commission_report.txt

LEGAL SERVICES CORPORATION
Erlenborn Commission Members
Hon. John N. Erlenborn, Chairman Professor T. Alexander
Aleinikoff Hon. Gilbert F. Casellas Professor Sarah H. Cleveland
Professor Nancy H. Rogers Professor Enid F. Trucios-Haynes,
Reporter Hon. Romano L. Mazzoli, A dvisory Member
Board of Directors
Douglas S. Eakeley, Chairman Hon. John N. Erlenborn, V
ice-Chairman Hulett H. Askew LaVeeda M. Battle Hon. John T.
Broderick, Jr. Edna Fairbanks-Williams F.Wm. McCalpin Maria Luisa
Mercado Professor Nancy H. Rogers Thomas F. Smegal, Jr. Ernestine
P. Watlington
Management and Administration
John McKay, President Danilo A. Cardona, A cting V ice President
for Programs and Director of Compliance and E nforcement Victor M.
Fortuno, V ice President for Legal A ffairs, General Counsel and
Corporate Secretary James J. Hogan, V ice President for A
dministration Mauricio Vivero, V ice President for Governmental
Relations and Public A ffairs John A. Hartingh, Special A ssistant
to the President John Kennedy, Director of A dministration and
Human Resources David L. Richardson, Comptroller and Treasurer
Edward H. Faris, Director of Information Management Leslie Q.
Russell, Director of Information Technology Michael A. Genz,
Director of Program Performance

EXECUTIVE SUMMARY
The Legal Services Corporation is a private, nonmembership,
nonprofit corporation in the District of Columbia. The Board of
Directors of the Corporation is composed of 11 voting members who
are appointed by the President of the United States with the advice
and consent of the Senate. By law, the Board is bipartisan: no more
than six members can be of the same political party.
Erlenborn Commission. The Erlenborn Commission was authorized by
a resolution of the Corporation's Board of Directors on November
16, 1998, to study the presence requirement in the Corporation's
statutory restriction on the representation of eligible aliens.
Since 1983, the Corporation's appropriations act and its regulation
on the representation of aliens have required that an alien be
"present in the United States" to be eligible for legal assistance
from an LSC grantee. Neither the appropriations act nor the
Corporation's regulations define the term "present in the United
States." The Commission solicited written comments from the public
and held two public hearings duly noticed in the Federal Register.
The Report of the Commission is based on a thorough analysis of the
applicable statutory provisions, the extensive record compiled from
the comments and testimony regarding the circumstances under which
representation of eligible aliens occurs and the practices of legal
services grantees relating to eligible aliens.
Scope of alien representation. Corporation grantees are
permitted to represent several classes of aliens, including lawful
permanent aliens, refugees, persons granted asylum, and temporary
agricultural workers admitted under the "H-2A" program. With the
sole exception of H-2A workers, LSC grantees may provide
representation to aliens on the same subjects as is provided to
citizens. (The report refers to these classes as "unrestricted
categories.") The representation of H-2A workers, however, is
limited to "matters which arise under the provisions of the
worker's specific employment contract" in the areas of wages,
housing, transportation and other employment rights under the
contract. The "present in the United States" requirement applies to
both the unrestricted categories and H-2A workers.
Of particular interest to the Commission was the situation of
seasonal agricultural workers, a category that includes both aliens
from the unrestricted categories (such as permanent resident
aliens) and H-2A workers. Seasonal agricultural workers frequently
leave and re-enter the United States; thus the "presence"
requirement would have a substantial and direct impact on their
ability to receive legal representation from LSC grantees.
The record reveals that it has been a long-standing practice for
LSC grantees to provide legal assistance to eligible aliens who
have left the United States at some point during representation.
This practice has been followed without objection from the
Corporation when conducting audits of LSC grantees, or from
agricultural employers and growers associations involved in legal
disputes. In addition, there has been no formal regulation or
opinion of the General Counsel's office regarding the specific
scope of the presence requirement. A recent complaint to the
Corporation about the activities of a sub-grantee relating to alien
representation raised the issue presented to the Commission.
Statutory Analysis. Applying the principles of law governing
statutory analysis, the Commission considered the presence
requirement in light of its plain and ordinary meaning, its context
in a statutory scheme and the purpose and design of the statute as
a whole. See Part III(A). The Corporation's appropriations act
requires that an alien must be "present in the United States" in
order to be eligible for legal assistance. Construing the term
"present" according to its ordinary meaning, it is clear that the
statute requires the alien to be physically present in the United
States at some point. This conclusion does not end the inquiry,
however, because the relevant question is not whether an alien must
be physically present in the United States, but when the alien must
be present in order to be entitled to LSC representation. Here, the
language provides no express statement on when an alien must be
present in the United States. Indeed, no single interpretation is
clearly compelled by the statutory language. For example, nothing
in the LSC authorization language keys representation to when the
cause of action arises or specifically requires that the alien be
present when the representation commences. In particular, the
statute does not expressly require that an alien be continuously
physically present in the United States throughout the period of
representation in order to be eligible for legal assistance.
The factual record and the statutory scheme in which the
language arises, on the other hand, provide an important context
for consideration of the legal question of when an alien must be
"present in the United States." Consideration of the immediate
context in which the language appears raises further questions
regarding the meaning of the presence requirement. The statute's
application of the presence requirement to legal permanent
residents, for example, is in some tension with the fact that those
aliens are legally entitled to leave the United States temporarily
without affecting their immigration status. See Part II(C)(1).
Furthermore, H-2A workers by definition are physically present in
the United States only temporarily. Reading "presence" in the
statute to require uninterrupted, continuous physical presence
would mean that Congress, without using such language, intended to
deny LSC representation to aliens who engaged in
federally-authorized travel that did not affect their immigration
status. In the case of H-2A workers, the reading would require the
conclusion that Congress intended to provide H-2A workers with
legal services representation on claims arising from their
employment contracts only for the very brief periods that the
workers are in the United States -- potentially rendering the
promise of legal representation largely meaningless. In short, an
examination of the language of the presence requirement and the
statutory context in which it arises raises a number of
interpretive problems and fails to resolve the question of when an
alien must be present in the United States in order to be entitled
to legal services representation. The Commission concludes that the
statutory language is ambiguous on this point. These difficulties
support further inquiry into relevant legislative history to help
determine the meaning of the presence requirement.
Legislative History. The legislative history of the presence
requirement in the Corporation's appropriations and the applicable
H-2A provisions in the Immigration Reform and Control Act confirm
that Congress intended to provide meaningful representation to
eligible aliens, including H-2A workers on claims arising from
their employment contract; and that Congress did not understand the
presence requirement to severely alter or restrict this
representation. See Part III(B). The Legal Services Act was adopted
to provide effective legal representation to low income persons.
The presence language appeared in the LSC appropriations act as
part of an effort to expand LSC representation to aliens other than
lawful residents, and does not appear to have been intended to
limit LSC representation to aliens who were continuously physically
present in the United States. Similarly, the express purpose of
Section 305 of IRCA was to "secure the rights of H-2 agricultural
workers under the specific contract under which they were admitted
to this country." Such representation was intended to prevent the
exploitation of foreign H2A workers and to ensure that the wages
and working conditions of U.S. workers would not be undermined.
Findings of Fact and Application of Law. The record compiled by
the Commission supports, inter alia, the following findings of
fact. See Part II. Aliens in the unrestricted categories often
legally leave the country during the course of their
representation. See Part II(C)(1). Most H-2A workers are in the
United States for brief periods of time and do not seek legal
representation until they have completed their contract, often
because of fear of retaliation by the growers. See Part II (C)(2)
and (D)(1). Most claims made by aliens take years to resolve. See
Part II(E). Requiring legal services attorneys to monitor their
clients' movements and formally withdraw whenever the client leaves
the country would create extraordinary burdens for the LSC
grantees, the clients, opposing parties, and the courts. See Part
II(G). Finally, the private bar and other nonprofit legal services
providers are neither available, willing, nor able to take over the
representation of these populations. See Part II(F).
This factual record provided an important context for
consideration of the legal question of the meaning of the presence
requirement. Three possible interpretations of the presence
language were listed in the Corporation's Federal Register notice:
(1) an alien must be physically present in the United States when
the cause of action for which the recipient provides legal
assistance arises; (2) an alien must be physically present only
when legal representation is commenced; and (3) an alien must be
physically present in the United States any time the alien is
provided legal assistance from an LSC grantee. Upon careful
consideration of the findings of fact, the language and purposes of
the statute and the legislative history, the Commission has
determined that none of these formulations fully responds to the
purposes of the statute or the intent of Congress. Furthermore, the
record demonstrates that the interpretations initially offered by
the Corporation in the Federal Register notice would contradict
Congress' clear purpose of providing meaningful legal
representation to indigent lawful aliens and lead to absurd
results. See Part III(C).
For example, as applied to the unrestricted aliens, such
interpretations would preclude representation for permanent
resident aliens who are evicted from their apartments or against
whom divorce proceedings were commenced while the alien is legally
out of the country for brief periods to attend a family emergency
or funeral. These interpretations would also invite exploitation by
allowing litigants to simply wait until an alien temporarily
departed the United States before cutting off workers compensation
benefits, or initiating eviction, repossession, or divorce or
custody proceedings.
In regard to H-2A workers, the record demonstrates that
Congress' purpose of providing meaningful representation to these
workers cannot be accomplished under the three interpretations in
the Federal Register. Many of the contract rights of such workers--
such as reimbursement for return transportation, workers
compensation, the 3/4 guarantee, and claims that a grower failed to
mail the worker's final paycheck-- often do not arise until after
the worker has returned home. In addition, if the worker is
required to be in the United States throughout the course of the
representation, the right to legal assistance would be lost
altogether. By law, H-2A workers must leave the country at the end
of their contract period and most such workers are in the United
States for only two to five months. The factual record before the
Commission demonstrates that the vast majority of the claims of
H-2A workers cannot be completed while the alien is in the United
States. The Commission recognizes that representation of
agricultural workers was a central element in the legislative
crafting of the H-2A program. The Commission concludes that this
reading of the statute would essentially bar LSC representation of
this class of aliens and leave H-2A workers without meaningful
representation on their employment contract claims, directly
contrary to Congress' express purpose. We decline to sanction such
a result.
Conclusion. Together, the language, purpose, and legislative
history of the applicable statutes, and the factual record before
the Commission, suggest an interpretation of the statute that would
authorize the following representation:
For an alien in one of the unrestricted categories
representation would be authorized so long as the eligible alien is
present sufficient to maintain residence or lawful immigration
status. Under this interpretation, LSC grantees who have begun
representation of a permanent resident alien may continue that
representation should the alien be temporarily outside the United
States. Grantees may also initiate representation of aliens in the
unrestricted categories who are temporarily outside the United
States, provided that they have been present sufficient to maintain
and have not abandoned their residence or INA status. LSC grantees
may not represent aliens in this category who have never entered or
been present in the United States.
For H-2A workers, representation is authorized if the workers
have been admitted to and have been present in the United States
pursuant to an H-2A contract, and the representation arises under
their H-2A contract. LSC grantees are authorized to litigate this
narrow range of claims to completion, despite the fact that the
alien may be required to depart the United States prior to or
during the course of the representation. LSC grantees may not
represent aliens in this category who have never entered or been
present in the United States.
I. INTRODUCTION
The Erlenborn Commission was established to evaluate the scope
of permissible representation for eligible aliens by LSC grantees.
Since 1983, the Corporation's appropriations act and its regulation
on the representation of aliens have required that an alien be
"present in the United States" to be eligible for legal assistance
from an LSC grantee. Neither the appropriations act nor the
Corporation's regulations defines the term "present in the United
States." The Legal Services Corporation Board of Directors adopted
Resolution 98-011, on November 16, 1998, providing authority to
establish the Commission with the express purpose of studying the
presence requirement for the representation of eligible aliens.
LSC grantees are permitted to represent several classes of
aliens, including lawful permanent aliens, refugees, persons
granted asylum, and temporary agricultural workers admitted under
the "H-2A" program.1 With the sole exception of H-2A workers, LSC
grantees may provide general representation to aliens on all the
same subjects as is provided to citizens. (These classes will be
referred to as "unrestricted categories.") The representation of
H-2A workers, however, is limited to matters which arise under the
worker's specific employment contract in the areas of wages,
housing, transportation and other employment rights. The "present
in the United States" requirement applies to both the unrestricted
categories and to H-2A workers.
The Commission has gathered an extensive factual record. The
Commission solicited comments from the public through a notice duly
published in the Federal Register. 64 Fed. Reg. 8140 (1999). The
Commission sought public comments on the facts and circumstances
surrounding the representation of all eligible aliens who are
affected by the presence requirement. It placed particular emphasis
on seasonal
2
agricultural workers --which includes temporary H-2A workers as
well as aliens from the unrestricted
3
categories such as permanent resident aliens and special
agricultural workers (SAWS). The Federal Register notice asked that
comments be directed to the following questions:
(1) How long are seasonal agricultural workers typically in the
United States?
1 The program's name is derived from the subparagraph of the
Immigration and Nationality Act (INA) that defines the status, 8
U.S.C. § 1101(a)(15)(H)(ii)(a) (1994) (an alien "having residence
in a foreign country which he has no intention of abandoning who is
coming temporarily to the United States to perform agricultural
labor or services . . . of a temporary or seasonal nature").
2 See 8 U.S.C. § 1160(h) (1994). Seasonal agricultural work is
defined in the INA as: "the performance of field work related to
planting, cultural practices, cultivating, growing and harvesting
of fruits and vegetables of every kind and other perishable
commodities, as defined in regulations by the Secretary of
Agriculture." Id.
3 See 8 U.S.C. § 1160(a)(1)(B)(1994). An alien is eligible for
classification as a special agricultural worker if he or she has
resided in the United States and performed seasonal agricultural
work in the United States for at least 90 man-days during the
twelve month period ending May 1, 1986.
-1


