2d session J
TEMPORARY WORKER PROGRAMS:
BACKGROUND AND ISSUES
PREPARED AT THE REQUEST OF
Senator EDWARD M. KENNEDY, Chairman
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
FOR THE USE OF
THE SELECT COMMISSION
ON IMMIGRATION AND REFUGEE POLICY
PREPARED BY THE
CONGRESSIONAL RESEARCH SERVICE
LIBRARY OF CONGRESS
U.S. GOVERNMENT PRINTING OFFICE
For sale by the Superintendent of Documents, U.S. Government Printing Office
Washington, D.C. 20402
Stock Number 052-070-05222-8
COMMITTEE ON THE JUDICIARY
EDWARD M. KENNEDY, Massachusetts, Charman
BIRCH BAYH, Indiana STROM THURMOND, South Carolina
ROBERT C. BYRD, West Virginia CHARLES McC. MATHIAS, JE., Maryland
JOSEPH R. BIDEN, JR., Delaware PAUL LAXALT, Nevada
JOHN C. CULVER, Iowa ORRIN G. HATCH, Utah
HOWARD M. METZENBAUM, Ohio ROBERT DOLE, Kansas
DENNIS DECONCINI, Arizona THAD COCHRAN, Mississippi
PATRICK J. LEAHY, Vermont ALAN K. SIMPSON, Wyoming
MAX BAUCUS, Montana
HOWELL HEFLIN, Alabama
STEPHEN BREYER, Chief Counsel
JERRY TINKER, Counsel for Immigration and Refugee Affafl
Introduction by Senator Edward M. Kennedy, chairman---..---....... 1
Letter of submittal.......-----------..-----------------....--...-- 3
Temporary worker programs: Background and issues----------------..- 5
I. U.S. temporary alien worker programs----------------........... 6
A. World War I: The first Mexican program----------------- 6
B. The bracero program------------------------......... 15
1. The World War II period: 1942-47------------------. 15
(a) Overview: Source countries, international agree-
ments, and legislation------------------....... 1
(b) The U.S.-Mexican agreement: Resolution of con-
flicting interests----------------------------. 19
(c) Major issues: Discrimination and illegal entry-... 25
(d) Principal areas and crops, 1942-47----.---------. 27
2. Transition period: 1948-51-----------------------.... 28
3. The bracero program under Public Law 78: 1951-64---.... 32
(a) 1951-59: Bracero program expansion.-------..... 35
(1) Illegal immigration------------------------- 36
(2) Foreign policy considerations: The 1954 unilat-
eral contracting issue---------------- --- 43
(3) Summary: Program experience during the
1950's -----..----........- ---. --- 45
(b) 1959-64: Program phasedown---------------.... 46
(1) Mexican farm labor program: Consultants'
report, October 1959--------------_---... 47
(2) Program extensions, 1960-63---------------- 51
(3) Summary of major issues------------------- 56
C. Admission of temporary workers under the Immigration and
Nationality Act -----------------.-----------. ------- 58
1. The H-2 temporary worker provision----------------- 58
(a) Overview: Legislation and administrative history of
the H-2 provision--------...----------.---.- 63
(b) Overview of H-2 operations---------------....-. 76
(c) Special H-2 programs-------------------------- 78
2. Other employable nonimmigrants--------------------. 81
3. Commuter aliens ---------.-------------..... ------ 82
II. European "guestworker" programs -...--------------....------.. 84
A. Background and overview----------------------------... 84
B. Experiences of individual countries ---------------------. 87
C. Consequences of European labor migration --------------- 95
III. Issues and options ..-----------------------.-.------...----- -. 100
A. Problem definition-------.------........ ---............ 100
B. Impact of illegal immigration --------------....--.--.... 104
C. Impact on U.S. workers--------------.-----------....-. 108
D. Impact on U.S.-Mexican relations--------------.......... 112
E. Impact on the Mexican workers in the United States---..-- 115
F. Program structure and administration -----------------.. 117
Alien labor programs and alien labor: Selected references, 1975-79.....- 121
BY SENATOR EDWARD M. KENNEDY, CHAIRMAN
Temporary workers have been a part of America's landscape for
more than a century. Since the first immigration controls were en-
acted, temporary workers have come to the United States, both
legally and illegally, in large numbers.
Formalized programs to bring in sizable groups of temporary
workers first date from World War I. In one form or another, such
programs continued over the years until the "bracero" program was
ended, after much debate, in 1964. Although many of these tem-
porary worker programs responded to an urgent need for labor,
especially during wartime, they have also been controversial and
subject to many problems.
Despite this contentious history, there is today discussion once
again over establishing some kind of temporary worker program. As
in the past, these proposals are tempting as well as problematic, and
there is dispute over both the need for them as well as the form they
To assist the Congress, as well as the newly established Select
Commission on Immigration and Refugee Policy, in evaluating these
temporary worker proposals, I asked the Congressional Research
Service of the Library of Congress to undertake a thorough review of
the history and recent experience of temporary worker programs in
the United States and Europe.
That report, "Temporary Worker Programs: Background and Is-
sues," is now available. It has been prepared by Joyce Vialet, spe-
cialist in social legislation, and Barbara McClure, analyst in social
legislation of the Congressional Research Service. Working with the
staff of the Senate Judiciary Committee, they have produced an
excellent review of the problems and options involved in establishing
a temporary worker program.
Upon reading their report, I believe the Congress and the Select
Commission would be well advised to heed the caution that is the
substance of their findings. There remains a vast gap in our knowledge
about the migration pressures upon our country, whether legal or
illegal, and about the economics of temporary workers in the United
States. For every benefit proponents of temporary worker programs
can list in support of their proposals, opponents can also compile a
convincing list of problems.
In fact, the concluding words of this report sum up the issue before
us succinctly: "If the decision is made to move in the direction of an
expanded temporary worker program, among the principal lessons to
be learned from our 22-year experience with the bracero program and
from the European guestworker experience is that the seriousness,
complexity, and far-reaching consequences of such an undertaking can
hardly be overestimated."
The following report tells us in very clear terms what the options
and problems are, as well as the history, of temporary worker pro-
grams. I am confident it will be extraordinarily helpful to members of
the Select Commission, and to the public at large, m gaining a better
understanding of temporary worker programs.
LETTER OF SUBMITTAL
THE LIBRARY OF CONGRESS;
CONGRESSIONAL RESEARCH SERVICE,
Washington, D.C., December 17, 1979,
:Ion. EDWARD M. KENNEDY,
-Chairman, Committee on the Judiciary;
U.S. Senate, Washington, D.C.
DEAR MR. CHAIRMAN: I am pleased to submit the accompanying
report, entitled "Temporary Worker Programs: Background and
Issues," which was prepared at your request by the Congressional
The report was prepared primarily by the Education and Public
Welfare Division. Part I, U.S. Temporary Alien Worker Programs,
and Part III, Issues and Options, were written by Joyce Vialet, who /
coordinated the project. Part II, European "Guestworker" Programs,
was written by Barbara McClure. The annotated bibliography on alien
labor programs and alien labor, 1975-79, was prepared by Marsha
Cerny of the Library Services Division.
We appreciate this opportunity to be of assistance to the Committee
on the Judiciary and the U.S. Select Commission on Immigration and
Refugee Policy in their deliberations on this complex issue.
GILBERT GUDE, Directard
TEMPORARY WORKER PROGRAMS:
BACKGROUND AND ISSUES
Illegal immigration is one of the unresolved problems of the 1970's.
The number of undocumented, or illegal, aliens in the United States is
estimated to be 3 to 6 million. Their principal country of origin,
accounting for at least 60 percent, is Mexico. Many, particularly from
Mexico, are believed to come for temporary periods of time. Their
motivation for coming is believed to be economic, for employment.
Their impact is believed to be principally on the labor market, although
there is disagreement about the nature of this impact. Some observers
contend that undocumented aliens displace U.S. workers and ad-
versely affect wages and working conditions where they are present
in large numbers. Others maintain that they take jobs U.S. workers
do not want, at least at the wages which employers are willing or
able to pay. Undocumented aliens are part of the underground econ-
omy, operating outside the control and protection of the law. Their
presence implies at most an inadequacy of our immigration policy
and at least the weakness of our immigration law enforcement.
A legally sanctioned large-scale temporary alien worker program has
increasingly been mentioned as one possible way to control illegal entry
of aliens into the United States. The principal objection to a legal
temporary alien worker program is obvious-in view of current and
projected U.S. unemployment rates, the large-scale importation of
supplemental temporary alien labor is difficult to justify on the basis
of need. The rebuttal to this objection is equally obvious-the United
States has a large-scale alien labor program, made up of undocu-
mented aliens. The principal difference between this program and a
legally sanctioned one is the absence of official regulation and control.
The problem is complicated by the lack of certainty that it is possi-
ble to convert most illegal alien workers to legal temporary workers,
and thus to bring their entry and activity in the United States under
legal control. There are many who argue that expansion of legal op-
portunities for temporary employment would exacerbate the problem
of illegal entry, by attracting additional alien workers. It is argued
that our own experience, as well as that of European countries, in-
dicates that it is difficult to protect domestic workers from the adverse
effects of temporary alien workers, particularly when they are present
in the numbers which would be necessary to accommodate enough
of those currently entering illegally for a legal program to function as
a viable alternative. On the other hand, it is argued that international
migration is a reality, particularly across borders of wide economic
disparity such as that which separates the United States and Mexico;
that our choice is not whether or not it will continue, but whether it
will do so legally or illegally, with or without government regulation.
These issues are explored at more length in the final section of this
report, along with the possible options which have been suggested
relating to the control of illegal entry through an expanded legal
temporary alien worker program. The following is a review of U.S.
and European experience with selected temporary worker programs.
The purpose of this review is to identify the problems which have
arisen under these various programs, and the lessons which may apply
to any future attempt to control the illegal flow of alien workers
by means of an expanded legal program.
I, U.S. TEMPORARY ALIEN WORKER PROGRAMS
A. WORLD WAR I: THE FIRST MEXICAN PROGRAM
In the past, large-scale temporary alien labor programs have been
established in the United States in response to wartime manpower
shortages. The first major program began in 1917 and primarily
involved Mexicans, although a small number of Bahamians and
Canadians also entered for temporary wartime employment.
An estimated 80,000 Mexican workers participated in the program,
the majority of whom "worked in the sugar beet fields of California,
Colorado, Utah, and Idaho, and in the cotton fields of Texas, Arizona
and California." 1 A small number was also admitted for railway
work. Under pressure from organized labor, led by Samuel Gompers'
American Federation of Labor, this segment of the program was at
least officially brought to a close with the end of the war in 1918. The
agricultural segment was extended at the request of U.S. farmers
through March 2, 1921, and beyond that date "in certain particularly
meritorious cases." The policy of allowing exceptions adopted in the
final days of President Woodrow Wilson's administration was con-
tinued by the Harding administration. According to Mark Reisler,
"as late as May 1921, the Labor Department was offering to consider
in 'meritorious cases' an 'extension of the stay of aliens imported
under the exceptions whose services are necessary for continued
agricultural work'." 2
The entry of Mexicans for temporary labor did not begin with the
1917 program nor, as will be discussed below, did it even temporarily
end with it despite the termination of the program. Quoting Otey
Scruggs, an authority on this and the early Bracero periods:
Mexican immigrants had begun to form a reservoir of
"cheap" labor for the railroads and farms of the Southwest
by the last decade of the nineteenth century. By the early
1920's they were the principal work force m many south-
western farming areas, the trend toward greater reliance on
Mexican nationals having been accelerated by the First
A number of factors contributed to the urgent requests for supple-
mental labor which led to the World War I program. While domestic
workers were leaving agriculture for military service and higheripaying
war production industries, relatively free immigration from Mexico
was curtailed by the enactment of the Immigration Act of 1917.' The
1917 act, the most restrictive immigration measure adopted in the
Nation's history at that point, had been enacted over President.
SScruggs, Otey M. The First Mexican Farm Labor Program. Arizona and the West, v. 2, winter 1960, p.
322. (Cited as Scruggs (1960).)
2 Reisler, Mark. By the Sweat of Their Brow, Mexican Immigrant Labor in the United States, 1900-1940,
Westport, Greenwood Press, 1976, p. 45. (Cited as Reisler (1976).)
' Scruggs (1960), p. 319.
e Act of Feb. 5, 1917, 39 Stat. 874.
Woodrow Wilson's veto which had been in response to its literacy
provision. This provision, combined with the doubling of the head tax
to $8 made it impossible for many Mexicans to enter, particularly
since the provision barring the entry of aliens for prearranged contract
labor was also continued. At the same time, according to Reisler,
large numbers of Mexicans left the United States in the spring and
summer of 1917 because of rumors that aliens in the United States
would be drafted into the U.S. Army. Concern on the part of farmers
and the Federal Government resulted in concerted efforts by the
Departments of State, War, and Labor to end the rumors, which
were believed by some to have been the result of German sabotage
The Bureau of Immigration, housed at that time within the Depart-
ment of Labor, was deluged with complaints of labor shortages, in-
tensified by the need for stepped up war production of food supplies.
This situation and the Bureau's response to it were described as follows
in the 1918 Annual Report of the Bureau of Immigration:
Hardly had war been declared when representations com-
menced to reach the bureau from numerous sources to the
effect that, with the calling of men to military service and
with the simultaneous going into operation of the new immi-
gration act containing the illiteracy test, the supply of com-
mon labor for the farms of the Southwest would be reduced
and cut off, the farmers of that section having been in the
habit of relying to a considerable extent upon labor coming
seasonally from Mexico. This matter was given careful
thought and investigation. The conclusion reached was that,
while there was no little hysteria apparent and while the
matter, therefore, was to some extent of a psychological na-
ture, there was considerable basis for the alarm. Accordingly,
taking advantage of an exception to section 3 of the immigra-
tion act permitting the department to admit temporarily
otherwise inadmissible aliens, a plan was devised under which
laborers might enter from Canada and Mexico to work in
agricultural pursuits. A large number of laborers from Mexico
entered under these regulations (issued in May and reissued
in amended form in June 1917) and large acreages were
planted and record crops harvested throughout the South-
west during the last agricultural season.6
The Labor Department order of May 23, 1917, was subsequently
revised "to include the admission from Mexico of laborers for work
in maintenance of way on railroads and in certain coal mining in-
dustries in which the Government is interested and which have a
direct bearing upon the conduct of the war."'
The workers were admitted under the authority of the ninth proviso
to section 3 of the Immigration Act of 1917 which read as follows:
Provided further, that the Commissioner Generalof Immigra-
tion with the approval of the Secretary of Labor shall issue rules
and prescribed conditions, including exaction of such bonds as
I Reisler (1076), pp. 25-26.
U.S. Department of Labor, Bureau of Immigration, Annual Report of the Commissioner General of
Immigration to the Secretary of Labor, fiscal year 1918, 1918, pp. 15-16.
7 Ibid., p. 16.
may be necessary, to control and regulate the admission
and return of otherwise inadmissible aliens applying for
Quoting from the May 23, 1917, order issued by Secretary of Labor,
W. B. Wilson:
While, obviously, this special exception to general provi-
sions of law should be construed strictly and should not be
resorted to except with the object of meeting extraordinary
situations or conditions, it can be and should be availed of
whenever an emergent condition arises. With agricultural
pursuits such a condition now exists in certain sections of the
country and is likely to arise in other sections during the con-
tinuance of the war.8
The order authorized the suspension of the contract labor prohibi-
tion, and the head tax and literacy test requirements of the 1917 act
for aliens entering temporarily for agricultural employment, and was
limited to aliens entering from Mexico and subsequently extended to
Canada as well.
The use of the ninth proviso of section 3 as the basis for the tem-
porary admission of contract laborers was important for the precedent
it set for the subsequent admission of temporary alien workers. The
provision was used again in 1942 prior to the enactment of special
legislation which, intermittently and in varying forms, lasted until
1964 as the basis for the bracero program. The so-called H-2 pro-
vision of current law, which forms the legal basis for most temporary
,employment, represents a recasting of the waiver of inadmissibility of
temporary contract workers in positive rather than negative terms.
'The determination of employer eligibility to petition for temporary
-alien workers under the H-2 provision evolved from the requirements
which were, at least formally, made of employers seeking workers
entering under the ninth proviso of section 3 of the Immigration Act
Secretary of Labor Wilson had not consulted with Congress prior to
11is issuance of the departmental order admitting temporary alien
-workers under a suspension of certain provisions of the 1917 act.
'Congressman John Burnett of Alabama, the chairman of the House
Committee on Immigration and Naturalization, informed him that he
possessed no such power of suspension, and introduced legislation to
repeal the ninth proviso. In a subsequent protest he wrote:
I do not believe that there is a soul outside your Depart-
ment that thinks such a construction should be given this
Section [of the 1917 act].9
According to an account of the exchange of letters between Con-
gressman Burnett and Secretary Wilson, Burnett indicated that the
Secretary's bending of the law for farm laborers implied that he could
also admit polygamists, prostitutes, and anarchists. Wilson replied
that while probably no one "had in mind a situation such as now
confronts us when the proviso was first inserted into the law," none-
theless, his use of it "has already removed the feeling of uncertainty
amongst the farmers on our Southwest Border and has headed off the
s U.S. Congress. Senate. Committee on Immigration. Emergency Immigration Legislation, part 1. Hear-
ings, 66th Cong., 3d sess.. 1921, p. 698. (Cited as Senate immigration hearings (1921).)
John L. Burnett to William B. Wilson, June 2,1917. Quoted by Reisler (1976), p. 28.
propaganda for the suspension of the Chinese Exclusion Law." He
From many sources we were being pressed to encourage the
migration of Filipinos, Hawaiians and other labor of similar
character, and to secure the suspension of the Chinese Ex-
clusion Law so that Chinese might be admitted to supply
the deficit of farm labor alleged to exist on the Pacific Coast
and along the Mexican Border. Of course, we could not yield
to importunities of that kind. We have all the race problems
in the United States that it is advisable for us to undertake
to deal with at the present time *.10
The chairman of the Immigration and Naturalization Committee was
apparently satisfied; his bill (H.R. 4852, 65th Cong.) was not acted
Procedures to be followed in the admission of temporary agricultural
workers contained in the May 23, 1917, directive were supplemented
by detailed instructions issued by the Labor Department on June 6,.
1917. These were supplemented, superseded, and replaced by instruc-
tions issued at various points in 1918 by both Commissioner General
of Immigration Anthony Caminetti and Secretary of Labor W. B.
Wilson. The key points of the procedures are summarized below. They
were very detailed; quoting from Reisler:
Realizing its actions would be scrutinized by Congress and
the American labor movement, the Labor Department set
forth rigid standards governing the temporary admission of
The World War I temporary alien program was explicitly presented
as a contract labor program. Quoting from the April 12, 1918, depart-
As to be admissible under the circular the aliens must be
coming "for the purpose of accepting employment in agri-
cultural pursuits" (for which reason the "contract-labor" as
well as the "illiteracy-test" provisions are mentioned in the
circular), prearrangement for the employment of all admitted
is contemplated. In other words, those who desire to avail
themselves of this opportunity, afforded to meet emergency
agricultural conditions, must send for or come to the bound-
aries to get the aliens, and the aliens must not be temporarily
admitted until arrangements for their employment in agri-
cultural work have been perfected.12
The procedures involved in obtaining the workers were set forth
as follows in a departmental order issued June 12, 1918:
A prospective employer may initiate an application for
permission to import laborers under the provisions hereof by
filing such application with either a United States immigra-
tion or a United States employment official, setting forth the
number of laborers desired, class of work, wages offered, and
place of proposed employment, and stating that he will
comply with all provisions of this circular with respect to any
1t Wilson to Brnett, June 8, 1917. Quoted by Reisler (1976), pp. 28-29;
Reisier (1976), p. 29.
12 Senate immigration hearings (1921), p. 699.
alien admitted to him. Upon the approval in writing of any
such application by a United States employment officer
detailed to a Mexican border port in accordance with section
X hereof or by the United States employment officer sta-
Stioned in the vicinity of the place of proposed employment,
the immigration officer in charge at such port shall proceed
to admit the alien involved in accordance with the provisions
In order to participate in the program, U.S. employers were required
to first apply to the office of the U.S. Employment Service most
convenient to the place of proposed employment, and to submit
written evidence "that the supply of labor, either locally or at a rea-
sonable distance from the site of the work, is insufficient to meet the
demand; or, if the local supply is partially sufficient, the application
for permission to import or bring in agricultural laborers shall only
be acted upon to the extent of meeting the deficiency between the
demand and the local supply." The benefit of the doubt was given
the U.S. Employment Service-and domestic workers. Quoting,
Any doubt which may arise as to the ability of the United
States Employment Service to meet the needs in a particular
case shall be taken as a reason to withhold granting permis-
sion to import agricultural laborers until such doubt can
be cleared up."
Once approved to contract alien laborers, the U.S. employer was
required "to disclose to the immigration officer in charge at the port
of entry his plans with respect to the employment of such aliens in
their entirety, including the wages, housing conditions, and duration
of employment." 16 The employer was required to "pay the current
rates of wages for similar labor in the community in which the admitted
aliens are to be employed." They were required to abide by State
law regarding housing and sanitation or, in the absence of State law,
to maintain conditions satisfactory to the Secretary of Labor. They
were further required to advise the officer in charge at the port of
entry of any changes in their employment plans for the aliens; to
notify the officer immediately if the aliens leave, either for other em-
ployment or without their knowledge; and, in a subsequent addition,
to bear any deportation charge for the aliens "or any alien family." is
In an attempt to guarantee that the workers would comply with the
terms governing their temporary admission, the employer was required
to withhold a specified amount from their wages and deposit it in the
U.S. Postal Savings Bank.
The alien workers contracted for by eligible U.S. employers or em-
ployer associations were required to be admissible under all other pro-
visions of the immigration law except for those relating to head tax,
illiteracy, and contract labor. They were issued identification cards
complete with their photographs which they were required to supply.
Family members were also admitted. The instructions specified that
la Ibid., p. 704.
14 Department of Labor Circular and Instructions, Apr. 12, 1918. Senate immigration hearings (1921),
Is Department of Labor Departmental Order, Apr. 12, 1918. Senate immigration hearings (1921), p. 700.
lH Ibid., p. 699.
17 Ibid., p. 700.
18 Departmental Order, June 12, 1918, Senate immigration hearings (1921), p. 706.
"all members of families 16 years of age and over shall be given such
[identification] cards; those under 16 shall be recorded, giving name,
age, and description." 19
Admission was for a period of 6 months, with the possibility of an
additional 6 months extension. Any alien who failed to accept, or after
acceptance abandoned, the prescribed employment-which at one
point encompassed "agricultural pursuits, maintenance of way on rail-
roads, or lignite coal mining"-and accepted employment in other
industries, was to be arrested and deported. However, the temporary
workers were allowed to change employers in the authorized fields of
employment, as long as the employers were authorized to hire them
and the Immigration Services was notified of the change by the new
While the procedures to be followed were outlined in detail and
clarified at frequent intervals, they were not adequately enforced with
the result that there was a high degree of "skipping." According to
the Bureau of Immigration's Annual Report of 1921, a total of 72,862
aliens had been admitted "under the Department's exceptions" during
1917-21. Of this number "21,400 deserted their employment and dis-
appeared; and, so far as can be ascertained, 15,632 are still in the
employ of the original importers." 21 Of the remainder, 34,922 returned
to Mexico, 414 died, and 494 were admitted for permanent residence.
The report of the Immigration Service's Supervising Inspector at
El Paso in the 1920 annual report includes a detailed critique of the
program's problems, which he saw as being directly attributable to
the lack of adequate manpower. Quoting, "At the very inception of
the plans inaugurated for admitting a sufficient number of laborers
into the United States under the department's exceptions to meet the
exigencies of the situation engendered by the World War, the writer
recommended and repeatedly thereafter urged that a sufficient force
of men be supplied to follow up and check importations with a view
to insure compliance with the requirements upon which their admis-
sion was conditioned." 22 He stated that "an importer may be utterly
unmindful of the obligations he assumed toward the government as
trustee for his laborers," and noted in general that the employers were
lax in filling out the necessary forms and suggested that some allowed
the workers to "desert in droves" once their work was completed,2
rather than pay their return fare to the port of entry. In a subsequent
report, the supervisor in charge at El Paso wrote:
The department has already been fully advised as to the
difficulty experienced in having the importers effect the
departure from the United States of the remaining laborers
originally imported under the departmental exceptions.
While some of the importers have in the utmost good faith
endeavored to live up to their undertaking with the Govern-
ment and return such laborers to Mexico without expense to
it, many, if not most of them, have neglected or flatly re-
pudiated their obligations in that respect, and it seems
highly probable that with the lapse of time they will grow
even more unmindful of the benefits which accrued to them
o1 Ibid., p. 705.
21 Annual report of the Commissioner General of Immigration, fiscal year 1921, p. 7.
Annual Report of the Commissioner General of Immigration, fiscal year 1920, p. 427l
from the Government's indulgence and exhibit 'a greater
degree of indifference and remissness in the matter of dis-
posing of these laborers in accordance with the terms of their
contract with the Government.24
If the growers were not as reliable as might be wished, neither were
the alien workers, many of whom were believed to have left agricul-
ture for more lucrative jobs in industry. While the El Paso super-
visory inspector observed that, given the comparatively lower wages
paid by farmers, it was "but natural in the circumstances that the
imported Mexican laborers should desert at the first favorable oppor-
tunity," he also saw this as among the possible abuses necessitating
The writer does not in any manner presume to question
the need of the adoption by the department of measures to
relieve the labor shortage during the late emergency, nor for
their continuance. These are matters which the department
has acted upon presumably only after complete investiga-
tion and careful consideration; he can not, however, at this
juncture, refrain from pointing out that the practice is
peculiarly susceptible to abuses of many kinds by reason,
mainly, of the lack of officers and employees to investigate
and correct the same. If the Government's interests are not
adequately safeguarded, it can be stated with no less force
and truth that the interests and welfare of the importer are
equally unprotected; he has no means of compelling im-
ported laborers to remain in his employ; he can not resort to
force or duress, intimidation, withholding of pay, or any one
of the many other devices which obviously come to mind.
If after importing laborers and conveying them to their
place of employment, all at heavy expense, they choose to
desert their employer for work in an industry or with another
employer offering a higher scale of wage than that they
agreed to work for at the time of entry, the original em-
ployer has no redress, but becomes immediately liable for a
heavy bill, which the Government may at any time there-
after present for expenses incurred in returning these former
employees to Mexico."
In his discussion of the World War I program 40 years later, Otey
Scruggs summed up its shortcomings as follows:
The basic weakness of the program was lack of adequate
enforcement machinery. Too much reliance was placed on the
good faith of the parties involved. In the case of the farmers,
most of whom were haunted by the fear of labor shortage, and
who had come to regard the use of Mexican labor as a natural
right, an appeal to good faith plainly was chimerical. It was
equally absurd to have expected workers who came with the
thought of leaving the farm for the factory (and there being
no penalties for so doing, except deportation), to have scru-
pulously honored the terms of their contract with the growers.
Since good faith alone was insufficient, a more compelling
u Annual Report of the Commissioner General of Immigration, fiscal year 1923, p. 28.
