred with direct, indirect, or potential'
implications for the BWI program. These included proposed revisions;
in regulations for temporary employment of aliens, published by the
Labor Department in January; President Carter's proposed illegal
alien program, announced in August; the U.S. District Court decision
in late August in favor of the Virginia apple growers seeking alien,
workers, and the earlier administrative decision to certify Mexican
workers for onion picking in Presidio, Texas; and oversight hearings on
agricultural labor certification by the Senate Select Committee on
Small Business in December.
Proposed Labor Department Regulations and Response
Proposed new regulations governing the labor certification process
for the temporary employment of aliens in agricultural and logging
employment were published in the Federal Register January 25, 1977.1
The proposed regulations were generally more restrictive and proved
to be highly controversial. Final regulations were published on March
10, 1978,2 and differ in significant respects from the proposed ones,
which are not discussed here in any detail.
The Department of Labor received comments on the proposed
regulations during 12 days of hearings across the country, as well as by
letters submitted during the public comment period which was ex-
tended several times because of the very strong public response. The
voluminous material amassed by the Labor Department in response
to the proposed regulations was reviewed and summarized by a private
consulting firm under contract to the Labor Department. The general
response to the regulations was summarized as follows:
Before embarking on the hearings a Department staff paper predicted that the
Department would be strongly criticised by both sides during the course of the'
hearings-by growers who would maintain that the Department was being too
tough and causing them to risk crop losses and by representatives of migrant
farmworker groups who would maintain that the Department was not doing
enough to safeguard the interests of American workers. That prediction proved
correct, but the voice of the growers was louder and more persistent than that of
the workers. Overall there was little support from any source for the regulations
27 U.S. Senate Committee on the Judiciary. "Immigration 1976", Hearin-s, 94th Cong., 2d sess. on
S. 3074. 1976, p. 195.
1 42 Federal Register 4670-4673 (Jan. 25, 1977).
S43 Federal Register 10306 (Mar. 10. 1977) (see Appendix).
:as proposed, either in general or in specific terms. ... .In contrast to worker
representatives who sometimes found something good to say, industry representa-
tives were unanimous in their opposition to the proposed regulations.3
A number of the growers viewed the proposed regulations as an
attempt to end the temporary foreign worker program.
Two recurring themes of general interest were identified by the
consultants' analysis of the material commenting on the proposed
:regulations. The first of these was the relation perceived between
illegal aliens and legal temporary workers. It was noted that:
Many agricultural employers, particularly those in the western states, appar-
Sently are looking toward the alien certification process as a future alternative to
present use of illegals in the event that employers are made legally responsible for
hiring illegals, or as they put it, if the supply of illegals is cut off. Pointing to the
decline of the seasonal agricultural labor force, they are concerned that any
tightening up of the alien certification process may pose future problems.4
The following discussion from the consultants' analysis is of par-
ticular relevance to the BWI program; the "issue" referred to is the
suggestion that growers would "turn to illegals if the certification pro-
cess were eliminated or phased out."
The issue is particularly significant for the east coast apple growers who must
Compete for the apple market with west coast growers. Apparently it is common
knowledge that the west coast growers are using a substantial proportion of illegal
aliens to pick their crop. As the flow of illegals from the Caribbean countries to
eastern states increases and as the certification process is tightened up, it can be
-expected that the growing pool of illegal labor will become an increasingly attractive
source for east coast apple growers.5
The second point of general interest was the recurrent criticism of
the U.S. Employment Service (ES), particularly in the agricultural
labor market, which came "from all sides-from growers, workers,
academics, and government officials, even including representatives of
the ES itself." 6 One criticism of particular interest related to "the
Conflict of ES objectives on the one hand, encouraging the elimination
of migrancy, with ES local offices getting more credit for placement of
migrants into permanent higher paying jobs which almost by defini-
tion are apt to be non-agricultural jobs, and the goal of improved
:service to employers-presumably agricultural employers." 7
In other comments, the conditions imposed by the ES interstate
clearance system were said to be too difficult to comply with, and both
growers and farmworkers expressed the opinion that it had broken
down. In general, criticism focused on the inability of ES to provide
services to either growers or farmworkers; "testimony from these
sources showed an underlying lack of trust-a lack of assurance that
ES was committed to resolving the problems." s
President Carter's Undocumented Aliens Program
On August 4, 1977, President Jimmy Carter announced his program
for the control of illegal aliens, or undocumented aliens, in the phrase
preferred by the Carter Administration.9 The major provisions in
I Ruttenberg, Friedman, Kilgallon, Gutchess & Assoc., Inc., Letter report to Mr. Harold Kuptzin De-
part.mpnt of Labor (Contract No. B-9-A-7-2920 under Requisition No. 440016), Sept. 19, 1977, Part IIT, p.1.