(2)
When does the seasonal agricultural worker normally seek
legal representation?


(3)
What are the common claims of seasonal agricultural
workers seeking legal representation?


(4)
When do the claims of seasonal agricultural workers
generally ripen?


(5)
How long does it typically take to resolve seasonal
agricultural workers' legal claims?


(6)
What is the established practice of LSC recipients in
representing seasonal agricultural workers?


(7)
What is the likelihood that private counsel is available
to represent aliens who are in the United States under temporary
visas or who may temporarily leave the United States?



(8)
Under what circumstances do seasonal agricultural workers
commonly leave the

United States?


(9)
What are the implications of the presence requirement on
recipient attorneys' professional obligations to their
clients?4


The Federal Register notice identified a number of possible
interpretations of the presence requirement: (1) an alien must be
physically present in the United States when the cause of action
for which the recipient provides legal assistance arises; (2) an
alien must be physically present when legal representation is
commenced; and (3) an alien must be physically present in the
United States any time the alien is provided legal assistance from
an LSC grantee.5 This Report of the Commission identifies the
current interpretation used by LSC grantees and the impact of
alternative interpretations on all categories of eligible
aliens.
The Commission held hearings at: (1) Duke University Law School,
Durham, North Carolina on March 27, 1999; and (2) Stanford
University, Stanford, California on April 10, 1999. All requests to
provide live testimony at one of the two public hearings were
granted.
4 64 Fed. Reg. 8140, 8141 (1999).
5 Id.
II. FACTUAL FINDINGS
The Commission has compiled factual findings that address the
questions identified in the Federal Register notice described
above.
A. Categories of Aliens Eligible for LSC-funded Legal
Services

1. Current Law
LSC representation of aliens is limited to certain classes of
aliens who broadly may be described as lawful permanent residents,
prospective lawful permanent residents and one specific group of
temporary, nonimmigrants.6 "Lawful permanent resident" is a term of
art under the Immigration and Nationality Act
6 Under current law, LSC recipients may provide legal assistance
to an alien if the alien is present in the United States and falls
within one of several designated categories:


(A)
an alien lawfully admitted for permanent residence as
defined in section 101(a)(20) of the Immigration and Nationality
Act (8 U.S.C. 1101(a)(20));


(B)
an alien who - (i) is married to a United States citizen
or is a parent or an unmarried child under the age of 21 of such a
citizen; and (ii) has filed an application to adjust the status of
the alien to the status of a lawful permanent resident under the
Immigration and Nationality Act (8 U.S.C. 1101 et seq.), which
application has not been rejected;


(C)
an alien who is lawfully present in the United States
pursuant to an admission under section 207 of the Immigration and
Nationality Act (8 U.S.C. 1157) (relating to refugee admission) or
who has been granted asylum by the Attorney General under such
Act;


(D)
an alien who is lawfully present in the United States as
a result of withholding of deportation by the Attorney General
pursuant to section 243(h) of the Immigration and Nationality Act
(8 U.S.C. 1253(h)); [Section 1253(h) was redesignated as section
1231(b)(3), Restriction on Removal, and amended by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(IIRAIRA)]


(E)
an alien to whom section 305 of the Immigration Reform
and Control Act of 1986 (8 U.S.C. 1101 note) applies, but only to
the extent that the legal assistance provided is the legal
assistance described in such section; or


(INA), 8 U.S.C. § 1101-1504 (1994 & Supp. II 1996), and is
defined in the statute as "the status of having been lawfully
accorded the privilege of residing permanently in the United States
as an immigrant in accordance with the immigration laws." 8 U.S.C.
§ 1101(a)(20) (1994). The group of prospective lawful permanent
residents includes both applicants for permanent resident status
and likely prospective applicants based on their current status in
the United States as individuals fleeing persecution (refugees,
asylees, conditional entrants and aliens granted relief from
removal by an Immigration Judge).7 There is one category of
eligible aliens, agricultural workers under the H-2A Program, who
are aliens only temporarily in the United States. As noted above,
representation of H-2A workers is limited to specific subject
matters arising under the H-2A employment contract. Because of the
special representational issues regarding this category of eligible
aliens, we will examine it in detail.


