Mississippi is burning Georgia's peaches because Alabama is no longer a sweet home: a legislative analysis of Southern discomfort regarding illegal immigration.

Author:Hishaw, Jillian S.
 
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  1. INTRODUCTION II. WE'VE BEEN HERE BEFORE III. NORTH AMERICAN FREE TRADE AGREEMENT IV. THE CHINA EFFECT V. SWEET HOME ALABAMA VI. I'VE GOT GEORGIA ON MY MIND VII. MISSISSIPPI BURNING VII. POSITIVE IMPLICATIONS OF STATE IMMIGRATION REFORM IX. GUEST WORKER PROGRAM A. H-2A GUEST WORKER PROGRAM B. HELPING AGRICULTURE RECEIVE VERIFIABLE EMPLOYEES SECURELY AND TEMPORARILY ACT C. AMERICAN SPECIALTY AGRICULTURE ACT D. LEGAL AGRICULTURAL WORKFORCE ACT E. AGRICULTURAL LABOR MARKET REFORM ACT F. BETTER AGRICULTURAL RESOURCES NOW X. CONCLUSION I. INTRODUCTION

    Does this sound familiar? This year 500,000 undocumented residents from Mexico were deported from the United States. (1) For every 1,200 illegal residents deported, 1,478 dependents are left behind. (2) Public assistance is the main source of income, costing the U.S. Federal government an average of $147,000 annually and $90,000 in deportation costs. (3) Ironically, the events described above took place between 1929-1939. (4) During the Great Depression, states began passing laws restricting migrant employment, which is currently being replicated in the South. (5) Reentry was allowed for 80% of the deported due to the large number of dependents left behind who were U.S. citizens. (6) In 1942, three years after a decade long deportation phase, the Bracero Program was established, allowing 4.5 million Mexicans to work as agricultural workers on a temporary work visa. (7) Prior to entering the United States, workers were fingerprinted and fumigated with DDT. (8) Wages, meals, and housing expenses were deducted from workers' wages, resulting in frequent wage disputes among the workers and farmers. (9) Sadly, this same type of scenario exists today. The U.S. agricultural industry employs less than two percent of the U.S. labor force. (10) Of an estimated 3 million employed in the U.S. agriculture industry, one-third are farm workers. (11) Most hired farm workers are hired directly from the grower or through a thirdparty contractor. (12) Half of the hired workers lack legal citizenship or work permits. (13)

    For most undocumented residents, "do or die" seems to be the mentality when entering into America, justifying the illegal ends to the means. As a result, agricultural producers are more than willing to exploit migrant workers illegal predicament. Feeding on America's addiction to cheap labor, the agricultural industry has become dependent on millions of illegal workers, as the demand for U.S. commodities increases. Onerous and outdated, the existing guest-worker program is going into its third decade of failure. After tireless federal debates and pleas for a federal resolution, many Southern states have adopted vigilante-type regulations to cut off employment and use of public benefits by undocumented workers. The southern discomfort in not recognizing immigrant rights is long and deeply rooted in the past and present legislation. Due to the overwhelming number of illegal immigrants and federal costs associated with deportation, and the allocation of public benefits, the laws written were out of necessity but the enforcement tactics are too extreme. Many producers have criticized the Southern states' approach in creating a labor shortage that seems to be irreplaceable, despite high unemployment rates.

    This article will initially explore the historical relevance of America's use of migrant workers, which in retrospect mirrors today's present issues. The proceeding sections will focus on the effects that the North American Free Trade Agreement had on Mexico's agricultural industry, initiating the increase in illegal crossings of the U.S.-Mexico border. Due to America's dependency on cheap labor, agricultural production has expanded greatly, which has extended to fulfilling China's increasing demand for U.S. agriculture commodities. Subsequently, the latter sections of the article will focus on the detailed nuances of state legislation in the South and the states' push to move illegal residents out. Lastly, the analysis will conclude the article by discussing the challenges facing the H-2A guest-worker program and the rising costs of illegal immigration.