U Annual Report, fiscal year 1920, pp. 427-428.
agency was needed to enforce the meager sanctions contained
in the Secretary's orders. Those orders had directed the Bu-
reau of Immigration, with the assistance of the Employment
Service, to make periodic investigations. But this proved to
be impractical, for the Bureau simply did not have a border
force large enough to take on the added responsibility. Prior
to 1924, it had a mounted force of about 60 men whose job it
was to patrol the entire length of the 1,500-mile United
Scruggs also observed that "the unilateral character of the under-
taking also contributed to the problem of enforcement." 2 After some
initial opposition, Mexico permitted U.S. recruitment and, by 1918,
officially sanctioned the emigration of her workers. According to one
In Mexico there was no shortage of laborers eager to leave
for the United States. From the revolution-ravaged economy,
many simply headed for the border without contacts of any
kind in the United States. So many left that concern began
to be expressed in Mexico that her own farms would be under-
Nevertheless, the Mexican government did not stand in the
way of emigration. The Revolution had been fought in large
part against the system of land tenure, and big farmers did
not enjoy the same prestige as did American farmers in the
United States. Also, the exodus of Mexicans helped relieve
the stress on the war-torn economy, which could not support
the population at even the level of the Diaz era. In July,
1918, it was announced that the Mexican government was
providing trains for transporting braceross" to the American
However, Scruggs noted that "nothing resembling the type of
Mexican inspection force set up during the Second World War to
investigate complaints was established." 29 Referring forward to the
World War II bracero program, Scruggs observed that between the
two wars, "interventionism had given way to the 'good neighbor' "
in our Latin American policy:
In 1917, a unilateral Mexican labor program had been
consistent with the American government's approach to
hemisphere affairs; in 1942 a unilateral program would have
done irreparable damage to a policy based on mutual co-
operation. Consequently, when the two governments ex-
changed notes on a Mexican farm labor agreement on
August 4, 1942, it was on a document that contained guar-
antees against exploitation and provided for joint United
States-Mexican enforcement. The subsequent history of the
farm labor program can be viewed largely in terms of the
conflicting efforts of southwestern farmers to turn the clock
2" Scruggs (1960), p. 324.
2 Kiser, George C., Mexican American Labor, Before World War II. The Journal of Mexican American
History, v. II, spring 1972, p. 128. (Cited as Kiser (1972).)
29 Scruggs (1960), pp. 324-325.
back to 1917 on the one hand and those of the Mexican gov-
ernment to secure for the workers more and stronger pro-
tective guarantees on the other.30
Mexican immigration, legal and illegal, reached an unprecedented
level during the 1920's. The Mexican immigrant population was
estimated by the official American census at 890,746 in 1926, com-
pared to 486,418 in 1920 and 221,915 in 1910. A 1930 analysis by
Manuel Gamio notes that the official figures were inexact "since this
population is, in part, a transient population. A relatively large part
of this population enters and leaves the United States two and even
three times a year." 31
Gamio also noted "the high number of Mexicans who enter the
United States illegally every year." 32 The main reasons he cited for
illegal immigration in the 1920's were the difficulties, including red-
tape and cost, presented by the immigration law, combined with the
efforts of smugglers and job contractors who facilitated illegal entry
and the location of jobs, and the push-pull factors so frequently cited
in analyses of illegal immigration m the 1970's:
indirectly, but logically and fundamentally, the origin
of illegal immigration is to be found in the farmers and
ranchers, and railroad, mining, and other enterprises to
which Mexican labor is indispensable.
Immigration is not only powerfully drawn from the
United States but is likewise propelled by conditions in
Mexico. The real impulse began just before 1900, when con-
ditions which it is not necessary to detail here obliged
Mexicans to leave their country in increasingly large num-
bers in search of better wages and conditions.
This immigration developed rapidly and could soon be
numbered by the hundreds of thousands. As a result, a large
part of the commercial and industrial activity in the frontier
cities and states developed by using Mexican labor, and it
would now be impossible or exceedingly difficult to continue
such enterprises without it. This fact has been proclaimed
constantly by employers, who bring to bear their political and
financial influence to gain their point, and to combat the
existing hostility to immigration.33
He concluded that the trend was irreversible: "The propinquity
of the two countries and the enormous extent of the boundary make
it absolutely impossible to prevent immigration, unless a large army
of Mexican and American police were to patrol the line." 34
Whether or not Mexican migration to the United States would have
increased as it did without the World War I program is, of course,
debatable. It can be argued that economic conditions in the two coun-
tries during the 1920's were sufficient to explain it. On the other hand,
Reisler argues that "the temporary admissions program served as a
catalyst for augmented immigration." 35 Referring to the official end
30 Ibid., p. 326.
'a Gamio. Manuel. Mexican Immigration to the United States; Chicago, University of Chicago Press, 1930,
p. 2. (Reprinted New York, Arno Press, 1969.)
~2 Ibid., p. 9.
a Ibid., pp. 11-12.
SIbid. p. 12.
' Cited as Reisler (1976), p. 42:
,of the -World War I program; Kiser argues that far from ending, it
continued on an informal basis with tacit government cooperation:
One pattern that emerges is the consistent political
influence of the employers of Mexicans even when casual
'observation would suggest that these commercial interests
were having less and less impact on policymaking. For
example, the decision to end the special emergency supply
of Mexican labor in 1921 gave the impression that employer
interests were losing ground. Yet the great struggle to end
the program brought a largely hollow legal victory to
opponents of the use of Mexican workers. Even when the
formal policy turned against the employers, their interests
were still informally accommodated. The government con-
tinued to maintain an informal Mexican labor program by
simply refusing to apply the immigration laws vigorously and
systematically. Far from reducing the number of Mexican
workers, the end of the emergency program marked the
beginning of a decade which brought Mexican workers to the
United States in vastly increased and unprecedented
The boom of the 1920's was followed by the bust of the 1930's, and
*supplemental labor was no longer needed, formally or informally. More
Mexicans left the United States than entered it during the decade, and
many of those who left more or less voluntarily were legally entitled
to stay.37 The mass repatriation of Mexicans was both humiliating
:and expensive to Mexico, and contributed to the detailed guarantees
it demanded in the bilateral agreements which governed the next
formal Mexican temporary labor program. This was the bracero
program, which lasted from 1942 until 1964.
B. THE BRACERO PROGRAM
The largest single temporary alien worker program in the United
States has been the Mexican bracero program. The program lasted
for 22 years, from 1942 to 1964, and employed between 4 and 5 million
Mexican agricultural workers.
The bracero program falls into three distinct phases: The wartime
period, which extended 2 years beyond the end of World War II, until
the expiration of the special authorizing legislation in 1947; the post-
war transition period from 1948 until the enactment of new authorizing
legislation, Public Law 78, in 1951; and the Public Law 78 period,
during which the program expanded until 1960, followed by a phase-
down until its termination at the end of 1964. Legislation, operations,
and program experience during the different phases of the bracero
program are discussed below, including consideration of the major
issues raised by our lengthy and controversial experience with the
1. THE WORLD WAR II PERIOD: 1942-47
During World War II and continuing until the end of 1947, the
U.S. Government approved the entry of more than 300,000 foreign
agricultural workers, of whom approximately 220,000 came from
Kiser (1972), p. 136.
SGrebler, Leo. Mexican Immigration to the United States; Los Angeles, University of California, 1965,
Mexico. Following the enactment of special appropriations for the
purpose in April 1943, the Federal Government recruited, transported,
and placed the workers with the U.S. farmers at Government expense.
The U.S. Department of Agriculture and its affiliated State Agricul-
tural Extension Service were the principal agencies involved in this
activity between 1943 and 1947.
a. Overview: Source countries, international agreements and legislation
The labor shortages of World War II abruptly followed the labor
surpluses of the depression of the 1930's. As late as 1940, Secretary of
Labor 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.38
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
shortages 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 peacetime methods of employment, with underemploy-
ment, and low wages." 39 The domestic farm labor supply was gener-
ally 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.40
This situation changed in 1942. In April 1942 the Immigration
Service took the lead in organizing an interagency committee on farm
labor which included representatives of the Departments of State,
Agriculture, Labor, and Justice, the War Manpower Commission, and
other wartime agencies. Their plan was approved in May 1942 and was.
the basis for the agreement reached with Mexico on July 23, 1942,
following a month long deliberation by a Mexican interdepartmental
study commission, and intensive U.S.-Mexican negotiations. Although
subsequently amended, the agreement served as the basis for the
Mexican labor importation during the 1942-47 period.
The U.S.-Mexican agreement took effect on August 4, 1942.
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, con-
stituting the origin of the BWI (British West Indies) program which
continues in operation today, 37 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
as Rasmussen, Wayne D. A History of the Emergency Farm Labor Supply Program, 1943-1947. Washing-
ton, U.S. Department of Agriculture, Agriculture Monograph Nc. 13, Sept. 15, 1951, p. 14. (Cited as Ras-
4o Ibid., p. 200.
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
A breakdown of entries during the war period appears as table 1.
While the number of Mexicans entering far exceeded the total number
imported during the World War I Mexican program discussed above,
TABLE 1.-FOREIGN FARMWORKERS IMPORTED BY U.S. DEPARTMENT OF AGRICULTURE, 1942-47
Country of origin 1942 1943 1944 1945 1946 1947 Total
Bahama Islands-........-----------------------. 4,698 3,048 2,100 2,690 2,705 15,241
Barbados ---------------------------------------- 908 .---------- 3,087 ---------- 3, 995
Canada -----------.-------------------------- 1,414 4,055 5 533 7,421 18:423
Jamaica --------------------------------- 8 3,828 15,666 17,291 7,796 1,017 50,598
Mexico ...-------------- ----------- 4,189 52,131 62,091 49,457 32,046 19,632 219, 546
Newfoundland...-----...------------------------ --1,213 522 ............------ 1,735
Total..---. .---------......... 4,189 65, 657 84, 340 73, 425 51,152 30, 775 309, 538
Source: Rasmussen, A History of the Emergency Farm Labor Supply, 1943-47, U.S. Department of Agriculture, 1951,
on the other hand, it is significantly less than the number of Mexicans
imported in a single year during the peak years of the bracero program
in the second half of the 1950's.
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 pay-
ment of head tax or other admission charges;
(3) Such laborers would be guaranteed round-trip
(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.41
The first and most detailed of these agreements was the formal dip-
lomatic accord with Mexico in mid-1942. 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 1930's. This led
to the enactment of legislation by the Mexican Government pre-
scribing 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. These factors
.are discussed in more detail below.
The agreements with the Bahamian Government and with the
British West Indies, in which the Government of Great Britain main-
tained a direct interest, generally took the form of memoranda of
41 U.S. Congress. Senate. Committee on the Judiciary. The Tmmigration and Naturalization Systems of
the United States; report, 81st Cong., 2d sess. S. Rept. 1515, 1950, p. 579. (Cited as S. Rept. 1515 (1950).)
understanding drawn up by representatives of the governments in-
volved, rather than the formal diplomatic exchange of notes which
governed the Mexican program. Unlike the U.S.-Mexican agreement,
they were not extended beyond the end of 1947.
During this period, temporary alien agricultural workers entered
under the same legislative authority, regardless of their country of
origin in the Western Hemisphere. It was not until 1951 that separate
legislation regulating the Mexican bracero program was enacted. As
during World War I, temporary farm workers were first admitted
during World War II pursuant to the ninth proviso to section 3 of the
Immigration Act of 1917 which authorized a waiver of exclusion for
inadmissible aliens who were seeking temporary admission. In Sep-
tember 1942, the Attorney General authorized such a waiver for Mexi-
can 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 condition 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 residents
of North America, South America, and Central America, and the
islands adjacent thereto, desiring to perform agricultural labor in the
United States."42 Public Law 45 was the first of a series of acts referred
to as the farm labor supply appropriations acts which, together 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 in-
formal intergovernmental agreements were recognized, either directly
or indirectly, by the special legislation.
Public Law 45 provided the authority and funds for the recruit-
ment, transportation, and placement of agricultural workers. Among
other things, it specified that no funds made available for these
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
agricultural 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 agreements 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 em-
ployers 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
42 57 Stat. 70, 73.
43 57 Stat. 70, 72.
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, reenacted and extended the provisions of Public Law 45, au-
thorizing the admission of temporary workers for agricultural and
related employment, as did a series of subsequent acts, ending with
legislation enacted on May 26, 1947 (Public Law 80-76; 61 Stat. 109).
Title II of Public Law 229 (Feb. 14, 1944) contained a separate
authority and appropriation for the temporary migration of workers
from foreign countries in the Western Hemisphere, specifically "pur-
suant to agreements between the United States and such foreign
countries," for employment in the United States, "with industries
and services essential to the preservation, marketing or distribution of
agricultural products, including the timber and lumber industries." 4
This title was administered by the War Manpower Commission,
within the Executive Office of the President, which was dismantled
after the war. The authority and funding for this program were sub-
sequently broadened to include "industries and services essential to
the war" and extended, the last time by legislation enacted on
July 3, 1945 (Public Law 124; 59 Stat. 361). This legislation allowed
for the importation of Mexicans for railroad work, which ceased
shortly after the war, unlike their importation for agricultural work.
A similar pattern had characterized the use of supplementary alien
labor for nonagricultural work in connection with World War I.
b. The U.S.-Mexican agreement: Resolution of conflicting interests
The controversy within and between the United States and Mexico
leading to the signing of the International Agreement on August 4,
1942, is of particular interest because of the extent to which the
conflicting interests of the time resemble as well as differ from present
positions regarding the importation of temporary alien labor. The
major differences, of course, were the existence of a manpower shortage
in the United States resulting from the war, and the fact that both
countries viewed the temporary worker program as a vital contribu-
tion to the war effort. Mexico declared war on Germany, Italy, and
Japan on June 1, 1942.
Otey Scruggs points out that drafting a plan for the recruitment of
Mexican nationals by the U.S. interagency committee in the spring of
1942 required the reconciliation of the demands and interests of four
major parties, all of whom were consulted in the development of the
plan. These were "American labor, the Mexican government, American
farmers, and the United States government. This was not easy, for the
parties were not in accord on the need for outside help nor on the form
the undertaking ought to assume, should the need be determined." 4
Mexican-Americans constituted an additional interest group of major
importance. The results of the reconciliation of these and other inter-
ests are apparent in the 1942 treaty, as modified in 1943. The discussion
4 58 Stat. 11, 17.
45 Act of June 28, 1944; Public Law 373, 58 Stat. 547.
"Scruggs, Otey M. Evolution of the Mexican Farm Labor Agreement of 1912. Agricultural History, v.
84, July 190; pp. 141-142. (Cited as Scruggs, Mexican Farm Labor Agreement of 1942 (1960).)
below of the interests of the major parties involved is followed by an
examination of the major points of the treaty and its subsequent
The importation of workers from Mexico had been opposed by U.S.
organized labor in 1941, according to Scruggs, because of "fear of the
recurrence of the situation after.the First World War when Mexicans
under contract left the fields and went to the cities to compete with
Americans for skilled jobs." 4 Organized labor initially argued in 1941
that there was adequate domestic farm labor, but subsequently agreed
not to "obstruct the government's 'food for victory' program, on
condition that effective safeguards be devised to protect both Mexican
and American workers against exploitation, and that provision be
made for the workers' prompt return to Mexico at the end of each crop
Objections to the importation of Mexican laborers were also raised
by Mexican-Americans, according to Scruggs, for several reasons.
Representatives of the Spanish-Speaking People's Congress and the
Federation of Spanish-American Voters of California notified Federal
officials of their opposition in April 1942, on the grounds that there
were insufficient jobs for Mexicans already in the United States. This
situation was apparently exacerbated by the fact that Mexican-
Americans who had not become citizens were barred from war industry
work and thus "feared that a huge inpouring of Mexican nationals
would keep farm wages at the notoriously low pre-war levels." 49
Another reason for Mexican-American opposition to the importation
of Mexican laborers was a sensitivity to the adverse effect it might
have on their status in the United States, as well as on U.S.-Mexican
relations. An official of the U.S. Department of Agriculture described
this reaction as follows after an April 1942 meeting with Mexican-
American leaders in Los Angeles:
We find them all working earnestly to swing their people
into full cooperation with the American war effort. At the
same time they are keenly sensitive to the low-caste position
of the Mexican in American society, resentful of the discrimi-
nations against the Mexicans, and rather bitter over the long
record of exploitation and injustice to which the Mexicans
have been subjected in this country. All with whom we talked
were very skeptical of the proposals to import Mexican labor;
they seemed to feel that such importation would be the be-
ginning of another period of exploitation of the "greenhorns."
If our contacts in the Mexican Colony of Los Angeles are at
all representative of opinion in Mexico (and the California
Mexican leaders are in close touch with affairs in Mexico and
make frequent trips there), then importation of Mexican
laborers is a very delicate issue from the standpoint of rela-
tions with the Mexican people.5
The position of the Mexican Government was, characteristically,
complex and ambivalent. In response to initial U.S. inquiries in early
1942 about the possibility of contracting Mexican workers, Mexico had
7 Ibid., p. 142.
N Quoted ibid. Memorandum. Davis McEntire, Bureau of Agricultural Economics, to J. H. Province,
Division of Farm Population and Rural Welfare, Department of Agriculture, Apr. 13,1942.
indicated "that certain guarantees regarding wages and preconditions
of employment would be a prerequisite to an agreement." 61 In short,
it was clear from the start that Mexico would not consent to a duplica-
tion of the World War I program. Experience with transporting hun-
dreds of workers home after that program, as well as with mass
repatriation during the depression, had resulted in an insistence by
Mexico that any contracting of its nationals be done only on an
intergovernmental basis and pursuant to Mexican law. Article 29
of the Mexican Labor Law of 1931 required that foreign employers pay
for the round-trip transportation of workers, including depositing
bonds in Mexican banks to cover repatriation costs, and that the
workers be paid fixed wages according to contracts approved by the
The presentation of a U.S. plan intended to meet Mexican require-
ments was followed by a month-long deliberation within Mexico before
the initial agreement to the first treaty in July 1942. On the negative
side, according to Richard Craig, Mexico doubted the existence of a
U.S. labor shortage, regarding "the anguished cries of growers as just
another effort in search of cheap labor." It was sensitive about both
the past return of its impoverished nationals and about their future
employment in "particular discrimination-prone southern states;" and
it was concerned about manpower considerations of its own. On the
positive side, the intergovernmental program presented by the United
States appeared to guarantee Mexico a strong voice; the knowledge
gained by the braceros would be beneficial for Mexican agriculture;
the program would be a valuable contribution to the war effort; and
the money they earned would be valuable to the individual workers
and the nation, as would continued good relations with "the consumer
of a potentially large amount of Mexican raw materials during the
war." 52 Taking a long view of the program, Craig concluded:
With the possible exception of the Catholic church, much
of the opposition to bracero contracting on the part of Mexi-
can interest groups and political parties was pro forma and to
be expected under the..circumstances. On balance, Mexico
acquiesced to the bracero program because its advantages
far outweighed its disadvantages.53
Another factor influencing, the Mexican and U.S. Governments
was the problem of the illegal entry into the United States of Mexican
workers-or wetbacks, as they were known at the time. According
to one student of the period, "the uncontrolled entry of wetbackss'
between 1942 and 1954 compelled the United States and Mexico
to negotiate treaties which both parties hoped would discourage this
illegal flux," 4 and this goal was a major factor in determining the
actual provisions of the series of agreements between the two countries:
Because of the past experience of her nationals with discrim-
ination and poor working conditions in the United States,
Mexico insisted that considerable measures of protection be
a8 Rasmussen (1951), p. 201.
52 Craig, Richard B. The Bracero Program, Interest Groups and Foreign Policy. Austin, University of
Texas Press, 1971, pp. 41-42. (Cited as Craig (1971).)
a Ibid., p. 23.
SCopp, Nelson Gage. "Wetbacks" and Braceros: Mexican Migrant Laborers and American Immigration
Policy, 1930-1960. Dissertation. Boston University Graduate School, 1963, p. 53. (Cited as Copp (1963).)
inserted in the agreements concerning the importation of
Mexican labor into the United States. The official position of
Mexico was that she was not anxious to see her nationals leave
for any great length of time and did not want to create a
labor shortage in her own country. She also was trying to
discover means of stopping or at least controllingthe tremen-
dous flow of wetbackss" to the United States. The United
States wanted a flexible agreement which would not place a
burden on prospective employers. Under such an agreement
and arrangement there would be no necessity for Mexicans to
enter illegally. Both sides intended to create measures for con-
trol of wetbackss." "
Experience with illegal immigration during the wartime period is
The position of American farmers regarding the importation of
Mexican workers was at odds with Mexico's regarding that country's
participation in the regulation of the program. U.S. farmers generally
wanted the U.S. Government to lift the existing legal restrictions
against immigration from Mexico, and allow a return to the World
War I program. According to Scruggs, "that program was made the
basis for a proposal drafted by representatives of the Texas, Arizona,
and California farm Bureaus and presented to the interagency com-
mittee in May 1942." 56 U.S. farmers were particularly opposed to the
wage and hour provisions of the final agreement reached by the United
States and Mexico, which they denounced as "socialistic." a Quoting
from Scruggs, "the growers disliked intensely the guaranties in the
agreement, especially the provision of an hourly minimum of 30 cents,
correctly fearmg that the safeguards were part of an effort to bring all
farm labor, domestic as well as foreign, within the orbit of existing
federal labor legislation. For these reasons, only a handful of growers-
none from Texas-participated in the program in 1942." "8 Grower
opposition to the 1942 agreement played a major role in the ensuing
problems with illegal entry, discussed below.
The position of the U.S. Government in the negotiation of the 1942
agreement appears to have been primarily that of mediator among the
other conflicting interests. Once the Federal Government was con-
vinced in the spring of 1942 of the reality of a labor shortage, it was
concerned that the importation of Mexican workers be done in a
manner which would minimize the negative impact of the imported
workers on the wages and working conditions of U.S. workers similarly
employed, as well as on the foreign workers themselves. Their exploita-
tion would inevitably lead to an exploitation of domestic workers,
as well as have a damaging impact on U.S.-Mexican relations. The
U.S. State Department which later became one of the bracero pro-
gram's staunchest supporters, was initially skeptical about the pro-
gram. Quoting Richard Craig, "The State Department's primary con-
cern was the possibility that the fledgling Good Neighbor Policy might
a Ibid., pp. 53-54.
e Scruggs, Mexican Farm Labor Agreement of 1942 (1960), p. 1431
SIbid., p. 149.
8 Scruggs, Otey M. Texas and the Bracero Program, 1942-1947 (August 1963). Mexican workers in the
United States, ed. George and Martha Kiser, Albuquerque, University of New Mexico Press, 1979, pp. 85-86.
(Cited as Seruggs,.Texas and the Bracero Program (1963).)
suffer a severe setback if Mexican nationals were exploited or discrim-
inated against during their stay in this country." "
The agreement which resulted from the negotiation of the various
interests discussed above allowed for the admission of the Mexican
agricultural workers, as requested by U.S. growers, but not on the
terms that they wanted. The 1942 agreement afforded much greater
protection to both U.S. and Mexican workers, and a greater role for the
Mexican Government than had the World War I program. According
to Carey McWilliams, writing in 1948, "the agreement represented a
notable advance over the 1918 experience and it also demonstrated that
a migratory labor movement can be planned and rationalized." 60
The first "Agreement between the United States of America and
Mexico respecting the temporary migration of Mexican agricultural
workers" was signed July 23, 1942, and made effective by an exchange
of notes signed August 4, 1942.'6 The conditions under which the
Mexican workers were to be employed were prefaced by four "general
provisions," summarized below:
1. Mexican contract workers were exempted from military
2. They were not to suffer discriminatory acts of any kind.
3. They were entitled to "the guarantees of transportation,
living expenses and repatriation established in Article 29 of the
Mexican Labor Law."
4. They were not to be employed to displace other workers,
or for the purpose of reducing previously established rates of pay.
Other significant provisions of the agreement are listed briefly
1. The word "employer" referred to the Farm Security Ad-
ministration of the U.S. Department of Agriculture; the "sub-
employer" was the farm owner or operator.
2. Contracts, to be written in Spanish, were to be entered into
by the U.S. Government and the worker under the supervision
of the Mexican Government; the U.S. Government, or employer,
was then to enter into a contract with the sub-employer, the U.S.
3. Transportation and living expenses from the place of origin
to and from the place of employment were to be met by the U.S.
Government which, under the original agreement, was to be
reimbursed in whole or part by the individual farmers.
4. The workers were to receive the same wages as those paid
for similar work to other agricultural laborers in the same region,
except that it could not be lower than 30 cents an hour. Piece
rates were to be set to enable average workers to earn the pre-
5. Any change from the type of agricultural labor for which a
worker was engaged could only be made with the express approval
of the worker and the Mexican Government.
6. Workers were to be free to obtain articles for their personal
consumption wherever it was most convenient for them.
SCraig (1971), p. 40.
mo McWillianis, Carey. North from Mexico. Philadelphia. J. B. Lippincott Co., 1949, p. 267. (Cited as
*1 o6 Stat. 1759; EAS 278.
7. Housing conditions, sanitary and medical conditions, and
occupational insurance were to be identical to those provided
other agricultural workers in the same localities.
8. Groups of workers could elect their own representatives to
deal with the employer, provided that the representatives were
working members of the groups. Mexican consuls were to make
every effort to extend all possible protection to workers within
their respective jurisdictions.
9. Workers were guaranteed employment for at least 75 percent
of their contract, and were to be paid a subsistence allowance of
$3 a day for time unemployed during that period. For the remain-
ing 25 percent of the period, they were to receive subsistence for
any time spent unemployed at the same rate as that paid U.S.
10. The U.S. Government was to deposit money contributed by
the workers in a Rural Savings Fund established for them until
the transfer of the sums to the Mexican Agricultural Credit Bank.
The Farm Security Administration was to give priority treatment
to exportation permits for shipment to Mexico of agricultural
implements purchased through the Mexican Agricultural Credit
11. The number of workers needed would be indicated from
time to time by the U.S. Government to the Mexican Govern-
ment which, in turn, would determine the number which could
leave the country without detriment to the economy.
12. Either government was entitled to renounce the agreement
following 90 days advance notice.
It will be noted that a number of the guarantees provided in the
initial agreement were somewhat hollow, since they were contingent
upon benefits which at that time were not generally provided domestic
agricultural workers. This was generally true of subsistence payments
for unemployment and occupational insurance, as well as on-farm
housing and medical facilities in many localities. Scruggs notes that
some of the provisions represented efforts "to cloud over a conflict
that could not for the moment be resolved." 62
While provision was made in the treaty for the entry of the families
of the Mexican workers, including a prohibition against work by
children under 14, no family members were ever imported. According
to one commentator, "the United States tried in vain to persuade
Mexico to let the worker's family accompany him. Not being able to
be with his family was one reason why a worker often became dis-
satisfied, left his employment, and asked to be repatriated." 1
At the request of the Mexican Government, the treaty was renego-
tiated in the spring of 1943 resulting in a new agreement effected by
an exchange of notes signed in Mexico City, April 26, 1943." The
major changes were:
1. The guarantees of Article 29 of the Mexican labor law re-
lating to transportation, living expenses, and housing, which
previously had been incorporated by reference, were specifically
2. Workers paid at piece rates were required to be paid a
minimum of 30 cents an hour.
02 Scruggs, Mexican Farm Labor Agreement of 1942 (1960), p. 148.
e3 Copp (1963), p. 54.
M 57 Stat. 1152, EAS 351.
3. Changes in locality, as well as changes in type of employment,
required the express approval of both the Mexican worker and
4. Hygienic lodgings were to be furnished without cost to the
5. The requirement that workers were to be paid a subsistence
allowance of $3 a day for time unemployed during 75 percent of
the contract period was retained. In addition, it was required that
if unemployment during the remaining 25 percent of the time was
not due to their unwillingness to work, they were also to receive
lodging and subsistence for that period without cost.to them.
The International Agreement of August 4, 1942, as modified by the
International Agreement of 1943, formed the basis for the Mexican
program during the war years, although there were further amendments
to the agreement as well as modifications of the individual work
contracts. For example, in 1946 the agreement was informally amended
to raise the minimum guaranteed hourly wage from 30 cents to 37
cents, or $33.60 per 2-week payroll period. In 1947, the agreement
was modified to provide that food must be provided to the workers at
cost, not to exceed $1.50 per day.65
c. Major issues: Discrimination and illegal entry
The two major problems during the wartime bracero program, dis-
crimination and illegal entry, were not unrelated. Mexico refused to
allow its nationals to enter Texas during the wartime period because
of discriminatory treatment by that State, with the result that many
entered the State illegally. According to Scruggs, Mexico gradually
abandoned its ban against braceros in Texas in the years after 1947
primarily because of the magnitude of the illegal migration problem,
which was of considerable concern to Mexico. "By 1947 the mounting
volume of unlawful migration overshadowed all other border prob-
lems." 66 However, he also noted:
Mexico's policy of using the braceros as a lever to force
Texas to take steps to end discrimination against Mexicans
was not devoid of results. More than any other factor, it was
responsible for the creation of the Good Neighbor Commis-
sion, which in 1947 became a permanent agency of the Texas
government. Moreover, the publicity attending Mexico's
stand, and the work of the Good Neighbor Commission,
helped bring out into the open a problem long in need of
In a similar vein, Carey McWilliams wrote, "one of the conspicuous
advantages of the farm-labor importation agreement of 1942 was that
it gave the Mexican government a firm basis on which to protest acts
of discrimination against Mexicans in the borderlands and also pro-
vided a means by which these protests could be backed up." 68
The problem of illegal immigration was a major one for more than
half of the bracero program's 22-year history. It is of particular in-
terest because then, as now, a principal reason for both U.S. and
aJ Agreement with Mexico respecting the temporary migration of Mexican agricultural workers, supple-
menting the agreement of Aug. 4, 1942, as revised Apr. 26, 1943, effected by exchange of notes at Mexico City
Mar. 25, 1947, and Apr. 2, 1947; 61 Stat. 3738, TIAS 1710.