2. Temporary Agricultural Workers under the H-2A Program
H-2A aliens, as the only category of eligible aliens who reside
in the United States temporarily, are particularly affected by the
issue before the Commission because of their necessarily short
periods of time in the United States. H-2A aliens are
non-immigrants, who reside in a foreign country but come to the
United States temporarily to perform agricultural labor or services
for a specified employer or employers. 8 U.S.C. §
1101(a)(15)(H)(ii)(a)(1994). Their term of stay in the United
States is dependent upon the agricultural needs of the employer,
but by law cannot exceed one year. 8 C.F.R. § 214.2(h)(5)(iv)
(1999).
The H-2A Program for temporary agricultural workers is a complex
regulatory scheme devised by Congress to meet competing concerns:
the need of agricultural employers for workers, and the need
(F) an alien who is lawfully present in the United States as the
result of being granted conditional entry to the United States
before April 1, 1980, pursuant to section 203(a)(7) of the
Immigration and Nationality Act (8 U.S.C. 1153(a)(7)), as in effect
on March 31, 1980, because of persecution or fear of persecution on
account of race, religion, or political calamity.
Omnibus Consolidated Recissions and Appropriations Act of 1996,
tit. V, § 101, Pub. L. No. 104134, 110 Stat. 1321, 1321-55, as
incorporated by District of Colombia Convention Center Revenues,
Pub. L. No. 105-227, 112 Stat. 1515 (1998), implemented by 45
C.F.R. pt. 1626 (1999).
7Further, current law allows the representation of any alien who
herself or whose child has beensubject to domestic violence.
However, the representation is limited to preventing or obtaining
relief from the violence. The representation may occur only with
non-LSC funds. Eligibility for legal assistance for this category
of aliens is not dependent upon the alien being "present in the
United States." See Departments of Commerce, Justice, and State,
the Judiciary, and Related Agencies Appropriations Act, §
502(a)(2)(C), (b), Pub. L. No. 105-119, 111 Stat. 2440 (1998), as
incorporated by District of Colombia Convention Center Revenues,
Pub. L. No. 105-227, 112 Stat. 1515 (1998), implemented by 45
C.F.R. pt. 1626.2, 1626.4(1999).
to protect agricultural laborers, both foreign and domestic. The
United States has facilitated the importation of foreign
agricultural workers in response to alleged shortages of workers in
the United States for many years under various programs.8
Agricultural employers have consistently asserted that many U.S.
workers did not want to work in seasonal agriculture or live in
rural areas, and that crops would rot in the fields without foreign
workers. Organized labor and advocates for farm workers
historically have disputed these assertions based on the general
high employment rate among domestic farm workers and the alleged
desire of agricultural employers to preserve a cheap labor force
with limited legal rights. Charles Gordon et al., Immigration Law
and Procedure, § 20.09[1] (1999).
The H-2A Program was established by the Immigration Reform and
Control Act of 1986 (IRCA), Pub. L. No. 99-603, 100 Stat. 3359. In
adopting the H-2A program, Congress sought "a balanced program that
would ensure an adequate source of labor, but would not exploit
employees or provide an added incentive to hire foreign rather than
resident workers." See H.R. REP. NO. 99-682(I), at 106 (1986),
reprinted in 1986 U.S.C.C.A.N. 5649, 5710. Accordingly, the
legislation requires that agricultural employers recruit U.S.
workers first, and that the terms of work offered foreign workers,
when
U.S. workers are unavailable, must notadversely affect the wages
and working conditions of U.S. workers. 8 U.S.C. §1188(a) (1994).
Congress designated a specific set of rights and guarantees for
H-2A workers, including workers compensation, housing, and other
benefits to ensure that these statutory goals were met. 8 U.S.C. §§
1188(b)-(d)(1994). The U.S. Department of Labor (USDOL) has also
promulgated regulations mandating the minimum benefits that must be
provided to H-2A workers. 20 C.F.R. §655.102(a) (1999). In general,
the wages, benefits and working conditions the employer intends to
offer to H-2A workers must also be offered to recruited U.S.
workers, which includes lawful permanent resident aliens.
Immigration Law and Procedure, supra at § 20.09[1]. Growers must
replace H-2A workers with any U.S. worker who applies for the job
before half of the season is over. 20 C.F.R. §
655.103(3)(1999).
The process for the admission of H-2A workers requires that the
grower submit an application for certification to USDOL setting
forth all the material terms and conditions of work that the
employer intends to offer its workers. If USDOL determines that a
labor shortage exists and that the job offer satisfies the federal
requirements, USDOL approves the employer's application for
certification. See 8 U.S.C. §1188(a)(1994). The U.S. Department of
Justice, through the Immigration and Naturalization Service (INS),
then approves the employer's H-2A visa petition to bring in
workers, and the U.S. Department of State issues nonimmigrant
visas. See id. The approved H-2A visa petition and the
corresponding H-2A
8 The controversial "Bracero" Program operated between 1942 and
1964 and permitted Mexicans to work temporarily in United States
agriculture. From 1964 to 1986, entry of foreign agricultural
workers was permitted under the H-2 Program which many agricultural
employers found inadequate. Immigration Law and Procedure, supra at
§ 20.09[1]; see also Erlenborn Commission: Comments on "Presence
Requirement" (Supplement), Apr. 10, 1999, at 56 (comment of Howard
Berman, Member of Congress) [hereinafter April Comments]
(describing prior programs as "quite controversial for many
years").
visa permit the worker to stay for the duration of the certified
period of employment, but in no event may the visa exceed one year.
8 C.F.R. §214.2 (h)(5)(iv)(1999); April Comments at 9 (comment of
D. Michael Hancock, USDOL). Further, the visa is terminated at any
time the H-2A worker's employment relationship ends, whether
through voluntary departure or involuntary termination. Id. The
H-2A worker must depart the country and is subject to deportation
for failing to do so. Id. Thus, the H-2A worker is only admitted to
the United States to perform work for a designated employer or
employers, and must leave the United States when that employment
terminates for any reason.
In crafting the H-2A program, Congress was acutely aware of the
vulnerability of temporary agricultural workers and of problems
that had arisen under other such programs, particularly the Bracero
Program. See discussion infra Part III(B)(2). Congress further
recognized that the H-2A provisions
9
required enforcement mechanisms lest they become mere paper
guarantees. Thus, in section 305 of IRCA, Congress specifically
authorized LSC-funded representation for H-2A workers on matters
pertaining to their employment contract. 8 U.S.C. § 1101 note
(1994). LSC-funded representation was a core element in the
legislative design of the H-2A program. See 132 CONG. REC. H9866-68
(1986); Erlenborn Commission: Comments on "The Presence
Requirement," Mar. 27, 1999, at 29-43 (comment of Bill Beardall,
Texas Rural Legal Aid) [hereinafter March Comments]; April Comments
at 53-58 (comment of Howard Berman, Member of Congress); see also
discussion infra Part III(B)(2).
The statutory protections set forth in the H-2A program, and the
provision of legal representation to H-2A workers to enforce these
rights, thus were intended to accomplish two purposes: to protect
foreign workers from exploitation, and to ensure that the
employment of such workers would not depress the wages and working
conditions of U.S. workers. These considerations explain why H-2A
workers are the only category of nonimmigrants eligible for
LSC-funded representation. They also point to the differences
between the representation authorized for the unrestricted
categories and H-2A workers: for the former, grantees may represent
eligible aliens on all matters; for the latter, representation is
restricted to matters arising under the employment contract.
H-2A workers constitute a small but growing portion of the
United States' agricultural workforce. During FY 1998, the most
recent year for which statistics are available, the USDOL certified
34,898 job openings and approximately 4,000 employers. The FY 1998
H-2A Report, U.S. Department of Labor, Division of Foreign Labor
Certifications, Revised June 1999 [hereinafter FY 1998 H-2A
Report]. This is a dramatic increase from FY 1997 where 23,352 job
openings were certified and approximately 2,300 employers. April
Comments at 8 (comment of D. Michael Hancock, USDOL). The USDOL
9 H-2A workers are exempt from other federal laws protecting
farmworkers. Of particular significance is their exemption from the
Migrant and Seasonal Agricultural Worker Protection Act (MSWPA), 29
U.S.C. § 1801 et seq.(1999), the primary federal statute protecting
agricultural workers. See April Comments at 9 (comment of D.
Michael Hancock, USDOL); Legal Services Corporation, Erlenborn
Commission Hearing Transcript, Apr. 10, 1999, at 122 (testimony of
Mark Schacht, California Rural Legal Assistance Foundation)
[hereinafter April Testimony].
believes that the upward trend will continue. Id.; see also
March Comments at 128 (comment of Shelley Latin, Virginia
Farmworkers Legal Assistance Project). Grower associations
organized to obtain approval to bring in H-2A workers are now
appearing in a number of states. Legal Services Corporation:
Erlenborn Commission Hearing Transcripts, Mar. 27, 1999, at 106
(testimony of Javier Riojas, Texas Rural Legal Aid) [hereinafter
March Testimony]; March Comments at 222 (comment of Melissa A.
Pershing, Legal Services of North Carolina). In FY 1998 eight
states accounted for over seventy-five percent of all H-2A
activities. FY 1998 H-2A Report. These eight states - North
Carolina, Virginia, Kentucky, New York, Connecticut, Massachusetts,
Tennessee and Georgia - totaled 27,150 positions in FY 1998. Id.
The leading H-2A commodities were tobacco (16,984 positions),
apples (4,428), vegetable harvesting (4,822), and fruit harvesting
(1,483). Id.
The USDOL reports that the vast majority of H-2A workers come
from Mexico. April Comments at 8 (comment of D. Michael Hancock,
USDOL). In 1996, the last year for which country statistics are
available, 10,353 H-2A workers came from Mexico while only 4,231
came from the second leading country, Jamaica. Id. This is sharply
at odds with the relative proportions in 1988, when the majority of
temporary foreign agricultural workers came from Jamaica (12,609)
and only 2,499 came from Mexico. Id. The only other country with a
significant presence in the H-2A program -- Peru -- sends about
four hundred workers every year as sheepherders to the Mountain and
Western states. Id.
B. Matters of Representation for Eligible Aliens
1. Aliens in Unrestricted Categories
Like U.S. citizens, aliens seek legal assistance on a variety of
matters. Aliens may be victims of domestic violence, need
assistance with divorce and custody matters, find themselves having
to file bankruptcy, or require help applying for social security
and unemployment benefits. See March Comments at 246 (comment of
Marci Seville, Golden Gate University School of Law); April
Testimony at 15 (testimony of Cynthia Rice, California Rural Legal
Assistance). Housing issues arise over eviction actions,
substandard housing, eligibility for public housing, mobile home
purchases, housing discrimination, and mortgage foreclosures. See
March Comments at 68 (comment of Patrick McIntyre, Northwest
Justice Project); March Comments at 80 (comment of Marilyn J.
Endriss, Attorney at Law); March Comments at 82 (comment of Mark
Miller, American Friends Service Committee); March Comments at 141
(comment of D. Michael Dale, Oregon Law Center, and Janice Morgan,
Legal Aid Services of Oregon); March Comments at 172 (comment of
Daniel G. Ford, Colombia Legal Services); March Comments at 206
(comment of Jose Padilla and Cynthia L. Rice, California Rural
Legal Assistance); March Comments at 269 (comment of Lisa Butler,
Florida Rural Legal Services). LSC eligible aliens may also seek
assistance on immigration and consumer matters. See April Testimony
at 89 (testimony of Bruce Iwasaki, Legal Aid Foundation of Los
Angeles). Because of their limited English ability and isolation
within communities, many aliens are particularly vulnerable to
exploitation by unscrupulous sales and marketing enterprises,
landlords and other businesses, and employers. See March Comments
at 246 (Comment of Marci Seville, Golden Gate University School of
Law). They are particularly susceptible to workplace exploitation
in sectors such as agriculture, landscaping, janitorial and
restaurant work, and day labor. See April Testimony at 16
(testimony of Cynthia Rice, California Rural Legal Assistance).
Alien agricultural workers, who are not temporary H-2A workers,
are protected in their employment by the Migrant and Seasonal
Agricultural Worker Protection Act (MSWPA), 29 U.S.C. § 1801 et
seq. (1994), which governs recruitment, wages, housing, health and
safety, vehicle safety standards, drivers' licensure and minimum
vehicle insurance levels. See April Comments at 9 (comment of D.
Michael Hancock, USDOL). Their claims include violations of
recruitment promises and disputes over wages, working conditions,
wrongful terminations, and the job contract. See March Comments at
67 (comment of Patrick McIntyre, Northwest Justice Project); March
Comments at 80 (comment of Marilyn J. Endriss, Attorney at Law);
March Comments at 82 (comment of Mark Miller, American Friends
Service Committee); March Comments at 99 (comment of Nan Schivone
and Phyllis Holmen, Georgia Legal Services Program); March Comments
at 141 (comment of D. Michael Dale, Oregon Law Center, and Janice
Morgan, Legal Aid Services of Oregon); March Comments at 172
(comment of Daniel G. Ford, Colombia Legal Services); March
Comments at 269 (Lisa Butler, Florida Rural Legal Services). Legal
assistance is also sought for job injuries, and other health and
safety issues. See March Comments at 68 (comment of Patrick
McIntyre, Northwest Justice Project); March Comments at 80 (comment
of Marilyn J. Endriss, Attorney at Law); March Comments at 82
(comment of Mark Miller, American Friends Service Committee); March
Comments at 141 (comment of D. Michael Dale, Oregon Law Center, and
Janice Morgan, Legal Aid Services of Oregon); March Comments at 269
(comment of Lisa Butler, Florida Rural Legal Services). Health and
safety issues include improper use of pesticides. See March
Comments at 172 (comment of Daniel G. Ford, Columbia Legal
Services); March Comments at 207 (Jose Padilla and Cynthia L. Rice,
California Rural Legal Assistance); March Comments at 225 (comment
of Melissa A. Pershing, Legal Services of North Carolina). Workers
are also represented in civil rights and retaliation claims. See
March Comments at 141 (comment of D. Michael Dale, Oregon Law
Center, and Janice Morgan, Legal Aid Services of Oregon).


2. H-2A Aliens
Current law limits the representation of H-2A aliens to matters
"relating to wages, housing, transportation, and other employment
rights as provided in the worker's specific contract under which
the nonimmigrant was admitted." 8 U.S.C. § 1101 note (1994). The
H-2A worker's contract must include certain minimum benefits,
wages, and working conditions that are mandated by federal law. 20
C.F.R. § 655.102(a) (1999).
H-2A aliens seek legal assistance, inter alia, in the following
areas:
a. Housing: Agricultural employers of H-2A workers must provide
adequate housing to workers who travel further than 60 miles to the
job site. 20 C.F.R. § 655.102(a)(1)(1999). Advocates from programs
in New York, Georgia, Virginia, and North Carolina mentioned
housing as an issue for which H-2A workers sought legal assistance.
See March Comments at 22 (comment of Robert J. Willis, Attorney at
Law); March Comments at 63 (comment of James F. Schmidt, Farmworker
Legal Services of New York); March Comments at 99 (comment of Nan
Schivone and Phyllis Holmen, Georgia Legal Services Program); March
Comments at 108 (comment of Robert Salzman, Legal Aid Society of
Mid-New York, Charlotte Sibley and Patricia C. Kakalec, Farmworker
Law Project); March Comments at 125 (comment of Shelley Latin,
Virginia Farmworkers Legal Assistance Project).