  2. WE'VE BEEN HERE BEFORE

    The Naturalization Act of 1790 was the first immigration law enacted that only granted citizenship to "free white persons of good moral character" (14) displaying America's immigration laws were founded on discriminatory practices. In 1868, the Fourteenth Amendment allowed the immediate naturalization of U.S. born Whites; two years later Black, not Asians, received naturalization rights proving the foundation of U.S. immigration law has often included racial restrictions. (15) Due to the heavy influx of Asians, lured by the "Gold Rush" of the 1840s, Congress passed the Chinese Exclusion Act in 1882, limiting further Chinese immigration for ten years. (16) The U.S. government felt the Chinese were an economic threat to White prosperity. (17) The Act was extended twice in 1892 and 1902, (18) but was eventually repealed in 1943. (19) In 1921, Congress passed the Emergency Quota Act, establishing migrant quotas for various nationalities. (20) The quotas were based on three percent of each foreign born U.S. resident of that nationality documented in the 1910 U.S. Census. (21) The Immigration Act of 1924 updated the "emergency quotas" by replacing it with a more complex quota system based on the three percent numbers of the 1920 U.S. Census. (22) In 1938 the Fair Labor Standards Act ("FLSA") was passed to establish recordkeeping standards, minimum wage rates, work hour limitations, and child labor restrictions. Agricultural employers utilizing less than 500 man-days of agricultural labor during any calendar quarter are exempt from minimum wage provisions, including livestock producers.* 23 * 23 24 The U.S. Department of Labor also allows agricultural employers not to pay minimum wage to a worker who

    is employed as a hand harvest laborer and is paid on a piece rate basis in an operation which has been, and is customarily and generally recognized as having been, paid on a piece rate basis in the region of employment, (ii) commutes daily from his permanent residence to the farm on which he is so employed, and (iii) has been employed in agriculture less than thirteen weeks during the preceding calendar year or local hand-harvest workers who are paid on a piece-rate basis and who worked fewer than 13 weeks in agriculture during the preceding calendar year ... [or] is sixteen years of age or under and is employed as a hand harvest laborer, is paid on a piece rate basis in an operation which has been, and is customarily and generally recognized as having been, paid on a piece rate basis in the region of employment, (ii) is employed on the same farm as his parent or person standing in the place of his parent, and (iii) is paid at the same piece rate as employees over age sixteen are paid on the same farm ... (25) In 1963 Congress passed the Farm Labor Contractor Registration Act ("FLCRA"), the first federal law regulating farm contract labor; the act was later changed to the Migrant and Seasonal Agricultural Workers Protection Act ("Workers Act"). (26) The Workers Act provides protection for migrant and seasonal farm workers regarding transportation, housing, pay, and work conditions. (27) Workers are required to register with the U.S. Department of Labor; however, workers are still subject to the FLSA 500 man-days exemption. (28)

    Migration from Mexico was unrestricted until Congress passed the Immigration and Nationality Act ("INA") in 1965. (29) The INA prohibits the hiring of illegal residents. The INA requires employers to verify the identity and employment eligibility of every employee, including U.S. citizens, by completing an 1-9 form. (31) Non-compliance will result in sanctions. (32) Upon the acceptance of employment, all new hires must attest to being a U.S. citizen, permanent resident, noncitizen national, or an authorized worker. (33) Employees have three days to provide documentation to verify their immigration status from the initial hiring date. (34)

    To deter potential discrimination in hiring, Congress added anti-discrimination provisions to the INA in 1986. (35) Enforced by the Civil Rights Division within the U.S. Department of Justice, violators found guilty are subject "to pay back wages and civil penalties and to hire or rehire workers." (36) The INA anti-discrimination segment consists of four main prohibitions: requesting more documentation than required to verify immigration status, retaliating against an individual who files or intends to file a discrimination complaint, discriminating based on national origin, and discriminating based on citizenship status in relation to hiring, firing, referring, and recruiting. (37) Many argue the 1996 INA amendments were designed to prohibit states from giving unauthorized immigrant students post-secondary educational benefits. Although according to the National Conference of State Legislators, there is no congressional language to provide direction. (38) In response, Congress proposed the Development, Relief, and Education for Alien Minors Act of 2011 ("DREAM Act"), which would provide students the opportunity to receive post-secondary educational benefits void of immigration prohibitions. (39)

    In conjunction with Form 1-9, the voluntary E-Verify program was established in 1996 to allow employers to electronically verify the immigration status of all new applicants. (40) The program is administered by the U.S. Department of Homeland Security in partnership with the U.S. Social Security Administration. (41) The program was established under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). 2 The program initially began in California, Florida, Illinois, and New York, adding Texas in 1997 and Nebraska in 1999. (43) In 2003, the program expanded to all fifty states. (44) As of March 2012, there were over 350,000 employers...

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