4 Ibid., Part II, p. 4.
'Ibid., Part V, p. 3.
B Ibid., Part V, p. 1.
7 Ibid., Part V, p. 2.
n "Undocumented Aliens," House Doc. No. 93-202, 95th Cong., 1st sess., 1977.
legislation (S. 2252/H.R. 9531) subsequently introduced at the re-
quest of the Administration relate to the permanent and temporary
adjustment of status of certain illegal aliens presently in the United
States, and civil penalties for a pattern or practice of employment of
aliens not legally authorized to work.
In apparent recognition of the likelihood that an effective curtail-
ment of the flow of illegal aliens would increase pressures for the legal
importation of temporary foreign workers, President Carter also
announced that he was requesting a comprehensive review of the
temporary foreign worker (H-2) program. Quoting:
I believe it is possible to structure this program so that it responds to the legiti-
mate needs of both employees, by protecting domestic employment opportunities,
and of employers, by providing a needed workforce. However, I am not consider-
ing the reintroduction of a bracero-type program for the importation of temporary
The latter point, regarding the intention not to seek a renewal of the
bracero program, has been repeated several times since the August
The Virginia Apple Growers Case
On August 31, 1977, a U.S. District Court Judge in the Western
District of Virginia ordered the U.S. Department of Labor to certify
approximately 5,000 foreign workers-mostly Jamaicans under the
BWI program-to pick apples, as requested by employers from 11
eastern apple-growing States, led by Frederick County Fruit Growers'
Assoc., Inc." The Labor Department complied with the order follow-
ing initial strong criticism by Secretary of Labor Ray Marshall, who
was quoted as saying that the order "undermines my fundamental
responsibility to approve the importation of temporary foreign workers
only when domestic workers are unavailable." 12
The court-ordered certification of the foreign workers was the
culmination of a complicated legal battle which dated back at least to
1975 and which turned in large part on Puerto Rican Public Law 87.
In a district court case decided in September 1975, it was ruled that
Puerto Rican workers were not available as agricultural workers
because the terms and conditions imposed by Puerto Rican Public
Law 87 are:
More extensive and onerous insofar as the employers are concerned in that
among other things, these terms require that disputes incident thereto be adjudi-
cated in the courts of Puerto Rico, and that three hot meals a day be provided for
the workers in the field and that insurance benefits more extensive than those
required by the defendant Secretary of Labor be provided and that the em-
ployers post performance bonds ....
Unless employers enter into such a contract prior to attempting to recruit
workers in Puerto Rico, they may under Puerto Rican law be subjected to crim-
inal prosecution. No such requirement exists insofar as recruitment activities
are concerned in any of the states from which workers are drawn for this program.13
Subsequently, the Secretary of Labor in Puerto Rico agreed to
waive Public Law 87 to allow recruitment in Puerto Rico without
contracts, but the growers refused to do so on the grounds that they
10 Ibid., p. 6.
11 Frederick County Fruit Growers' Assoc., Inc. v. Marshall, Civil No. '7-0104(H) (W.D. Va., filed Aug. 30,
12 "U.S. is ordered to admit 5,000 foreign workers," Washington Post, Sept. 1, 1977, p. A10.