b.
Workers Compensation: Agricultural employers of H-2A
workers are required to enroll in state workers compensation
programs or to provide equivalent insurance coverage for both
domestic and foreign workers. See 20 C.F.R. § 655.102(a)(2)(1999).
Job injuries are common in agriculture. Aliens commonly seek legal
assistance on issues related to job injuries. See March Comments at
12 (comment of Anita Soucy); March Comments at 15 (comment of
Michael Carlin); March Comments at 22 (comment of Robert J. Willis,
Attorney at Law); March Comments at 28 (comment of Georgia J.
Lewis, Attorney at Law); March Comments at 31 (comment of Bill
Beardall, Texas Rural Legal Aid); March Comments at 46 (comments of
Carolyn Corrie, Attorney at Law); March Comments at 99 (comment of
Nan Schivone and Phyllis Holmen, Georgia Legal Services Program);
March Comments at 107 (comment of Robert Salzman, Legal Aid Society
of Mid-New York, Charlotte Sibley and Patricia C. Kakalec,
Farmworkers Law Project); March Comments at 125 (comment of Shelley
Latin, Virginia Farmworkers Legal Assistance Project); March
Comments at 159 (comment of Michael Wyatt and Roman Ramos, Texas
Rural Legal Aid, Olga Pedroza, Southern New Mexico Legal Services);
March Comments at 269 (comment of Lisa Butler, Florida Rural Legal
Services); March Comments at 225 (comment of Melissa A. Pershing,
Legal Services of North Carolina); April Comments at 103 (comment
of Garry G. Geffert, West Virginia Legal Services Plan); March
Testimony at 33-37 (testimony of Garry G. Geffert, West Virginia
Legal Services Plan); March Testimony at 145 (testimony of Rob
Williams, Florida Legal Services).


c.
Roundtrip Transportation: Agricultural employers of H-2A
workers are required to reimburse workers for transportation to the
workplace if the worker completes half of the season, and for
return transportation from the workplace if the worker completes
the contract. 20 C.F.R. § 655.102(a)(5)(1999). It is not uncommon
for H-2A aliens to seek legal assistance because the employer
failed to reimburse them for transportation expenses. See March
Comments at 32 (comment of Bill Beardall, Texas Rural Legal Aid);
March Comments at 99 (comment of Nan Schivone and Phyllis Holmen,
Georgia Legal Services Program); March Comments at 107 (comment of
Robert Salzman, Legal Aid Society of Mid-New York, Charlotte Sibley
and Patricia C. Kakalec, Farmworker Law Project).


d.
Wage Rate: H-2A employers must pay an adverse effect wage
rate, which is a minimum wage rate set by the U.S. Department of
Labor reflecting the prevailing wages in the particular
agricultural sector. 20 C.F.R. § 655.102(a)(9)(1999). H-2A aliens
commonly seek legal assistance for unpaid wages. See March Comments
at 12 (comment of Anita Soucy); March Comments at 15 (comment of
Michael Carlin); March Comment at 20 (comment of Robert J. Willis,
Attorney at Law); March Comments at 27 (comment of Melinda Wiggins,
Student Action With Farmworkers); March Comments at 32
(comment


of Bill Beardall, Texas Rural Legal Aid); March Comments at 47
(comment of Carolyn Corrie, Attorney at Law); March Comments at 63
(comment of James F. Schmidt, Farmworker Legal Services of New
York); March Comments at 99 (comment of Nan Schivone and Phyllis
Holmen, Georgia Legal Services Program); March Comments at 107
(comment of Robert Salzman, Legal Aid Society of Mid-New York,
Charlotte Sibley and Patricia C. Kakalec, Farmworker Law Project);
March Comments at 126 (comment of Shelley Latin, Virginia
Farmworkers Legal Assistance Project); March Comments at 225
(comment of Melissa A. Pershing, Legal Services of North
Carolina).


e.
The 3/4 Guarantee: Agricultural employers are required to
offer their workers either work or wages for at least 3/4 of the
contract period. 20 C.F.R. § 655.102(a)(6)(1999). H-2A aliens have
sought legal assistance for violations of the 3/4 guarantee right.
See March Comments at 20 (comment of Robert J. Willis, Attorney at
Law); March Comments at 32 (comment of Bill Beardall, Texas Rural
Legal Aid); March Comments at 99 (comment of Nan Schivone and
Phyllis Holmen, Georgia Legal Services Program); March Comment at
107 (comment of Robert Salzman, Legal Aid Society of Mid-New York,
Charlotte Sibley and Patricia C. Kakalec, Farmworker Law Project);
March Comments at 127 (comment of Shelley Latin, Virginia
Farmworkers Legal Assistance Project); March Comments at 159
(comment of Michael Wyatt, Texas Rural Legal Aid, et. al); March
Comments at 228 (comment of Melissa A. Pershing, Legal Services of
North Carolina); March Comments at 270 (comment of Lisa Butler,
Florida Rural Legal Services); March Comments at 92 (comment of
Garry G. Geffert, West Virginia Legal Services Plan); April
Comments at 103 (comments of Garry G. Geffert, West Virginia Legal
Services Plan); March Testimony at 147 (testimony of Rob Williams,
Florida Legal Services).


f.
Non-waiver/Anti-retaliation Rights: The USDOL regulations
prohibit the waiver of any rights provided by law. 29 C.F.R. §
501.4(1999). They also prohibit anyone from blacklisting,
intimidating, or retaliating against any worker for "consulting
with a legal assistance program" or otherwise asserting her rights
under the H-2A program. 29 C.F.R. § 501.3(1999). State laws also
prohibit blacklisting. See March Testimony at 66-67 (testimony of
Mary Lee Hall, Legal Services of North Carolina). H-2A aliens have
sought legal assistance for violations of these anti-retaliation
rights. See March Comments at 12 (comment of Anita Soucy); March
Comments at 23 (comment of Robert J. Willis, Attorney at Law);
March Comments at 98 (comment of Nan Schivone and Phyllis Holmen,
Georgia Legal Services Program); March Comments at 108 (comment of
Robert Salzman, Legal Aid Society of Mid-New York, Charlotte Sibley
and Patricia C. Kakalec, Farmworker Law Project); March Comments at
128 (comment of Shelley Latin, Virginia Farmworkers Legal
Assistance Project); March Comments at 226 (comment of
Melissa


A. Pershing, Legal Services of North Carolina); March Testimony
at 63 (testimony of Mary Lee Hall, Legal Services of North
Carolina); March Testimony at 134 (testimony of Michael
Carlin).
A number of witnesses before the Commission testified regarding
the importance of enforcing these rights to accomplish the core
purposes of the H-2A statute. The federal protections afforded to
H-2A workers were intended to protect U.S. workers by eliminating
incentives for employers to prefer H-2A workers over U.S. workers.
See H.R. REP. NO. 99-682(I) (1986), reprinted in 1986 U.S.C.A.A.N.
5649; March Testimony at 16-22 (testimony of Garry Geffert, West
Virginia Legal Services Plan); March Testimony at 106-107
(testimony of Javier Riojas, Texas Rural Legal Aid). H-2A workers
may be more attractive to employers for a number of reasons.
Growers are not required to pay unemployment or social security
taxes for H-2A workers. See March Testimony at 157 (testimony of
Rob Williams, Florida Legal Services). H-2A workers provide a
guaranteed labor pool. See March Testimony at 20-21 (testimony of
Garry G. Geffert, West Virginia Legal Services Plan). They are less
likely to complain than U.S. workers and have more limited access
to legal assistance. See March Comments at 31 (comment of Bill
Beardall, Texas Rural Legal Aid); March Comments at 53 (comment of
Arthur N. Read, Friends of Farmworkers); March Comments at 156
(comment of Michael Wyatt, Texas Rural Legal Aid, et. al); April
Comments at 105 (comment of Garry G. Geffert, West Virginia Legal
Services Plan). Growers may try to evade the requirement of hiring
U.S. workers by imposing job requirements that will be unattractive
to


U.S.
workers, by otherwise discouraging U.S. workers from
applying, or by purging U.S. workers from their workforce. March
Testimony at 106-07, 117-20 (testimony of Javier Riojas, Texas
Rural Legal Aid). Grower preference for H-2A's over U.S. workers
may be evidenced by their lack of active recruitment of permanent
legal residents and other domestic workers. March Comments at 53
(comment of Arthur


N.
Read, Friends of Farmworkers); see also GENERAL
ACCOUNTING OFFICE, H-2A AGRICULTURAL GUESTWORKERPROGRAM: CHANGES
COULD BETTER IMPROVE SERVICES TOEMPLOYERS ANDBETTER PROTECT WORKERS
58 (1997) [hereinafter GAO REPORT] (report number
GAO/HEHS-98-20).