Scruggs, Texas and the Bracero Program (1963), p. 94.
'7 Ibid., p. 95.
18 McWilliams (1949), p. 269.
Mexican interest in a large-scale legal temporary worker program
was as an alternative to and means of control of the existing large-
scale illegal program. In his historical analysis entitled, "The United
States, Mexico, and the Wetbacks, 1942-1947," Scruggs notes that,
"the bracero program, instead of diverting the flow of wetbacks into
legal channels, as Mexican officials had hoped, actually stimulated
unlawful emigration." 69 It did this by attracting workers northward
in greater numbers than could be accommodated by the legal flow,
limited initially by Mexico to 50,000 a year. The situation was ex-
acerbated on the U.S. side by the fact that Texas was barred from
importing braceros, as well as by the general grower dislike of the
worker protections required under the formal contracts. Many U.S.
farmers were willing accomplices in the illegal entry of the Mexican
nationals, a fact recognized by Mexico in its recommendation that
the United States enact sanctions against employers who hired illegal
In a communication with the American Embassy on October 8, 1946,
Mexican Foreign Minister Tello wrote, "Without presuming to sug-
gest any action to the Government of the United States, yet if the
problem were attacked at its economic source, imposing sanctions on
American employers who employ illegal entrants, the result would
promptly come about that Mexican workers would not in the future
embark upon a venture made both difficult and unprofitable." 10
Quoting from Scruggs:
American officials were unimpressed and even annoyed by
the foreign minister's arguments ** *. Yet, there could be
no gainsaying the cogency of the Mexican contention that
blame for illegal entry rested primarily with employers and
with the United States as long as it refused to enact penalty
legislation. Indeed, many of the same persons who regarded
the foreign minister's note with disfavor saw some merit
in the idea of sanctions but hesitated to promote it for fear
of arousing the wrath of the farm bloc.7'
An attempt was made in 1947 to arrange for the legal contracting
by U.S. employers of 100,000 illegal entrants as braceros. This was of
limited success, principally because the U.S. growers were unhappy
with the terms of the contract, which was unilaterally drafted by the
Mexican Government due to the refusal of the U.S. Government to.
become directly involved. "Disgruntled, the farmers set out to wreck
the undertaking," and by mid-September, only 31,000 Mexicans had
had their status legalized, and even their contracts were often vio-
lated. Furthermore, as Mexico had feared, this measure also increased
the northward flow of workers.72
By the end of 1947 the problem of illegal Mexican immigration to.
the United States was without a solution because, according to
Scruggs, neither government had been sufficiently interested in solv-
ing it. Quoting his analysis:
06 Scruggs, Otey M. The United States, Mexico, and the Wetbacks, 1942-1947. Pacific Historical Review,
. 30 May 1961; p. 151. (Cited as Scruggs, United States, Mexico, and Wetbacks (1961).)
NIbid., p. 157.
n Ibid., p. 158.
SIbid., p. 161.
To be sure, Mexican policy was greatly influenced by inter-
nal politics. As an American participant said of the bilateral
conference of early 1947: "The discussions seemed to reveal
that the Mexican attitude was prompted more by intent to
present to the public evidence of efforts to improve the lot
of the farm workers than by anything else." At the same
time, however, Mexican officials earnestly believed the prob-
lem to be largely an American one, requiring American sollI-
tions, and that justice dictated that the wealthy United
States and not their impoverished country should police the
15-hundred mile international boundary.
Clearly, most of the effort toward a permanent solution
would have had to come from the United States. The United
States could not plead poverty; neither could it in all honesty
claim a monopoly of public virtue. The border patrol, though
more active than before the war, was kept woefully under-
manned and was under constant pressure from farm interests
to temper duty with expediency. Similarly, fear of antagoniz-
ing the farm bloc prevented government officials from at-
tempting to mobilize public sentiment in favor of legislation
to penahze employers of wetbacks.73
In short, the bracero program by itself did not prove to be a solu-
tion to the problem of large-scale illegal entry from Mexico. On the
contrary, as it was administered during the early stages, the existence
of the bracero program appeared to make the problem worse. It was not
until sharply increased enforcement measures were combined with a
greatly expanded program that it was possible to divert most of the
illegal flow into legal channels. However, as discussed below, both
these measures were effected at a considerable price, in terms of the
apparent adverse effect on domestic agricultural workers, stemming
from the expanded program, and the ill will created particularly in
the Mexican-American community by Operation Wetback.
d. Principal areas and crops, 194i2-47
While 24 States used bracero workers during the period 1942-47,
approximately half of the workers were employed in California.7"
According to the President's Commission on Migratory Labor, Cali-
fornia employed 63 percent of the total Mexican workers during 1945
and as much as 90 percent of the total during the period January-
April. Washington, Idaho, and Oregon were the other major users of
braceros during 1945; combined with California, they accounted for
78 percent of the total employed during that year.75 Substantial num-
bers were also employed during the wartime period in Arizona, Colo-
rado, Iowa, Michigan, Minnesota, Montana, Nebraska, North Dakota,
Utah, and Wisconsin.
Braceros were used during the wartime period in cotton, sugar beets,
fruits, and vegetables. In 1944 they harvested an estimated $432
million worth of crops, and almost $5 million was credited to their
73 Ibid., p. 163.
74 U.S. Department of Labor, The Admission of Aliens Into the United States for Temporary Employ-
ment, in Study of Population and Immigration Problems, Special Series No. 11, House Judiciary Commit-
tee, Subcommittee No. 1, 1963, p. 32. (Cited as Labor Department report (1963).)
75 U.S. President's Commission on Migratory Labor, Migratory Labor in American Agriculture. Wash.
ington, U.S. Government Printing Office, 1951, pp. 39-40.
savings accounts under the 10-percent savings deduction provision
of the international agreement.76
Alien contract farm labor, largely consisting of Mexicans, accounted
for approximately 2 percent of all hired farm labor during the war.77
It will be noted from table 2 that the wartime use of the braceros was
generally the lowest during the 22-year history of the program.
2. TRANSITION PERIOD: 1948-51
With the lapse of the special wartime legislation at the end of 1947,
the Mexican program continued to be regulated by international
agreement at the specific request of the Mexican Government, in con-
trast to the British West Indies (BWI) and other temporary worker
programs. During the period 1948-51, the importation of workers from
Mexico proceeded under a frequently revised agreement, and for a
particularly stormy period in 1948-49, under no treaty at all. During
this postwar period, Mexican temporary workers were admitted under
the ninth proviso, as were other temporary workers, and clearance
was required from the U.S. Employment Service. In contrast to the
war period, the U.S. employer paid all transportation and recruitment
expenses for the braceros, and the U.S. employer, rather than the
U.S. Government, was the contractor.
While apparently preferable to U.S. growers, this arrangement was
much less satisfactory to the Mexican Government, and of concern to
our State Department because of its potential for damaging U.S.-
Mexican relations. Quoting from a U.S. Labor Department history of
the bracero program, "The Mexican Government expressed concern
about what it considered to be inadequate compliance measures,
methods for determining the prevailing wage rate, and the lack of
formal Government participation in the program as a guarantor of
employers fulfilling the contracts." 78
The role of the Department of Agriculture in the administration of
the foreign farm labor program ceased with the end of 1947. Farm
employment functions, including the dual role of recruiting foreign
workers and protecting domestic workers from adverse foreign com-
petition, reverted to the U.S. Employment Service, which had briefly
performed these functions prior to the enactment of Public Law 45
in 1943. The responsibilities of the U.S. Employment Service in the
administration of the farm labor program were described as follows
in a 1949 communication from the Federal Security Agency, of which
it was then a component:
Under the present arrangement the United States Employ-
ment Service, which has the responsibility for maintaining a
farm-placement service, makes the certifications of the un-
availability 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 provi-
sions of the Wagner-Peyser Act. *
7' Labor Department report (1963), p. 32.
n Fuller, Varden. Labor Relations in Agriculture. Institute of Industrial Relations, University of Cali-
fornia, Berkeley, 1955, pp. 44-45.
78 Labor Department report (1963), p. 36.
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 thousands of whom work on farms on a seasonal
If domestic labor is to be protected, it is imperative that
any program for the importation of foreign workers be com-
pletely coordinated with the public employment service
In July 1949 the Senate Judiciary Committee on Immigration held a
hearing on S. 272, permanent legislation outside the Immigration 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, which was not reported by the committee, would
have transferred labor certification authority to the Secretary of
Agriculture, and would have exempted temporary agricultural workers
from the Western Hemisphere 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
Mexican workers.80 The situation was aggravated by difficulties in
renegotiating the International Agreement with Mexico.
The bill was opposed by the Justice Department, which argued that
"legislation of this type should be temporary rather than permanent
and should conform fundamentally with the established im-
migration policy of this country." It was also opposed by the Federal
Security Agency, on the grounds that, "if domestic labor is to be pro-
tected, it is imperative that any program for the importation of
foreign workers be completely coordinated with the public employ-
ment service program." Although the State Department also opposed
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." 82
While this bill did not receive action beyond the hearings stage, both
temporary and permanent legislation clarifying the statutory authority
for the admission of temporary workers was enacted in 1951 and 1952,
as discussed below.
A report issued prior to the enactment of the first of these laws,
Public Law 78,3 in March 1951 by President Truman's Commission
on Migratory Labor, was critical of the postwar 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 responsible U.S. Government agencies to adequately
70 U.S. Senate. Committee on the Judiciary. Admission of Foreign Agricultural Workers. Hearings on
S. 272, 81st Cong., Ist sess., July 12, 1949. Washington, U.S. Government Printing Office, 1951, pp. 7-8.
(Cited as Senate Judiciary 1949 hearings.)
so Ibid., p. 2.
8I bid., p. 5.
s2 Ibid., pp. 7-8.
- 3Act of July 12, 1951; 65 Stat.'119.
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 Mexicans." 84 The Commission generally
concluded that "alien labor has depressed farm wages and, therefore,
has been detrimental to domestic labor." '5
Considering the program in the context of national immigration
policy, the Commission was equally critical:
Thus, temporary foreign laborers passing in and out of
this country with little restriction have come to substitute
for a supply subject to stringent numerical restrictions,
thereby furnishing the very competition to American labor
that it is the purpose of the immigration law to prevent.
This undermining of national policy stands out more
clearly in that it has been the negotiators for foreign govern-
ments, notably of Mexico, rather than our own representa-
tives, who have secured reasonable limitation of numbers
and some protection to labor standards. While their motive
is primarily to protect the standards of their own nationals
working in the United States, the effect of their concern,
fortunately, is also to help sustain the tenets of American
policy. The contrast in this curious difference of attitudes
is heightened by the fact that through the negotiations of
their governments, foreign laborers have actually achieved,
in most instances, better living and working conditions than
domestic workers whose protection is a main concern of
American immigration law.86
SThe responsible U.S. administrative agencies, rather than the U.S.
employers or the braceros themselves, were the primary objects of the
Commission's criticism. Thus, the passage quoted above is preceded
by the following observation:
official vigilance for the protection of living and
working standards of alien farm laborers was largely aban-
doned in the postwar phase. Responsible United States ad-
ministrative agencies practically ceased to exert effective
effort to preserve the requirements of national immigration
policy. The same ineffectiveness or laxity that undermined
protective standards in the contract spread also to the official
scrutiny of the number of foreign laborers that employers
claimed they needed."
The first recommendation by the President's Commission on
Migratory Labor on the subject of alien contract labor pertained to
the regulation of farm labor importation by intergovernmental agree-
ments, with the primary contracting handled by the governments as
it had been during the wartime period.
We recommend that:
84 U.S. President's Commission on Migratory Labor, Migratory Labor in American Agriculture, Wash.
ington, 1951, p. 58.
s Ibid., p. 59.
s8 Ibid., pp. 64-65.
87 Ibid., p. 64.
Foreign labor importation and contracting be under
the terms of intergovernmental 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.8s
The question of illegal entrants was of paramount importance during
this period and was characterized in a 1949 State Department publica-
tion as "in many respects the most formidable problem con-
fronting the United States and Mexican governments m connection
with the migratory labor program." s9 While then, as now, the number
present in the country was unknown, it was "generally conceded that
it substantially exceeds the number brought in legally under the
formal program," with estimates ranging from 100,000 to 400,000.90
The process of legalizing the illegals which began in 1947, initially
at the suggestion of Mexico, continued through the postwar period
and was described by the President's Commission on Migratory Labor
in early 1951 as "the dominant feature of the Mexican alien farm-
labor program not only for 1947 but also in the years since." 91 Further:
For the 3 years, 1947-1949, the Mexican farm-labor
program in summary amounts to this: 74,600 Mexican
nationals under contract were brought from the interior of
Mexico; 142,000 wetbacks already in the United States were
legalized by being put under contract. Legalization of wet-
backs occurred again in 1950. Meanwhile, the accelerated
wetback traffic continued unabated.92
The process of legalizing the illegals took a variety of forms over
the years and proceeded both under the auspices of and outside of
existing legislation and international agreements. It was deplored by
the President's Commission on Migratory Labor, which recommended
that, "The Department of State should negotiate with the Govern-
ment of Mexico such a workable international agreement as will assure
its operation as the exclusive channel for the importation of Mexican
nationals under contract, free from the competition of illegal migra-
tion." 13 Mexico was also increasingly concerned about the continuing
high level of illegal immigration, which it viewed as something of a
diplomatic embarrassment and also as a form of unilateral contracting
by U.S. employers.
In short, the brief period between the lapse of the special wartime
legislation at the end of 1947 and the enactment of Public Law 78 in
July 1951 was a difficult one for the Mexican farm labor program. The
problem of illegal migration continued during the period, combined
with the additional problems of Mexican displeasure with the mechanics
s Ibid., p. 66.
" Goott, Daniel. Employment of Foreign Workers in the United States Agriculture. Department ot State
Bulletin, v. 21, July 4, 1949, p. 45.
st President's Commission on Migratory Labor (1951), p. 38.
2 Ibid., p. 53.
n Ibid., p. 66.
of the program as it was then operating, and indications of its adverse
impact on U.S. workers.
Significantly, however, neither the President's Commission on Mi-
gratory Labor nor the earlier comprehensive study of immigration
law and policy by the Senate Judiciary Committee recommended the
termination, of the Mexican temporary worker program, perhaps in
part because of the imminence and outbreak of the Korean war. The
key recommendations of the Commission on Migratory Labor have
been cited, above. Writing in the spring of 1950 the Senate Judiciary
Committee found "that the agricultural labor supply in the United
States, particularly in the Southwestern states, requires supplemen-
tation," and recommended that "provisions should be made in perma-
nent legislation which would permit the admission of temporary
.agricultural labor in a nonimmigrant classification when like labor
,cannot be found in this country." 9 While legislation implementing
this recommendation was enacted in 1952, it was overshadowed in
importance by temporary legislation enacted in 1951 which remained
the basis for the Mexican bracero program until its termination at
the end of 1964.
3. THE BRACERO PROGRAM UNDER PUBLIC LAW 78: 1951-64
Legislation authorizing the terms and conditions of the Mexican
worker program passed the Senate by voice vote on May 7, 1951, and
the House by a rollcall vote of 240-139 on June 27, 1951, and was
signed into law as Public Law 78 on July 12, 1951. It was enacted in
response to the manpower shortage resulting from the Korean war,
concern about the insufficient protection provided domestic workers,
and.Mexico's dissatisfaction with the terms of the 1949 agreement
governing the temporary export of its workers. A Truman admin-
istration bill had been introduced which, among other things, would
have provided more explicit protection for domestic workers, requir-
ing that an employer offer to domestic workers "the same conditions
of employment as he offers to foreign workers." Despite ob-
jections from the Labor Department, President Truman reluctantly
signed the alternative measure, which included no such assurances.
An amendment to the Agricultural Act of 1949, Public Law 78
evolved from legislation (S. 984, H.R. 3048, 82d Cong.) originally
introduced by Senator Allen J. Ellender (D.-La.) 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 ." c5 Quoting from the Senate report on the
genesis of the legislation enacted as Public Law 78:
As an alternative method to the recruitment of farm
workers in Mexico by private employers and subsequent post-
ing of compliance bonds, it was suggested at the conference
that an agency of the United States recruit such workers
and that the Government of the United States guarantee
compliance with the individual work contract. It was under-
stood that the United States Government is not now au-
thorized to undertake such a program. The United States
94 S. Rept. 1515, 81st Cong., 2d sess. (1950), p. 586.
15 U.S. Senate. Committee on Agriculture and Forestry. Farm Labor Program. Hearings, 82d Cong.,
1st sess., 1951, p. 8.
delegation agreed to have such legislation introduced in the
Congress, and since its enactment would require time for
following legislative procedure, the Mexican Government
agreed to continue the present international agreement until
June 30, 1951.96
During debate, the bill had the strong support of farm employers'
organizations. Dissenters included the Farmers Union, on the
grounds that the bill was not in the interest of small farmers, and farm
employers from the Northwest, who were concerned about the trans-
portation costs and wanted a reception center established by the
Government in the interior of the United States as well as at the
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
the Western Hemisphere." The omission of the British West Indies
(BWI) and other foreign temporary worker programs from the purview
of the legislation was done at the request of U.S. employers who argued
that the existing arrangements were satisfactory to all concerned.
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 interna-
tional agreements. Public Law 78 authorized the Secretary of Labor
to take certain steps to recruit and transport Mexican workers, subject
to the following restrictions:
Section 503. No workers recruited under this title shall be
available for employment 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 employ-
ment of such workers will not adversely affect the wages and
working conditions of domestic agricultural workers similarly
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 remuneration.
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 reception
9a S. Rept. 214, 82d Cong., 1st sess: (1951), p. 3.
In short, the Mexican labor program was self-supporting under
Public Law 78, except for compliance activities and certain executive
functions. This was in contrast to the wartime period, when the entire
cost of the importation of Mexican farmworkers was borne by the
U.S. Government. The funds for payment of the expenses incurred in
recruiting Mexican workers under Public Law 78 were met from
the farm labor supply revolving fund, maintained by fees paid by
employers for contracting Mexican workers, in addition to round-trip
transportation costs to the border.
According to a 1963 Labor Department report, "The operation of
the Mexican labor program has remained basically the same through-
out the life of P.L. 78." 97 A brief general description of certain phases
of program operations under Public Law 78 follows.98
Soon after the legislation was enacted, an agreement was negotiated
by the Secretary of Labor and the State employment security agencies
providing that the State agencies would assist the Secretary in re-
cruiting domestic farmworkers and determining if they were available,
pursuant to section 503 of Public Law 78, quoted above. Upon a
showing that domestic workers were not available, U.S. employers
were authorized to employ Mexican workers.
The Mexican workers were recruited from the interior of Mexico by
the Mexican Government according to its own regional allocations,
based on advance estimates of U.S. needs The potential workers were
interviewed by U.S. officials at migratory stations in the interior of
Mexico, at an average of 280 miles from the border. Following medical
examinations and certification for admission as temporary agricultural
workers, the potential workers were given conditional entry permits
and proceeded to the reception centers operated by the U.S. Govern-
ment at the border. Transportation and subsistence costs from the
interior to the border were paid by the U.S. Government, which was
reimbursed from the farm labor revolving fund, supported by the
participating employers who paid contracting fees of up to $15 per
The five reception centers at the U.S. border were operated by the
U.S. Department of Labor, with the participation of the Public Health
Service and the Immigration and Naturalization Service and a Mexi-
can representative. The contracting was done at the reception centers
either by individual employers or associations, following a group
briefing of the workers on the jobs currently being offered. When an
agreement was reached between a worker and an employer, a contract
was signed by both and countersigned by representatives of the two
governments. Contracts were generally limited to a period of 6 months.
Under the international agreement, the provisions of the contracts
relating to payments of wages and furnishing of transportation were
guaranteed by the U.S. Government in the event that the employer
failed to meet his obligations.
Transportation from the border reception centers to and from the
jobs was arranged for and paid by the employers. Following their
7 Labor Department report (1963), D. 41.
Is The following account is based primarily on the 1963 Labor Department report (pp. 41-42) and a snm-
mary of a 1957 description by a Labor Department official contained in Spradlin, T. Richard. The Mexican
Farm Labor Importation Program-Review and Reform, part I. George Washington Law Review, v. 30,
October 1961, pp. 88-91.
return to the reception centers, repatriation and return to the interior
of Mexico was the responsibility of the U.S. Government, which again
was reimbursed from the revolving fund.
The legislation, international agreements, and individual work
contracts provided the temporary Mexican workers with a series of
guarantees and assurances relating to their transportation and housing,
msurance, payment of prevailing wages, and minimum hours of
guaranteed work which were not generally available to most U.S.
agricultural workers. Prior to the enactment of Public Law 78, it was
argued that the assurances concerning the wages and working condi-
tions made to the foreign workers, which were designed at least in part
to avoid adverse effect on domestic workers, would have the practical
effect of giving foreign workers much greater protection than was
provided domestic workers. Thus, 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 care.
Congressman W. R. Poage (D.-Tex.) the vice chairman of the House
Committee on Agriculture, argued against this position as follows:
It seems to me that this very provision is one of the great-
est 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 to bring
in foreign labor, as long as American labor is cheaper."
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 were also exempt from both social
security and income tax withholding provisions.
The issue of protecting domestic workers from adverse competition
was a major concern during the life of Public Law 78. It increased in
political importance toward the end of the 1950's, when a U.S. Gov-
ernment report found that the Department of Labor had had limited
success in protecting the domestic work force from being adversely
affected by the importation of the Mexican workers. This issue is
considered below as a central concern of the second phase of the
bracero program under Public Law 78.
(a) 1951-59: Bracero program expansion
The use of Mexican workers under the bracero program was con-
siderably more extensive during the 1950's than it had been during
the wartime period. Statistics on the admission of Mexicans, British
West Indians, Bahamians, and other foreign agricultural workers
during the period 1942-64 are shown in table 2. The Mexican figures,
which dwarf the others, rose steadily after the enactment of Public
Law 78 in 1951 until a peak of 445,197 in 1956 and remained over
400,000 until 1959 when they began a steady decline.
*, U.S. House of Representatives Committee on Agriculture, "Farm Labor." Hearings, 82d Cong., 1st
Sess., 1951, p. 16.
TABLE 2.-FOREIGN WORKERS ADMITTED FOR TEMPORARY EMPLOYMENT IN U.S. AGRICULTURE,
BY YEAR AND NATIONALITY
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 1,213
1945....--------------- 73,422 49,454 17,291 2100 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 ...
1948.......----------------.......... 44, 916 35, 345 2,421 1,250 5,900 ----- --
1949--...- --------. 112,765 107, 000 1, 715 1,050 3,000--
1950..._---.---- ----- 76,525 67,52,00 425 --
1951..--------- 203,640 192, 000 6,540 2,500 2,600 ---- -
1952...--------------- 210,210 197, 100 4,410 3,500 5200 -----
1953. -------------- 2 21 201,380 4,802 2,939 6, 200 ----
1954.. -------- 320,737 39, 033 2,159 2,545 7,000 -------
1955----------------- 411,966 398,850 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 6 900 315
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 40
1962. -- -------- 217, 010 194, 978 11,729 1,99 8, 700 8404
1953.------------------ 209,218 186,865 11,856 1,074 8,500 923
1964..----------------- 200,022 177,736 714,361 (1) 7,900 25
1This does not include small number of Basques and other workers.
2 Data for 1942-47 were obtained from USDA reports.
8 Not available.
4 Newfoundlanders transported.
6 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 1963-64.
7 Bahamians included with British West Indians.
Source: "The Migratory Farm Labor Problem in the United States," 87th Congress, 2d session, S. Rept No. 1225,
Washington, p. 10, 1962; and "Farm Labor Market Developments," Bureau of Employment Security, U.S. Department of
Labor, January 1964 and January 1965. U.S. Department of Agriculture. Termination of the Bracero Program, Agricultural
Economic Report No. 77, Washington, June 1965, p. 5.
Two of the major issues during the 1950's were illegal migration
and, in the midfifties following the failure to renegotiate the inter-
national agreement, unilateral contracting. These are discussed below,
followed by a general consideration of program experience and politics
during the 1950's.
(1) Illegal immigration
Illegal Mexican immigration continued to be a major problem during
the early 1950's as it had been during the 1940's. During the 10-year
period 1934-43, apprehensions of deportable aliens by INS averaged
under 12,000 a year. The number rose abruptly from 11,175 in fiscal
year 1943 to 31,174 in 1944, more than doubled to 69,164 in 1945, and
continued upward to 1,089,583 in fiscal year 1954 (see table 3). Despite
their limitations, then as now, INS apprehension figures are the best
available indication of the degree of illegal immigration. Without ques-
tion, illegal immigration was very high during this period, rivaling the
TABLE 3.-DEPORTABLE ALIENS LOCATED, ALIENS DEPORTED, AND ALIENS REQUIRED TO DEPART, YEARS ENDED
JUNE 30, 1892-1976, TRANSITION QUARTER JULY-SEPTEMBER 1976, AND YEAR ENDED SEPT. 30, 1977
Deportable Aliens required
Period aliens located I Total Aliens deported to depart
1901-10-------.. --...... ------.-- ------------------
1931-40 ...-------------------------------- 147,457
1931....------------------ -------------- 22,276
1934 -------------------------------- 10,319
1937-..------------------------------- 13, 054
1938-------------------------------- 12 851
1941 --------------------------------- 11,294
1943 -------------------------------- 11,175
1945.-------------------------------- 69, 164
1948..-------------------------------- 192, 779
1950----....------------ --------------- 468,339
1951 -------------------------------- 509,040
1954 ..--------------------------------- 1, 089,583
1955. ------------ 254,096
1957... -------------------------------- 59,918
1958..-------------------------------- 53, 474
1959...-------------------- ------------ 45,336
1963-------------------------------- 88 712
1964-----.......-------------------------- 86: 597
1965-------------.... ------------------- 110,371
1967.----------------------------- 61 608
1974......---------------------------- ---- 788 145
1975..---- -------------- ------------- 766,600
1976 TQ....----------------------------- 221,824
1977 ---------------------------- 1, 042,215
1 Aliens apprehended first recorded in 1925. Prior to 1960, represents total aliens actually apprehended. Since 1960,
figures are for total deportable aliens located, including nonwillful crewman violators.
2 Aliens required to depart first recorded in 1927.
Source: U.S. Department of Justice, 1977 Annual Report: Immigration and Naturalization Service. Washington, U.S.
Government Printing Office, 1979, p. 92.
92, 157 72,233
117, 086 93,330
19,865 10, 347
9,195 8, 251
6, 954 8,594
18, 663 195,880
20, 371 197, 184
20, 040 276, 297
7,142 60, 600
96, 374 1,334, 528
7, 454 69, 392
17, 639 370, 074
30, 228 867,015
The 1951 international agreement, negotiated after the enactment of
Public Law 78, was purposefully set for a duration of only 6 months in
order to create pressure on Congress to deal with what President
Harry Truman characterized as "the more basic problem of controlling
illegal immigration." 1a" This was done in direct response to a request
from President Truman to President Miguel Alemln of Mexico.
