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Exploring cross-cultural approaches for the protection of immigrant groups in the H-2A guest worker program.

INTRODUCTION

Each year, American agricultural producers hire large numbers of temporary foreign workers who are employed under what are generally referred to as the H-2A provisions of the 1986 Immigration Reform and Control Act (IRCA). Approximately 1.6 million migrant and seasonal farmworkers toil in labor-intensive agricultural environments. They are often impoverished and have limited education. Proponents of farmworker rights have long criticized the H2-A guest worker program for its lax labor protection and enforcement of regulations as set forth by the Bush Administration in 2008. Under the present Obama administration, more stringent regulations were set forth that would enforce labor protection regulations (Farmworker Justice, 2010). However, how "stringent" is new enforcement provisions?

Guest workers can be described as vulnerable and marginalized nonimmigrant labor whose mistreatment is perpetuated by a system of isolation, deprivation, the inability to change jobs, and repetitive human abuses (Jachimowicz, 2004; Smith, 2007). However, to address the rampant abuses that occur within the framework of the H-2A program, it is necessary to take into account and balance the following competing interests and/or stakeholders: American society and its ideals, agricultural producers, non-immigrant labor and the American workforce. As a nation committed to the rule of law and democratic governance, there is an inherent interest in protecting the rights of the vulnerable and abolishing systems which are unfair and abusive in nature. For example, while the American system of slavery may have been a profitable enterprise, it was established upon values so antithetical to rights enshrined in the American constitution that its demise and abolishment became a national imperative that led to this country's first and only civil war (Smith, 2007).

With respect to agricultural producers, they play an important role by contributing to the state and national economy and ensuring that there is an adequate food supply for the nation and the world. The presence of large numbers of nonimmigrant labor in the United States (U.S.) can be attributed to conditions of poverty and under-development in the countries from whence they come. They seek employment in the U.S., often under harsh working conditions, in order to provide for the economic needs of their families at home. The incomes earned, typically referred to as remittances, are a major source of cash revenue for their national economies as well. Last, but not least, are the interests of American workers who have an interest in ensuring that the supply of foreign labor is properly managed to ensure that the rights of American citizens are not circumvented by unfair labor practices in the marketplace (Smith, 2007).

To a certain degree, one may argue that this is also a national interest. If American citizens are substantially displaced from employment opportunities due to low wages paid to foreign workers, the federal government must spend more dollars to subsidize the income of families through welfare payments, unemployment insurance and food stamp programs. Moreover, social instability can occur when large numbers of persons are displaced from key sectors of the economy. Academic studies support the theory that economic threats, whether actual or perceived, are associated with the concerns of immigration in the context of competition between citizens and immigrants for limited resources (Fennelly & Federico, 2008; Ilias, Fennelly, & Federico, 2008).

In this study, the H-2A guest worker program is examined by taking into account these competing interests. The organization of the study begins with an overview of the guest worker program followed by policy recommendations; a summary of implications for policy, practice and research; and conclusions.

AN OVERVIEW OF THE GUEST WORKER PROGRAM

Historically, guest worker programs in the United States served as a solution for addressing the shortfall of workers during wartime. Evidence of this can be seen with the development of the Bracero program, which brought several million Mexican agricultural workers to the U.S. during World War II. It was not until 1952 that the Immigration and Nationality Act (INA) authorized the H-2 program for temporary foreign workers. The INA was later amended by the 1986 Immigration Reform and Control Act (IRCA), which subdivided the H-2 program into the H-2A and H-2B programs (Bruno, 2009).

The appeal of the program is the potential for guest workers to receive "credit" for their work in America while also having the monies earned from the work applied to the retirement system in their respective countries. Moreover, the temporary workers are also able to contribute part of their earnings to a savings plan. The employment of skilled workers who are willing to work long hours and take few breaks further enhances the appeal of this program (Schiff, 2004).