The H-2A program, in effect, establishes a ceiling for the terms
of work that U.S. workers can demand for similar employment. March
Testimony at 157-159 (testimony of Rob Williams, Florida Legal
Services); March Testimony at 21-22, 24 (testimony of Garry
Geffert, West Virginia Legal Services Plan); March Testimony at 106
(testimony of Javier Rojas, Texas Rural Legal Aid); March Comments
at 156 (comment of Michael Wyatt, Texas Rural Legal Aid, et. al).
For example, H-2A employers must pay a special minimum wage, called
the adverse effect wage rate, 20 C.F.R. § 655.102(a)(9)(1999),
which is higher than a state or federal minimum wage requirement.10
64 Fed. Reg. 6690 (1999). In most instances, a non-H-2A employer,
in an area with H-2A workers, who are receiving the adverse effect
wage rate, would not be able to attract workers at a wage lower
than the H-2A wage rate. These workers would be able to secure jobs
from the H-2A employer during the first half of the season because
H-2A employers must provide a hiring preference for U.S. workers
who apply for a job during the first half of the season. 20 C.F.R.
§ 655.103(3)(1999). However, unenforcement of the H-2A wage rate
and hiring preference implicitly allows the payment of a lower wage
which has the effect of driving all wages for the area downward.
March Testimony at 24 (testimony of Garry Geffert, West Virginia
Legal Services Plan). Moreover, absent enforcement, unscrupulous
employers, who violate the protections in the H-2A program,
10For example, the adverse effect minimum wage rate for New York
H-2A workers in 1999 is$7.18 per hour. 64 Fed. Reg. 6690 (1999). In
1999, the federal minimum wage rate for similar workers is $5.15 an
hour, 29 U.S.C. § 206(a)(1)(1994), while the New York minimum wage
rate is $4.25 an hour, N.Y. Lab. Law § 652 (McKinney 1992).
gain a competitive advantage over those law- abiding employers.
April Testimony at 57 (testimony of Jack Londen, Attorney at Law);
March Testimony at 123-24 (testimony of Javier Riojas, Texas Rural
Legal Aid); March Testimony at 21-22 (testimony of Garry Geffert,
West Virginia Legal Services Plan); March Testimony at 157
(testimony of Rob Williams, Florida Legal Services).
C. Departures from the United States of Eligible Aliens
1. Unrestricted Aliens
The INA permits and facilitates travel outside of the United
States by aliens eligible for LSC representation. April Testimony
at 112-113 (testimony of Lynn Coyle, Lawyers Committee for Civil
Rights Under Law). Lawful permanent residents and other classes of
aliens in the unrestricted categories reside in the United States
without time limit. They are also generally permitted to travel to
and from the United States without restriction under U.S.
immigration laws. Id. Lawful permanent residents may depart the
United States for extended periods without loss of status, as long
as they are not deemed to have abandoned their residence in the
United States. March Comments at 156-57 (comment of Michael Wyatt,
Texas Rural Legal Aid, et. al). Admission into the United States by
a lawful permanent resident after a temporary trip abroad merely
requires that the alien present a valid unexpired immigrant visa
and a valid unexpired passport or other travel document. 8 U.S.C. §
1181(a) (1994). An alien also must not be inadmissible under the
categories of inadmissibility specified in the INA. 8 U.S.C. §
1182(a) (1994). The INA also provides for the discretionary
readmission of lawful permanent residents who do not possess valid
documents. 8 U.S.C. § 1181(b)(1994).
Applicants for permanent residence status as a rule are more
restricted in their travel outside of the United States and must
seek permission from the INS to travel or risk abandoning their
application. 8
C.F.R. § 245.2(a)(4(ii)(A)-(C) (1994); April Testimony at 112
(testimony of Lynn Coyle, Lawyers Committee for Civil Rights Under
Law). Permission is readily granted for business travel and
emergency personal travel. The remaining eligible aliens, those
fleeing persecution and permitted to remain in or enter the United
States as refugees, asylees or conditional entrants, also generally
are freely permitted to travel outside of the United States as long
as they satisfy the documentary requirements for admission into the
United States. 8 U.S.C. § 1182(a) (1994).
Eligible aliens leave the United States for a variety of
reasons, including family emergencies, visits with families and
friends, to obtain medical care, and for important holidays. See
March Comments at 50 (comment of Francisco J. Bricio, Attorney at
Law); March Comments at 54 (comment of Arthur N. Read, Friends of
Farmworkers); March Comments at 68 (comment of Patrick McIntyre,
Northwest Justice Project); March Comments at 76 (comment of Mark
Talamantes, Attorney at Law); March Comments at 83 (comment of Mark
Miller, American Friends Service Committee); March Comments at
101(comment of Nan Schivone and Phyllis Holmen, Georgia Legal
Services Program); March Comments at 111 (comment of Robert
Salzman, Legal Aid Society of Mid-New York, Charlotte Sibley and
Patricia
C. Kakalec, Farmworker Law Project); March Comments at 140-41
(comment of D. Michael Dale, Oregon Law Center, and Janice Morgan,
Legal Aid Services of Oregon); March Comments at 157 (comment of
Michael Wyatt, Texas Rural Legal Aid, et. al); March Comments at
167 (comment of Kevin
G. Magee, Legal Action of Wisconsin); March Comments at 175
(comment of Daniel G. Ford, Colombia Legal Services); March
Comments at 199 (comment of Vincent H. Beckman, III, Illinois
Migrant Legal Assistance Project); March Comments at 202 (comment
of Jose Padilla and Cynthia L. Rice, California Rural Legal
Assistance); March Comments at 246 (comment of Marci Seville,
Golden Gate University School of Law); March Comments at 268
(comment of Lisa Butler, Florida Rural Legal Services); April
Comments at 41 (comment of Nieves Negrete, Washington Alliance for
Migrant and Refugee Justice); March Testimony at 69 (testimony of
Mary Lee Hall, Legal Services of North Carolina); March Testimony
at 113, 116 (testimony of Javier Riojas, Texas Rural Legal Aid);
April Testimony at 10 (testimony of Cynthia Rice, California Rural
Legal Assistance); April Testimony at 139-140 (testimony of Sylvia
Argueta, Mexican American Legal Defense and Education Fund). Many
aliens who cannot afford health care in the United States travel to
Mexico for needed medical treatment. April Testimony at 143
(testimony of Sylvia Argueta, Mexican American Legal Defense and
Education Fund). Family visits are especially important to aliens
wishing to preserve their cultural heritage and at Christmas time,
which is a particularly significant season to devout Mexican
Catholics. See April Testimony at 67 (testimony of Gabriel Medel,
Parents for Unity); April Comments at 41 (comment of Nieves
Negrete, Washington Alliance for Immigrant and Refugee Justice).
Further, indigenous Mexican farmworkers have maintained significant
family and economic ties to their home villages in Mexico. See
March Comments at 202 (comment of Jose Padilla and Cynthia L. Rice,
California Rural Legal Assistance).
Some lawful permanent resident aliens regularly travel between
the United States and Mexico on a daily basis. So-called "commuter
aliens" are a special category of lawful permanent residents
recognized by the INS regulations as resident aliens of the United
States who may reside outside of the United States in a contiguous
territory and who return to work in the United States regularly. 8
C.F.R. § 211.5 (1999). In areas along the Mexico-United States
border, it is common for lawful permanent resident aliens to live
in Mexico and work in the United States. See March Comments at 157
(comment of Michael Wyatt, Texas Rural Legal Aid, et. al); March
Comments at 194 (comment of Garry M. Restaino, Community Legal
Services); March Comments at 215 (comment of Sarah M. Singleton,
Attorney at Law); April Comments at 6 (comment of Emma Torres,
Puentes de Amistad); April Testimony at 113 (testimony of Lynn
Coyle, Lawyers Committee for Civil Rights Under Law). There are
many reasons why an individual may choose to live in Mexico and
commute to the United States for daily employment. Some live in
Mexico because they have not been able to adjust the immigration
status of other family members and/or are unable to find
inexpensive housing in the United States. See March Comments at 195
(comment of Garry M. Restaino, Community Legal Services); April
Comments at 6 (comment of Emma Torres, Puentes de Amistad); April
Testimony at 113 (testimony of Lynn Coyle, Lawyers Committee for
Civil Rights Under Law). In border communities, such as El
Paso/Ciudad Juarez, families are spread across the border.
Individuals, who are not commuter aliens because they live on the
U.S. side of the border, travel between Mexico and the United
States to shop or visit family members as a daily routine of life.
See March Comments at 155 (comment of Michael Wyatt, Texas Rural
Legal Aid, et. al); April Testimony at 108 (testimony of Lynn
Coyle, Lawyers Committee for Civil Rights Under Law).
Testimony identified particular issues regarding agricultural
workers who are permanent resident aliens and thus eligible for
general representation. Many lawful permanent resident farmworkers
enter the migrant stream and travel from state to state following
the growing and harvesting demands for various crops. The low wages
and long periods of unemployment in agriculture often compel
farmworkers to return seasonally to a home base in Mexico.11 These
departures permit them take advantage of the lower cost of living
as well as to be reunited with their spouses and children. See
March Comments at 140-41 (comment of D. Michael Dale, Oregon Law
Center, and Janice Morgan, Legal Aid Services of Oregon); March
Comments at 168 (comment of Kevin G. Magee, Legal Action of
Wisconsin); March Comments at 171 (comment of Daniel G. Ford,
Columbia Legal Services); March Comments at 199 (comment of Vincent
H. Beckmann, Illinois Migrant Legal Assistance Project); March
Comment at 202 (comment of Jose Padilla and Cynthia L. Rice,
California Rural Legal Assistance). Many aliens who became lawful
permanent residents as Special Agricultural Workers (SAW) do not
have the resources to bring their entire families to the United
States, so these aliens also continue to come to the U.S. as single
workers and return to Mexico during periods of unemployment. See
March Testimony at 115-16 (testimony of Javier Riojas, Texas Rural
Legal Aid); March Comments at 155 (comment of Michael Wyatt, Texas
Rural Legal Aid, et. al). Alien farmworkers may remain in Mexico
annually for two to six months. See March Comments at 156-57
(comment of Michael Wyatt, Texas Rural Legal Aid, et. al); March
Comments at 202 (comment of Jose Padilla and Cynthia L. Rice,
California Rural Legal Assistance); March Testimony at 116
(testimony of Javier Riojas, Texas Rural Legal Aid); April
Testimony at 28 (testimony of Cynthia Rice, California Rural Legal
Assistance). Farmworkers in Yakima, Washington, for example,
typically work in Yakima from the April asparagus harvest through
the October apple harvest, and then return to Mexico until the work
resumes the following spring. See April Testimony at 77 (testimony
of Victor Lara, Attorney at Law). Forestry workers in California
may spend April to October in remote parts of California and then
return to Mexico from November to March. See March Comments at 206
(comment of Jose Padilla and Cynthia L. Rice, California Rural
Legal Assistance).
Legal Services of North Carolina estimated that fifty percent of
their farmworker clients left the U.
S. at some time during the course of representation. March
Testimony at 69 (testimony of Mary Lee Hall, Legal Services of
North Carolina). Attorneys at California Rural Legal Assistance
report that between forty and ninety percent of their green card
holding clients leave the country during the course of
representation. See April Testimony at 28 (testimony of Cynthia
Rice, California Rural Legal Assistance). The National Agricultural
Workers Survey (NAWS), a statistical sampling of migrant and
seasonal
11A 1994 U.S. Department of Labor survey found that migrant
farmworkers in the UnitedStates work an average of 29 weeks per
year, with annual median incomes of $5,000. U.S. DEPARTMENT OF
LABOR, MIGRANT FARMWORKERS: PURSUING ECONOMIC INSTABILITY IN AN
UNSTABLE LABOR MARKET (RESEARCH REPORT NO. 5) 31 (1994)
(hereinafter 1994 DOL REPORT), cited in March Comments at 266
(comment of Lisa Butler, Florida Rural Legal Services). The average
California farmworker is employed 6-9 months per year and earns
between $5,000 and $7,499 annually. March Comments at 201 (comment
of Jose Padilla and Cynthia L. Rice, California Rural Legal
Assistance). Farmworkers in southwest Florida earn an average of
$6,500 to $7,000 per year. DOROTHY COOK & FRITZ ROKA,
FARMWORKERS IN SOUTHWEST FLORIDA, FINAL REPORT 24 (1998) (Southwest
Florida Regional Planning Council, and the University of Florida,
respectively), cited in March Comments at 266 (comment of Lisa
Butler, Florida Rural Legal Services).
farmworkers conducted by the U.S. DOL, found that, of married
farmworkers, sixty-seven percent of Mexican males immigrated to the
United States before their wives. U.S. DEPARTMENT OF LABOR, A
PROFILE OF U.S. FARMWORKERS: DEMOGRAPHICS, HOUSEHOLD COMPOSITION,
INCOME AND USE OF SERVICES (1997), cited in March Comments at 141
(comment of D. Michael Dale, Oregon Law Center, and Janice Morgan,
Legal Aid Services of Oregon). In fact, at least thirty percent of
all farmworkers return to their countries of origin annually. 1994
DOL REPORT, cited in March Comments at 140-41 (comment of D.
Michael Dale, Oregon Law Center, and Janice Morgan, Legal Aid
Services of Oregon). Of the farmworkers who migrate (that is, they
are absent overnight from their homes), seventy-one percent
consider their home to be outside of the United States and return
to it annually. See id. For such workers, leaving the United States
is a survival strategy, permitting them to survive their periods of
unemployment by taking advantage of the lower cost of living in the
countries of origin. See id.; April Testimony at 113 (testimony of
Lynn Coyle, Lawyers Committee for Civil Rights Under Law).
Ultimately, growers and consumers reap the economic benefits of
such migrancy through lower agricultural labor costs. See April
Testimony at 50 (testimony of Jack Londen, Attorney at Law); see
also 1994 DOL REPORT at vii, cited in March Comments at 266
(comment of Lisa Butler, Florida Rural Legal Services).