In a special message to the Congress on July 13, 1951, on the
occasion of the enactment of Public Law 78, allowing for employment
of agricultural workers from Mexico, President Truman called for the
enactment of legislation providing a penalty for harboring or conceal-
ing aliens who have entered the country illegally;'legislation establish-
ing the authority of INS personnel to inspect places of employment
without a warrant where they have reason to beheve illegal immigrants
are working or quartered; a supplemental appropriation for the INS
to expand its enforcement personnel in the Southwest; and an increase
in funds for the Labor Department's Farm Placement Service.2 The
following day, President Truman wrote President Aleman of Mexico
I have pointed out to the Congress that this law, taken by
itself, cannot cure the social and economic difficulties which
we face in dealing with the farm labor situation in the south-
western United States. I am anxious to see progress made
toward improving working conditions and living standards
for our own citizens and for the contract workers from Mexico
who are employed on our farms. That will be of great benefit
to the individuals concerned and to the stability of our
agricultural production. But if these things are to occur the
government of the United States and Mexico must take
steps to shut off the stream of Mexican citizens immigrating
illegally into the United States.
The low wages paid to these people and the poor conditions
under which they are forced to live have had the effect of
lowering living and working standards for our own citizens
and for Mexican citizens legally employed in this country.
Other undesirable social consequences have followed the
flow of illegal immigrants, consequences which bear most
heavily on our citizens and resident aliens of Mexican
The experts in this government and those in private life
who have studied this problem are convinced that to improve
economic and social conditions in the farm lands of the south-
west, we must first curtail illegal immigration from Mexico.
This will require the Congress of the United States to pass
new legislation and to appropriate additional funds.
I have asked in my Message that the Congress take this
needed action at once. I have indicated that my approval
of the new law on Mexican contract labor was given only
because of assurances that the Congress would consider
the other needed measures. I am concerned, however, that
'. Truman letter, July 14, 1951; reprinted in Kiser and Kiser, eds., Mexican Workers in the United States,
Albuquerque, University of New Mexico press, 1979, p. 156.
2 The U.S. Supreme Court had ruled that the provision in the Immigration Act of 1917 prohibiting the
harboring of illegal aliens did not include a penalty, U.S. v. Ecans, 333 U.S. 483 (1918).
2 U.S. Public Papers of the President of the United States, Harry S. Truman, 1951. Washington, U.S;
Government Printing Office, 1965, pp. 391-392.
once the two governments reach a new agreement for the
continued importation of contract workers from Mexico,
the Congress might not act upon the more basic problem of
controlling illegal immigration.
Therefore, I would like to suggest, for your consideration,
that the new agreement between Mexico and the United
States, for contract workers, might well be confined to a
six month period. That would allow time for further action
by the United States Congress, and if this action were not
forthcoming, a further renewal of the agreement could be
I make this suggestion because I feel so strongly that the
people of both Mexico and the United States have much to
gain if this illegal immigration can be brought to an end.
The Mexican citizens who come here legally to do farm work
on contract would surely benefit just as would our own
citizens who are working as farm laborers.3
President Aleman agreed to the proposal, in part as follows:
I have read the message which you delivered to the Con-
gress of the United States on signing the above-mentioned
law, and I am pleased to say to you that I find in it a clear
reflection of the concern which my Government has felt for
some time and of the plan which we have had in mind for
providing an adequate solution to this problem. In effect, I
believe that if we do not succeed, by combining our efforts,
in putting a definite stop to the illegal movement of agri-
cultural workers, this will not only redound to the detriment
of the economies of our respective countries, but the possi-
bilities for our cooperation will be affected in a very serious
way. For that reason, I was pleased at the tone of your mes-
sage and at the firm intent of your Government to collaborate
with that of Mexico in this important matter. Once this prob-
lem referred to above has been completely resolved, it will
be much easier to find adequate solutions with respect to the
salaries, working conditions, and living conditions for those
Mexicans who may be contracted under the agreement be-
tween our two Governments. Meanwhile, I have given
instructions to the Mexican representatives in the discussions
now being held with the United States that the new agree-
ment be limited to a period of six months. This is sufficient
time for the Congress of the United States to adopt addi-
tional legislation and we could observe the effect which the
new agreement may have on the illegal traffic in Mexican
workers and its effect on employers who, lacking a clear sense
of their social responsibility, place personal interests before
the well-being of the whole.4
Attempts to pass legislation prohibiting the employment of and
establishing penalties for the harboring of illegal aliens in 1951
and 1952 were only partially successful. The result was the Act of
March 20, 1952,5 subsequently recodified as sections 274 and 287(a) (3)
STruman letter, July 14, 1951, p. 156.
STranslated letter from M. Aleman to Harry S. Truman, July 27, 1951, in Kiser and Kiser, eds. (1979),
S Public Law 283, 82d Cong., 2d sess., 66 Stat. 26.
of the Immigration and Nationality Act of 1952. Under the law then
and now, the willful importation, transportation, or harboring of illegal
aliens is a felony, punishable by a $2,000 fine or imprisonment of up
to 5 years, or both. However, employment is specifically exempted
from the penalties for harboring, in what was popularly referred to
as the Southwest or Texas proviso. During the Senate floor debate on
February 5, 1952, Senator Paul Douglas offered an amendment to
provide penalties for the employment of illegal aliens if the employer
had "reasonable grounds to believe a worker was not legally in the
United States." It was resoundingly defeated by a vote of 69-12 fol-
lowing a heated debate, with the arguments similar to those used
during the 1970's for and against employer sanctions.
Illegal immigration was brought to a halt in the mid-1950's by a
greatly increased law enforcement effort on the part of the U.S. Gov-
ernment, combined with a subsequent expansion of the bracero pro-
gram as a substitute legal means of entry. During the period 1941-52,
the INS border patrol had been cut by 350 officers, while apprehen-
sions increased by 4,000 percent.6 This changed in 1954 when the
decision was made within the executive branch to increase the border
patrol and attempt to get control of the situation. The result was
Operation Wetback, an area sweep operation which simultaneously
helped end the illegal alien problem of the mid-1950's, and left scars
in the Mexican-American community which remain today.
The decisions leading to Operation Wetback followed a visit by
Attorney General Herbert Brownell to the California border in August
1953. During the course of the trip, he described the situation as
"shocking," and characterized the previous decisions to cut border
patrol manpower for economy reasons, which he had himself supported
4 months previously, as "the most pennywise and pound-foolish policy
I've ever seen." 7 The increase in the border patrol from 1,079 to 1,479
over the period fiscal year 1954-55 reflects the results of Attorney
General Brownell's conversion.
General Joseph Swing, a former classmate of President Eisenhower's
at West Point, was appointed Commissioner of INS in the spring of
1954. According to Richard Craig, General Swing "discouraged the
Attorney General from sending U.S. troops to the border in an effort
to halt the influx," 8 although reports on this differ as they do in
general regarding the tactics of Operation Wetback.
The operation was described as follows in the 1955 INS annual
"Wetbacks."-A large scale task force operation in the
Southwest, working in proximity of the border, accounted
for a great majority of apprehensions. This "Special Mobile
Force Operation" began in California in the last few days of
fiscal 1954, and after the backbone of the wetback invasion
was broken in California, shifted to south Texas. Mobile task
forces were assembled and set into action. Light planes were
used in locating illegal aliens and directing ground teams in
jeeps to effect apprehensions. Transport planes were used to
airlift aliens to staking areas for prompt return to Mexico.
0 Hadley, Eleanor, A Critical Analysis of the Wetback Problem. Law and Contemporary Problems,
Duke University School of Law, v. 21, spring 1956, p. 348. (Cited as Hadley (1956).)
7 Ibid., p. 350.
s Craig (1971), p. 128.
Uncounted thousands of aliens departed California of
their own accord during the operation. When the operation
shifted to Texas, 60,456 aliens returned to Mexico through
ports of entry during the first 30 days to avoid arrest. Others
simply fled across the Rio Grande River.
These activities were followed by mopping up operations
in the interior and special mobile force units are continuing
to discover illegal aliens who have eluded initial sweeps
through such cities as Spokane, Chicago, Kansas City, and St.
Louis, which removed 20,174 illegal Mexican aliens from
The volume of apprehensions of Mexican nationals con-
tinued to decrease following the apprehension and expulsion
of large numbers of wetbacks and the mass exodus of thou-
sands of others who departed of their own accord. Neverthe-
less, vigorous efforts were continued to apprehend those who
managed to escape detection and those who succeeded in
their attempts to enter illegally or abandoned status after
legal entry. By the end of June 1955, the rate of apprehensions
had dropped to 11 percent of that of June 1954, and 59
percent of those apprehended were taken into custody within
48 hours after crossing the border.9
The 1955 INS Annual Report concluded that, "The so-called
'wetback' problem no longer exists. The border has been
secured." 10 It also emphasized the future desirability of the prevention
of illegal entries, as opposed to the expulsion process of which Operation
Wetback was an example:
To maintain that state of security the Service cannot
afford to revert to its operational procedures in effect before
the past year. The prevention of illegal entries, as the major
ingredient of border control, is more difficult, requires more
ingenuity, more men and equipment, but is, in the long run,
more economical and more humane than the expulsion
Without question, the bracero program was also instrumental in
ending the illegal alien problem of the mid-1940's and 1950's. It should
be noted that throughout its duration, and particularly during the
1950's, one of the major arguments used in support of the bracero
program was that it offered an alternative and, therefore, at least
a partial solution to the illegal alien problem. This position was taken
by both the Mexican Government and the U.S. State Department,
among others. It was stated in a 1954 House report, as follows:
Reason clearly indicates that if a Mexican who wants to
come to the United States for this employment can enter this
country legally, with all the protection and benefits that a
well-considered and well-administered employment program
give him he will do so, rather than come in illegally and be
deprived of the benefits of such a program and any rights or
standing in American courts. If, because the program is not
U.S. Department of Justice, Annual Report of the Immigration and Naturalization Service, 1955,
10 Ibid., p. 15.
available or is not realistically geared to the requirements of
employers or workers, the Mexican seeking employment finds
it's impossible or difficult to come in legally, many of them
will find their own way across the long border between the
United States and Mexico and get employment where they
can, under whatever wages and working conditions they
are able to obtain.12
In their accounts of Operation Wetback, Julian Samora and
Richard Craig stressed the importance of "public sentiment, including
that of the growers" 13 as a factor in the success of the INS operation.
According to Craig:
Based upon coordinated action of many elements at
various levels, Operation Wetback was an overwhelming
success. The greater part of what it accomplished was due
to cooperation from grower interests. Such complicity did
not come by accident. From the operation's inception,
General Swing took pains to cultivate grower cooperation.
Farmers were promised assistance in securing domestic and
legally contracted braceros to replace wetbacks. In return,
most of them cooperated.14
Similarly, in his comments on the success of Operation Wetback in
dealing with the illegal alien problem, Ernesto Galarza indicated
that a key factor was:
the change in attitude of farm employers, hundreds
of whom had come to accept the legal braceros as a practical
and safe alternative [to Wetbacks] and had joined associa-
tions to procure them. By the time the operation was
launched the bracero system had shown its economic and
In his otherwise highly critical examination of the bracero program,
Galarza credits it with "the dramatic reduction, if not the total
elimination, of the Wetback traffic," although by dubious means:
"The [illegal] traffic became suppressed only when it became possible
to assure farm employers, substantially on their terms, that they
could have as many contract laborers as they might demand." 1'
The causal relationship between the bracero program and the swell-
ing illegal alien traffic which began in 1944, 2 years after the inception
of the legal program, must also be kept in mind. An examination of
the early history of the bracero program appears to indicate that the
program stimulated illegal migration to the United States, in part
because more Mexicans wished to come than were legally permitted,
and partly because it was often easier for both the U.S. employer
and the foreign worker if the latter entered illegally. While illegal
entries, as indicated by INS apprehensions, declined dramatically
during the last 10 years of the bracero program, Julian Samora notes
that during the program's 22-year life, over 5 million illegal aliens
were apprehended, a figure exceeding the 4.8 million contracted.17
12 H. Rept. 1199, 83d Cong., 2d sess., 1951, p. 3.
i" Samora, Julian. Los Mojados: The Wetback Story. Notre Dame, University of Notre Dame press, 1971,
1" Craig (1971), p. 129.
a Galarza, Ernesto. Merchants of Labor. Charlotte, McNally and Loftin Pub., 1964, p. 70.
" Ibid., p. 255.
r1 Samora (1971), p. 19.
In short, the bracero program appears to have been simultaneously
a major cause of as well as a significant cure for the illegal immigra-
tion problem of this period-and Galarza and others argue that the
cure was effected at a heavy price as far as the welfare of domestic
farm labor was concerned. Concern about its adverse impact on
domestic workers superseded illegal migration as the principal problem
associated with the bracero program, and together with the increasing
mechanization of cotton picking, led to the eventual demise of the
program and, some would argue, the consequent return of illegal
(2) Foreign policy considerations: The 1954 unilateral contract-
Public Law 78 was extended three times during the 1950's: for 2
years in 1953 without amendment; for 3l4 years in 1955 with minor
amendments; and for 2 years in 1958 without amendment. Interna-
tional agreements with Mexico were renegotiated in 1952, 1954, 1956,
1957, and 1958. The renegotiation process in 1953-54 was particularly
difficult, and is discussed below. This was also the period of Operation
Wetback; more than 1 million apprehensions were made by INS in
1954 and most of the apprehended aliens were sent back to Mexico.
The failure of the United States and Mexico in early 1954 to success-
fully renegotiate the international agreement regarding the importation
of Mexican workers resulted in the enactment of an amendment to
Public Law 78 providing authority for the United States to recruit
Mexican workers "pursuant to arrangements between the United
States and the Republic of Mexico or after every practicable effort
has been made by the United States to negotiate and reach agreement on
such arrangements" (amendment indicated by italics).i8
This authority for the unilateral recruitment of Mexican workers
was never used since a new agreement was reached on March 18, 1954,
8 days before the amendment was signed into law. A principal purpose
of the amendment had, in fact, been to pressure Mexico into reaching
an acceptable agreement.
The problem arose in the renegotiation of a new agreement to
replace the one which expired at the end of December 1953. Among
.other difficulties, Mexico argued that the prevailing wage determina-
tion by the Labor Department was too low.
In mid-January 1954 when it became clear that an agreement was
not going to be reached, the Departments of Labor, Justice, and State
issued a joint communique announcing an interim program of unilat-
eral recruitment. As expected, Mexico denounced the program and
stated that braceros could no longer be legally contracted. According
to Richard Craig, "In expectation of the Mexican announcement,
unofficial State Department sources quickly let it be known that
unilateralism would be pursued despite Mexican protestations." 1'
At about the same time, Secretary of State John Foster Dulles an-
nounced in a press conference that, in Craig's words, "the United
States regretted the discontinuance of talks and was prepared to
reopen negotiations." 20 His offer was officially turned down but
there was a somewhat warmer unofficial response.
18 Act of Mar. 18, 1954; 68 Stat. 28.
19 Craig (1971), p. 110.
so Ibid., p. 111.
Unilateral recruitment began on January 22, and continued, accom-
panied by "bloody clashes and riots between Mexican guards and
aspiring braceros" and "instant legalization," 21 until early February.
On February 2, the Department of Labor was informed by the Comp-
troller General that Federal funds could not legally be used for uni-
lateral recruitment under Public Law 78.
Legislative action began immediately on the amendment referred to
above, to provide the necessary legal authority for unilateral recruit-
ment. The continuation of the bracero program was seen as "both
necessary from the standpoint of United States agriculture, and
desirable from the standpoint of helping to solve the deplorable wet-
back situation." 22 The State Department fully backed the legislation,
apparently as a means of pressuring Mexico into negotiating an
acceptable agreement. Quoting from Assistant Secretary of State
Thurston Morton's letter included in the House report:
In spite of the most vigorous effort it was impossible to
reach agreement on improvements which the United States
felt essential if effective joint control over the migrant move-
ment were to be achieved.
Under these circumstances the United States has taken
the position that, with effective control a necessity, it would
have a better chance of achieving this through its own action
than through continuation of the old agreement. It is also felt
that the likelihood of achieving a satisfactory agreement with
Mexico will be improved if it can be shown that the United
States is capable of exercising reasonably satisfactory con-
trols by itself.
The United States has made it abundantly clear that it
prefers to handle this problem jointly with Mexico. This con-
tinues to be our firm position and our sincere belief."
Before the amendment allowing unilateral recruiting was signed
into law, Mexico requested a resumption of friendly talks which
resulted in an agreement acceptable to both sides. Quoting again
from Richard Craig:
Whether the policy of unilateral recruitment was sound
or ill-advised was thus highly debatable and dependent upon
what one sought to accomplish by it. Its opponents were
correct in viewing such a scheme as risky diplomatic arm-
twisting. However, its supporters proved equally astute in
their assessment. Hearings on H.J.R. 355 were not yet com-
pleted when Mexico began to "come around." 24
Craig also observed that "No postwar United States policy has so
incensed and humiliated the Mexican public as did the foray into
the unilateral bracero contracting in 1954." 25
21 Ibid., pp. 1112-13.
22 H. Rept. 1199, 1954, p. 4.
23 Ibid., p. 5.
24 Craig (1971), p. 117.
2 Ibid., p. 118.
(3) Summary: Program experience during the 1950's
The number of workers entering under the bracero program in-
creased rapidly during the 1950's, reaching a peak of more than.
445,000 in 1956 (see table 2). Cotton harvesting in Texas, New
Mexico, Arkansas, and Arizona accounted for much of this increase,
along with a general increase in the number of braceros working
throughout the country in vegetable and field crops. In 1959, workers.
were employed in 38 States. In fact, however, the use of bracero.
workers was highly concentrated; 94 percent of the workers were
employed in Texas, California, Arkansas, Arizona, and New Mexico,.
where they were used primarily in cotton, sugar beets, fruits, and
vegetables. Almost 50,000 farms, or 2 percent of the total, used.
braceros during 1959, the most active period of the program."2
The administration of the farm labor program during the 1950's
by the Labor Department and the participating State agencies has
been heavily criticized. Quoting from Ellis Hawley:
The United States Employment Service was only a co-
ordinating agency for the State services and their farm
placement divisions. The crucial day-to-day decisions were
made on the local and State levels, where employer influence
was strong, and since the whole farm placement system had
once been a part of the Department of Agriculture, the men
who ran it continued to think in terms of supplying farm
labor, not in terms of protecting or finding jobs for farm
workers. Repeatedly, such men showed a disposition to ac-
cept the employers' own determination of "labor shortages,"
agree to whatever "prevailing wage" the employer associa-
tions were willing to pay, and then to recruit a foreign labor
force. During the mid-1950's in particular, the program was
run to suit the employers. In the words of Secretary of
Labor James Mitchell, it became a sort of "lefthanded ad-
junct" to the Labor Department, a program that was pre-
sumably temporary in nature, of minor importance, and
therefore of little concern to the higher officials there.26
By the late 1950's Secretary of Labor James Mitchell became con-
cerned about the laxity of the program's administration and moved
to tighten its control.
During the greater part of the 1950's, the bracero program remained
basically immune to opposition from Mexican-Americans, labor
groups, and others who were concerned about employer control over
wage determinations, and in general, sought to extend to domestic
workers the same benefits guaranteed to the foreign workers. The
power of the farm bloc was sufficient during this period to prevent
major changes in the program.27
The bracero program also retained the general endorsement of the
Eisenhower administration throughout the 1950's. However, by the
end of the decade, the administration had moved to, at best, a posi-
tion of neutrality regarding the bracero program, with Secretary of
Labor Mitchell actively opposed to it in its existing form.
2"5 Labor Department report (1963), p. 42.
2 Hawley, Ellis W. The Politics of the Mexican Labor Issue, 1950-1965 (1966). Kiser and Kiser, eds. Mexican
Workers in the United States. Albuquerque, University of New Mexico press, 1979, pp.103-104.
27 Ibid., pp. 100-103.
(b) 1959-1964: Program phasedown
The ending of the bracero program during the 1960's was the result
of growing opposition to the program from labor and social welfare
groups, the reduced demand for agricultural labor because of in-
creasing mechanization of cotton, and a tighter administration of the
program by the Labor Department. In other words, the bracero
workers became less necessary and attractive at the same time that
the political climate was shifting away from support for the program
because of concern about the welfare of domestic migrant workers.
The implications of the bracero program for U.S.-Mexican relations
were of increasing importance during the 1960's and apparently
impeded the program's demise. According to Richard Craig, "Had
it not been for its diplomatic ramifications, the bracero program would
not have been extended beyond 1963 and perhaps not beyond 1961." 28
The fortunes of the bracero program began to decline in 1959,
although the number of braceros admitted that year was 437,643,
the second largest in the program's history. Quoting from a Department
of Labor study, "By 1959 public concern over the program's opera-
tion was akin to that of the late 1940's and early 1950's when the
nongovernmental program was in operation." 2 The numbers began
a sharp decline until the program's termination at the end of 1964
(see table 2).
By 1962, the number of braceros contracted had dropped to less
than 200,000. The number of farms using braceros fell from a peak of
50,000 in 1959 to 35,000, with much of the decrease occurring in Texas.
According to the Labor Department study, "the impact of the 1961
amendments to Public Law 78, increased mechanization of the cotton
harvest, and higher wage rates were the primary factors for this
decrease." 30 A Department of Agriculture study reported that 34
percent of the cotton crop was machine harvested in 1958 compared to
72 percent of the crop in 1963. The number of foreign workers used
in harvesting the crop was less than 10 percent of what it had been 5
years earlier. The Department of Agriculture concluded that, "a
continuation of the trend is likely for the next few years and indicates
the termination of the bracero program will not adversely affect total
production." 31 In fact, workers would be available for use in other
The Department of Agriculture study indicated that in 1963 the
number of braceros contracted constituted about 5.9 percent of the
total persons who did supplemental farmwork, and 0.7 percent of the
farmwork force. However, while this was a small portion of the national
farm labor force, in fact about 95 percent of them were concentrated
in seven States: Arizona, Arkansas, California, Colorado, New Mexico,
Michigan, and Texas.32
Mexican employment was also highly concentrated by crop. In
terms of total numbers employed, the principal crops in 1962 were
tomatoes, cotton, cucumbers, and sugar beets. Mexicans constituted
8 Craig (1971), p. 196.
"9 Labor Department report (1963), p. 40.
a" Ibid., p. 42.
31 U.S. Department of Agriculture. Termination of the Bracero Program, Agricultural Economic report
No. 77. Washington, June 1965, p. 21.
a Ibid., p, v.
a sizable percentage of the peak work force in lettuce (69 percent)
cucumbers (52 percent), melons (42 percent), and tomatoes (41
(1) Mexican farm labor program: Consultants' report, October
In October 1959, a four-member group of consultants appointed by
:Secretary of Labor James Mitchell issued a report which was highly
critical of the Mexican farm labor program and recommended sub-
stantial changes. The members of the group were Glenn E. Garrett of
the Texas Good Neighbor Commission, Msgr. George G. Higgins of
the National Catholic Welfare Conference, former Senator Edward J.
Thye (R.-Minn. 1947-59), and Chancellor Rufus B. von Kleinsmid
,of the University of Southern California.
The consultants' report stated that Congress had two purposes in
enacting Public Law 78, the first being to "obtain agricultural workers
from Mexico to meet peak labor shortages." They concluded that,
based on 8 years' experience in administering the law, the Department
of Labor had been successful in meeting this goal and, incidentally
.and significantly, in controlling illegal entry:
Almost one-half million Mexicans were brought into the
country last year in an orderly and organized fashion to sup-
plement the domestic farm work force. The existence of such a
legal importation system has facilitated the elimination of the
illegal entry of Mexicans wetbacksks"). Although improve-
ment in compliance activity is indicated, the mechanics for
recruiting Mexicans, operating reception centers, transport-
ing braceross" and policing their conditions of employment
have been improving each year.3
The second major objective of the law identified by the consultants
was to "insure that our own domestic farm workers will not be ad-
versely affected by the employment of Mexicans." Here the Depart-
ment of Labor was found to be "much less successful." 3 Despite the
prohibition in the law against the admission of workers unless it was
determined that they would not have an adverse effect on the wages
and working conditions of domestic workers, it was found that they
had in fact had such an effect in a variety of ways. There were indica-
tions that the preference of some employers for Mexican labor had
forced domestic workers to seek other job opportunities; that the use of
foreign workers had deprived domestic farmworkers of employment
by causing the already short work season to be further compressed;
and, perhaps most significantly, that the availability of foreign workers
had prevented normal competition for workers in the open market
and a consequent rise in wage levels.36 The consultants' report made
the following recommendation regarding adverse effect criteria:
The test of adverse effect on wages and employment,
which, if threatened, precludes authorization of Mexican
83 Labor Department report (1963), p. 48.
3, U.S. Department of Labor. Mexican Farm Labor Program, Consultants Report, October 1959. Re-
printed in U.S. Congress. Senate. Committee on Agriculture and Forestry. Hearings, 87th Cong., 1st sess.,
Washington, U.S. Government Printing Office, 1961, p. 268. (Cited as Mexican Farm Labor Program,
sConsultants Report (1959; Senate hearings, 1961).)
2 Ibid., pp. 272-273.
workers, should be more specific. The Secretary should be-
directed to establish specific criteria for judging adverse effect
including but not limited to:
(a) Failure of wages and earnings in activities and areas
using Mexicans to advance with wage increases generally;
(b) The relationship between Mexican employment trends
and wage trends in areas using Mexican workers;
(c) Differences in wage and earning levels of workers on
farms using Mexican labor compared with non-users.37
The method for computing the prevailing wage which braceros were-
required by law to be paid was described as follows:
The prevailing wage to be paid Mexican workers is de-
termined by conducting surveys at frequent intervals among
samples of employers of domestic workers in areas where
foreign workers are used. As an added check individual
workers are consulted as to wages received for each activity.
Under a formula adopted in 1958, the wage rate paid to 40
percent of the workers is considered the "prevailing wage"
for a given activity in the area surveyed. In the small pro-
portion of cases (less than 5 percent) where no single wage
is paid to 40 percent of the workers, an alternative formula
is used to find the prevailing wage. Observations are arrayed
from the highest to lowest wage paid. The prevailing wage
range is found by starting with the lowest wage and pro-
ceeding upward until 51 percent of the workers in the survey
are included. The highest wage paid to any worker in the 51
percent group becomes the bottom of the range. The top of
the range is the highest rate paid to any worker in the
Eight years earlier, the Truman Commission on Migratory Labor
had been unable to find out with any certainty how the prevailing
wage was determined, and what they did find was not encouraging:
All foreign labor agreements provide for the pay-
ment of a stipulated minimum wage or the "prevailing wage,"
whichever is: higher. *Ordinarily, the so-called prevail-
ing rate is the effective rate. The "prevailing rate" is not
officially set or determined by any government agency.
We endeavored, without much success, to find out what
the prevailing wage is and how it is determined. Neither
Government agency people nor employers could give much
As best we could determine, the "prevailing wage" in
seasonal employment in agriculture is arrived at somewhat
in this manner: Farm employers meet in advance of the
season and decide on the wage they intend to pay. It is set
at an amount they hope they won't have to exceed during
the season. Whether the wage agreed upon is sufficient to
attract the labor supply needed is apparently not usually
considered an important factor in making the decision."9
Ibid., p. 283.
2 Ibid., p. 273.
Report of the President's Commission on Migratory Labor (1951), p. 59.