Contrastingly, guest workers have been cheated out of their wages and denied basic protections in the workplace. In the communities where they work, they are subjected to racial profiling and harassment by law enforcement--and are frequently forced to prove themselves innocent of immigration violations, regardless of their legal status (Mayer, 2004). Guest worker policies have been criticized for providing limited incentives for currently unauthorized immigrants to participate and for not providing a key path to legalization (Jachimowicz, 2004). Security concerns such as terrorism and heightened protection of American borders have also posed a concern for this program (Bruno, 2009).

Holley (2001) acknowledges that nonimmigrant temporary workers have "substantive rights superior to those of domestic farmworkers" (p. 574); nevertheless, he argues that these rights are rendered meaningless due to the following considerations:

* the isolated conditions under which H-2A guest workers must live and work;

* legal requirements that perpetuate abusive work conditions and retaliation against those workers who assert their rights;

* laxity in DOL investigative procedures in circumstances where complaints are made and violations have been alleged;

* legal prohibitions against federal lawsuits brought by H-2A workers; and

* inappropriate state court remedies that are available to H-2A workers.

The issues and policies surrounding the guest worker program are further complicated by the diversity of attitudes and perceptions among Americans as evidenced in studies conducted by Espenshade and Calhoun (1993), Hood and Morris (1997), Wilson (2001), Chandler and Tsai (2001), and Ilias, Fennelly, and Federico (2008). According to Dye (2008), the impact of a policy encompasses not only tangible but symbolic impacts, such as the perceptions individuals have of government actions and their attitudes toward those actions. Individuals, groups, and societies as a whole frequently judge public policy in terms of its good intentions as opposed to tangible accomplishments alone. Public opinions and attitudes toward temporary worker initiatives and other unauthorized immigration policies are significant because they may prognosticate the future of millions of individuals who currently are living in legal limbo--ineligible for many forms of credit, education, healthcare, and civic engagement (Ilias et al, 2008).

RECOMMENDATIONS FOR POLICY CHANGE

In reflecting upon the current policy paradigm, it is clear that there is the stark juxtaposition of the powerful federal government--inclusive of Congress, the Supreme Court and accompanying state and federal judicial systems, the President, executive departments, and myriad administrative and regulatory agencies--in comparison to vulnerable, uneducated and politically disposed farmworkers who generally do not speak English and are unable to navigate a complex judicial and/or administrative system. The new guidelines under the Obama administration, as published in the Federal Register, cover more than 100 pages of dense, detailed and intricate regulations.

Given this profound imbalance between the American regulatory and judicial system and disempowered foreign workers, it is the premise of this paper that the protection of the rights of farmworkers can be advanced most effectively by expanding the number of networks consisting of individual, organizational and institutional actors that are engaged with public policy that governs the guest worker community in the U.S. In essence, this would require a transition from the institutional policy framework to the group policy model or framework. While the group policy model generally tends to look at issues of conflict or competition among various groups in society, it is also a framework within which cross-cultural alliances can be forged to achieve mutually beneficial objectives, thereby yielding a group advocacy model. This is precisely what occurred during the American civil rights movement, for example (Dye, 2008).

In particular, there is a strong need to engage the African American community with respect to issues that impact the agricultural guest worker community. This is due to the fact that the increase in the number of agricultural guest workers has increased primarily due to the rise in their numbers in the U.S. South where large numbers of African Americans reside (Holley, 2001). Such a development, given that a substantial number of guest workers are undocumented or here illegally, contributes to inter-minority conflict between the African American and Latino communities. That said, the conditions under which guest workers live and work in the U.S. are reminiscent of conditions that African Americans faced under slavery and the subsequent sharecropping system implemented in the years following the American Civil War. Paradoxically then, the rights that African Americans fought to achieve for themselves and all Americans are in jeopardy under the present guest worker arrangement.