13 Galan v. Dunlop, 411 F. Supp. 268, 270 (D.D.C. 1975).
might be liable for prosecution if they failed to comply with the
contract requirements of Public Law 87. While this has been criti-
cized as a diversionary tactic on the part of the growers, Mr. Steve
Karalekas, the lawyer for the growers, was quoted as saying, "The
migrant legal action people have said in their brief in the First Circuit
Court of Appeals, and now in the U.S. Supreme Court, that it would
be illegal for the Puerto Rican Secretary to refer workers without a
contract so they take the same position as we do." '4
By mid-August 1977, the Labor Department still refused to certify
foreign workers, in part on the grounds that Puerto Rican workers
were available. However, the Department of Labor did not prevail
and, as noted above, was ordered to certify about 5,000 foreign
workers. In hearings in December 1977, Labor Department official
William B. Lewis, the Administrator of the U.S. Employment Service,
indicated that efforts to recruit Puerto Ricans were continuing for
the next season:
There are certain legal problems involving Public Law 87, but the industry
will be cooperating with us in a pilot program this year to bring in some Puerto
Hearings on Agricultural Labor Certification
In mid-December 1977, the Senate Select Committee on Small
Business held two days of hearings on agricultural labor certification
programs, under the acting chairmanship of Senator Robert Packwood
(Republican of Oregon). The hearings focused on many of the issues
relating to legal temporary workers which had been raised throughout
the year. These included the feasibility of a legal temporary worker
program as an alternative to illegal aliens, particularly in view of the
Labor Department's less than enthusiastic attitude toward the foreign
Regarding the existing situation on the West Coast, Senator Pack-
work reacted with some skepticism to Mr. Lewis' statement, "We
would like to emphasize that west coast fruit growers have not needed
to resort to this [H-2] process in the past to meet their fruit harvest
requirements." 10 Asking, "Are you saying that you have had no
applications from the Northwest for the H-2 program because their
employment situation is satisfactory?" Senator Packwood continued:
I think any association would tell you that in the past on the west coast illegal
aliens have been used extensively. You do not like that. I do not like that. Growers
do not prefer it, they have been unable to get any other satisfactory source of
help. So long as illegals were available and so long as INS was not seriously en-
forcing the laws, it was a practical solution to a problem that exists. That is a
problem that cannot be allowed to continue.17
Concern was expressed about the consequences of the enactment of
legislation which would make illegals unavailable. Senator Packwood
explained the growers' apprehension as follows:
* * many of the growers today would admit that they are not looking too
seriously at the documentation of the people they are hiring. They have been
14 "Growers win certification fight, but labor shortage still looms, "The Packer, National Weekly Busi-
ness Newspaper of the Fruit and Vegetable Industry, Sept. 3, 1977, p. 2A. For an account of the same
events from a different viewpoint, see "Apple picker blues," New Republic, Oct. 29, 1977, pp. 15-16.
is U.S. Senate Select Committee on Small Business, "Agriculture Labor Certification Programs and
Small Business," 95th Cong., 1st sess., 1977, p. 31.
16 Ibid., p. 28.
17 Ibid., p. 29.
very satisfied with migrant workers in the past. They are good workers and a good
relationship. How many of them were legal and illegal was not a question that
was seriously asked.
The day of the illegal alien in this country is going to dwindle very rapidly, I
think, and should. You take that factor away and you are going to have if the
growers are believed a substantial shortage. They think they are going to have a
substantial shortage, and they are especially worried about trying to produce
7,000 workers in a small valley on a short-term basis. . .s1
Speaking on behalf of the National Council of Agricultural Em-
ployers, Mr. Perry Ellsworth, its Executive Vice President, stated:
It is my association's position that as the farmworkers situation continues to
worsen and if Congress passes legislation prohibiting the employment of undocu-
mented aliens, Congress must enact legislation that will set forth inflexible rules
which the Department of Labor must follow in arriving at a decision regarding
the certification of small growers for the use of temporary foreign agriculture
workers. Legislation has been introduced to do just that and we urge your endorse-
ment of it.19
In general, the witnesses testifying at these hearings were divided
between those who supported the Labor Department's fairly restrictive
administration of the H-2 program, and those opposed to it. As such,
they tended to demonstrate the extent to which an adversary rela-
tionship has developed between the users and Labor Department ad-
ministrators of the H-2 program, based to some extent on what
appears to be a mutual assumption of lack of good faith. That is, the
Labor Department appears to assume that many of the growers who
seek certification for foreign workers prefer them and do not seriously
try to find domestic workers; and many of the growers assume that
the Labor Department is philosophically opposed to admitting for-
eign workers in the face of current high unemployment rates, and will
go to considerable lengths to avoid doing so.