*While progress had clearly been made since 1951, the apparent in-
:adequacies of the prevailing wage requirement as a protection for
*domestic workers in situations involving the large-scale importation
.of foreign workers was underscored in the 1959 consultants' report as
The prevailing wage concept may work satisfactorily in
situations where wage rates are: determined by competitive
forces in the labor market," and there are so few Mexicans
that their presence does not upset this equilibrium. Actually,
however, the availability of a potential reserve of foreign
labor generally influences the wage levels in the area for
-crops on which Mexicans are usually employed, and on other
crops as well. Thus, Mexican rates are tied to domestic
wage levels, which, in turn, may be more or less stabilized
by the presence of Mexicans. Therefore, wage levels tend to
become fixed in areas and activities where Mexicans are
'The consultants concluded that prevailing wage determinations were
-generally recognized as meaningless in "dominated areas," or "areas
=and activities within areas in which the farm work force is preponder-
.antly Mexican national." They identified some of the heavily domi-
nated crops as "lettuce, citrus, melons, and carrots in parts of Arizona;
tomatoes, lettuce, citrus, starwberries, sugar beets, and melons in
-California; citrus fruit, beans, peppers, cucumbers, in parts of Texas;
-cotton in New Mexico; pickles and lettuce in Colorado; and sugar
beets in a number of States." 41 They made the following recommenda-
:tion regarding wages:
The Secretary should be authorized to establish wages for
Mexicans at no less than the prevailing domestic farm rate
,in the area or in the closest similar area for like work; and
no less than a rate necessary to avoid adverse effect on
domestic wage rates.42
The consultants also concluded that "one of the reasons that short-
ages of labor cannot be filled by American workers is that conditions
oof employment are less satisfactory than those offered foreign
workers," 43 specifically in the areas of transportation, housing, insur-
ance, and guarantees relating to work, wages, and employer per-
formance. At that time, for instance, foreign workers were guaranteed
a minimum wage based on the prevailing wage in the area of employ-
ment as determined by the local employment office. Domestic agri-
,cultural workers, in contrast, were not protected by a contract
minimum or by the wage and hour provisions of the Fair Labor Stand-
ards Act; State minimum wage laws were applicable to all agricultural
workers only in Alaska, Hawaii, and Puerto Rico.44 It was also found
that an insufficient effort was made to recruit domestic workers by
:some employers of foreign labor. The following recommendations were
:addressed to the general issue of recruitment and availability of U.S.
A4 Mexican Farm Labor Program, Consultants' Report (1959; Senate Hearings, 1961), p. 273.
'41 Ibid., p. 274.
42 Tbid., p. 283.
43 Tbid., p. 276.
*4 Ibid., p. 277,
Sections 503(1) and 503(3) of P.L. 78, both of which relate
to the availability of domestic labor, should be combined.
The test of availability of domestic labor, which must be
made before the use of foreign workers may be authorized,.
should be clarified and strengthened. The Law should clearly
stipulate that the primary responsibility for the recruitment
of domestic workers rests with the employer himself. The
Law should direct the Secretary of Labor not to certify as
to the unavailability of domestic labor unless: (a) employers.
have undertaken positive and direct recruitment efforts in
addition to the efforts of the public employment offices. Such
efforts should be made sufficiently in advance of the need.
They might include, but not be restricted to, publicizing-
needs, participation in day-hauls, providing adequate housing
and transportation; (b) employment conditions offered are
equivalent to those provided by other employers in the area.
who successfully recruit and retain domestic workers; (c)
domestic workers are provided benefits which are equivalent
to those given Mexican nationals, i.e., transportation, hous-
ing, insurance, subsistence, employment guarantees, etc.;
(d) employers of Mexican nationals offer and pay domestic
workers in their employment, no less than the wage rate paid
to Mexican labor.45
The consultants also recommended that "the legislation should'
clearly confine the use of Mexicans to necessary crops in temporary
labor shortage situations and to unskilled, non-machine jobs." 4 In
fact, the use of braceros was not statutorily limited at that time to
seasonal occupations or in terms of skills. However, according to the
consultants' report, "the history and background of this program indi-
cate that it generally was considered to be for the purpose of meeting
emergency needs." 4 They found that 20,000 braceros were employed
on a permanent basis; that thousands were engaged in skilled and semi-
skilled jobs; and that "more than 60 percent of all Mexicans employed
at peak work in crops which are in surplus supply." 48
The consultants also addressed the issue of international relations.
They found that, "all things considered," Mexico probably "would
regret and possibly resent the termination of the program in 1961,"
which "could have an adverse effect on relations between Mexico and
the United States." 49 Also under the heading of international rela-
tions, they considered "the possibility of a large scale recurrence of-
'wetbacks' if Public Law 78 is not renewed." Further:
Such a development would be unfortunate for our own
domestic workers, for the wetbacks themselves, and for the
two governments involved. Still another possibility, if Public
Law 78 were to be terminated, would be the recruitment of
Mexicans under Public Law 414, the "Immigration and
Nationality Act" but under procedures and conditions less:
desirable than Public Law 78.50
45 Ibid., pp. 282-283.
8 Ibid., p. 282.
47 Ibid., p. 272.
s Ibid., pp. 272-273.
Ibid., p. 280.
SIbid., p. 280.
The first possibility became a reality, but the second one most
definitely did not. These international considerations did not, in the
opinion of the consultants, "constitute a conclusive argument in favor
of extending Public Law 78. The Congress of the United States
should assess the Mexican farm labor program on its own merits and
in terms of its impact on the agricultural economy and the labor
force of the U.S." 61
The consultants somewhat reluctantly recommended an extension
of Public Law 78 on a temporary basis, "conditioned on its being sub-
stantially amended so as to prevent adverse effect, ensure utilization
of the domestic work force, and limit the use of Mexicans to unskilled
seasonal jobs." 52 A number of their specific recommendations intended
to accomplish these goals have been noted above. They also recom-
mended that certain steps be taken to improve the Labor Depart-
ment's administration of the program.
(2) Program extensions, 1960-63
Public Law 78, the legislative basis for the Mexican bracero pro-
gram, was extended for 6 months without amendment in 1960; for 2
years with amendments in 1961; and for 1 year without amendment
in 1963 until December 31, 1964. At that point, it was allowed to
lapse without a further effort to extend it. International agreements
were renegotiated by Mexico and the United States with comparative
ease throughout this period. A State Department representative
testified at 1960 House Agriculture Committee hearings that, after
some "sharp differences," the two countries had gradually succeeded
in reaching a "harmonious relationship" in dealing with the bracero
The opposite situation prevailed in Congress. Commenting generally
on the ongoing liberal-conservative battle over the bracero program,
James Creagan wrote:
Positions concerning continuance and modification of
Public Law 78 became involved in the liberal-conservative
struggle in Congress. Liberals wished a swift end to the pro-
gram or at least sweeping changes which would extend a wide
range of benefits to domestic workers through use of this
program. Conservatives, ever wary of increased administra-
tive controls over farming or the country in general, desired
simple extension without restrictions and modifications.65
By 1960, supporters of the bracero program were increasingly
angered by Secretary of Labor Mitchell's efforts to tighten its adminis-
tration. On the other hand, opponents of the program, including
Mexican-Americans, welfare groups and the powerful AFL-CIO,
were gaining in strength and congressional representation.
An unsuccessful effort was made in 1960 by the program's congres--
sional supporters to divide jurisdiction for the program between the
Departments of Labor and Agriculture in an attempt to counteract
what was seen as the Secretary of Labor's increasingly restrictive
administration. A related amendment to legislation extending the
52 Ibid., p. 282.
5J U.S. Congress. House. Committee on Agriculture. Extension of the Mexican Farm Labor Program,
Hearings, 86th Cong., 2d sess., 1960, pp. 400-401.
N Creagan, James F. Public Law 78: A Tangle of Domestic and International Relations. Journal of Inter-
American Studies, v. 7, October 1965, pp. 550-551.
program would have prohibited the Secretary of Labor from issuing
regulations, such as those issued November 20, 1959,55 setting pre-
vailing wages and minimum working conditions for domestic workers
recruited through the Department of Labor's Farm Placement
'Service. The final bill included no amendments, but it extended the
.program for only 6 months, as opposed to the 2 years sought by the
In 1961 the Kennedy administration backed fairly extensive amend-
ments to Public Law 78 intended to strengthen the protection of
-domestic workers. In terms similar to those used by the 1959 con-
Tsultants' committee, the Kennedy administration 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 Secretary 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
braceross themselves. Quoting Secretary Goldberg:
And what happens there is that the wage level, which we
have been able to fix since the standard was adopted, has re-
mained 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."
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 function-was adopted. However, an amendment requiring
that the wages offered braceros be based on 90 percent of the statewide
'or national average, in order to afford protection to "bracero-domi-
nated areas," passed the Senate by a vote of 40-42 and was dropped in
conference. As noted below, a related measure was adopted administra-
tively the following year. The 1961 legislation extended Public Law 78
through December 31, 1963, and contained the last substantive
amendments made to this legislation.
President John F. Kennedy indicated in October 1961 that he was
signing the legislation extending the bracero program through
December 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 condone
it. Therefore, I sign this bill with the assurance that the Sec-
retary of Labor will, by every means at his disposal, use the
65 24 F.R. 9367-9368.
U.S. Senate. Committee on Agriculture and Forestry. Extension of Mexican Farm Labor Program.
Hearings, 87th Cong., 1st sess., 1961, p. 230.
authority vested in him under the law to prescribe the stand-
ards and to make the determinations essential for the pro-
tection of the wages and working conditions of domestic
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. Adverse-effect rates were the minimum wage
rates which the Department of Labor determined had to be offered and
paid by the employers of temporary alien agricultural workers in order
to prevent their employment from having an adverse effect on the
wages of U.S. workers who were similarly employed.
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 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.
An unamended 1-year extension of the bracero program-the last--
was enacted in 1963. This was the final outcome of a long and compli-
cated struggle between those in favor of extending the program and
those who wanted to either end it outright, or to extend it with amend-
ments which in the opinion of its supporters would have had the same
effect as termination.
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 extension
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 legisla-
tive alternatives presented to the proponents of the bracero program
were quite limited. They were essentially given their choice of a
1-year 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. No attempt was
made by the Congress to extend the bracero program beyond the end of
1964 and no serious attempt has been made since then to revive it.
During the last extension battle in 1963, the State Department was
the program's most enthusiastic supporter within the Kennedy ad-
ministration. A State Department representative, Mr. Robert Sayre,.
Acting Director of the Office of Carribean and Mexican Affairs, testi-
fied before a subcommittee of the House Committee on Agriculture
that the State Department favored extension of Public Law 78 "at
least for a year beyond the present date of expiration." 58 He indicated
6a Quoted in S. Rept. 391, 88th Cong., 1st sess., 1963, p. 13.
U.S. House. Committee on Agriculture. Mexican Farm Labor Program. Hearings, 88th Cong., lst
sess., March 1963, p. 40.
-that "the program has been beneficial to Mexico; and, therefore, from
-our point of view, the continuation of the program is desirable." 59
However, he emphasized the State Department's deferral to the De-
partment of Labor and "other interested departments," noting that
"this is essentially a domestic matter." 60
During his discussion of international considerations relating to the
bracero program, Mr. Sayre stressed the importance of the duly nego-
tiated government-to-government agreement, the "importance of the
,program to the economy of Mexico," and the fact that "the program
also provides an important source of temporary employment for
many thousands of Mexican workers." Further:
The Department of State does not cite these economic
factors as reasons for indefinite continuation of a program.
Both Governments recognize the program as a temporary one.
The Mexican Government naturally desires to have its citi-
zens contribute directly to the development of the country
rather than indirectly through the remittance of wages. It
is trying vigorously to provide employment for all of its
people. Under the Alliance for Progress we are seeking to
help Mexico achieve that objective. The loan of $20 million
in 1962 to spur agricultural production through the provi-
sions of adequate credit to small farmers was made with this
objective in mind. The International and Inter-American
Bank have made other loans which contribute to the same
But, I would also want to note that the sudden loss of the
dollar income of Mexican workers would be a serious blow to
their family income and constitute a significant loss of foreign
exchange to Mexico.6
Mr. Sayre was asked whether "there are now and have been for some
time many Mexicans who desired to come to this country to work, that
they will come in, if possible in any one of three ways. One, under our
Public Law 78 program, or by visa, or illegally?" 62 He responded,
"the number of visa applicants and the number of people desiring to
come in under this program would indicate that the answer to your
question would, probably, be affirmative." Earlier, in his prepared
statement, Mr. Sayre had indicated that the number of jobs available
under the bracero program was exceeded by the number of Mexican
workers seeking employment with it, and that many of them then
sought entry as immigrants. He indicated that the pending applica-
tions for immigrant visas at the consular offices in Mexico had in-
creased from 63,475 at the end of 1961 to 140,511 at the end of 1962.63
This was during a period when the number of admissions under the
bracero program was decreasing.
In response to a request for comments on pending legislation, As-
sistant Secretary of State Frederick G. Dutton indicated in a letter
dated August 13, 1963, that the Department of Labor was "primarily
responsible for formulating the position of the executive branch" on
the bracero program, and that the Department of State supported the
5 Ibid., p. 45.
'61 Ibid., pp. 39-40.
'" Ibid., p. 41.
43Ibid., p. 39.
'Secretary of Labor's recommendation that the program be extended
for a year with an amendment. Assistant Secretary Dutton noted
As long as in the opinion of the Department of Labor,
Other interested departments, and the Congress, it is desirable
Sto recruit Mexican workers for agricultural employment in the
1United States, it is the view of the Department of State that,
Sin the interests of good relations with Mexico and our interna-
Stional responsibilities, such recruitment should continue to be
Carried on under the provisions of P.L. 78 and the complemen-
tary intergovernmental agreement with Mexico. This view is
also shared by the Government of Mexico, as evidenced by a
recent note from the Mexican Ambassador, a translation of
which is attached for your information.6"
The note referred to, expressing the views of the Government of
Mexico was dated June 21, 1963, and had previously been inserted in
1the Congressional Record in its entirety by Senator William Ful-
bright.65 It consisted of a lengthy, strong protest of the House defeat
of a 2-year extension of Public Law 78. Quoting from the opening
,of the statement:
The Government of Mexico considers that there would be
no call for any observation whatever concerning the aforesaid
action, had the need for Mexican labor that has existed for a
number of years among the farmers in various parts of the
United States disappeared, or if systems other than those
used so far were available to meet that need. It is not to be
Expected that the termination of an international agreement
governing and regulating the rendering of service by Mexican
workers in the United States will put an end to that type of
seasonal migration. The aforesaid agreement is not the cause
of that migration; it is the effect or result of the migratory
phenomenon. Therefore, the absence of an agreement would
not end the problem but rather would give rise to a de facto
situation: the illegal introduction of Mexican workers into
the United States, which would be extremely prejudicial to
the illegal workers and, as experience has shown, would also
unfavorably affect American workers, which is precisely
what the legislators of the United States are trying to
'The Mexican Ambassador also noted that in past discussions of
phasing out the bracero program, Mexican representatives had re-
quested that it be done gradually in order to allow Mexico the oppor-
tunity to reabsorb the workers. Approximately 200,000 would be out
of work if the contracting stopped at the beginning of 1964.67
This action by the Mexican Government played a major role in the
decision by Congress to extend the bracero program for an additional
year in 1963 to allow for a more gradual phasedown. According to
.Richard Craig, it was probably the deciding factor:
:*4 House Rept. 722, 88th Cong., 1st sess., 1963, p. 6.
** Congressional Record, vol. 109, Aug. 15, 1963: 15203-15204.
56 Ibid. Also reprinted in Kiser and Kiser, eds., Mexican Workers in the United States, Albuquerque,
University of New Mexico press, 1979, pp. 120-121. (Further citations are to Letter from the Mexican Ambas-
sador, 1963; Kiser (1979).)
SIbid., p. 122.
On May 29, 1963, when the House of Representatives voted
not to extend Public Law 78, it appeared that the bracero
program would end as of December 31, 1963. At this stage,
however, a fundamental change occurred in the long-held
Mexican attitude of official ambivalence toward bracero
contracting. Analysis of President Kennedy's remarks in
signing the 1961 extension of Public Law 78 revealed the
presence of subtle, behind-the-scenes Mexican pressure in
favor of prolongation. There was nothing subtle in the Mexi-
can action of June 1963. Combined with pressure from
domestic growers, the Mexican stance of 1963 ensured the
bracero program an additional year's longevity. Had it not.
been for its diplomatic ramifications, the bracero program
would not have been extended beyond 1963, and perhaps
not beyond 1961.68
(3) Summary of major issues
The letter of June 21, 1963, from the Mexican Ambassador pro-
testing the apparently imminent termination of the bracero program
is of particular interest because of the light it sheds on the Mexican
view of perhaps the three major issues raised by the bracero program
during its lengthy and controversial history. These were its impact on
domestic workers, discrimination against the imported workers, and
illegal immigration. The following is a brief summary of the Mexican
view, as presented by its Ambassador in mid-1963, as well as other
views of these basic issues.
Regarding the issue of the impact of the imported workers on the
domestic workforce, the Mexican Ambassador argued that far from
harming domestic workers, the wages and working conditions required
for the braceros had set a beneficial pattern for U.S. workers. The
argument that the presence of the braceros benefited rather than
adversely affected domestic workers is, of course, debatable, as docu-
mented in 1951 by President Truman's Commission on Migratory
Labor and in 1959 by the consultants' committee appointed by the
Secretary of Labor.
The Mexican Ambassador wrote that, "The benefits granted the
contracted braceros, in the matter of insurance covering occupational
accidents and illness, the extremely careful regulations on lodgings and
transportation, and the constant inspection of food have provided a
pattern that can be followed for domestic workers who lack such
protection." 69 To the extent that this is true, it recalls the angry
charge of the Truman Commission in 1951 "that it has been the
negotiators for foreign governments, notably of Mexico, rather than
our own representatives, who have secured reasonable limitation of
numbers and some protection to labor standards. While their motive
is primarily to protect the standards of their own nationals working
in the United States, the effect of their concern, fortunately, is also
to help sustain the tenets of American policy." 70
The Mexican Ambassador was also sanguine regarding the issue of
discrimination against the imported workers, one of the most difficult
problems afflicting the Mexican farm labor program during the 1940's..
Quoting from his letter:
8 Craig (1971), pp. 195-196.
60 Letter from the Mexican Ambassador, 1963; Kiser (1979). p. 122.
7o Report of the President's Commission on Migratory Labor, 1951, p. 64.
The virtual extinction of discrimination against and segre-
gation of persons of Mexican nationality in areas of the
United States where such practices once existed can de-
ecisively be attributed to the contracting of Mexican workers
under international agreements. The need for labor which
,only the Mexican could supply but which was not authorized
ifor localities where special schools were maintained for
.Mexicans, or where they were segregated in restaurants,
theaters, etc., and discriminated against in respect of wages,
,etc., led the authorities concerned to put an end to that
There is no doubt that this has been a firm foundation
for the good relations between the peoples of the two
-As with the impact of the bracero program on domestic workers,
its impact on Mexican workers in terms of reducing discrimination is
also the subject of disagreement. Writing many years later, Jorge
Bustamante claimed that, "The history of the Bracero program did
not accomplish one of the goals as conceived by the Mexican govern-
2ment, namely, eliminating discrimination and exploitation of the
Mexican worker." r2
In the opinion of the Mexican Ambassador, the most important
issue was that of illegal migration. He saw the resurgence of this
problem as virtually inevitable if the bracero program were termi-
nated, and he saw it as posing a far greater threat to the welfare of
both U.S. and Mexican workers than did the legal program. Thus, he
It was precisely the presence of the wetbackss" in the
fields of the United States that created a situation unde-
sirable from every standpoint, since those persons have not
even the most elementary kind of protection and were the
victims of exploitation with respect to wages, because they
were forced to accept whatever pay was offered to them, and
domestic workers were unable to compete and found them-
selves compelled to move to other areas. The lack of an
agreement to facilitate contracting as long as there is a
:shortage of farm labor, which the Mexican workers have
:been covering, would tend to bring about a return to that
Apprehension of illegal entrants began mounting steadily with the
-termination of the bracero program in the mid-1960's as shown in
table 3. Quoting from the INS 1970 annual report:
Since the expiration of the Mexican Agriculture Act on
December 31, 1964, the number of deportable aliens located
has continued an upward climb. For the 6-year period,
FY 1965 through FY 1970, 71 percent of the 1,251,466
total deportable aliens located were of Mexican nationality.
Year by year, the annual percentage of this nationality group
has risen, from 50 percent in 1965 to 80 percent this year.7
71 Letter from the Mexican Ambassador, 1963; Kiser (1979), p. 123.
72 Bustamante, Jorge A. Commodity-Migrants: Structural Analysis of Mexican Immigration to the
United States. Stanley R. Ross, ed. Views Across the Border. Albuquerqu3, University of New Mexico
]press, 1978; p. 195.
7e Letter from the Mexican Ambassador, 1963; Kiser (1979), pp. 122-123.
74 U.S. Department of Justice. Annual Report of the Immigration and Naturalization Service, 1970, p. 11.
The patterns of employment which grew up during the bracero.
period, as well as the elimination of the legal channels for temporary
employment provided by the program, are viewed by many as sig-
nificant factors in the current illegal migration problem. On the other
hand, Vernon Briggs notes that the extent of the causal relationship.
can be overdrawn:
Paralleling the bracero years during the 1950's and early
1960's and following them since 1964 has been the mammoth
flow of illegal Mexicans. Undoubtedly, many of these illegal
aliens were former braceros. They had been attracted to the
Mexican border towns from the rural interior of central and
northern Mexico by the existence of the former contract
labor program. To this degree, there is some truth to the
proposition that the United States itself has created the
illegal alien problem. -By the same token, however, it is
simplistic to conclude that the problem would not eventually
have surfaced in the absence of the Bracero Program.5
History appears to indicate that the bracero program only served
to reduce illegal migration when it was combined with both a massive
law enforcement effort ("Operation Wetback") and an expansion of
the farm labor program to the point where it almost certainly had an
adverse impact on the wages and working conditions of domestic
workers in certain "dominated" areas and occupations. Whether or
not this impact could have been avoided by a more effective structur-
ing and administration of the program is a key question in any con-
sideration of a future expanded temporary alien worker program.
C. ADMISSION OF TEMPORARY WORKERS UNDER THE IMMIGRATION
AND NATIONALITY ACT
With the exception of the Mexican bracero workers, all other tem-
porary alien workers have been admitted under the terms of Public
Law 414, the Immigration and Nationality Act of 1952, as amended,'
since it went into effect on December 24, 1952. By definition, aliens
entering for the express purpose of performing temporary labor are
nonimmigrants, as opposed to immigrants, who are admitted per-
manently and are free to change occupations upon entry, even if they
entered under one of the occupational preferences.
1. THE H-2 TEMPORARY WORKER PROVISION
Although aliens entering under some of the other nonimmigrant.
classifications may also accept employment under specified conditions,
as discussed below, the temporary admission of most foreign workers
under the Immigration and Nationality Act is governed by section
101 (a) (15) (H) and section 214(c).
Section 101(a) (15)(H) is one of the 12 categories of nonimmigrants
defined by the Immigration and Nationality Act. It provides for the
entry of three subcategories of temporary workers, as follows: (i)
persons of distinguished merit and ability, (ii) other temporary
workers, and (iii) trainees. The second subcategory, the so-called H-2
75 Briggs, Vernon M. Labor Market Aspects of Mexican Migration to the United States in the 1970's. Ross,
Views Across the Border. University of New Mexico press, 1978, p. 207.
70 Public Law 414, 82d Cong.; 66 Stat. 163; 8 U.S.C. 1101 et seq.
provision, is the most frequently used and is the primary subject of
the following discussion. It reads 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 services or labor cannot be found in this
country, but this clause shall not apply to graduates of
medical schools coming to the United States to perform
services as members of the medical profession *
Section 214(c) authorizes the Attorney General to make determina-
tions regarding the importation of aliens under section 101 (a) (15) (H),
upon petition from the importing employers. "Consultation with
appropriate agencies of the Government" is also required. The:
statutory language, unamended since 1952, follows:
(c) 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 petition of the importing employer. Such petition shall
be made and approved before the visa is granted. The
petition shall be in such form and contain such informa-
tion as the Attorney General shall prescribe. The approval
of such a petition shall not, of itself, be construed as estab-
lishing that the alien is a nonimmigrant.
In the case of the H-2 worker, a reasonably formalized procedure
for Justice Department consultation with the Department of Labor
has been set forth with varying degrees of detail in the regulations
intermittently since 1953.77 The major Labor Department agencies
involved have been, successively, the U.S. Employment Service, the
Bureau of Employment Security, and the U.S. Employment Service
of the Manpower Administration and, currently, of the Employment
and Training Administration. At the local level, the State employment
service is affiliated with the U.S. Labor Department. The term "State
employment service" refers to a series of federally assisted public em-
ployment agencies in the States and territories established under the
provisions of the Wagner-Peyser Act of 1933.
According to the usual procedures now and in the past, the initial
action on the H-2 employer's application is made by the local office of
the State employment service. This includes a recommendation regard-
ing the availability or unavailability of domestic workers. This action
must be approved by the U.S. Labor Department, and may be over-
ruled by the Department of Justice, since the Attorney General has
final authority regarding the admission of H-2 workers.
Of the 46,675 "H" entries in fiscal year 1977, 15,702 were "H-l's",
27,760 were "H-2's", and 3,213 were "H-3's". Regarding countries
of origin in fiscal year 1977, the single largest number of H-2 entries
came from Jamaica-10,650, followed by 4,493 from Canada, and 2,070
from the Philippines'(see table 4). Mexican H-2 entries were 1,089 in
fiscal year 1978, up from 977 in fiscal year 1977, and 761 in fiscal year
77 For INS regulations promulgated Dec. 18, 1952, see 8 CFR 214h, U.S. Code Congressional and Ad-
ministrative News, 1953, pp. 2505-2507. For current regulations, see 8 CFR 214.2(h)(3) (INS, Department
of Justice) 1 and 20 CFR 655 and 20 CFR 621 (Employment and Training Administration, Department
TABLE 4.-TEMPORARY WORKERS ADMITTED UNDER SEC. 101(a)(15)(H), IMMIGRATION AND NATIONALITY ACT,
BY COUNTRY OR REGION OF LAST PERMANENT RESIDENCE,I YEARS ENDED SEPT. 30, 1977, AND JUNE 30, 1976
of distin- of distin-
guished Other guished Other
Country or region of last merit and temporary Industrial merit and temporary Industrial
permanent residence Total ability workers trainees Total ability workers trainees
(H(i)) (H(ii)) (H(iii)) (H(i)) (H(ii)) (H(iii))
All countries....---.... 46,675 15, 702 27, 760 3, 213 47, 387 14, 831 29, 778 2, 778
Europe ---- ---------- 9,114 6,490 1,155 1,469 8,817 6,480
Austria...- ....-- ...- 176 78 74 24 291 224 55 12
Belgium--.......---- .. 314 242 25 47 202 143 9 50
Denmark..._----------. 71 56 4 11 190 158 8 24
Finland-.. --------- 74 49 6 19 103 78 11 14
France --------- 809 560 84 165 600 318 137 145
Germany.------------- 972 702 37 233 918 694 29 195
Greece....-- .-------. 170 116 51 3 207 98 97 12
Ireland-..----. -----. 244 168 25 51 225 147 44 34
Italy. ------- 507 371 53 83 335 243 40 52
Netherlands ..------. 243 155 15 73 272 189 10 73
Norway --------------- 69 29 16 24 148 107 10 31
Poland --------------- 260 196 55 9 302 262 38 2
Portugal...-...------- 125 34 73 18 68 28 32 8
Spain --- ------- 536 343 169 24 573 396 144 33
Sweden...-----------. 232 156 19 57 331 253 17 61
Switzerland......----- 348 213 26 109 289 134 30 125
United Kingdom... .. --- 3,109 2,229 370 510 2,980 2,270 399 311
Yugoslavia...--- .----.. 164 121 40 3 170 135 32 3
Other Europe _.----.--. 691 672 13 6 e13 603 5 5
Asia. -- --------- 6,781 2,413 3,834 534 4,572 2,273 1,736 563
China and Taiwan....... 388 230 123 35 161 29 103 29
Hong Kong......------ 72 34 18 20 55 26 7 22
India ...---. -------. 266 194 61 11 227 178 30 19
Iran ---------- 44 11 13 20 21 2 7 12
Israel-----... ------. 303 166 90 47 265 142 96 27
Japan. ------- 1,000 322 505 173 1,088 375 421 292
Korea-...------- ------ 992 28 914 50 510 197 278 35
Lebanon............----- 41 13 10 18 40 9 18 13
Philippinesn..--------. 3,446 1,336 2,070 40 1,987 1,198 754 35
Thailand--------------- 11 7 --- 4 18 8 2 8
Turkey- ------- -34 15 14 5 55 48 1 6
Other Asia.-....------ 184 57 16 111 145 61 19 65
Africa-....- --------- 550 187 70 293 534 331 39 164
South Africa, Republic.of. 153 107 9 37 84 55 10 19
Other Afric....--------. 397 80 61 256 450 276 29 145
,Oceania--- ....... 512 282 63 167 461 178 163 120
Australia .......------ 313 185 22 106 248 133 46 69
New Zealand .------.. 114 43 21 50 90 33 19 38
Pacific Islands (U.S. ad-
minist ration).--- 12 -----. 2 10 12 -----. 1 11
Other Oceania ---. -- ---- 73 54 18 1 111 12 97 2
(North America...------.-- 28,323 5,506 22,283 534 31,713 4,887 26,2S0 546
Canada----.....-..-- 8, 629 3,883 4,493 253 8,992 2,879 5,848 265
Mexico..-----.. ---..2,011 904 977 130 1,746 871 761 114
Anuilla ..... --- 225 1 224 ------_..... ..................--------
Antigua.---- .. 1,201 13 1,187 1 1,737 19 1,718 ....--
Bahamas --------------- 65 13 26 26 25 8 5 12
Barbados.......------- 770 27 734 9 685 24 652 9
Bermuda ..------- 9 2 5 2 17 7 8 2
:British Virgin. islands_ ..._ 148 7 135 6 287 4 283 ..........