In order to more effectively engage the African American community in confronting and addressing issues facing the immigrant community, particularly temporary farmworkers, the following scenarios should be considered for federal funding and support:

Option One: The Higher Education Strategy

The higher education strategy explores creative and innovative opportunities for the engagement of minority serving institutions (MSIs), such as historically Black colleges and universities (HBCUs), in addressing the challenges posed by H-2A guest worker programs. Despite the fact that the inter-minority conflict theory predicts greater advocacy for the guest worker programs from Latinos in the context of competition for resources (Ilias, Fennelly, & Federico, 2008), the marginality theory suggests that members of groups that have been historically disadvantaged, such as African Americans, are more likely to sympathize with immigrants who have been marginalized (Burns & Gimpel, 2000; Fetzer, 2000). Ideally, 1890 land grant institutions could take the lead in responding to this opportunity. These institutions have a mission of working with small farmers and have extension systems established for the provision of technical assistance and outreach to rural communities that are overlooked in most policy decisions (Harris & Worthen, 2004).

Higher education provides a model as to how social institutions that are created by public policy evolve to respond to the changing needs of society and the public interest (Duderstadt & Womack, 2003). This option would seek federal support for centers of excellence at HBCUs that draw upon the teaching, research and service functions of higher education. Historically, the federal government has funded higher education institutions in order to promote research and education for societal needs (Dye, 2008; Cohen & Kisker, 2009).

Option Two: The African American Church and Faith-Based Strategy

Given the awakening of social conscience in the nation, there has been a surge of action to address poverty, dependence, and denial of equal rights, all of which persist incongruously in the midst of affluence (Leighninger, 2003). By launching an African American church initiative dealing with immigrant rights and causes that is linked to the White House Office of Faith-Based and Community Initiatives, churches and ministries would be given funding to provide support services, counseling and other assistance to guest worker communities. Governmental programs are being implemented in fields of long-standing interest to varying religious groups. These developments beget new opportunities for agencies to align existing services to national social programs in an effort to address social problems from a community context (Leighninger, 2003). Moreover, the African American church has been at the forefront of social issues such as the pursuit for civil rights and the economic empowerment of poor communities (Lewis & Trulear, 2008).

Option Three: The Legal Strategy

Although this strategy shares some similarities to the higher education strategy, it also takes into account the need to protect the constitutional rights of H-2A workers. This would be accomplished by engaging the services of law students and strengthening the capacity of legal clinics based on law school campuses. By regularly engaging in advocacy work in collaboration with non-profit organizations, such as Farmworker Justice and the NAACP; communities; or causes; students learn the skills associated with a variety of advocacy modalities, including litigation, legislative advocacy, regulatory work, public education, popular mobilization, and local advocacy. "These modes are particularly important in areas such as immigration law, which is governed by harsh statutes that insulate many cases from judicial review. By conducting multi-modal advocacy, students work to achieve broader-scale social change beyond what can typically be achieved in individual client work" (Srikantiah & Koh, 2010, p. 452). In this strategy, law students should act as collaborators, working as members of a project team that includes their instructor(s). By serving in this capacity, they can work on a component of a larger project, while collaborating with the clinical instructor and other key stakeholders--including institutional clients, co-counsel, community partners, and others (Srikantiah & Koh, 2010).

To further expand upon this strategy, post-graduate training and mentoring should be provided by law clinics for recently graduated attorneys who wish to pursue immigration law. For example, Southern New England School of Law addresses the continuing educational needs of recent law school graduates. The Southern New England School of Law not only offers direct legal services to clients but also trains and mentors recently graduated local attorneys, who offer both pro bono client representation as well as student supervision. Through the Immigration Law Clinic, young attorneys receive training in both immigration law and clinical supervision (Scharf, 2005).

Option Four: The Hybrid Strategy

This strategy would include any combination of the above stated options. For example, a higher education initiative might be implemented with black church support or vice versa. The legal strategy can be employed in conjunction with a higher education strategy that encompasses a consortium among institutions or a trans-disciplinary approach comprised of law students, graduate students in areas such as public policy, and pertinent faculty members.

Table 1 presented in Appendix I, compares the previously listed options with the desired outcomes listed above. A review of the strengths and weaknesses of each option points to the obvious value of a hybrid model.