2. H-2A Aliens
H-2A agricultural workers are required to maintain a foreign
residence which they have no intention of abandoning. 8 U.S.C. 1101
§ (a)(15)(H)(ii)(a) (1994). Their authorized stay in the United
States depends upon the terms of their employment contract; and
they are required to leave the United States within 10 days of the
end of their contract. See GAO REPORT at 61. H-2A workers are
legally prohibited from remaining in the United States for more
than one year. 8 C.F.R. § 214.2(h)(5)(iv)(1999).
The actual length of an individual worker's H-2A visa varies
depending upon the geographic location of the employer and the
nature of the farmwork to be performed. The comments submitted to
the Commission and live testimony indicated widely disparate
agricultural needs. In North Carolina, a visa may be issued for six
weeks to seven months. See March Comments at 14 (comment of Michael
Carlin); March Comments at 223 (comment of Melissa A. Pershing,
Legal Services of North Carolina). A small percentage of North
Carolina H-2A workers work for eight to nine months. See March
Comments at 14 (comment of Michael Carlin). In New York, the
average H-2A visa is for four months. See March Comments at 62
(comment of James F. Schmidt, Farmworker Legal Services of New
York). In West Virginia, the H-2A visa is for a seven to ten week
apple harvest. See April Comments at 101 (comment of Garry G.
Geffert, West Virginia Legal Services Plan). In Georgia, the H-2A
visa will be from a few weeks to six months. See March Comments at
99 (comment of Nan Schivone and Phyllis Holmen, Georgia Legal
Services Program). In Virginia, the H-2A visa typically runs from
April 15 to November 1, or from July 1 to November 1. See March
Comments at 120 (comment of Shelley Latin, Virginia Farmworkers
Legal Assistance Project). In Arkansas, Kentucky, and Texas the
H-2A visa generally will be for two to three months. See March
Comments at 158 (comment of Michael Wyatt, Texas Rural Legal Aid,
et. al). Florida H-2A contracts usually range from three to five
months. See March Comments at 268 (comment of Lisa Butler, Florida
Rural Legal Services).
D. When Legal Assistance is Typically Sought by Eligible
Aliens
1. Unrestricted Aliens
Eligible aliens in the unrestricted categories seek legal
assistance at any time and in a manner similar to the U.S. citizen
population. These aliens may seek legal assistance at any time
during the year, although limited English ability and lack of
knowledge of rights and procedures may provide obstacles to seeking
and obtaining representation. See March Comments at 246 (comment of
Marci Seville, Golden Gate University School of Law); April
Testimony at 15 (testimony of Cynthia Rice, California Rural Legal
Assistance). Some claims of eligible aliens may arise while the
alien is temporarily out of the country. Unlawful lock-outs or
evictions are often timed to coincide with brief absences, and may
ripen while an alien is out of the country visiting relatives. See
March Comments at 207-208 (comment of Jose Padilla and Cynthia L.
Rice, California Rural Legal Assistance); April Testimony at 91-97
(testimony of Bruce Iwasaki, Legal Aid Foundation of Los
Angeles).
It is not uncommon for alien agricultural workers to withhold
asserting claims against an employer or farm labor contractor until
after the work has ended and the farmworker is away from the area
of employment. See March Comments at 57 (comment of Arthur N. Read,
Friends of Farmworkers); March Comments at 68 (comment of Patrick
McIntyre, Northwest Justice Project); March Comments at 80-81
(comment of Marilyn J. Endriss, Attorney at Law); March Comments at
99 (comment of Nan Schivone and Phyllis Holmen, Georgia Legal
Services Program); March Comments at 142 (comment of D. Michael
Dale, Oregon Law Center, and Janice Morgan, Legal Aid Services of
Oregon); March Comments at 158 (comment of Michael Wyatt, Texas
Rural Legal Aid, et. al); March Comments at 167 (comment of Kevin
G. Magee, Legal Action of Wisconsin); March Comments at 171
(comment of Daniel G. Ford, Columbia Legal Services); March
Comments at 196 (comment of Gary M. Restaino, Community Legal
Services); March Comments at 198 (comment of Vincent H. Beckman,
III, Illinois Migrant Legal Assistance Project); March Comments at
205 (comment of Jose Padilla and Cynthia L. Rice, California Rural
Legal Assistance); March Comments at 268-69 (comment of Lisa
Butler, Florida Rural Legal Services); April Comments at 40
(comments of Nieves Negrete, Washington Alliance for Immigrant and
Refugee Justice). Farmworkers commonly are dependent upon their
employer for both their income and housing. See March Comments at
142 (comment of D. Michael Dale, Oregon Law Center, and Janice
Morgan, Legal Aid Services of Oregon). Poverty makes farmworkers
unwilling to jeopardize their employment. See March Comments at 158
(comment of Michael Wyatt, Texas Rural Legal Aid, et. al).
Farmworkers fear retaliation by the employer if they complain. See
March Comments at 57 (comment of Arthur N. Read, Friends of
Farmworkers); March Comments at 68 (comment of Patrick McIntyre,
Northwest Justice Project); March Comments at 142 (comment of D.
Michael Dale, Oregon Law Center, and Janice Morgan, Legal Aid
Services of Oregon); March Comments at 269 (comment of Lisa Butler,
Florida Rural Legal Services); April Comments at 40 (comment of
Nieves Negrete, Washington Alliance for Immigrant and Refugee
Justice); March Testimony at 126 (testimony of Javier Riojas, Texas
Rural Legal Aid). They may also fear retaliation by other local
employers, and often will not want to pursue a claim until after
they leave the area. See March Comments at 142 (comment of D.
Michael Dale, Oregon Law Center, and Janice Morgan, Legal Aid
Services of Oregon); March Comments at 270 (comment of Lisa Butler,
Florida Rural Legal Services). Geographic isolation often makes it
difficult for farmworkers to obtain legal assistance while they are
employed. See March Comments at 271 (comment of Lisa Butler,
Florida Rural Legal Services). Farmworker hours are often long, and
their access to telephones and transport may be nonexistent. See
March Comments at 142 (comment of D. Michael Dale, Oregon Law
Center, and Janice Morgan, Legal Aid Services of Oregon). Further,
farmworkers may not know how to contact legal services in their
community or may be discouraged by their employer from contacting
legal services in their community. See id.; March Comments at 272
(comment of Lisa Butler, Florida Rural Legal Services).
Often farmworkers contact legal services after they have
returned to their home base, which may be a foreign country. See
March Comments at 58 (comment of Arthur N. Read, Friends of
Farmworkers); March Comments at 171 (comment of Daniel G. Ford,
Columbia Legal Services); March Comments at 198-99 (comment of
Vincent H. Beckmann, III, Illinois Migrant Legal Assistance
Project); March Comments at 268 (comment of Lisa Butler, Florida
Rural Legal Services). As described above, many alien farmworkers
may have a home base in Mexico as commuter aliens or as special
agricultural workers who travel through the migrant stream around
the United States and return to Mexico during periods of
unemployment. Farmworker community organizations have found that
agricultural workers are more willing to discuss issues arising out
of their employment in base communities where they have the support
of family and friends in pursuing their claims. See March Comments
at 58 (comment of Arthur N. Read, Friends of Farmworkers); March
Comments at 158 (comment of Michael Wyatt, Texas Rural Legal Aid,
et. al).
Some legal issues may not arise until the farmworker has
returned to her home base. The full extent of unpaid wage damages,
failure to pay end-of-season bonuses, wrongful discharge,
retaliation, and disputes over periods of employment often may not
be determined until the work is finished. See March Comments at 142
(comment of D. Michael Dale, Oregon Law Center, and Janice Morgan,
Legal Aid Services of Oregon); March Comments at 172-73 (comment of
Daniel G. Ford, Columbia Legal Services); March Comments at 269-70
(comment of Lisa Butler, Florida Rural Legal Services); March
Comments at 207 (comment of Jose Padilla and Cynthia L. Rice,
California Rural Legal Assistance). Further, when recruitment
occurs in Mexico, a farmworker may seek legal assistance for
misrepresentations in recruitment that are actionable under the
Migrant and Seasonal Agricultural Worker Protection Act. This is
one of the most important federal protections for agricultural
workers, and green card holders who were recruited in Mexico by
agents of U.S. growers have a federal cause of action for such
misrepresentations. See 29
U.S.C. § 1821(a), (f), (g) (1994); 29 C.F.R. § 500.75(b)(1999);
March Comments at 56-57 (comment of Arthur N. Read, Friends of
Farmworkers); April Testimony at 26-27 (testimony of Cynthia Rice,
California Rural Legal Assistance). A farmworker may need legal
assistance on other claims at any time during the year. See March
Comments at 68 (comment of Patrick McIntyre, Northwest Justice
Project); March Comments at 205 (comment of Jose Padilla and
Cynthia L. Rice, California Rural Legal Assistance).