Dominica --------------- 295 10 285 ---------- 618 7 611 ..--
*Dominican Republic--..- 653 275 335 43 945 386 524 35
Haiti ----------. 40 12 28 ...---... 76 6 60 10
Jamaica...--...- ------- 10,796 139 10,650 7 9,591 245 9,325 21
Netherlands Antilles...- 50 7 43 .... .----. 77 14 63 ........
St. Christopher ------. 1,821. 52 .1,767 2 4,421 33 4,386 2
St. Lucia --- ------ 852. 1 851---------- 1,062 4 1,058......
Trinidad and Tpbago... 170 65 97 8 322 107 211 4
SBelize------------------ 5 2 3 14 1 13....
,Costa Rica.-------------- 56 15 27 14 90 9 41 40
See footnote at end of table.
TABLE 4.-TEMPORARY WORKERS ADMITTED UNDER SEC. 101(a)(15XH), IMMIGRATION AND NATIONALITY ACT,
!BY COUNTRY OR REGION OF LAST PERMANENT RESIDENCE,I YEARS ENDED SEPT. 30, 1977, AND JUNE 30, 1976-
of distin- of distin-
guished Other guished Other
(Country or region of last meritand temporary Industrial meritand temporary Industrial
permanent residence Total ability workers trainees Total ability workers trainees
(H(i)) (H(ii)) (H(iii)) (H(i)) (H(ii)) (H(iii))
El Salvador......--....-- 88 9 75 4 78 9 59 10
Guatemala. ......-...- 38 13 18 7 159 63 90 6
IHonduras-------------- 8 3 4 1 46 4 35 7
Nicaragua...----------. 44 8 32 4 32 11 16 5
Panama --------------- 79 25 45 9 208 166 40 2
Other North America.... 270 22 243 5 485 10 473 2
South America-...---------. 1,395 824 355 216 1,290 682 413 195
Argentina...----------. 206 150 17 39 263 194 34 35
Bolivia..----------------- 12 11 -----. 1 9 5 ---- 4
iBrazil.. -------. ------- 255 172 39 44 215 138 17 60
Chile--...----------.. 101 72 9 20 93 67 10 16
Colombia..............----- 256 144 88 24 204 73 101 30
'Ecuador.-------------- 89 32 44 13 64 5 53 6
Guyana.. ------------- 41 6 21 14 42 8 25 9
Peru..... .-----------. 136 88 37 11 195 121 59 15
Uruguay----------.. ----- 22 12 5 5 33 22 9 2
Venezuela--------------276 136 95 45 163 41 105 17
Other South America...-- 1 1 ....-------....... 9 8 ...... 1
1 Change in fiscal year occurred in 1977. Data for transition quarter, July 1 through Sept. 30, 1976, is printed in 1976
H-2's enter temporarily for jobs which are themselves temporary
in nature. Because they cannot be employed in jobs which are of an
ongoing nature, they are not surprisingly heavily concentrated in
seasonal agricultural activities and m show business and professional
sports. The single largest group of H-2's admitted in fiscal year 1977
were farm laborers-11,421.
These were followed by writers, artists, and entertainers (5,479), a
classification which, when combined with the H-1 entries (6,709),
outnumbered farmworkers. Other major occupational categories
accounting for H-2 entries in fiscal year 1977 were musicians and
composers (3,586), athletes (1,385), and lumbermen (1,121).
While the number of H-2 entries is not large, their impact tends to
be concentrated in certain areas and occupations-for instance, apple
picking on the east coast, sugar cane cutting in Florida, and con-
struction work in Guam. Quoting from a recent study:
The mass-admitted H-2 nonimmigrants are concentrated
in two clusters: the rural and island [Guam and the U.S.
Virgin Islands] workers, on one hand, and the entertainers
and athletes, on the other. The latter cluster, particularly
those in show business, is admitted at wages set by col-
lective bargaining and is of no particular concern to us.
The former cluster includes about 10,000 sugar cane
cutters, a smaller and overlapping group of Jamaican apple
pickers, the 1,000 or so Maine woodsmen (largely French-
Canadians), and about as many sheepherders (Basques
and Hispanics). It also includes a couple of thousand Asian
construction workers in Guam and roughly 7,000 natives
of the "down islands" working in the Virgin Islands.78
Many of the arguments about the impact of H-2's in the areas and
industries in which they are concentrated closely resemble those of
the bracero era. The employers argue that a genuine shortage of
domestic workers exists, which the Labor Department is often re-
luctant to acknowledge because of its institutional concern with
unemployment. On the other hand, critics of the H-2 provision and
its administration, particularly as it pertains to agricultural workers,.
argue that H-2 workers depress wages, cause some displacement of
resident workers due in part to employer preference, and result in an
inherently undemocratic two-class labor force.7" Regarding this latter
point, it has been observed that "the mass-admitted nonimmigrant
workers have the same general characteristics of the braceros of our
past and the European guest workers of today, in that they are legal
alien workers with some rights but with considerably fewer rights
than those of citizens and resident alien workers." s0
The major differences between the H-2 provision and the bracero
program are that the H-2 provision is a permanent part of the law,
not intended to meet a specific national manpower shortage; that the
numbers admitted under the provision have been significantly
smaller-27,760 H-2's in fiscal year 1977, compared to 436,049
braceros 20 years earlier in 1957; that, while it is limited to temporary
employment, it is not specifically limited to agricultural work; and
that it is not reinforced by international treaty, as was the bracero
Another significant difference has been that a relatively small num-
ber of Mexicans has been admitted under the H-2 provision; this is
despite the fact that, unlike Public Law 78, the H-2 provision has
no geographic restrictions. The limited number of Mexican H-2's has
been partly the result of administrative determinations by the U.S.
Labor Department, either that domestic workers have been available
in the areas and occupations for which Mexican workers have been
requested, or that employers have failed to meet the requirements of
the regulations governing the importation of H-2's. Thus, the decision
to admit Mexican onion pickers into Presidio, Tex., in June 1977,
reportedly at the urging of President Carter,8" was contrary to the
recommendation of the Labor Department.
Apart from the ongoin controversy which has surrounded the H-2
provision in recent years, particularly regarding the admission of
Jamaicans to pick apples on the east coast, the provision is of par-
ticular interest at this time because its expansion is one of the options
under consideration as an alternative to illegal migration for temporary
employment. While this option is considered in more detail subse-
quently, it should be noted at the outset that greatly increasing the
number of I--2 admissions would require fundamental changes in
both the assumptions which govern the admission of the workers, and
the administration of the provision. Thus, it is difficult to predict
from past experience what future experience under a significantly
78 North, David, and Allen Lebel. Manpower and Immigration Policies in the United States. Special
Report No. 20. Washington, National Commission for Manpower Policy, February 1978, p. 176.
7 E.g., ibid., pp. 174-184.
so Ibid., p. 179.
st Shabecoff, Philip. Mexican Workers Being Admitted After Reported Carter Intervention. New York
Times, June 21, 1977; p. 1, 13.
enlarged program would be likely to be because, by definition, it
would be a significantly different program.
A brief general discussion of the history of the H-2 provision and
of its operations under the current regulations is followed below by a
consideration of major programs which have operated under the
jurisdiction of the H-2 provision.
a. Overview: Legislative and administrative history of the H-2 provision
The H-2 provision evolved from a combination of the fourth and
ninth provisos to section 3 of the Immigration Act of 1917. Section
3 sets forth a list of inadmissible aliens, including contract laborers. The
fourth proviso authorized the Attorney General to grant waivers of
the exclusion clause regarding skilled contract laborers upon a finding
that "labor of like kind unemployed can not be found in-this country."
The ninth proviso allowed for a waiver of excludability for inadmis-
sible aliens, including contract laborers, for temporary entry, and was
the principal authority for the admission of agricultural worker during
the periods before and after the enactment of special legislation for
that purpose during World War II. Administrative procedures devel-
oped jointly in 1948 by the Commissioner of the Immigration and
Naturalization Service and the Director of the U.S. Employment
Service required that before such a waiver could be issued, the need
for the workers had to be investigated by INS and certified by the
U.S. Employment Service; and it had to be shown that their admis-
sion would not displace or otherwise detrimentally affect labor in
In 1950 the Senate Judiciary Committee considered temporary
agricultural workers in its comprehensive report entitled "The Immi-
gration and Naturalization Systems of the United States." The com-
mittee found "that the agricultural labor supply in the United States,
particularly 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 m
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 Naturaliza-
tion upon application by the interested employer before the
importation and after a full investigation of the facts and con-
sultation with appropriate agencies.83
This recommendation was essentially enacted into law as the H-2
provision of the Immigration and Nationality Act of 1952-and
remains in effect today-with the very important omission of the
Mexican agricultural labor program. Beginning in 1951 the Mexican
program was authorized by separate legislation, Public Law 78,
until its expiration on December 31, 1964.
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 ad-
mitting H-2 workers, thus following the pattern established during
the initial period of the temporary foreign labor programs, and after
a S. Rept. 1515, 81st Cong., 2d sess., 1950, p. 578.
' Ibid., p. 586.
1947.84 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 provision differed in this respect
from those governing the bracero program, under which the role of
the Labor Department was considerably more extensive. This differ-
ence was explained as follows by a Labor Department representative
during 1963 hearings:
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 com-
pliance 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."
According to the House Judiciary Committee report on the 1952
legislation, the purpose of the section 101(a) (15) (H) temporary
worker provision and section 214(c), which provides for its adminis-
tration by the Attorney General, was to "grant the Attorney General
sufficient authority to admit temporarily certain alien workers, indus-
trial, agricultural, or otherwise, for the purpose of alleviating labor
shortages as they exist or may develop in certain areas or certain
branches of American productive enterprises, particularly in periods
of intensified production." 8 While there have been a number of
attempts to amend the H-2 provision, to date it has been amended
only once since 1952, in 1976 by the addition of language relating to
foreign medical graduates. Additionally, an amendment to section
101(a) (15) (H) enacted in 1970 permits the entry of the "H" temporary
worker's spouse or minor children if they are accompanying him or
following to join him. A brief review of efforts to modify the H-2
The first such effort related to the administration of the H-2 provi-
sion and stemmed directly from the termination of the bracero pro-
gram. 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 Na-
tionality Act. During House hearings in 1963 an INS official, Mr.
84 Responsibility for H-2 advisory certification was specifically vested in the U.S. Labor Department
by regulation from 1953 until December 1954 (19 F.R. 9172), and from August 1964 (29 F.R. 11956) until the
present time (8 CFR 214.2(h)(3)). During the intervening 10-year period, INS regulations required that
H-2 petitions be filed on form I-129B, and instructions accompanying this form stated that it must be
accompanied by a copy of "a clearance order from the U.S. Employment Service concerning the availability
of like labor in the United States, and stating that Employment Service policies have been observed."
The statutory basis for the Labor Department's involvement is the requirement for consultation by the
Attorney General with appropriate agencies set forth in section 214(c) of the Immigration and Nationality
Act (8 U.S.C. 1184(c)).
85 U.S. Congress. House. Committee on the Judiciary. Study of Population and Immigration Problems.
Special Series No. 11. 1963, p. 2.
86 H. Rept. 1365, 82d Cong., 2d sess., 1952, pp. 44-45.
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." 87 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
Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H) and
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 the H-2 provision of Public Law 414. In his
statement accompanying the proposed regulations, Secretary Wirtz
The issuance of the new Regulations is essential to the or-
derly 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. 8
The regulations required that, as a prerequisite for requesting
foreign workers, employers must offer domestic workers wages which
were substantially higher than the wages employers previously 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, transpor-
tation, 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 con-
ditions in the highly seasonal agricultural industry." 90
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 intent
in ending the bracero program as a desire to reduce the country's
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 re-
quirement 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
87 U.S. Congress, House. Committee on Agriculture. Mexican Farm Labor Program. Hearings, 88th
Cong., 1st sess., 1963; p. 53.
88 S. Rent. 391, 88th Cong., 1st sess., 1963; p. 2.
88 U.S. Department of Labor. Year of transition: Seasonal farm labor 1965. A Report from the Secretary
of Labor , p. H-4.
I share your desire to have the maximum number of our
fellow citizens again fully employed who are now unem-
ployed, 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? 9'
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 request-
ing 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 un-
employment become a reality because we first let it become
a habit, and there has been now almost 7 years of unemploy-
ment over 5 percent. I think it is time we look again to see
what we can do to lick that problem. 2
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 Secre-
tary of Labor from refusing to extend certification for celery cutters
from April 30 to June 15, 1965, arguing that the Labor Department's
action 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 Secre-
tary of Labor, his subordinates and the agencies of the De-
partment 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 determina-
tions made by the Secretary of Labor in connection with such
matters are solely advisory and can be accepted or rejected
91 U.S. Congress. Senate. Committee on Agriculture and Forestry. Importation of Foreign Agricultural
Workers. 89th Cong., 1st sess., 1965, p. 69.
by the Attorney General in the exercise of his statutory au-
thority on this subject. The giving of such advice is not sub-
ject to injunction.
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 Humphrey.94
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." While there
was considerable discussion of the jurisdictional issues involved, in
terms of both Cabinet-level Departments and committee responsi-
bilities, many of the key issues were, as Senator Harrison Williams
noted, similar to those raised during the recent debates over the
bracero program."9 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
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
-expiration of Public Law 78.98 It was generally argued that the
:Secretary of Agriculture not only would be more sympathetic to
the needs of agriculture, but was also in a better position to gauge
those needs and evaluate them for the Attorney General. In defense
of the Secretary of Labor, Senator Muskie 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 au-
thority to the Department of Agriculture, stating "I do not think
it is administratively sound to place a labor supply and working
03 Quoted in Congressional Record, Sept. 13,1965: 23511. The case is summarized and discussed by Senator
:Spessard Holland on p. 23510.
4 Food and Agriculture Act of 1965. Congressional Record, Sept. 13, 1965: 23504-23530.
95 Ibid., p. 23509.
96 Ibid., p. 23515.
7 Ibid., p. 23509.
'0s Ibid., p. 23512.
condition question in the hands of the Secretary of Agriculture or any
department or agency head other than the Secretary of Labor." "
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.
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." 1 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.
Also in 1965 the AFL-CIO urged during hearings on the far-
reaching 1965 amendments to the Immigration and Nationality Act
that the amendments specify that immigrants be admitted only for
permanent jobs and not for jobs which were temporary or seasonal in
nature.2 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" (section
203(a)(6)). 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 two 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. How-
ever, the proposed amendment to section 214(c) was not accepted.
The House report on the 1965 amendments to the Immigration and
Nationality Act addressed the issue of foreign agricultural workers,.
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 temporary admission of laborers, shall not be
As the bill specifies, the committee has required the At-
torney General to submit reports on each preference immi-
grant admitted to the United States for the purpose of
"9 Ibid., p. 23529.
1 U.S. Congress. Senate. Select Committee on Small Business. Agricultural Labor Certification Pro-
grams and Small Business. Hearings, 95th Cong., 1st sess., 1977; p. 29. (Cited as Senate Select Committee
on Small Business hearings (1977).)
SU.S. Congress. House. Committee on the Judiciary. Immigration. Hearings, 89th Cong., 1st sess. on
H.R. 2580, 1965, p. 322.
SIbid., p. 323.
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.'
The Senate report on the 1965 amendments was silent on the subject
'of temporary agricultural labor, noting only that, "The bill specifically
provides that skilled or unskilled labor of a temporary or seasonal
nature is not to be entitled to any preference under the selection system
for the allocation of immigrant visas." B
Since 1965, legislative efforts have generally been in the direction
*of expanding rather than restricting eligibility under the H-2 tem-
porary worker provision, with the notable exception of legislation
enacted in 1976 specifically and almost completely barring foreign
medical graduates from entry under the H-2 classification.6 Several
bills introduced in the 91st Congress included amendments to the
Immigration and Nationality Act deleting the requirements that the
jobs for which H-1 and H-2 workers may be admitted must be them-
selves temporary in nature. While the amendment to the H-1 provision
was retained, the amendment to the H-2 provisions was not included
in the legislation enacted as Public Law 91-225.7 This legislation also
provided for the entry as H-4's of the spouses and minor children
,of "H" temporary workers.
An amendment providing for the temporary entry of alien workers
to fill permanent jobs was contained in section 2 of H.R. 981, 93rd
Congress, the Immigration and Nationality Act Amendments of 1973,
which passed the House on September 26, 1973. Section 2 of the House-
passed H.R. 981 read as follows:
SEC. 2. Section 101(a)(15)(h)(ii) of the Immigration and
Nationality Act (8 U.S.C. 1101(a) (15) (H) (ii) is amended to
read as follows: "(ii) who is coming temporarily to the United
States for a period not in excess of one year to perform other
services or labor if the Secretary of Labor has determined that
there are not sufficient workers at the place to which the alien
is destined to perform such services or labor who are able,
willing, qualified, and available, and the employment of such
aliens will not adversely affect the wages and working con-
ditions of workers similarly employed: Provided, That the
Attorney General may, in his discretion, extend the terms of
such alien's admission for a period or periods not exceeding
No action was taken on the legislation by the Senate Judiciary
Committee, with the result that it died with the end of the 93d
Bills have been introduced in subsequent Congresses to expand the
H-2 provision and/or to expedite its administration, in some cases in
combination with penalties for the employment of aliens not legally
H. Rept. 745, 89th Cong., 1st sess., 1965, pp. 14-15.
SS. Rept. 748, 89th Cong., 1st sess., 1965, p. 16.
SHealth Professions Educational Assistance Act of 1976, Act of October 12, 1976; Public Law 94-484;
90 Stat. 2243.
7 Act of Apr. 7, 1970; Public Law 91-225; 84 Stat. 116.
entitled to work in the United States. This general proposal is con-
sidered below in the discussion of issues and options.
The history of the administration of the H-2 provision has been a
fairly turbulent one, particularly in recent years in reaction to rising
unemployment. The Labor Department has been alternatively accused
of certifying too few and too many alien workers.
In 1974 the Labor Department won a case of major importance,
Elton Orchards, Inc. v. Brennan." 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 expe-
rienced 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.9 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 statu-
tory structure designed to facilitate the employment of do-
mestic workers for seasonal agricultural labor, and to permit
the use of foreign nationals temporarily admitted to the
United States to work for a specific employer if do-
mestic workers are unavailable.'x
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."" A ke-y
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 preference 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 aliens be employed where-
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:
8 508 F. 2d 493 (1st Cir. 1974).
t Elton Orchards, Inc. v. Brennan, 382 F. Supp. 1049 (D. N.H. 1974).
i0 508 F. 2d 493, 495 (1st Cir. 1974).
11 U.S. Congress. House. Committee on Education and Labor. Oversight Hearings on Department ot
Labor Certification of the Use of Offshore Labor. 94th Cong., 1st sess., 1975, p. o. (Cited as House Educa-
tion and Labor hearings (1975).)
,S N FP2. 4,93, ,W0 (Lt Cir. 1974),
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 domes-
tic workers who can do the work. With American unemploy-
ment at 7.0 percent, it is unrealistic to apply intri-
cate standards of quality in making the decision whether to
import foreign workers.3
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. A major issue raised during the hear-
ings 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? 1
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 availability
of workers who are qualified, willing, and able at the time and place
the work is to be performed." '"
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."
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 indicated, "the requirements for unemploy-
ment compensation don't require a person to leave his home to get
a job;" local workers, however, would be disqualified from unemploy-
ment compensation if they refused a job. He also noted that raising
the salary wasn't the answer to attracting local workers-the average
hourly rate for apple picking in the area of Virginia under discussion
was $3.94, but "there are just not too many local people left there
who are not working in agriculture." 17 In general, considerable con-
troversy and confusion have surrounded the wage issue in recent
'3 Remarks before the Annual Meeting of the International Apple Institute, Hilton Head, South Caro.
ina, Nov. 17, 1977. U.S. Department of Labor news, pp. 3-4.
'4 house Education and Labor hearings (1975), p. 10.
l Ibid., p. 78.
17 Ibid., p. 80.
years, both for apples (bushel versus hourly rates) 18 and for sugar
Mr. Perry also testified that domestic farm labor crew leaders
wouldn't go to the Winchester area because "they don't like big camps.
They prefer the smaller camps." 20 Earlier in the hearing, however,
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, apparently because of the
known preference of the employers for foreign workers.2
More recently, the H-2 provision and its administration have re-
ceived increasing attention in the context of illegal migration. On
August 4, 1977, President Jimmy Carter announced his program for
the control of undocumented aliens. The major provisions in legisla-
tion (S. 2252/H.R. 9531) subsequently introduced at the request of
the administration related to the permanent and temporary adjust-
ment of status of certain aliens illegally present 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 undocumented 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:
I believe it is possible to structure this program so that
it responds to the legitimate needs of both employees, by
protecting domestic employment opportunities, and of
employers, by providing a needed workforce. However, I am
not considering the reintroduction of a bracero-type program
for the importation of temporary workers.22
The administration bill did not receive congressional action beyond
hearings by the Senate Judiciary Committee during the 95th Congress.
Related legislation establishing penalties for the employment of un-
documented aliens introduced on the House side did not reach the
hearing stage, although similar bills had passed the House in the
92d and 93d Congresses, and been reported by the House Judiciary
Committee in the 94th Congress.
However, the possibility of the elimination of undocumented aliens
as a fairly dependable source of labor was a matter of serious concern
to some employers during this period, particularly in the area of
agriculture. In mid-December 1977 the Senate Select Committee on
Small Business held 2 days of hearings on agricultural labor certifica-
tion programs, under the acting chairmanship of Senator Robert
Packwood (R.-Oreg.). Among other issues relating to legal temporary
workers, the hearings focused on the feasibility of an expanded legal
temporary worker program as an alternative to illegal entrants,
particularly in the context of the Labor Department's less than
enthusiastic attitude toward the foreign worker program.
Is E.g., see U.S. Comptroller General of the United States. Letter report to Hon. James Cleveland,
B-177486, Feb. 6, 1976, regarding the labor certification of foreign workers for New Hampshire's 1974 apple
harvest, pp. 5-6, 10.
10 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. These were Florida Sugar Cane League, Inc. v. Usery, 531
F. 2d 299 (5th Cir. 1976); and Williams v. Usery, 531 F. 2d 305 (5th Cir. 1976).
20 House Education and Labor hearings (1975), p. 81.
"t Ibid., pp. 13-14.
22 Undocumented aliens. H. Doc. 95-202, 95th Cong., 1st sess., 1977, p. 6.
Regarding the existing situation on the west coast, Senator
Packwood reacted with some skepticism to the statement by William
B. Lewis, Administrator of the Labor Department's U.S. Employ-
ment Service, that "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."23 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
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 enforcing the laws, it was a practical
solution to a problem that exists. That is a problem that
cannot be allowed to continue.24
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 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 *.25
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 legisla-
tion prohibiting the employment of undocumented 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. Legisla-
tion has been introduced to do just that and we urge your
endorsement of it." 26
In general, the witnesses testifying at these hearings were divided
between those who supported the Labor Department's fairly restric-
tive administration of the H-2 program, and those opposed to it.
An expansion of the existing temporary worker program was strongly
23 Senate Select Committee on Small Business hearings (1977), p. 28.
'4 Ibid., p. 29.
25 Ibid., p. 86.
20 Ibid., p. 48.
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 hazard-
ous. 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 on 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.27
He argued that current wages, particularly in migratory agricultural
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.28
Mr. C. H. Fields, the assistant director of the American Farm
Bureau Federation, summed up what he saw to be the incorrect
assumptions on which the current restrictive attitude of the Labor
Department was based, as follows:
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
2. Growers prefer to hire foreign workers because they are
more tractable, more appreciative of a lower wage, and less
likely to be interested in forming or joining labor unions.
3. A considerable portion of the millions of people on wel-
fare or on unemployment compensation could and would per-
form 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 har-
vested 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 temporary basis.30
In January 1977, the Department of Labor had proposed an ex-
tensive revision in the regulations governing the temporary employ-
ment of alien agricultural and logging workers in the United States.3
The proposed regulations were generally more restrictive and proved
to be highly controversial. The Labor Department reported that
approximately 170 individuals and organizations testified at the
27 Ibid., p. 85.
2S Ibid., pp. 86-87.
2 Ibid., p. 98.
t 42 F.R. 467-4673 (Jan. 25, 1977).
public hearings held on the proposed regulations and/or submitted
written statements. Most of the response was negative, and the final
regulations differed in significant respects from the proposed ones.
The voluminous material received by the Department in response
to the proposed regulations was analyzed by a consulting firm under
contract to the Labor Department. Several recurring themes identified
in this analysis are of general interest. The first of these was the
relation perceived between illegal entrants and legal temporary
workers. It was noted that:
Many agricultural employers, particularly those in the
western states, apparently are looking toward the alien certi-
fication process as a future alternative to present use of
illegals in the event that employers are made legally respon-
sible for hiring illegals, or as they put it, if the supply of
illegals is cut off. Pointing to the decline of the seasonal agri-
cultural labor force, they are concerned that any tightening
up of the alien certification process may pose future
It was suggested that growers "would turn to illegals if the certi-
fication process were eliminated or phased out." The issue was seen
as being "particularly significant for the east coast apple growers who
must compete for the apple market with west coast growers." Quoting
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.33
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." '3 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 definition
are apt to be non-agricultural jobs, and the goal of improved service
to employers-presumably agricultural employers."35
In other comments, the conditions imposed by the U.S. Employ-
ment Service 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 alleged
inability of U.S. Employment Service 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." 3
32 Ruttenberg, Friedman, Kilgallon, Gutchess and Assoc., Inc. Letter report to Mr. Harold Kuptzin,
Department of Labor, Sept. 19, 1977, part II, p. 4.
33 Ibid., part V, p. 3.
3 Ibid., part V, p. 1.
:s Ibid., part V, p. 2.
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 alien agricultural and logging workers in
the United States.37 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." 38 This purpose underlies
both the extensive reorganization of the regulations, as well as their
increase in length.
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 responsibilities. Second, and more signifi-
cantly, the procedures to be followed by both the Labor Department
and employers seeking temporary alien workers are specified in con-
siderably more detail than in the past. 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 con-
sideration during 1977 of the proposed regulations, and possibly, to
bills introduced in both the 94th and 95th Congresses to legislatively
mandate a more orderly H-2 certification process.
The administration of the H-2 provision, including a brief discus-
sion of the relevant regulations issued by both the Justice and Labor
Departments, is considered below.
b. Overview of H-2 operations
H-2 temporary workers are as closely linked to their employers as
were braceros. They are petitioned for by their prospective employers;
approval of the petition is automatically terminated in the event that
the employer dies, goes out of business, or files a written withdrawal
of the petition before the beneficiary arrives in the United States; 39
and in the event that an alien wishes to change employers, a new
petition must be submitted by the prospective new employer.40
The admission process is initiated by the employer, who files a
petition with the Attorney General, usually as represented by the
INS district director who has jurisdiction over the area where the
services are to be performed. The law requires approval by the At-
torney General, after consultation with the appropriate agencies,
which in practice has been limited to the Labor Department and takes
the form of labor certification. Regulations issued by INS require
that, "either a certification from the Secretary of Labor or his desig-
nated representative 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 condition of workers in the
United States similarly employed, or a notice that such a certification
cannot be made, shall be attached to every nonimmigrant visa petition
to accord an alien a classification under section 101 () (15) (H) (ii) of
the Act." 41
8 43 F.R. 10306 (Mar. 10, 1977).
s9 8 CFR 214.2(h)(8) (Jan. 1, 1979).
o0 8 CFR 214.2(h)(1) (Jan. 1, 1979).