IMPLICATIONS FOR POLICY, PRACTICE, AND RESEARCH

The transition from an institutional policy framework to a group policy framework requires the mobilization of groups in creative and innovative ways. This type of mobilization strategy would need to incorporate the following key components:

* research and data analysis to document guest worker population patterns, complaints of abuse, general trends in the migrant community and the nature and types of violations that may be taking place;

* an effective communications strategy, including the compilation and dissemination of relevant information to key networks and decision-makers;

* an education strategy to raise the awareness of the African American community and the public in general regarding the work environment and conditions affecting temporary H-2A farmworkers;

* technical assistance and outreach to farmworker communities; and

* policy advocacy to influence existing and future legislation.

CONCLUDING REMARKS

The guest worker program has been in existence in various forms since 1952, which was more than 50 years ago. Since that time, only incremental changes in this legislation have been made with the exception of the 1986 Immigration Reform and Control Act. Understandably, the impact of such changes upon the overall condition of temporary farmworkers has resulted in only marginal improvements and, in the case of rule changes by the Bush administration (which has now been reversed), temporary farmworkers were adversely affected with even fewer avenues for redress and protection. In order to achieve a more substantial advancement in quality of life indicators for H-2A guest workers, the following outcomes are desired:

* the establishment of African American--Latino alliances in support of the guest worker community;

* greater public awareness of issues facing nonimmigrant H-2A farmworkers;

* expanded citizen advocacy to ensure tangible improvement in the living conditions of temporary farmworkers and enforcement of rights presently included in the H-2A regulatory framework;

* systems of support and outreach that lessen the isolated circumstances under which H-2A workers must live and work.

As a shift in policy direction and strategy, it is recommended that the federal government target resources to strengthen the capacity of guest worker and American communities (where there are large numbers of temporary farmworkers) to deal with the issues associated with transient agricultural labor. Such policy initiatives would emphasize the need to provide avenues for guest workers to access the appropriate venues for justice, lessen their isolation, increase systems of caring support, and better document the conditions under which they must function. This policy approach emphasizes community capacity building and engagement as an alternative to an expensive, bureaucratic framework that appears ill-equipped to appropriately monitor and enforce the provisions of the H-2A regulations. Because citizens in local communities are in a better position to penetrate local and political networks, they are able to best determine what is happening in their environment.

As a part of the above-stated federal initiative, organizations receiving grants could be required to establish learning teams that would document the activities of the collaborative. This would be accomplished through videography, oral interviews, documentation of performance goals and objectives, and publications of case studies evolving out of the program implementation process. Additionally, an annual conference that would enable funded entities, along with other diverse stakeholders, to collaborate and share their experiences and emerging best practices.

APPENDIX I
Table 1
Stakeholder Analysis of African American Organizations

OPTION                ALLIANCE                     PUBLIC
                     FORMATION                   AWARENESS

The Higher        Higher education            Higher education
Education     institutions not always     institutions are in the
Strategy     effective in reaching out     business of knowledge
               to other; yet there is     production, particularly
               evidence of effective      in the areas of teaching
               community partnerships     and research; resources
              with institutions, e.g.,    are in place to advance
                 Xavier and Dillard       these goals even without
                                              federal support

                        +/-                          +

The Black     Might be difficult given    Would need to rely upon
Church           the denominational           others to do the
Strategy       structure of the Black        research necessary
             Church community; churches
             tend to be more effective
               when they support just
               causes spearheaded by
                   other entities

                                                     -

The Legal/     Civil rights movement       May face challenges in
Organizing   demonstrates effectiveness     conducting research,
Strategy          of this strategy        compiling and analyzing
                                            data; networks might
                                          help with dissemination
                                               of information

                         +                          +/-

The Hybrid      Would draw upon the        Would draw upon higher
Strategy     legal/organizing community   education institutions'
                  and its networks          capacity and role in
                                            knowledge production

                         +                           +

OPTION                 CITIZEN                      REDUCED
                      ADVOCACY                   ISOLATION OF
                                                 H-2A WORKERS