2. H-2A Aliens
H-2A workers overwhelmingly seek legal assistance at the end of
their work contract or after they have returned to their home
country. See March Comments at 32 (comment of Bill Beardall, Texas
Rural Legal Aid); March Comments at 62-63 (comment of James F.
Schmidt, Farmworker Legal Services of New York); March Comments at
99 (comment of Nan Schivone and Phyllis Holmen, Georgia Legal
Services Program); March Comments at 107 (comment of Robert
Salzman, Legal Aid Society of Mid-New York, Charlotte Sibley and
Patricia C. Kakalec, Farmworker Law Project); March Comments at 127
(comment of Shelley Latin, Virginia Farmworkers Legal Assistance
Project); March Comments at 226-28 (comment of Melissa A. Pershing,
Legal Services of North Carolina); March Comments at 158 (comment
of Michael Wyatt, Texas Rural Legal Aid, et. al); March Comments at
256 (Comment of Alan Houseman, Center for Law & Social Policy);
March Comments at 269 (comment of Lisa Butler, Florida Rural Legal
Services); April Comments at 102 (comment of Garry G. Geffert, West
Virginia Legal Services Plan); March Testimony at 51, 55-58
(testimony of Mary Lee Hall, Legal Services of North Carolina).
This is so for a number of reasons relating to the extreme
dependency of such workers, the time that their claims arise or
become known, their lack of access to legal representation in the
United States, and other barriers to representation such as
cultural differences, lack of information and language
barriers.
a. Dependency
H-2A workers are dependent upon their employers for virtually
every aspect of their daily lives in the United States. H-2A
workers are legally entitled to work only for their designated
employer, and thus are uniquely dependent upon their employer for
their right to work and remain in the United States. See March
Comments at 31 (comment of Bill Beardall, Texas Rural Legal Aid);
March Comments at 123 (comment of Shelley Latin, Virginia
Farmworkers Legal Assistance Project); March Comments at 158
(comment of Michael Wyatt, Texas Rural Legal Aid, et. al); March
Comments at 221 (comment of Melissa
A. Pershing, Legal Services of North Carolina); March Testimony
at 20 (testimony of Garry G. Geffert, West Virginia Legal Services
Plan); March Testimony at 52 (testimony of Mary Lee Hall, Legal
Services of North Carolina). H-2A employers control the amount of
work assigned to their workers, their earnings, housing, food,
transportation, access to telephone and postal services, future
employment, and return transportation to their home country. See
March Comments at 31 (comment of Bill Beardall, Texas Rural Legal
Aid); March Comments at 123 (comment of Shelley Latin, Virginia
Farmworkers Legal Assistance Project); March Comments at 221-23
(comment of Melissa A. Pershing, Legal Services of North Carolina);
March Comments at 98 (comment of Nan Schivone and Phyllis Holmen,
Georgia Legal Services Program); March Testimony at 140 (testimony
of Rob Williams, Florida Legal Services). This dependency can be
acute because of the costs incurred by workers in getting to the
United States, their poverty, and their corresponding desire to
remain and work in the United States and to return in future
years.
Many H-2A workers come to the United States because of desperate
financial circumstances at home. See March Comments at 123 (comment
of Shelley Latin, Virginia Farmworkers Legal Assistance Project);
March Comments at 223 (comment of Melissa A. Pershing, Legal
Services of North Carolina). Many H-2A workers are subsistence
farmworkers in their home villages and must borrow money to make
the journey to the United States. The costs incurred to come to the
United States are substantial. See March Comments at 123 (comment
of Shelley Latin, Virginia Farmworkers Legal Assistance Project);
March Comments at 158-59 (comment of Michael Wyatt, Texas Rural
Legal Aid, et. al); March Comments at 223 (comment of Melissa A.
Pershing, Legal Services of North Carolina); March Testimony at 60
(testimony of Mary Lee Hall, Legal Services of North Carolina);
March Testimony at 92-93 (testimony of Jim Albright, Catholic
Diocese of Virginia). While the cost of transportation to the U.S.
job site must be reimbursed by the U.S. employer, the H-2A alien
still incurs expenses of $500 to $600 just to obtain the job in the
U.S. primarily because of high fees charged by recruiters for
agricultural employers. See March Comments at 158 (comment of
Michael Wyatt, Texas Rural Legal Aid, et. al). Typically, this
money is borrowed from family or friends or from a money lender,
who charges interest up to twenty percent. See id. at 159; March
Testimony at 92-98 (testimony of Jim Albright, Catholic Diocese of
Virginia). If the H-2A alien is terminated early in the season, the
worker runs the risk of ending in debt as result. See March
Comments at 159 (comment of Michael Wyatt, Texas Rural Legal Aid,
et. al). The need to recoup this investment, and then hopefully to
accrue some net earnings beyond these expenses, impels the H-2A
alien to stay in the good graces of his employer as long as
possible during the work period, avoiding any type of dispute, if
possible, and/or injuries while on the job. See id. As one witness
before the Commission put it, "[t]oo much is on the line for them.
They are not willing to risk losing their job and getting
blacklisted for three to five years just so they can get the
difference between the adverse effect wage rate and the minimum
wage rate." March Testimony at 131 (testimony of Michael Carlin);
see also March Comments at 128 (comment of Shelley Latin, Virginia
Farmworkers Legal Assistance Project).
During the contract period H-2A aliens are very fearful of
losing their job or of not being accepted by their employer for
future employment should they complain. See March Comments at 12
(comment of Anita Soucy); March Comments at 14-15 (comment of
Michael Carlin); March Comments at 62-63 (comment of James F.
Schmidt, Farmworker Legal Services of New York); March Comments at
84 (comment of John W. Morehouse, Wake County Human Services);
March Comments at 98 (comment of Nan Schivone and Phyllis Holmen,
Georgia Legal Services Program); March Comments at 106 (comment of
Robert Salzman, Legal Aid Society of Mid-New York, Charlotte Sibley
and Patricia C. Kakalec, Farmworker Law Project); March Comments at
128 (comment of Shelley Latin, Virginia Farmworkers Legal
Assistance Project); March Comments at 190 (comment of Elizabeth
Freeman); March Comments at 226 (comment of Melissa A. Pershing,
Legal Services of North Carolina); March Comments at 269 (comment
of Lisa Butler, Florida Rural Legal Services); April Comments at
102 (comment of Garry G. Geffert, West Virginia Legal Services
Plan); March Testimony at 97 (testimony of Jim Albright, Catholic
Diocese of Virginia); see also, GAO REPORTat 60-61. H-2A's have
attempted to obtain legal assistance anonymously due to fear of
employer reprisal. See March Testimony at 65 (testimony of Mary Lee
Hall, Legal Services of North Carolina); March Testimony at 142
(testimony of Rob Williams, Florida Legal Services); March Comments
at 226-27 (comment of Melissa A. Pershing, Legal Services of North
Carolina). H-2A aliens' fear of retaliation stems from observing
punitive measures taken against fellow workers or from being told
by the employer or the employer's agent not to talk to legal
services. See March Comments at 11-12 (comment of Anita Soucy);
March Comments at 14 (comment of Michael Carlin); March Comments at
27 (comment of Melinda Wiggins, Student Action With Farmworkers);
March Comments at 78 (comment of Sister Evelyn Mattern, North
Carolina Council of Churches); March Comments at 85 (comment of
Dawn Burtt, Wake County Human Services); March Comments at 190
(comment of Elizabeth Freeman); March Comments at 226-28 (comment
of Melissa
A. Pershing, Legal Services of North Carolina); March Testimony
at 131 (testimony of Michael Carlin); March Testimony at 141
(testimony of Rob Williams, Florida Legal Services). The
relationship between H-2A workers' unwillingness to complain and
their bonded status is illustrated by the fact that when the
possibility arose that Florida H-2A sugar industry workers may be
able to remain permanently in the United States and work anywhere
in the U.S., the number of workers willing to complain to legal
services significantly increased. March Testimony at 144 (testimony
of Rob Williams, Florida Legal Services).
Testimony provided to the Commission established that an H-2A
alien's fear of not being accepted for future employment if he or
she complains can be well founded. Legal Services of North Carolina
reports three cases, which the program filed under North Carolina's
whistle blower statute, where the H2A worker alleged that he was
not accepted for future employment because of asserting his legal
rights under the contract the previous season. See March Comments
at 230 (comment of Melissa A. Pershing, Legal Services of North
Carolina). Workers blacklisted in North Carolina are barred from
employment on an association-wide basis. Id. at 229. In a West
Virginia case, a worker reported that he was never accepted for
future employment after being seen with a legal services attorney
the previous season. See April Comments at 102 (comment of Garry G.
Geffert, West Virginia Legal Services Plan). Oregon nursery workers
are specifically warned not to speak to legal services or they may
lose the opportunity to work in the U.S. See March Comments at 142
(comment of D. Michael Dale, Oregon Law Center, and Janice Morgan,
Legal Aid Services of Oregon). Virginia growers' association
recruiters in Mexico maintain a blacklist. See March Comments at
128 (comment of Shelley Latin, Virginia Farmworkers Legal
Assistance Project). Florida sugar cane employers kept a blacklist
of unsatisfactory workers and included workers who had complained
to legal services. See March Testimony at 142 (testimony of Rob
Williams, Florida Legal Services).
b. Awareness of claims
As with other alien farmworkers, many H-2A claims may not arise
until the workers are on their way home or after they have returned
to their home country. Employers may improperly fire and deport
workers who are injured, who speak to legal services, or who
complain about working conditions or wages. See March Testimony at
58-62 (testimony of Mary Lee Hall, Legal Services of North
Carolina); March Testimony at 127, 133 (testimony of Michael
Carlin); March Testimony at 142 (testimony of Rob Williams, Florida
Legal Services); March Comments at 63 (comment of James F. Schmidt,
Farmworker Legal Services of New York). In one reported incident, a
Colorado grower prematurely terminated his H-2A workers by driving
them to New Mexico and depositing them on the Mexican side of the
border. See March Comments at 162 (comment of Michael Wyatt, Texas
Rural Legal Aid, et. al). Mass deportations of workers for wage
complaints occurred in the Florida sugar industry. See March
Testimony at 150 (testimony of Rob Williams, Florida Legal
Services); see also STAFF OF HOUSE COMMITTEE ON EDUCATION AND
LABOR, REPORT ON THE USE OF TEMPORARY FOREIGN WORKERS IN THE
FLORIDA SUGAR CANE INDUSTRY, 102D CONG. 17-18 (Comm. Print 1991)
(hereinafter 1991 HOUSE REPORT). Terminations often happen
abruptly, and employers immediately put terminated workers on a bus
home. See March Comments at 126-27 (comment of Shelley Latin,
Virginia Farmworkers Legal Assistance Project); March Comments at
227 (comment of Melissa A. Pershing, Legal Services of North
Carolina). Workers terminated under these circumstances will
contact legal services from the bus station while in the process of
being deported. See March Testimony at 58-62 (testimony of Mary Lee
Hall, Legal Services of North Carolina); March Testimony at 133
(testimony of Michael Carlin); March Testimony at 142 (testimony of
Rob Williams, Florida Legal Services); March Comments at 63
(comment of James F. Schmidt, Farmworker Legal Services of New
York). Alternatively, workers will also contact legal services
after the worker's return home. See March Comments at 228 (comment
of Melissa A. Pershing, Legal Services of North Carolina); March
Testimony at 150 (testimony of Rob Williams, Florida Legal
Services). In such circumstances, the worker's legal claim
essentially arises simultaneously with the worker's departure from
the U.S.
Legal claims involving transportation reimbursement, unpaid
wages, the three-fourths guarantee, blacklisting and retaliation,
and problems with obtaining workers compensation benefits may all
arise while the H-2A aliens are back home. See March Comments at 32
(comment of Bill Beardall, Texas Rural Legal Aid); March Comments
at 226-28 (comment of Melissa A. Pershing, Legal Services of North
Carolina); April Comments at 103 (comment of Garry G. Geffert, West
Virginia Legal Services Plan); March Testimony at 63 (testimony of
Mary Lee Hall, Legal Services of North Carolina). Claims that an
employer failed to reimburse the worker for the return
transportation do not arise until after the worker has returned
home. See March Comments at 12 (comment of Anita Soucy); March
Comments at 23 (comment of Robert J. Willis, Attorney at Law);
March Comments at 32 (comment of Bill Beardall, Texas Rural Legal
Aid); March Comments at 74 (comment of Keith S. Ernst, Attorney at
Law); March Comments at 99-100 (comment of Nan Schivone and Phyllis
Holmen, Georgia Legal Services Program); March Comments at 107
(comment of Robert Salzman, Legal Aid Society of Mid-New York,
Charlotte Sibley and Patricia C. Kakalec, Farmworker Law Project);
March Comments at 159 (comment of Michael Wyatt, Texas Rural Legal
Aid, et. al); March Comments at 229 (comment of Melissa A.
Pershing, Legal Services of North Carolina). The 1997 GAO study
found that almost 40 percent of North Carolina H-2A workers did not
receive their transportation home. GAO REPORT at 61. Claims that
the employer failed to mail the worker the final paycheck also