418 CFR 214.2(h)(3) (Jan. 1, 1979).
The Department of Labor's Employment and Training Adminis-
tration, in turn, has issued regulations governing the labor certifica-
tion process.42 The H-2 petitioning employer is required to file an
application for labor certification with the local office of the State
Employment Service, which reports its findings to the regional office
of the U.S. Department of Labor's Employment and Training Ad-
ministration (ETA). The final decision on certification is made by
Detailed requirements are set forth in the regulations pertaining to
the labor certification process for temporary agricultural and logging
employment.43 The application for certification submitted to the local
office of the State Employment Service is required to include a job
offer for U.S. workers and to meet specified standards regarding wages,
working conditions, housing, transportation, and workers' rights and
benefits. Quoting from the preamble to the regulations, "In short, the
regulations provide, with respect not only to transportation and sub-
sistence costs but also with respect to all wages, benefits, and working
conditions, 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 workers." 4
Adverse effect rates for agricultural and logging employment in
certain States are published annually by the Labor Department, most
recently on June 5, 1979.45 "Adverse effect rates" are defined in the
regulations as the-
wage rate which the Administrator has determined must be
offered and paid to foreign and U.S. workers for a particular
occupation and/or area so that the wages of similarly em-
ployed U.S. workers will not be adversely affected. The Ad-
ministrator may determine that the prevailing wage rate in
the area and/or occupation is the adverse effect rate, if the
use (or non-use) of aliens has not depressed the wages of
similarly employed U.S. workers. The Administrator may
determine that a wage rate higher than the prevailing wage
rate is the adverse effect rate if the Administrator determines
that the use of aliens has depressed the wages of similarly em-
ployed U.S. workers.4"
Adverse effect wage rates for agricultural employment were pub-
lished for 11 eastern seaboard States in 1979, reflecting the past dis-
tribution of H-2 agricultural workers. In addition, adverse effect
wage rates were published for Arizona, Colorado, and Texas in 1979.47
The regulations governing the admission of H-2 agricultural workers
may be interpreted as a belated battle won by those who argued during
the bracero years, first, that domestic workers should be guaranteed
the same benefits as those guaranteed the Mexican foreign workers.
by the international treaties and individual contracts; and, second,
42 20 CFR 621, Certification of temporary foreign labor for occupations other than agriculture and logging;
20 CFR 655, Labor certification process for the temporary employment of aliens in the United States (Apr. 1,
43 20 CFR 655.200 (Apr. 1, 1979).
44 43 F.R. 10308 (Mar. 10, 1979).
45 44 F.R. 32306-7 (June 5, 1979).
4 20 CFR 655.200(b) (Apr. 1, 1979).
4 44 F.R. 59891 (Oct. 16, 1979).
that the requirement that foreign workers be paid the prevailing
wage provided no protection to domestic workers in areas and oc-
cupations so dominated by foreign workers that their wage became
the prevailing wage. As such, the regulations derive directly from those
issued by Secretary of Labor Wirtz in December 1964 which were
specifically intended not only to prevent the resurfacing of the bracero
program under the authority of Public Law 414, but also to decrease
and perhaps end the dependence of U.S. employers on foreign labor,
in part by raising the cost of using them. On the other hand, it should
be noted that employers of H-2 agricultural workers are exempted
from paying social security and unemployment taxes, which lowers
the cost of their employment compared to domestic workers.
Petitions for the issuance of H-2 nonimmigrant visas and the ac-
companying labor certification are filed with INS. Although the role
of the Labor Department is advisory, and the Attorney General is
required by law to make the final determination, INS "will in most
cases abide by the decision of the Labor Department." 48
In the event that the petition is granted, it is transmitted to the
consul for the issuance of a visa. If a time period is specified in the
labor certification, the validity of the visa petition cannot exceed
that time period. In the event that no time period is specified, the
visa petition is valid for 1 year from the date of the labor certification."9
Extensions may be requested in increments of 1 year each, not ex-
ceeding 3 years of uninterrupted stay. Each request for an extension
must be accompanied by a labor certification.5
c. Special H-2 programs
A number of individual programs with more or less special proce-
dures and, in some cases, problems, operate under the authority of
the H-2 provision. The most significant of these in terms of numbers
is the so-called BWI program." "BWI" refers to the British West
Indies, although by now some of the participating islands, notably
Jamaica, have become independent. Controls on the BWI workers are
administered by the INS office in West Palm Beach, Fla.52
Like the Mexican bracero program, the BWI program originated in
response to the labor shortage resulting from World War II. Then as
now, the BWI workers were primarily employed on the east coast,
where they had certain advantages over the Mexicans as a supple-
mentary labor force. 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 workers.
Finally, quoting from Rasmussen, "even if the barriers of transporta-
tion and language had not existed there still was the fact that Mexico
,s Gordon, Charles. and Rosenfield, Harry N. Immigration Law and Procedure, rev. ed., v. 1. New
York, Matthew Bender. 1979, p. 2-114.
9 8 CFR 214.2(h)(7) (Jan. 1, 1979).
0s 8 CFR 214.2(h)(l1) (Jan. 1, 1979).
1 See U.S. Congress. Senate. Committee on the Judiciary. The West Indies (BWI) Alien Labor Pro-
gram: 1943-77. 95th Cong., 2d sess. [Committee print], 1978.
52 INS Operating Instructions 214.2(h) (2) (v).
limited the number of workers that could be made available and there
'were too few to meet the demands of the Southwest." 3
The governments of the offshore islands from which the BWI
"workers come have traditionally taken an active interest in the
program 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 govern-
ment-to-government agreements, as there were during the war, the
BWI program operates under a tripartite agreement among the U.S.
employer 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 agricultural 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
farming in New Jersey, cherry picking in Wisconsin, sweet corn in
Idaho, tomatoes in Indiana, asparagus in Illinois, and peas in Cali-
fornia-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 1979 they were employed in sugar cane in Florida, and
:apple picking 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 agricultural workers.
The employment of Canadian. woodsmen 54 in Maine during the
summer months dates back to an agreement signed by the Joint
Economic Committees of Canada and the United States in Febru-
;ary 1942. After the enactment of the 1952 legislation, the cross-border
movement of Canadian woodsmen continued under the authority of
that legislation, pursuant to the specific requirements of the H-2
provision. During the past decade, a sharp increase in the hourly
wage rate has been accompanied by a decline in the number of
bonded H-2 Canadian woodsmen from more than 6,000 to less than
1,000, "and the principal locations where the foreign workers are
numerically significant are those camps that are more accessible from
Canada than from the interior of Maine." 56 However, while the
number of H-2's has been declining, the number of Canadian com-
muter aliens working in the Maine woods has increased. Commuter
aliens are aliens admitted as permanent residents, or immigrants,
3a Rasmussen (1951), p. 233.
"4 See U.S. Congress. Senate. Committee on Human Resources. Canadian Labor in the Maine Woods,
;1977. Hearings, 95th Cong., 1st sess., 1977.
5' North and LeBel (1978), p. 177.
who choose to reside in Canada or Mexico and commute to the United
States for permanent or seasonal employment (see "Commuter
Aliens," p. 82).
Both Guam and the Virgin Islands of the United States have had
extensive experience with the use of H-2 workers which in both cases
has resulted in problems that remain unsolved today. In Guam,56
the construction industry is heavily dominated by H-2 workers, who
accounted for 82 percent of the construction labor force in 1975.
The U.S. Labor Department has been attempting to correct this
situation through the use of a graduated adverse effect wage increase-
for the industry.57
The use of Filipinos in the construction industry in Guam dates.
back to the period following World War II and has continued through
the widescale repairs necessitated by a series of devastating typhoons
in the 1960's and 1970's. The alien construction workers have al-
ternated in status between that of H-2 workers following the enact-
ment of the Immigration and Nationality Act through the 1950's,
as parolees admitted under section 212(d)(5) from 1960 through the
mid-1970's, and again as H-2's in the 1970's. The situation in Guam
represents a classic case of the difficulty of reversing the domination
of an industry by temporary alien workers. However, the economic
and social differences between Guam and the U.S. mainland are such
that caution should be used in generalizing from the experience with
regards to its implications for an expanded temporary worker program.
The same is true regarding the situation in the Virgin Islands of the
United States,58 where a sizable number of H-2 workers have indefinite
labor certification and for some time have been employed-and, in
some cases, unemployed-in occupations which would generally be
considered permanent rather than temporary in nature. Many of these
aliens, who are primarily from the nearby British Virgin Islands, have
been there since the mid-1950's and before. They were first admitted
legally pursuant to a recommendation in 1955 by the House Judiciary'
Committee that natives of Tortola be admitted under the authority of
the H-2 provision for temporary seasonal employment in agriculture
and the tourist industry.5 This recommendation is commonly cited
as the basis for the nonimmigrant alien labor program in the U.S.
Virgin Islands, which was expanded considerably in its administration
by the local Virgin Islands government and by the U.S. Departments
of Justice and Labor. In May 1970 many of the H-2 aliens were issued
indefinite labor certifications because, as a Labor Department witness
testified in 1976, "the Department realized that a precipitous revoca-
tion of the status of these aliens and their deportation might have had
disastrous consequences for the economy of the Virgin Islands." 6
The nonimmigrant alien population and their dependents on the
U.S. Virgin Islands are estimated at more than 20,000, which is
significant when compared to the total U.S. Virgin Islands population
of approximately 95,000, and even more significant as a percentage
36 See U.S. Congress. House. Committee on the Judiciary. The Use of Temporary Alien Labor on Guam.
95th Cong., 2d sess. Committee Print No. 24,1979.
7 42 F.R. 45902 (Sept. 13, 1977).
V5 See U.S. Congress. House. Committee on the Judiciary. Nonimmigrant Alien Labor Program on the
Virgin Islands of the United States. 94th Cong., 1st sess., committee print, 1975.
s9 H. Rept. 1570, 84th Cong., 1st sess., 1955, p. 131.
60 U.S. Congress. House. Committee on the Judiciary. Alien Labor Problems in the U.S. Virgin Islands.
Hearings on H.R. 11261, 94th Cong., 2d sess., 1976, pp. 41-42.
of the labor force. Their importance to the economy of the Islands,
particularly during the 1960's was the principal reason why the non-
immigrant alien worker problem developed as it did.
The proposed legislative solution favored by the Ford administration
to this problem of temporary alien workers who have, in fact, become
permanent was the establishment of a special program which would
have allowed for the adjustment of status of eligible H-2 non-
immigrants on the U.S. Virgin Islands.to that of permanent resident
aliens, outside the normal numerical limits.6 Another legislative
approach, favored by the government of the U.S. Virgin Islands,
was the establishment of a special Commission to conduct a case-by-
case review of the applications for adjustment, based on special
criteria itemized in the legislation.62 However, no action was taken in
the 94th Congress or subsequently.
At the time the legislation was considered, during an economic down-
turn on the Islands, concern was expressed that the blanketing in of
the indefinitely certified workers and their dependents as part of the
permanent labor force would exacerbate the Islands' unemployment
and other economic problems. There was also concern about the
potential impact on government service and benefit programs, to
which the nonimmigrant workers and their families now have only
limited access because of their nonimmigrant status. Two other areas
of concern on the part of the citizens and permanent resident aliens in
the U.S. Virgin Islands are the general desirability of some of the non-
immigrant workers as part of the Islands' permanent population;
and the eventual potential political impact of the aliens who convert
to permanent resident status, assuming that they choose to remain on
the Islands and become naturalized citizens after the necessary resi-
2. OTHER EMPLOYABLE NONIMMIGRANTS
'The "H" nonimmigrant classification is the principal category re-
served for aliens entering for the purpose of temporary employment.
However, temporary employment is a primary or secondary feature
of most of the 12 nonimmigrant classifications,6 although for narrowly
prescribed purposes, periods of time, et cetera, depending on the
classification. The work-related nonimmigrant classifications other
than "H" are mentioned here only in passing because of their limited
relevance to the subject of a temporary alien worker program, either
in terms of past experience or potential for future expansion.
The "J" exchange visitor and "L" intracompany transferee cate-
:gories are included with "H" temporary worker nonimmigrants in the
INS chart setting forth the occupations of temporary workers in fiscal
year 1977 (see table 5). While "J" exchange visitor entries out-
numbered both the "H" and "L" entries, it will be noted that 34,978
-of the 50,507 "J" entries were students. The use of the "J" exchange
visitor category for U.S. hospital staffing purposes was a matter of
considerable concern in the mid-1970's and resulted in remedial legis-
lation in 1976 and further technical amendments in 1977.64 The entry
i1 H.R. 10323, section 11, 94th Cong.
62 H1.R. 11261, 94th Cong.
,a Immigration and Nationality Act, section 101(a)(15)(A)-(L); 8 U.S.C. 1101(a)(15)(A)-(L).
N' Health Professions Educational Assistance Act of 1976, Public Law 94-484 (90 Stat. 2243), as amended
by the Public Health Service Act amendments of 1977; Public Law 95-83 (91 Stat. 383). For a discussion, see
U.S. Congress. House. Committee on Interstate and Foreign Commerce. Current Health Manpower Issues,
Committee Print No. 96-IFC-34, 96th Cong., 1st sess., 1979; pp. 59-78.
of foreign medical graduates under the "H" classification was also
limited by the 1976 legislation.
TABLE 5.-TEMPORARY WORKERS ADMITTED UNDER SEC. 101(aX15XH), (J), AND (L), IMMIGRATION AND
NATIONALITY ACT, BY OCCUPATION, YEAR ENDED SEPT. 30, 1977
guished Other Intra-
merit and temporary Industrial Exchange company
Occupation Total ability workers trainees visitors transferees
(H-l) (H-2) (H-3) (J) (L)
All occupations............... 114, 855 15,702 27, 760 3,213 50, 507 17, 673
Professional, technical and kindred
.workers.....-----------------. 42, 472 15,048 7,842 2,611 13,794 3,177
Managers and administrators, except
farm--. -------------------- 16,300 631 299 384 1,004 13,982
Sales workers .... ----------------- 557 15 174 42 89 237
Clerical and kindred workers. .. .. 518 3 194 34 203 84
Craftsmen and kindred workers....-. 3,584 2 3,330 44 116 92
Operatives, except transport. -------- 734 --.---...... 603 36 41 54
Transport equipment operatives-..... 155 ----....... 147 ........._.. 5 3
Laborers, except farm..---....-----........ 2,046 --...-----. 1,990 26 27 3
Farmers and farm managers-..-...... 41 2 .......... 5 32 2
Farm laborers and farm foremen ..... 11,768 ..... .... 11,655 13 100------ .
Service workers except private house-
hold--------------------------1,100 1 928 18 114 39
Private household workers...----------- 602 ------..------ 598 -.------ 4 -
Students........--................. 34, 978 -----------------------34, 978 .. ..
Source: U.S. Department of Justice. Immigration and Naturalization Service. 1977 Annual Report of the Immigration
and Naturalization Service. Washington, U.S. Government Printin'g Office [19791, pp. 74-78.
Other work-related nonimmigrant classifications are "A" foreign gov-
ernment officials, "B-1" visitors for business, "D" crewman, "E" treaty
traders, "G" international organization aliens, and "I" information
media representatives. "F" students are allowed to accept part-time
employment in certain circumstances, but this is secondary to the
principal purpose of their entry. Employment is strictly prohibited
for "B-2" tourists, the nonimmigrant classification which accounts
for by far the largest number of nonimmigrant entries. In fiscal year
1977, 5,697,318 of the 8,036,916 nonimmigrants admitted were B-2.
visitors for pleasure, or tourists.
3. COMMUTER ALIENS
One final category of aliens entering under the Immigration and
Nationality Act is relevant to a discussion of U.S. experience with
temporary alien labor. Commuter aliens, or "green card commuters,"
are aliens who have been admitted as immigrants, for permanent res-
idence, and who live in either Canada or Mexico and commute to the
United States for daily or seasonal employment. The number of com-
muters was reported at the end of fiscal year 1978 at 57,268, of whom:
49,290 commuted across the Mexican border.
The' card used by the commuter to enable him to pass freely across
the U.S. border as an immigrant legally entitled to work in this.
country is no longer the green special border crossing identification.
card once used (hence the colloquial name "green carder"), but the
Alien Registration Receipt Card (Form 1-151 or 1-551) issued to-
registered immigrants. Under present law and regulations, this card
entitles any alien admitted for permanent residence the right to re-
enter the country following a temporary absence of less than a year.
The significance of the commuter status is that the alien must meet
the conditions for entry into the United States, particularly that of
labor certification, only at the time of his first admission; thereafter,
he is considered as returning to his residence in the United States.
Commuter status for alien employment purposes is dependent on the
alien's having a permanent and stable job in this country when he is
first admitted; and, in the event that he loses that job subsequent to
obtaining commuter status, on his not remaining unemployed for a
period exceeding 6 months.65
The legality of the commuter status has been challenged in
the courts and upheld by the U.S. Supreme Court in Saxbe v. Bustos,
419 U.S. 65 (1974). Prior to that time, there was considerable debate
for and against continuance of the commuter program particularly,
although not exclusively, with reference to the Mexican border. Some
of the arguments against the continued use of commuters closely re-
sembled those heard during the bracero era and, more recently, re-
garding the use of H-2 workers in agriculture. For instance, it was
argued that the ready availability of a sizable and inexpensive labor
force was a major factor behind the comparatively lower wages and
higher unemployment rates prevalent in the border areas of California,
Texas, and Arizona."6
The commuter system differs in significant respects from the bracero
and H-2 programs. The workers are not specifically tied to individual
employers; they are not limited to agriculture or any other specific
employment; they are not limited to occupations and areas where there
is a labor shortage except by the availability of employment; and
they are subject to all of the labor laws which apply to U.S. citizens
and permanent resident aliens. In short, with the exception of the fact
that they are tied to a rather limited geographic region by virtue of
the fact that they commute across the Mexican or Canadian border,
they are subject only to the fairly minimal restraints on immigrants in
the U.S. labor market. These consist primarily of State licensing re-
quirements for certain occupations and the prohibition against Federal
"5 8 CFR 211.5 (Jan. 1, 1979).
*6 See Ericson, Anna-Stina. The Impact of Commuters on the Mexican-American Border Area. Monthly
Labor Review, August 1970; pp. 18-27; North, David S. and Marion Houstoun. Appendix A, Green-Card
Commuters, in the Characteristics and Role of Illegal Aliens in the U.S. Labor Market: An Exploratory
Study. Washington, Linton & Co., March 1976. [Prepared under contract to the U.S. Department of Labor.]
II. EUROPEAN "GUESTWORKER" PROGRAMS
The purpose of this chapter is to examine the experience of Western
Europe with temporary foreign labor ("guestworker") programs. It
has been estimated that at least 15 million workers and their depend-
ents from the developing countries of Southern Europe, Iberia, and
North Africa migrated legally to the industrialized regions of Northern
and Western Europe between 1960 and 1975. No other part of the
world has experienced such a large-scale, legal movement of temporary
The term "guestworker" is a literal translation of the German
word Gastarbeiter. The use of the term emphasizes the idea that
foreign workers are temporary "guests" in the host country and are
not expected to remain beyond a limited period of time during which
there is need for their services. Although different terminology is
used in other countries, the term "guestworker" is used here to refer
to all the temporary worker programs of Europe.
This chapter is divided into three sections. The first examines the
formation and development of European guestworker programs from
their inception in the 1950's to their discontinuance in 1973-74 and
subsequent events. The experiences of four individual countries-
Switzerland, Germany, France, and Sweden-are examined in the
second section. The examination reveals that although each of the
-countries initially took a different approach in their guestworker
policies, in the 1970's their policies have converged. The third section
examines the consequences of European labor migration. It is generally
agreed that the availability of a foreign manpower supply was a
critical factor in Europe's post-World War II economic growth, but
unforeseen social and political consequences have led to questions
about the overall benefits of guestworker programs.
A. BACKGROUND AND OVERVIEW
The large-scale migration of foreign workers to Western and North-
ern Europe for more than two decades following World War II was
engendered by chronic labor shortages in Europe's industrialized
Countries and massive unemployment in less developed countries.
'War casualties, a decrease in birth rates, and postwar emigration left
Europe's industrialized nations with an inadequate supply of native
manpower to facilitate economic recovery and growth. At the same
time, the countries of Southern Europe, Iberia, and North Africa were
*experiencing high population growth rates, widespread unemployment,
and slow economic growth.
During the years immediately following the war, the resettlement of
,displaced persons and the transfer of labor from agricultural to urban
areas satisfied labor shortages. But as the economies of the industrially
:advanced nations recovered and expanded at rapid rates, these sources
became inadequate. Small scale recruitment of foreign labor began
as early as the 1940's and continued through the 1950's, but in the
1960's the movement exploded. By the end of the decade some 800,000
workers were emigrating annually to Europe's industrial regions.'
West European countries started their recruitment of foreigners
with the intention of filling labor market gaps with temporary workers
who would stay only a few years, who would not require any significant
amount of social services, and who would return home when the labor
shortage had disappeared. With a few notable exceptions, such as
France and Sweden, neither family reunion nor permanent settlement
The Federal Republic of Germany and France were by far the
largest recruiters in terms of numbers, between them taking in about
70 percent of all guestworkers. However, in terms of proportion of the
total labor force, Luxembourg and Switzerland were the greatest
recruiters. In 1974, 30 percent of Luxembourg's labor force and 24
percent of Switzerland's was foreign, whereas all other countries
remained below the 10-percent level (see table 6). The major sending
countries included the Mediterranean basin countries of Greece,
Italy, Portugal, Spain, and Turkey; Finland; Yugoslavia; and the
North African countries of Algeria, Morocco, and Tunisia (see table 7).
TABLE 6.-FOREIGN WORKING POPULATION AND PERCENT OF TOTAL WORKING POPULATION, 1974
Foreign Percent of total
Country population population
Austria-------------------------------------------------------- 219, 000 6.5
Belgium------------... ------------------------------------------- 258,000 6.
France------------------ ------------------------------------1,955,000 8.6.
Germany.-----....---...----..----............-------------------- 2,350, 000 8. 8.
Luxembourg --------------------------------------------------- 45,000 30.0
Netherlands-------------.............. .--------------------........-- 214,000 4.2
Sweden --------------------------------------------------------- 221,000 6.1
Switzerland------------------------------------------------------ 710, 000 24. 1
Source: General Survey of Main Present-day International Migration for Employment. International Labour Organization"
1975: pp. 23-24.
TABLE 7.-ESTIMATED FOREIGN WORKERS IN EUROPE BY COUNTRIES OF ORIGIN AND DESTINATION, 1975
Country of destina- Austria Belgium France Germany Luxem- Nether- Sweden Switzer-
tion/origin bourg lands land Total,
Algeria..............--------- 3,000 420,000 2,000------ ------- 200-----. 425, 200
Austria..... ---- ------ ---------------- 78, 000 -------------- 21,000 99, 000
Finland ....----------------- 103,000 ..------. 103,000
Greece-. ---- 8,000 5,000 212,000 ----- 2,000 8,000 ------- 235,000
Italy --------- 2,000 85,000 210,000 31, 000 10,700 10,000 2,500 281,000 919,200
Morocco-------- --------- 60, 000 165,000 18, 000 --------- 28, 000 500 --------- 271, 500
Portugal---- --------------3,000 430, 000 70,000 12,500 5,000 1,000 4,000 4,000 525,500
Spain.-------.. ---- ...-------- 30,000 250,000 132,000 1,900 18,000 2,000 72,000 505,900
Tunisia-------------------------- 90,000 15,000 15,000--------- 1,000 200 --------- 106,200.
Turkey------------26,000 10,000 35,000 582,000 ---------38,000 4,000 16,000 711,200,
Yugoslavia--...------- 136,000 3,000 60,000 436,000 600 10,000 23,000 24,000 692, 600
Other...--------- 21,000 76,000 235,000 328,000 21,100 104,000 60, 000 135,000 980,100
Total....-------. 185,200 278,000 1,900,000 2,191,000 46,800 216,000 204,400 553,000 5,574,400;
Source: Organization for Economic Cooperation and Development. SOPEMI Report (1976).
Mention should be made of two important developments relating to
migration trends within Europe which occurred during the period
under discussion. The first was the establishment in 1954 of the Nordic
1 Organization for Economic Cooperation and Development. The Migratory Chain. Paris, 1978, p. 8.
Common Labor Market by Norway, Sweden, Denmark, Finland, and
Iceland. The second was the establishment in 1968 in the Treaty of
Rome (articles 48 and 49) of the principle of the free movement of
labor within the European Economic Community. Both agreements
allow workers from any of the signatory countries to travel freely to
seek and accept employment within the common labor market. It is
generally believed that these agreements have not increased the
number of workers from other member countries in the leading coun-
tries of immigration, and that where migration has taken place-for
example, from Italy and Finland-it would have occurred anyway.
European labor migration reached its peak in 1970 at which point it
began to slacken somewhat due to more restrictive immigration proce-
dures introduced by some receiving countries. Restrictions were
imposed because of perceived rising social costs resulting from the
presence of large numbers of foreign workers (see section C for
further discussion). Nevertheless, in 1973 some 500,000 foreign workers
migrated to Northwest Europe, close to 6 million were legally em-
ployed, and the total foreign population exceeded 10 million. These
figures exclude illegal immigrants who have been estimated at 10 per-
cent of the officially registered foreigners.3 The years 1973-74 marked
the real turning point in European labor migration policy. Following
the 1973 oil crisis and ensuing international recession, all major
receiving countries moved to halt, or to severely curtail, further
recruitment of alien manpower. Measures to encourage aliens volun-
tarily to return to their home countries were adopted. By 1976 the
immigration of workers had come nearly to a standstill.4
It had been anticipated that a recession would cause massive re-
turns of migrants to their homelands, but this did not occur with the
recession which began in 1974. In fact, it is possible that fewer migrants
than usual returned home because the new restrictions would prevent
their return at a later date.5 Despite the ban on new immigration, the
number of foreign workers decreased by only about 1.2 million-from
'6,084,000 to 4,914,000-between 1973 and 1977 (see table 8). No
TABLE 8.-ESTIMATED NUMBER OF FOREIGN WORKERS: 1964, 1973, 1977
Country 1964 1973 1977
Austria --------. --------------------------------------- 40, 000 248,000 189, 000
Belgiam n-....----------.---------------------------- -- 226,000 265, 000 370,000
France...............--------...----------------------------------- 1,200,000 1,930,000 584, 000
,Germany --.------------------------------------.----------- 912,000 2,595,000 1,889,000
'Luxembourg ------------------------------------------------ 25,000 43,000 49,000
Netherlands ------------------------------------------------- 61,000 160,000 115,000
*Sweden -------------------------------------------------__ 162,000 222,000 225,000
:Switzerland -..------------.-------------------------------- 782,000 621,000 493,000
Total.....------.. ----------------------------------- 3,435,000 6,084,000 4,914,000
Sources: George Hoffman. A Geography of Europe, 4th ed. New York, Ronald Press, 1977, p. 90; Philip L Martin. Guest-
worker Programs-Lessons from Europe. Washington, D.C., Brookings Institution, 1979, p. 21.
2 Salt, John, and Hugh Clout. Migrations in Post-War Europe. London, Oxford University Press. 1976,
p. 82; United Nations. Labour Supply and Migration in Europe: Demographic Dimensions 1950-1975 and
Prosoects. New York, 1979, pp. 77, 129.
3 Werner, Heinz. Some Current Topics of Labour Migration in Europe. International Migration, v. 12,
1974, p. 300.