The need for increased cooperation between the Department of
Labor and the growers was stressed at the hearings by Labor Depart-
ment witnesses, as it had been in November by Labor Secretary Ray
Marshall. Quoting from his speech to the International Apple Institute:
My preference is strongly on the side of cooperation. There are a number of
reasons for this. An adversary relationship drains a lot of time and energy from
both sides. Moreover, a cooperative relationship makes practical sense. In making
administrative decisions, we need to get the participation from the people who
actually have the problems. We believe in the participatory system. You, for
example, know more about the unique problems of the apple industry than I do.
If we can work cooperatively then we can take advantage of your expertise in
framing regulations and making administrative decisions.20
An expansion of the existing temporary worker program was
strongly opposed by representatives of the Migrant Legal Action
Program, Inc. Mr. Burton Fretz argued:
Any effort at this time to review and revise the framework for certification
of foreign labor would be somewhat hazardous. It would be hazardous in terms
of its likely depressing effect on the wages of domestic labor. It would be hazardous
in terms of the depressing effect of any incipient collective bargaining activity
that may be going on among domestic agricultural workers. Before the committee
and before the Congress is persuaded that this Pandora's Box should be opened,
a really tight case needs to be made. We submit that that sort of case is not yet
in the record.21
is Ibid., p. 86.
1" Ibid., p. 48.
2* Remarks, Nov. 17, 1977, U.S. Labor Department News. p 2.
I2 Senate Select Committee on Small Business hearings (1977), p. 85.
He argued that current wages, particularly in migratory agri-
cultural work, were not high enough to attract U.S. workers; and
that the manner and timing of recruitment did not "maximize the
attraction of domestic labor." He also criticized current State work
disincentives built into the welfare law, particularly in California
where a head of a household with children is disqualified from receiving
aid if he works more than 100 hours in a month.22
Mr. C. H. Fields, the Assistant Director of the American Farm
Bureau Federation, summed up what he saw to be the assumptions
on which the current attitude of the Labor Department is based,
1. If growers would pay high enough wages and provide improved working
conditions, there would be plenty of domestic workers available to meet all of the
seasonal needs in agriculture.
2. Growers prefer to hire foreign workers because they are more tractable, more
appreciative of a lower wage, and less likely tp be interested in forming or joining
3. A considerable portion of the millions of people on welfare or on unemploy-
ment compensation could and would perform work on farms if growers would pay
them enough, provide transportation, or make any real effort to recruit such
These assumptions do not contribute to getting crops harvested when they are
ready and must be harvested. It is time for the Department, the Congress, and
the public to realize that the production of certain crops in certain areas and
under certain conditions requires the importation of some foreign workers on a
Mr. Perry Ellsworth also commented on what has been viewed by
some as the conflicting mandate of the Labor Department:
The U.S. Employment Service as a result of the Judge Richey court order issued
here in the District has engaged in an extensive and very large outreach program,
now, all agricultural workers applying in a U.S. Employment Service Office for
a job must be interviewed and fill out a large questionnaire at which time
they are told of all the other opportunities for labor. I do not argue with that.
I think that is all right. Frankly, if I had to make my living as a farmworker, I
would just as soon do it at one job year-around as I would traveling as a migrant
worker. And I think that is all right. And if that program works, then the Depart-
ment of Labor has to understand that it is cutting out available workers for
farm jobs, and this is something that I just do not see coming through very clearly.26
As was noted by one witness, migrancy is a response and partial
solution to the problems posed by the seasonality inherent in much
agricultural work, but migrancy also poses serious problems of its
own.20 The same witness, Mr. Fields of the American Farm Bureau
Federation, observed in 1976 hearings:
The real problem, Senator, is not so much the wages and working conditions-
and of course everybody would like to have more, including Senators and lobby-
ists-but the real problem is the seasonal, the temporary nature of these jobs.