The Higher   Might require some sort of      Might be difficult to
Education    alliance with nonprofit or     achieve through higher
Strategy     civil rights organizations;    education institutions;
                  higher education            service mission of
                institutions provide          universities often
              knowledge and information    compromised by transient
             so that their partners can        nature of student
               use this information to      population; faculty are
                achieve better public      limited in what they can;
                   policy outcomes         a center devoted to this
                                              issue might be more
                                            effective in achieving
                                            tangible outcomes over
                                               a period of time

                         +/-                          +/-

The Black     Again, church leaders and      Through missions and
Church        members, particularly in        outreach programs,
Strategy        the African American        churches could provide
             community, tend to be more      the caring systems of
              effective supporting just      support that isolated
                 causes rather than         guest workers need and
               initiating and leading         require in order to
              them. With respect to the       change the adverse
               civil rights movement,      circumstances under which
                for example, African          they live and work.
               American clergy had to
               establish organizations
               such as SCLC to advance
                   and sustain an
                 activist movement.

                         +/-                           +

The Legal/    This is part of the core       Might be difficult to
Organizing    strength of organizations      sustain in a context
Strategy     involved in organizing and     where advocacy demands
             mobilizing groups in social      and priorities are
                  change processes.           constantly shifting

                          +                            -

The Hybrid       Would draw upon the          Would draw upon the
Strategy     legal/organizing community      assets and mission of
               with contributions from       the church community
                higher education and       with support from higher
                      churches                 education and the
                                               legal/organizing
                                                   community

                          +                            +


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Cohen, A. M., & Kisker, C.B. (2009). The Shaping of American Higher Education: Emergence and Growth of the Contemporary System, Epub Edition. Jossey-Bass Inc Pub.

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Farmworker Justice (2010). H-2A guest worker program. Retrieved April 1, 2010, from http://www.fwjustice.org/Immigration_Labor/h2anews.htm

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Lewis, C. E., & Trulear, H. D. (2008). Rethinking the role of African American churches as social service providers. Black Theology: An International Journal. 6(3), 343-365.

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Schiff, M. W. (2004). When migrants overstay their legal welcome: A proposed solution to the guest-worker program (IZA DP No. 1401, Discussion Paper Series, Institute for the Study of Labor). Bonn, Germany: IZA. Retrieved April 3, 2010, from ftp://ftp.iza.org/dps/dp1401.pdf

Scharf, I. (2005). Nourishing justice and the continuum: implementing a blended model in an immigration law clinic. Clinical Law Review. 12(1), 243-281.

Smith, R. (2007). Guest workers or forced labor? New Labor Forum. 16, 3/4, 70-78.

Srikantiah, J., & Koh, J.L. (2010). Teaching individual representation alongside institutional advocacy: pedagogical implications of a combined advocacy clinic. Clinical Law Review. 16(2), 451-488.

United States (2010). Federal register. Temporary agricultural employment of H-2A aliens in the united states: final rule. 20 CFR Part 655 29 CFR Part 501: wage and hour division; final rule. Part II. Department of Labor, Employment and Training Administration. Arlington, Va.: U.S. Dept. of Labor, Employment and Training Administration.

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Pamela D. Moore

University of Arkansas at Pine Bluff

Kimberly K. Powell

Southern University and A&M College

Pamela D. Moore holds a Ph.D. in Urban Higher Education from Jackson State University in Jackson, Mississippi and a Juris Doctorate and Master of Public Policy degrees from Harvard University. Dr. Moore is a Visiting Assistant Professor for the School of Agriculture, Fisheries, and Human Sciences at the University of Arkansas at Pine Bluff in Pine Bluff, Arkansas. Dr. Moore also works with the Office of International Programs/Studies at the University of Arkansas at Pine Bluff. Her research interests include diversity in higher education, public policy, change and transition management.

Kimberly K. Powell holds a Ph.D. in Urban Higher Education from Jackson State University in Jackson, Mississippi and post-doctoral certifications in both management and marketing from Tulane University in New Orleans, Louisiana. Dr. Powell is the Assistant Professor of Marketing at Southern University and A&M College in Baton Rouge, Louisiana. Her research interests include public policy, marketing and management in higher education, and diversity in higher education.
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