United Nations. Labour Supply and Migration in Europe: Demographic Dimensions 1950-1975 and
country has attempted massive expulsions of guestworkers, both
because there is still a need for them in certain segments of the econo-
my, and because of sensitivity to human rights issues. Most have opted
to stabilize their current guestworker populations by (1) severely
restricting the further admission of workers and encouraging the
repatriation of unemployed foreign workers, and (2) reuniting the
families and improving the status of those who wish to remain perma-
nently in the country.6. As as result, while the foreign workforce has
shown some decrease in size, the total foreign population has actually
increased (see table 9). The explanation for this seeming paradox is
TABLE 9.-TOTAL FOREIGN POPULATION AND FOREIGN WORKING POPULATION: 1973, 1975, 1977
1973 1975 1977
Total Foreign Total Foreign Total Foreign
foreign working foreign working foreign working
population population population population population population
Belgium..........---. 774, 800 265,000 835 400 278,000 869,700 370,000
France--..------- -- 3,873,100 1,94,2000 4,1 000 1 000 4, 000 1,584,000
Germany.----.--- 3,966,200 2,595000 4,089,600 2,191,000 3,948,300 1,889,000
Netherlands.-------. 282,500 160000 344, 900 216,000 1 00 115,000
Sweden..----------------397, 500 222, 000 409, 900 204, 400 424, 000 225,000
Switzerland.......--- 1,052,500 621,000 1,012,700 553,000 932, 700 493,000
Total..--------.. 10,346,600 5,793,000 10, 798, 500 5,342,400 10, 774, 200 4,676,000
Sources: Organization for Economic Cooperation and Development SOPEMI Report (1976, 1978); Philip L. Martin-
Guestworker Programs-Lessons from Europe. Washington, D.C., Brookings Institution, 1979, p. 21; George Hoffman. A
Geography of Europe, 4th ed. New York, Ronald Press, 1977, p. 90.
that family unification and births in guestworker families have com-
pensated for the decline in gainfully employed foreigners. It would
appear that a significant number of guestworkers-up to half in some
countries 7-have become permanent rather than temporary residents.
B. EXPERIENCES OF INDIVIDUAL COUNTRIES
The following discussion of the guestworker programs of four in-
dividual countries seeks to emphasize those aspects of each country's
policy or experiences that are m some way unique. Switzerland was
among the earliest large-scale labor importers, and it built up the
densest concentration of foreign workers among the major European
countries. Pressures for the curtailment of labor immigration began as
early as 1963 there, apparently more for political than economic rea-
sons. Switzerland's policy was never to promote the permanent settle-
ment of immigrants. France and West Germany recruited by far the
largest volume of workers. However, these two countries took very
different approaches to migration. From the beginning Germany
tightly regulated recruitment through formal government channels;
labor migration to France was to a great extent "spontaneous,"
that is, aliens who had entered the country illegally had their status
regularized after finding employment. Like Switzerland, Germany
never considered itself a country of permanent immigration, whereas
permanent migration to France was encouraged, at least in the begin-
ning. Sweden also officially recognized that a substantial part of its
i Martin. Philip L. Guestworker Programs-Lessons from Europe. Washington, D.C., Brookings Insti-
tution, 1979, p. 59.
migrants would become permanent residents. More than any other
country in Europe it has undertaken to promote the integration and
equality of its immigrant population. Although these four countries
represent four different approaches to labor immigration, in the 1970's
all have adopted policies with the same general characteristics:
restrictions on the further admission of migrant workers and stabiliza-
tion of the existing foreign population.
Switzerland.-A neutral during World War II, Switzerland emerged
after the war with its economy undamaged. To meet the postwar
demands for its goods and services, it entered into agreements with
neighboring countries for the immigration of workers as early as 1945
and received the first 50,000 of them in 1946. Thereafter Switzerland's
reliance on foreign labor increased rapidly. In the peak year of 1964
there were more than 700,000 guestworkers in the country. The pro-
portion of aliens in the work force increased from 10 percent in 1952'
to more than 30 percent in 1963.
During the early years of labor recruitment, the Government
adopted a "hands off" approach. Employers generally were allowed
to contract directly with foreign workers who then were granted work:
and residency permits almost automatically so long as no Swiss
laborers were available. During the early 1960's, however, public con-
cern began to mount that an excessively large alien population con--
stituted a threat to the Swiss national identity. Beginning in 1963'
the Government officially ended its "hands off" policy and undertook
to stabilize and eventually reduce the foreign population.. Its first
attempt to discourage the further recruitment of gurestworkers was
to place a freeze on overall manpower levels for individual firms. This
measure failed because guestworkers were increasingly able to find
jobs which had been abandoned by indigenous workers.8 In 1965 a
popular movement was launched for a national referendum to amend
the constitution to limit the number of foreign residents in Switzerland
to 10 percent of the total population. This movement subsided when
the Government decreed a 5-percent cutback in the employment of
foreign workers for 1965 and 1966. However, this reduction policy
was difficult to monitor, and it did not lead to a reduction in the num-
ber of aliens.9 The foreign resident population continued to grow be-
cause more and more workers extended their length of stay and brought
their families into the country. The size of the foreign population
increased from just over 800,000 in 1965 to more than 980,000 in 1970,
and more than a million by 1972.
In 1969 a second movement for a national referendum was launched
by a group called "National Action Against the Over-Foreignization
of People and Country." The initiative, which was virtually identical
to the 1965 proposal, came to a vote in 1970. It was defeated by 54
percent to 45 percent.10 At least three other unsuccessful national
referenda campaigns aimed at markedly reducing the size of the foreign
population were conducted over the next several years. Despite the
8 Miller, Mark J. Guestworkers: The Lessons of Western Europe's Foreign Labor Experience, 1963-1978.
In U.S. Departments of Justice, Labor and State. Interagency Task Force on Immigration Policy. Wash-
ington, D.C., 1979, p. 492.
1t Hoffman-Nowotny, Hans-Joachim, and Martin Killias. Labor Importing: Switzerland. In Krane,
Ronald ., International Labor Migration in Europe. New York, Praeger Publishers, 1979, p. 55.
defeat of these measures the fact that they could generate a sizable
following is significant, because as one commentator noted, Switzer-
land is "a country where a decision to expel even a minority of the
migrants would undeniably have severe consequences for the Swiss
economy." Another observer has summed up the Swiss social and
political climate as follows:
The Swiss public is determined that, whatever the price of
restrictions in terms of growth, inflation and liquidity, pre-
servation of its national identity shall come first.2
In 1970 the Government intensified its stabilization measures by
,declaring a ceiling on the total number of residency permits that
'would be authorized, and by establishing yearly quotas of residency
permits for each canton. In 1975 it cut the quotas of annual work
permits for each canton by two-thirds.13 Since the end of 1974 the
objective of reducing the size of the resident foreign population has
been .achieved. From the 1974 high of 1,064,500, the foreign popula-
tion has steadily fallen to 1,012,700 in 1975; 958,600 in 1976; and
-947,600 in 1977. However, its foreign population still constitutes 15
percent of the total population which is a higher percentage than any
.other European nation except for Luxembourg and Liechtenstein.
Under Swiss law there are three categories of aliens. The first
,consists of seasonal workers who receive residence and work permits
limited to a maximum of 9 months. They may not bring their families,
and moving from one canton to another, or changing occupation or
job is usually impossible. The second category-yearly residents-
must renew their work and residence permits annually. During the
first year of residency they may not change their job, occupation, or
canton, and even after a year they must obtain a separate permit to
do so. These separate permits are granted only if the situation in the
labor market allows. According to present practice in some cantons,
:such permits are not granted in order to protect Swiss and permanent
resident alien workers.1 The final category is permanent residents.
These have resided in the country for more than 10 years and have
been granted "establishment status." They enjoy the same rights as
.Swiss citizens except for the right to vote. By 1977 approximately 70
percent of the aliens in Switzerland had acquired establishment status.
Switzerland's policy has always been explicit that its purpose was
to recruit manpower, not potential citizens. Therefore, it is not sur-
prising that under current conditions it is virtually impossible for
most immigrants to receive Swiss citizenship." The minimum residency
requirement is 12 years, the system for granting citizenship is highly
complex requiring both cantonal and federal ratification, and stiff fees
are charged by some cantons. The result has been a low naturalization
rate, as evidenced by the following table:
1 Freeman, Gary P. Immigrant Labor and Racial Conflict in Industrial Societies. Princeton, N.J.,
Princeton University Press, 1979, p. 324.
n Kindleberger, Charles P. Europe's Postwar Growth. Cambridge, Mass., Harvard University Press,
1967, p. 47.
'3 Miller, Mark J. Guestworkers: The Lessons of Western Europe's Foreign Labor Experience, 1963-1978,
14 Hoffman-Nowotny, Hans-Joachim, and Martin Killias. Labor Importing: Switzerland, p. 59.
15 Ibid., p. 60.
NATURALIZED ALIENS AS A PERCENT OF ALL ALIENS 6
Aliens Percent of'
Year naturalized all aliens
1960------------ -------------------------------------- 3,005 0.6
1965----.---------------.-------------------------------------- 3,478 .4
1970...-- -----........... ------------------------------------- 6,939 .
1975--------------........................................................................------------------------------------------------ 9,891 1.0
It has been said that: "* the Swiss have gone out of their way to
make the path to naturalization long and arduous." '
Federal Republic of Germany.-For the decade immediately follow-
ing World War II, West Germany had no need to recruit foreign
labor. Its economy had been devastated by the war, unemployment
was high, and several million refugees and others displaced by the war
remained or resettled in West Germany. It was not until the mid-
1950's that it became apparent that the indigenous labor force would
be insufficient to keep pace with economic development. In 1955 a
labor recruitment agreement was entered into with Italy, to be-
followed by several others: Greece and Spain in 1960, Turkey in
1961, Morocco in 1963, Portugal in 1964, Tunisia in 1965, and
Yugoslavia in 1968.18
Massive migration of foreign workers into West Germany did not
occur until 1961 when the construction of the Berlin Wall cut off the
steady flow of refugees from East Germany. In 1960 only 279,000
alien workers were employed. By 1966 this number had risen to over
1.3 million. During the recession of 1966-67 the number declined to
about 900,000, but then rose sharply again until by 1973 the 2.5-
million mark-nearly 10 percent of the labor force-had been
Labor recruitment was placed in the hands of the Federal Labor
Department-the Bundesanstalt fir Arbeit. Satellite offices were
established in the major supply countries to process applications for
employment. These offices screened the health, aptitude and legal
status of applicants, and arranged for their transportation to West
Germany. Employers wishing to employ foreign workers applied to
local labor offices in Germany where they had to prove that ac-
commodations for the guestworkers could be provided. They also had
to pay a fee, plus the costs of recruitment, medical care, food, and
Under the German system, a guestworker must have both a work
and a residence permit. Initial work permits are generally valid for 1
year and can be revoked if the employment contract is broken. Next,
2-year renewable permits are issued. Work permits may be limited to,
certain occupations, factories, or jobs. After 5 years the foreign worker
qualifies for an unconditional permit, and after 8 years for a permanent
work permit. The residence permit also may be restricted to certain
areas, to a certain period of time or by other conditions. It generally is.
issued for only 1 year, but may be renewed.
16 Ibid., p. 58.
17 Matasar, A. Labor Transfer in Western Europe: The Problem of Italian Migrant Workers in Switzerland,.
quoted in Miller, Mark J. Guestworkers: The Lessons of Western Europe's Foreign Labor Experience..
1963-1978, p. 513.
18 Reimann, Horst and Helga. Labor Importing: Federal Republic of Germany. In Krane, Ronald E_
International Labor Migration in Europe, p. 66.
19 Salt, John, and Hugh Clout. Migrations in Post-War Europe, p. 98.
The major exception to these procedures is for citizens of the other
members of the European Economic Community (EEC). They have
the right to enter West Germany to seek employment, and they are
entitled to a 5-year residence permit which is renewable so long as the
worker has a job. Even if they lose their job they may not be expelled
unless they are a danger to public safety and order.
The West German ban on the further immigration of foreign workers
from non-EEC countries took effect in November 1973. Although
official pronouncements emphasized the recession as the reason for
imposing the ban, a number of commentators have suggested that
other important reasons included rising social welfare costs and in-
creasing political tensions.20 Despite the ban, the need for foreign
workers has not disappeared. German officials have stated that 1.8
million foreign workers are essential to the current economic division
of labor in society." Simultaneously with the immigration ban, steps
were taken by the Government to stabilize and improve the condi-
tions of the remaining guestworker population. Family reunion is now
permitted after 1 year, restrictions on mobility have been liberalized,
and social services have been made generally available for guest workers
and their dependents. After 1974 the size of the foreign workforce
decreased from 2.4 million to 1.9 million in 1977, but due to the liber-
alized family reunion rules, the total foreign population remained
almost the same at close to 4 million. In 1976 half of the guestworkers
had been present in the country for more than 6 years.22
Naturalization is quite difficult in West Germany. An alien may
become a citizen only after a minimum residence of 10 years, and only
if other prerequisites are fulfilled such as competence in the German
language, basic knowledge of the history and laws of the country, and
no criminal record. Even if all the prerequisites are met, citizenship
will be granted only if it is in "the interest of the Federal Republic
of Germany." In essence, it is left to the discretion of government
officials, and since it is German policy that Germany ought not be-
come a country of immigration, only a handful of guestworkers be-
come citizens each year.2
France.-The significant feature of France's foreign worker policy
is that from the beginning, the migrants were viewed as permanent
settlers. By the end of World War II, France had been experiencing a
declining birth rate for many years, and its population's age distribu-
tion was sharply skewed toward the older brackets. Many individuals,
including Charles de Gaulle, advocated a program of permanent,
large-scale immigration for the purpose of repopulation.
The basic law governing French immigration policy was passed on
November 2, 1945. The heart of the legislation was the creation of the
National Immigration Office (ONI) which was to hold a monopoly
over the recruitment of foreign labor. From the beginning the ONI
proved incapable of processing sufficient numbers of workers. Its
cumbersome procedures, fees, and long waiting periods led employers
to circumvent the ONI by recruiting their own workers abroad or by
hiring illegal entrants. The Government sanctioned this state of affairs
20 Rist, Ray C. "Hewers of Wood and Drawers of Water." Across the Board, v. 16, October 1979, p. 64.
1 Ibid., p. 69.
22 Martin, Philip L. Ouestworker Programs-Lessons from Europe, p. 26.
23 Miller, Mark J. Guestworkers: The Lessons of Western Europe's Foreign Labor Experience, 1963-1978,
by providing easy access for illegals to a process called "regulariza-
tion." Under this procedure, immigrants who had arrived as tourists
or had entered the country illegally, but who had subsequently found
employment, could receive work permits from the Government. The
process reached its peak in 1968 when more than 80 percent of all
officially registered migrant workers had their status regularized in-
stead of entering through official channels.24 What had been intended
as a program of organized migration in fact turned out to be spon-
taneous and uncontrolled.
One consequence of the chaotic nature of immigration to France was
the development of what have been termed "the most reprehensible
social conditions of any group of workers in Europe." 25 One commen-
tator has described the conditions as follows:
Unable to secure adequate shelter at a price they could pay,
the migrants, often with their families, congregated in and
around the large industrial centers, throwing up shanty
towns built of tin cans and cardboard (bidonvilles). Here they
lived in unbelievable squalor, without plumbing, heat, or
medical care. Others sought shelter in cellars and attics.
Exacerbating the problem was the fact that in addition to the
large numbers who entered France as tourists and became
regularized, an undetermined number entered the country
illegally and were never officially "counted" by the govern-
ment. Fearing that they would be sent home, or simply
unaware that regularization was a real option, these clandes-
tins led a harried existence, sleeping wherever they could,
and often staying one step ahead of the police.26
The Social Action Fund (FAS), a social welfare agency created in
1958 to deal with special problems of immigrants, was active in the
field of housing, but given the severe shortage of decent housing and
the size of the immigrant population-which by the end of 1960's
exceeded 3 million-its efforts proved to be insufficient.27
The final years of the 1960's saw a decided shift in French immigra-
tion policy. One reason for the shift was increased tensions between
the immigrant and native populations. Another was concern over the
role of immigrants in a wave of strikes, protests, and demonstrations
which occurred in May-June 1968. A government circular issued in
July of 1968 decreed that the regularization of manual and semiskilled
workers would henceforth be prohibited, and that residence permits
could be refused to illegal immigrants seeking any job on a list of
positions for which there was an oversupply of workers. The aim of
the circular was to curtail spontaneous immigration and to revitalize
the role of the ONI. Several other circulars and policy statements
declaring the Government's intention to end illegal immigration and
strictly control the use of the regularization process were issued during
the course of the next several years.
In 1969 the Social and Economic Council adopted a report which
called for a policy of "selective immigration." Noting that over the
years fewer Europeans had been migrating to France, and that they
were being replaced largely by North Africans, the report concluded:
24 Freeman. Gary P. Immigrant Labor and Racial Conflict in Industrial Societies, p. 77.
2 Ibid., p. 78.
27 Ibid., p. 170.
It seems desirable, therefore, more and more to give to the
influx of non-European origin, and principally to the current
from the Maghreb [Algeria, Morocco, Tunisia], the character
of a temporary immigration for work, organized in the man-
ner of a rapid process of introduction which would be linked
as much as possible to the need for labor of the business
sectors concerned and in cooperation with the country of
In other words, only those persons who were assimilablee" would be
encouraged to settle permanently, that is, Europeans, and the others
would be viewed as strictly temporary labor. In the summer of 1973
France experienced its most serious episode of racial violence, resulting
in the murder of 11 North Africans within 1 week.29 The episode pre-
cipitated the suspension by the Algerian Government of all further
emigration of its citizens to France.
In July 1974 the French Government placed a ban on all further
non-EEC immigration to France, stating as its reason the need for
"time to prepare new measures to improve the situation of those
already present in France." 30 Between 1973 and 1977, the number of
foreign workers decreased by 346,000, but due to the continued admis-
sion of dependents of workers already in the country, the foreign
population increased from 3.9 to 4.2 million. In 1973 one-third of
France's immigrants had been family members, but by 1976, 77 per-
cent were spouses or children.31 In September 1977 the Government
sought to ban further family immigration, but the outcry was so
strong that the ban was quickly rescinded. France continues to
permit family reunion, but only if the new arrivals agree not to seek
In 1977 a program was initiated to give financial assistance to
encourage migrants to return home. A departure grant of about $4,500
plus airfare for a family of four is offered for those surrending a work
or residence permit. The program has been generally unsuccessful. In
the last half of 1977, 13,214 persons departed. Over half of those who
surrendered work permits were unemployed, thus prompting the sus-
picion that the departure grants had not induced many returns that
were not already planned.33
Given France's history of encouraging permanent settlement, it is
not surprising that its work permit system is comparatively uncom-
plicated. A guestworker first receives a 1-year temporary permit
revocable upon breach of the employment contract. After this period,
the worker qualifies for a renewable 3-year permit; after 10 years, he
acquires permanent resident status. France also has relatively open
access to citizenship. Only 5 years' residence is required, and adminis-
trative "redtape" is minimal. Very few qualified foreigners are denied
citizenship.34 In 1977, 51,000 persons were naturalized, although one-
third of these were children born of a foreigner and a French citizen.3"
2c Calves, Corentin. Le problem des travailleurs etrangers, quoted in Freeman, Gary P., ibid., p. 88.
29 Sheehan. Edward. Europe's Hired Poor. New York Times Magazine, Dec. 9, 1973, p. 72.
2o Freeman, Gary P. Immigrant Labor and Racial Conflict in Industrial Societies, p. 96.
31 Martin, Philip L. Guestworker Programs-Lessons from Europe, p. 22.
52 Ibid., p. 29.
33 Ibid., p. 28.
84 Miller, Mark J. Guestworkers: The Lessons of Western Europe's Foreign Labor Experience, 1963-1978,
35 Martin, Philip L. Guestworker Programs-Lessons from Europe, p. 29.
Sweden.-Sweden was a neutral during World War II, but it opened
its borders to refugees and displaced persons from neighboring coun-
tries such as Estonia, Latvia, Lithuania, Norway, and Denmark. The
total number of foreigners residing in the country increased from
24,000 in 1939 to'185,000 by 1944. A substantial number of these
refugees settled permanently, marking the end of Sweden's cultural
and ethnic homogeneity.3
Like Switzerland, Sweden's economy was undamaged by the war.
Despite the inflow of refugees, when it experienced an economic boom
after the war, its industries were faced with severe labor shortages.
Unemployment, which had been 10 percent at the beginning of the
1940's, fell to approximately 3 percent by the end of the 1940's. The
expression "overfull employment" was coined to describe this situation
which lasted well into the 1960's.37
Between 1946 and 1950, 10,000 foreign workers, mainly from
Finland, entered the country each year. As early as 1943 citizens of
the other Nordic countries (Denmark, Finland, Iceland, and Norway)
had been entitled to accept employment in Sweden without labor
permits. Visa requirements for Danes and Norwegians were suspended
m 1945 and for Finns in 1949.
In 1947 Swedish manpower authorities also began recruiting labor
from outside the Nordic countries. Recruitment was mainly from
Italy, but also from Austria, Belgium, Greece, and Hungary. However,
during the 1950's only about 14,000 workers were recruited from non-
Nordic countries, as compared to the total immigration figure of
258,000 for the decade.
In 1954 the Common Nordic Labor Market was formed. Citizens
of each of the five member nations are guaranteed free movement
within the common labor market. Since 1954 nearly 1 million persons
have moved among the Nordic countries. Close to 40 percent of this
flow is attributable to Finnish emigration to Sweden, and another
20 percent is attributable to returns to Finland.38
Despite early labor migrations, in the 1950's it was not generally
foreseen by Swedish authorities that Sweden would become a major
country of immigration, and the Government never adopted a long-
range explicit immigration policy. Therefore, the country was taken
by surprise in the 1960's when spontaneous immigration from Southern
Europe and from Finland increased dramatically. When the influx
continued despite a recession in 1966, trade unions and other political
groups began to call for tighter control on labor migration from
non-Nordic countries. It was not until the mid-1960's then, that
serious attention was focused on the potential problems of continuing
Several steps were taken to gain better control over the inflow of
foreigners. A 1966 ordinance required that work permits be applied for
only at Swedish embassies and consulates abroad, not after arrival
in the country. In 1967 this regulation was made stricter by requiring
that all non-Nordic citizens must have employment, a work permit,
and housing arranged before entering Sweden. In a 1968 resolution,
Parliament declared the principle of "controlled immigration" a
*a Widgren, Jonas. Labor Importing: Sweden. In Krane, Ronald E. International Labor Migration in
Europe, p. 29.
7 Oberg, Kjell. Treatment of Immigrant Workers in Sweden. International Labour Review, v. 110, July
1974, p. 2.
38 Widgren, Jonas. Labor Importing: Sweden, p. 20.
major policy objective. In 1969 a central agency on immigration-the
National Immigration and Naturalization Board-was established
and given the decisionmaking authority with regard to the granting
of permission for aliens to enter Sweden.
More than any other European country, Sweden has undertaken to
further the social adjustment of immigrants and to promote social
equality between them and the native population. Immigrants are
offered tuition-free Swedish language courses subsidized by the
Government. Employers are compelled by law to give foreign employ-
ees up to 240 hours leave with pay in order to attend such courses.
A special program begun in 1977 provides free education for illiterate
immigrants. A special state foundation publishes a weekly newspaper
for immigrants in 12 languages. Immigrant Service Bureaus are located
throughout the country for the purpose of providing immigrants with
information and interpreter services. As of 1976 all foreigners who
live in the country for 3 years can vote and run for office in local and
The Swedish Government has also officially recognized the principle'
of "ethnicity" or "cultural pluralism," and has acknowledged the
rights of ethnic groups to maintain their cultural heritages.3 Since
1977 all municipalities in Sweden have been required to provide
immigrant children with education in their native tongue whenever
it is requested. The Government has provided support to immigrant
and ethnic minority organizations. Grants are awarded to public
libraries for the acquisition of literature in minority languages.
Sweden's policies on permanent residence, naturalization, and family
reunification are also quite liberal. After 1 year's residence foreigners
are entitled to a permanent resident permit. Nordic citizens may be
naturalized after 2 years and non-Nordics after 5. Family reunification
with no minimum waiting period has always been allowed.
Since 1974 government policy toward immigration of non-Nordic
workers has been very restrictive. Despite this policy and the fact
that the Swedish economy has been facing a serious recession, the size
of both the foreign work force and the total foreign population in-
creased between 1973 and 1977 (see table 9). One reason is the high
rate of unemployment in Finland. Because labor may migrate freely
among Nordic countries, many Finns have moved to Sweden. Another
reason is an increased influx of refugees and others who apply for
admission on humanitarian grounds. In fact, in recent years immi-
grants to Sweden have consisted more and more of these groups and
less of labor. Of about 40,000 immigrants in 1977, perhaps only the
Finns and other Nordics-about 25 percent-constituted "true"
C. CONSEQUENCES OF EUROPEAN LABOR MIGRATION
The economic and social consequences of labor migration have been
debated at some length. While there is a body of opinion which argues
that labor migration had negative economic consequences for Europe,41
most commentators on the subject agree that without the additional
3s Ibid., p. 27.
o4 Ibid., p. 37, 39.
" Mishan, E. J. Does Immigration Confer Economic Benefits on the Host Country? In Economic Issues
in Immigration. London, The Institute of Economic Affairs, 1970, p. 105.
manpower supplied through guestworker programs, Europe's economy
would not have been able to prosper and grow as it did during the
1950's and 1960's.4
The question more frequently considered in recent years has been
whether the unforeseen social and political costs of European labor
migration outweighed the benefits.
As discussed earlier, with the exception of those countries which
viewed labor migration as permanent settlement, when guestworker
programs were initiated they were generally viewed as a temporary
phenomenon-a short-term supplement to the native labor force
.during periods of economic boom. In times of unemployment it was
:assumed that migrants would return to their home countries. It also
was assumed that most migrants would "rotate," that is, they would
,enter the country under short-term contracts of 1 to 2 years, earn as
much money as quickly as possible, and depart to be replaced by
another migrant. To a large extent this is what happened, especially in
the earlier years.43 But by the end of the 1960's it became clear that a
significant and ever-growing core of migrants and their families had
become permanent residents. The expectations of the West Europeans
did not work out as planned for several reasons.
First, the need of host countries for migrant labor turned out not to
be temporary. The availability of a large foreign work force made it
possible to expand industrial facilities beyond the capacity of the
indigenous labor force,44 resulting in continuing demands for workers
by employers. The process has been described as follows:
In the short run, with excess capacity of plant but full
employment of labor, immigration pays off. Wages are held
down, profits are maintained, it is the best of all possible eco-
nomic worlds. In time, however, high profits stimulate plant
expansion, which makes it not only desirable, but now im-
perative to have foreign workers.45
It also has been theorized that the presence of a sizeable foreign
population itself created increased demands for goods and services-
demands that could be met only through the importation of more
labor. This theory has been labeled the "self-feeding process of
economic migration." Finally, it has been suggested that rising
affluence and education levels caused an exodus of native workers from
dirty or otherwise undesirable jobs which migrants were willing to
perform. Europeans became loath to return to these less desirable
tasks, even in times of economic downturn, thus creating a permanent
"need" for foreign workers.4
There are also several reasons why individual migrant workers and
their families tended to settle permanently to a far greater extent than
had been anticipated. One suggestion is that the high cost of living
in Western Europe made it necessary for many migrants to extend
their stays in order to reach their desired savings goals. The longer
a Kindleberger, Charles P. Europe's Postwar Growth, p. 3.
3 Organization for Economic Cooperation and Development. Migration, Growth and Development.
Paris, 1979, p. 16.
44 Freeman, Gary. Immigrant Labor and Working-Class Politics. Comparative Politics, v. 11, October
1978, p. 26.
45 Kindleberger, C. P. Mass Migration, Then and Now. Foreign Affairs, v. 43, July 1965, p. 651.
H Bohning, W. R. The Economic Effects of the Employment of Foreign Workers with Special Reference
to the Labor Markets of Western Europe's Post-Industrial Countries. In the Effects of the Employment of
Foreign Workers. Paris, Organization for Economic Cooperation and Development, 1974, p. 64-65.
'7 Ibid., p. 49; Freeman, Gary. Immigrant Labor and Working-Class Politics, p. 27.