You cannot make a career of the job. No one can build a future doing this work,
it's a temporary job, a few weeks. That's the essential problem, and I might say
that no one has been smart enough to solve that "temporary" problem, that
22 Ibid., pp. 86-87.
23 Ibid., p. 98.
2 Ibid., p. 49.
26 Ibid., p. 98.
27 Senate Judiciary hearings (1976), p. 180.
A related point was made by a Labor Department witness in 1963:
Yes, I think that we do have many unemployed agricultural workers. But the
real problem is the seasonality of the employment and the mobility of the domestic
work force . The nature of the employment, I don't think is as significant as
the conditions of employment and the seasonality of the work and the geography
By the end of 1977, the strain in the relations between the Depart-
ment of Labor and the growers appeared to have extended to the
BWICLO as well. According to Mr. Harold Edwards, chief liaison
officer, their previous very agreeable relations with the Labor Depart-
ment had been replaced by a situation where "they tolerate us, that
is about all." Quoting further:
* * the Department of Labor used to consult with us about certification, about
the needs of the workers or the needs of the growers. And we would be in close
contact with them. But I would say in the last 2 maybe 3 years we have had little
or no contact with the Department of Labor except that in the fall of this year
we were asked by the regional office in Boston to supply workers, West Indies
workers to a grower in Massachusetts whose Puerto Rican workers had left him
in the lurch. That I would say is the closest contact we have had in several years.29
When asked why, Mr. Edwards replied:
Well, sir, I think there is a word that has been bandied about the Department
of Labor in the last 6 months. They classify the West Indies workers as docile.
What we regard as disciplined workers, men who have a lot of self-respect and a
lot of ambition. And who, as long as they are receiving a fair deal on their contract
are prepared to work hard and complete their contract. The Department seems
to think those men are too docile. There should be trouble. I do not know why.30
In summary, at the end of 1977, the temporary foreign worker pro-
gram, including specifically the BWI program, appeared to be at
something of a crossroad, not unlike the situation in 1965. Barring
direct Congressional action, factors in determining its future would
appear to include what action, if any, is taken on pending legislation
to curtail illegal aliens; the outcome of the efforts to solve problems
relating to the use of temporary Puerto Rican workers; and, perhaps,
a resolution of the Department of Labor's apparent ambivalence
toward the placement of U.S. workers in migratory agricultural jobs.
21 Mr. Jack Donnachie, Deputy Director, Office of Farm Labor Service, House Judiciary hearings (1963),
20 Senate Select Committee on Small Business hearings (1977), p. 65.
ANALYSIS AND SUMMARY OF LABOR DEPARTMENT REGULATIONS FOR CERTIFICA-
TION OF TEMPORARY ALIEN AGRICULTURAL WORKERS (20 CFR 655), ISSUED
MARCH 10, 1978
On March 10, 1978, the Employment and Training Administration of the U.S.
Department of Labor published final revised regulations for the labor certification
of temporary alien agricultural and logging workers in the United States. Proposed
regulations published on January 25, 1977 had, as noted above, generated consider-
able public response, most of which was negative. The Labor Department reported
that approximately 170 individuals and organizations testified at the public
.hearings held on the proposed regulations and/or submitted written statements.'
The final regulations differ in significant respects from those published in the
proposed rulemaking process. Specific differences are outlined in detail in the
statement which precedes the revised regulations.2
According to the Labor Department, "it is the purpose of these [final] rules to
more clearly define the roles of the Department, State employment service
agencies, and employers in the temporary labor certification process." 3 This
purpose underlies both the extensive reorganization, of the regulations, as well as
the increase in their length. The previous regulations, in effect until April 10, 1978,
were organized as follows:
Sec. 602.10 The certification processes.
Sec. 601.10a Job offers and contracts.
Sec. 602.10b Wage rates.
The regulations issued March 10, 1978 have been relocated from 20 CFR
602.10 to 20 CFR 655. The table of contents for subpart C, entitled, "Labor
Certification Process for Temporary Agricultural and Logging Employment",
655. 200 General description of this subpart and definition of terms.
655. 201 Temporary labor certification applications.
655. 202 Contents of job offers.
655. 203 Assurances.
655. 204 Determinations based on temporary labor certification applications.
655. 205 Recruitment period.
655. 206 Determinations of U.S. worker availability and adverse effect on U.S.
655. 207 Adverse effect rates.
655. 208 Temporary labor certification applications involving fraud or willful
655. 209 Invalidation of temporary labor certifications.
655. 210 Failure of employers to comply with the terms of a temporary labor
655. 211 Petitions for higher meal charges.
655. 212 Administrative-judicial reviews.4
The effort to more clearly define the roles of the Labor Department and other
participants in the temporary alien labor certification process is directed, first, at
clarifying the nature of and statutory basis for the Labor Department's responsi-
bilities. Second, and more significantly, the procedures to be followed by both the
Labor Department and employers seeking temporary alien workers are specified
in considerably more detail than in the past.
143 Federal Register 10306 (Mar. 10, 1978).
2 43 Federal Register 10306-10311 (1978).
43 Federal Register 10306 (1978).
4 43 Federal Register 10313 (1978).
This is probably the single most important difference between the revised and'
prior regulations. It appears to be a response to criticism received during the
lengthy consideration of the proposed regulations during 1977, and, possibly, to.
bills introduced in both the 94th and 95th Congresses which would legislatively
mandate a more orderly H-2 certification process.
The following is a brief .summary of major provisions of the revised regulations
as compared with the regulations they supersede. It is generally organized accord-
ing to categories used by the Labor Department in its prefatory summary in the
March 10, 1978 Federal Register.
Scope and purpose of regulations
Based on the public response to the proposed regulations in 1977, the Labor
Department concluded that "many employers, and many worker representatives,
do not fully understand the purpose and scope of the temporary labor certifica-
tion program and the Department's role thereunder." 5 Accordingly, a compre-
hensive "scope and purpose" section has been added at 20 CFR 655.0, for the
purpose of clarification.
Application of the regulations to sheepherding
The previous exemption of sheepherders from the regulations has been elimi-
nated, because "the Department is convinced that sheepherder employers should
not be given a unique exemption from attempting to find U.S. workers absent
compelling proof that no U.S. workers can be made available." 6
Definition of employer
Employer associations continue to be recognized as employers, provided they
meet the definition of "employer" contained in 20 CFR 655.200(b).
Under the previous regulations, employers seeking alien workers were required
to file job orders for U.S. workers and requests for temporary foreign workers
with the local office of the State employment service in sufficient time to allow
60 days for the determination of the availability of U.S. workers, plus the time
necessary for the employer to secure foreign workers if the certification is granted.
The revised regulations retain the mandatory 60-day requirement, and recom--
mend that "employers should file their temporary labor certification applications
at least 80 days before the estimated date of need specified in the application"
(20 CFR 655.201(c)). This is to allow time for an employer to appeal, in the case
of denial, or to complete the process of bringing in the foreign workers if certifica-
tion is granted.
The time limits on the recruitment and certification process contained in the
revised regulations are geared to the recommended 80-day filing period. The
Regional Administrator of the Employment and Training Administration is re-
quired to make a determination regarding certification "by the 60th day of the
recruitment period, or 20 days before the date of need specified in the application,
whichever is later."
The requirement under the previous regulations that "reasonable efforts" be-
made by the Employment Service and the employers to obtain domestic workers
as a prerequisite for certification of foreign workers has been replaced by more
specific recruitment requirements (20 CFR 655.203).7 The Regional Administrator
is required to make a determination within the time period indicated above as to
whether the employer has complied with these recruitment assurances, and to
grant certification upon a finding of compliance (20 CFR 655.206(a)). Provision is
made for notification in writing and an expedited administrative-judicial review in
the case of a finding of non-compliance (20 CFR 655.205(c)-(d)).
Housing is provided without charge to the workers. Family housing is required
under both the previous and revised regulations if it is the prevailing practice in.
the area of employment (20 CFR 655.202(b) (1)).
S43 Federal Register 10306-10307 (1978).
43 Federal Register 10307 (1978).
7 The following requirement is of specific relevance to the BWI program: "If the em-
ployer, or an association of employers of which the employer is a member, intends to
negotiate and/or contract with the government of a foreign nation or any foreign associ-
ation, corporation or organization in order to secure foreign workers, . [he must make]
the same kind and degree of efforts to secure U.S. workers" (20 CFR 655.203(d) (5)).
Worker transportation and subsistence expenses
Both the previous and revised regulations require employers to provide or pay
for the workers' transportation and subsistence expenses to the place of employ-
ment provided the worker completes 50 percent of the contract period (20 CFR
655.202(b) (13)); and from the place of employment if he completes the contract
(20 CFR 655.202(a)(5)). The revised regulations specify that if an employer
intends to advance transportation costs to foreign workers, he must also offer to
advance the transportation costs to U.S. workers (20 CFR 655.202(a)). Quoting
from the preamble:
"In short, the regulations provide, with respect not only to transportation and
subsistence costs but also with respect to all wages, benefits, and working condi-
tions, that employers must offer and provide U.S. workers with at least the same
level of wages, benefits and working conditions offered or provided to foreign
The previous and revised regulations require that workers be offered employ-
ment for at least three-fourths of the workdays, defined as eight hours, of the con-
tract period (20 CFR 655.202(b)(6)).
Travel to and from worksite
The prior and revised regulations require employers to provide free transporta-
tion between the worksites and the workers' living quarters (20 CFR 655.202(b)
Recruitment of U.S. workers after certification
The revised regulations specifically require employers to hire any qualified
U.S. worker who applies for employment until 50 percent of the period of the
*contract of the foreign worker hired for the job has elapsed (20 CFR 655.203(e)).
However, employers are only required to actively recruit U.S. workers up until
the time when the foreign workers have departed for the place of employment
(20 CFR 655.203(d)).
Penalty for hiring undocumented workers
There is no provision in the revised regulations. Quoting from the preamble:
"In view of the pendency of legislation on this matter before the Congress,
the Department has concluded that the proposal in not an appropriate subject for
these regulations, but rather for Congressional action."9
Assurance of compliance with Federal, State and local law
The revised regulations require an employer to comply with applicable Federal,
State and local laws during the period for which the temporary labor certification
is granted (20 CFR 655.203(b)).
The prior and revised regulations provide that all required tools, supplies,
and equipment will be supplied at no cost to the workers (20 CFR 655.202(b) (3)).
The prior regulations allowed employers to charge workers from $2.55 to $4.00
for three meals a day; the revised regulations allow a range of $3.25 to $4.00
(20 CFR 655.202(b) (4)).
The prior regulations allowed employers to either provide workers with copies
of the work contract, or to post it in a conspicuous place. The revised regulations
require that each worker be given a copy of the work contract (20 CFR 655.
Adverse effect rates
Under prior regulations, the Labor Department published annual adverse
effect rates for certain States and crops, preceded by an annual proposed rule-
making. "Adverse effect rates" are defined in the preamble as "either the pre-
vailing wage rate or a somewhat higher wage rate; they are the wage rates which
must be paid in order to ensure that the wage rates of similarly employed U.S
S43 Fed. Reg. 10308 (1978).
S43 Federal Register 10309 (1978).
workers are not adversely affected."10 The formula for computing the adverse
effect rates is set forth in the revised regulations (20 CFR 655.207(b)(1)), with
the result that, quoting again from the preamble, "adverse effect rates, which
are merely computed mathematically using the formula, will be able to be publish-
ed as a Federal Register notice, rather than through a time consuming rule-
Prior regulations required that the piece rates be designed to produce earnings
equal to that produced by the adverse effect rate. The revised regulations require
that increases in adverse effect rates be accompanied by appropriate increases
in piece rates, to avoid forcing workers to increase their productivity in response
to the increased adverse effect rates (20 CFR 655.207(c)). Provision is also made
for the periodic publication of adverse effect piece rates for selected occupations
(20 CFR 655.207(d)).
Comparability of benefits
In more explicit language than the prior regulations, the revised regulations
provide that U.S. workers be offered the same benefits as foreign workers: "So
that the employment of aliens will not adversely affect the wages and working
conditions of similarly employed U.S. workers, each employer's job offer to U.S.
workers must offer U.S. workers at least the same benefits which the employer is
offering, intends to offer, or will afford, to temporary foreign workers" (20 CFR
10 43 Federal Register 10310 (1978).