often do not arise until after the worker's departure. See March
Testimony at 64 (testimony of Mary Lee Hall, Legal Services of
North Carolina); March Comments at 12 (comment of Anita Soucy);
March Comments at 32 (comment of Bill Beardall, Texas Rural Legal
Aid); March Comments at 74 (comment of Keith S. Ernst, Attorney at
Law).
Workers compensation provides a number of difficulties of this
type. Workers may discover injuries resulting from their employment
after they return home, or a prior work-related injury may require
further medical attention. See March Comments at 165 (comment of
Michael Wyatt, Texas Rural Legal Aid, et. al). These workers seek
legal assistance when they encounter difficulties obtaining workers
compensation benefits. See March Comments at 12 (comment of Anita
Soucy); April Comments at 102 (comment of Garry G. Geffert, West
Virginia Legal Services Plan); March Testimony at 34-37 (testimony
of Garry G. Geffert, West Virginia Legal Services Plan). Workers
compensation benefits may also be improperly terminated after the
worker has left the country, requiring the worker to retain legal
assistance to reinstate them. An employer may deny coverage after
the worker departs the country or stop paying workers compensation
benefits that are owed. See March Comments at 23 (comment of Robert
J. Willis, Attorney at Law); March Comments at 46-47 (comment of
Carolyn Corrie, Attorney at Law); March Comments at 129 (comment of
Shelley Latin, Virginia Farmworkers Legal Assistance Project);
March Comments at 165 (comment of Michael Wyatt, Texas Rural Legal
Aid, et. al); March Comments at 270 (comment of Lisa Butler,
Florida Rural Legal Services); March Testimony at 145 (testimony of
Rob Williams, Florida Legal Services).
Claims for the 3/4 guarantee are calculated based on the total
work offered during the employment period and do not arise until
the end of work or after the work is completed. See March Comments
at 23 (comment of Robert J. Willis, Attorney at Law); March
Comments at 99-100 (comment of Nan Schivone and Phyllis Holmen,
Georgia Legal Services Program); March Comments at 108 (comment of
Robert Salzman, Legal Aid Society of Mid-New York, and Charlotte
Sibley and Patricia C. Kakalec, Farmworker Law Project); April
Comments at 103 (comment of Garry G. Geffert, West Virginia Legal
Services Plan); March Comments at 127-28 (comment of Shelley Latin,
Virginia Farmworkers Legal Assistance Project); March Comments at
159 (comment of Michael Wyatt, Texas Rural Legal Aid, et. al);
March Comments at 228-29 (comment of Melissa A. Pershing, Legal
Services of North Carolina); March Comments at 270 (comment of Lisa
Butler, Florida Rural Legal Services); March Testimony at 37-39
(testimony of Garry G. Geffert, West Virginia Legal Services Plan);
March Testimony at 147 (testimony of Rob Williams, Florida Legal
Services). A Florida court has ruled that the claims for the 3/4
guarantee do not ripen until after the end of the work period. See
Joseph v. Okeelanta Corp., 656 So.2d 1316 (Fla. Dist. Ct. App.
1995). The GAO has found that the timing of 3/4 guarantee claims
makes monitoring of compliance and enforcement while the worker is
still in the United States particularly difficult. GAO REPORT at
61.
Where the prevailing wage required by federal law is disputed or
under administrative review, a worker's claim that the employer
failed to pay the prevailing wage may not arise until the worker
has returned home. March Testimony at 148 (testimony of Rob
Williams, Florida Legal Services). Workers whose employer fails to
provide them with a copy of the employment contract will be unaware
of their rights during the period of employment and thus unable to
enforce them. See id. at 151-53. Claims that a worker's savings
under the H-2A contract had been improperly withheld would not be
discovered until after a worker returns home. See id. at 146-47.
Finally, workers are unlikely to discover that the employer has
blacklisted or retaliated against them until they fail to be
requested to work again the following season. See March Comments at
12 (comment of Anita Soucy); March Comments at 23 (comment of
Robert J. Willis, Attorney at Law); March Comments at 100 (comment
of Nan Schivone and Phyllis Holmen, Georgia Legal Services
Program); March Comments at 108-109 (comment of Robert Salzman,
Legal Aid Society of Mid-New York, and Charlotte Sibley and
Patricia C. Kakalec, Farmworker Law Project); March Comments at 128
(comment of Shelley Latin, Virginia Farmworkers Legal Assistance
Project); March Comments at 229-30 (comment of Melissa A. Pershing,
Legal Services of North Carolina); March Testimony at 63-64
(testimony of Mary Lee Hall, Legal Services of North Carolina);
March Testimony at 134-135 (testimony of Michael Carlin).
c. Isolation and lack of access to legal assistance
H-2A aliens also wait until the end of the season or after they
have returned home to seek legal assistance due to their limited
access to legal services when they are in the United States. See
March Comments at 11 (comment of Anita Soucy); March Comments at 31
(comment of Bill Beardall, Texas Rural Legal Aid); March Comments
at 46 (comment of Carolyn Corrie, Attorney at Law); March Comments
at 62 (comment of James F. Schmidt, Farmworker Legal Services of
New York); March Comments at 84 (comment of John W. Morehouse, Wake
County Human Services); March Comments at 106 (comment of Robert
Salzman, Legal Aid Society of Mid-New York, and Charlotte Sibley
and Patricia C. Kakalec, Farmworker Law Project); March Comments at
126 (comment of Shelley Latin, Virginia Farmworkers Legal
Assistance Project); March Comments at 226-28 (comment of Melissa
A. Pershing, Legal Services of North Carolina). H-2A labor camps
are located in extremely remote, rural areas, which are far-removed
from community centers. See March Comments at 11 (comment of Anita
Soucy); March Comments at 46 (comment of Carolyn Corrie, Attorney
at Law); March Comments at 124 (comment of Shelley Latin, Virginia
Farmworkers Legal Assistance Project); March Comments at 141
(comment of D. Michael Dale, Oregon Law Center, and Janice Morgan,
Legal Aid Services of Oregon); March Comment at 222 (comment of
Melissa A. Pershing, Legal Services of North Carolina); March
Testimony at 90 (testimony of Jim Albright, Catholic Diocese of
Virginia). Labor camps such as those in Virginia may be small,
housing an average of four to seven workers. See March Comments at
122 (comment of Shelley Latin, Virginia Farmworkers Legal
Assistance Project); March Testimony at 94 (testimony of Jim
Albright, Catholic Diocese of Virginia). Thus, workers are even
isolated from each other. The H-2A visa does not allow the worker
to bring in his or her family. See March Comments at 224 (comment
of Melissa A. Pershing, Legal Services of North Carolina). Workers
thus are socially isolated, having no support systems of family or
friends, and no familiarity, contacts, or shared history with the
communities where they are located. See March Comments at 124
(comment of Shelley Latin, Virginia Farmworkers Legal Assistance
Project); March Comments at 224 (comment of Melissa A. Pershing,
Legal Services of North Carolina); March Testimony at 96 (testimony
of Jim Albright, Catholic Diocese of Virginia).
Typically, H-2A aliens have no access to telephones and postal
service while residing in the labor camps. See March Comments at 11
(comment of Anita Soucy); March Comments at 26 (comment of Melinda
Wiggins, Student Action With Farmworkers); March Comments at 46
(comment of Carolyn Corrie, Attorney at Law); March Comments at 122
(comment of Shelley Latin, Virginia Farmworkers Legal Assistance
Project); March Comments at 222 (comment of Melissa A. Pershing,
Legal Services of North Carolina); March Comments at 105-106
(comment of Robert Salzman, Legal Aid Society of Mid-New York, and
Charlotte Sibley and Patricia C. Kakalec, Farmworker Law Project).
Most H-2A aliens must rely on employer-provided transportation to
town centers. See March Comments at 105-106 (comment of Robert
Salzman, Legal Aid Society of Mid-New York, and Charlotte Sibley
and Patricia C. Kakalec, Farmworker Law Project); March Comments at
122 (comment of Shelley Latin, Virginia Farmworkers Legal
Assistance Project); March Comments at 222 (comment of Melissa A.
Pershing, Legal Services of North Carolina). Florida sugar workers
generally took only one day off every two weeks, and thus had
little opportunity to seek out legal assistance. See March
Testimony at 140 (testimony of Rob Williams, Florida Legal
Services). Growers may only give their H-2A workers Sundays off,
when most service providers are closed. See March Comments at 122
(comment of Shelley Latin, Virginia Farmworkers Legal Assistance
Project); March Comments at 222 (comment of Melissa A. Pershing,
Legal Services of North Carolina). H-2A workers may contact the
legal services office when they first have access to a telephone,
which is often at a bus station on their way back home. See March
Comments at 227 (comment of Melissa A. Pershing, Legal Services of
North Carolina); March Testimony at 58-62 (testimony of Mary Lee
Hall, Legal Services of North Carolina); March Testimony at 133
(testimony of Michael Carlin). Some H-2A workers will seek legal
assistance at the Laredo office of Texas Rural Legal Aid on their
way back to Mexico. See March Testimony at 111, 126 (testimony of
Javier Riojas, Texas Rural Legal Aid). This office is located near
the bus station in Laredo and well known to Mexican H-2A workers.
See id.
The short time H-2A workers spend in a location makes it
difficult for them to learn of the availability of legal services.
See March Comments at 123 (comment of Shelley Latin, Virginia
Farmworkers Legal Assistance Project); March Comments at 223
(comment of Melissa A. Pershing, Legal Services of North Carolina).
H-2A workers may be unaware of the availability of legal services
or may not know how to contact legal services even if they know it
exists. See March Comments at 159 (comment of Michael Wyatt, Texas
Rural Legal Aid, et. al); March Comments at 127 (comment of Shelley
Latin, Virginia Farmworkers Legal Assistance Project); March
Comments at 228 (comment of Melissa A. Pershing, Legal Services of
North Carolina); see also GAO REPORT at 58. Legal services
representatives are unable to contact the majority of H-2A workers
in their regions during the work season. The legal services program
in Virginia reports that it is able to service only about half of
Virginia's 3,000 tobacco workers. See March Comments at 122
(comment of Shelley Latin, Virginia Farmworkers Legal Assistance
Project). Legal Services of North Carolina reaches only about 250
out of the state's 4,000 labor camps during the season, and does
not have the capacity to conduct outreach to the vast majority of
the state's 10,000 or more H-2A workers. See March Comments at 228
(comment of Melissa A. Pershing, Legal Services of North
Carolina).
The Commission received reports of growers actively seeking to
prevent or dissuade workers from contacting legal services
representatives. See March Testimony at 54-55 (testimony of Mary
Lee Hall, Legal Services of North Carolina); March Testimony at 129
(testimony of Michael Carlin). In North Carolina, two H-2A
employers confiscated mail from legal services to their clients.
See March Comments at 228 (comment of Melissa A. Pershing, Legal
Services of North Carolina). A publication prepared by the North
Carolina Growers Association, Inc. and distributed in English and
Spanish to all H-2A workers in North Carolina describes farmworker
legal services as "enemies of the H-2A program." Id. at 240. The
Spanish version of the publication further warns workers that they
will be immediately fired for any violation of the rules. Id. at
226. Workers suspected of trying to assert their rights have been
interrogated by grower association members or staff. Id. At a
recruitment site for sugar cane H-2A workers in Kingston, Jamaica,
a sign was posted stating that Florida Rural Legal Services was not
a friend of the West Indian worker, and similar signs were posted
in the workers' barracks. See March Testimony at 141 (testimony of
Rob Williams, Florida Legal Services). Attempts have been made to
prevent legal services workers from talking to H-2A aliens in
public places. In Virginia, one farmer refused to allow his workers
to attend a Mexican fiesta sponsored by the local Catholic Diocese
if legal services workers would be present. See March Testimony at
102 (testimony of Jim Albright, Catholic Diocese of Virginia). In
Kentucky, a grower threatened a legal services worker who was
handing out legal education materials to H-2A workers at a Wal-Mart
parking lot. See March Comments at 161 (comment of Michael Wyatt,
Texas Rural Legal Aid, et. al). In another Kentucky incident, a
legal services worker was asked to leave a Catholic church where he
was invited to discuss legal rights with H-2A workers. Id.
Where legal services workers have attempted to overcome these
barriers by going to the labor camp to see H-2A workers, in some
cases legal services workers have been denied access to the camps.
See March Comments at 27 (comment of Melinda Wiggins, Student
Action With Farmworkers); March Comments at 78 (comment of Sister
Evelyn Mattern, North Carolina Council of Churches); March Comments
at 126 (comment of Shelley Latin, Virginia Farmworkers Legal
Assistance Project); March Comments at 227-28 (comment of Melissa
A. Pershing, Legal Services of North Carolina); March Testimony at
132-133 (testimony of Michael Carlin); March Testimony at 140
(testimony of Rob Williams, Florida Legal Services). A number of
witnesses testified to the atmosphere of intimidation in some labor
camps and the chilling effect on workers when the employer was
present. See March Testimony at 94 (testimony of Jim Albright,
Catholic Diocese of Virginia); March Testimony at 129-131
(testimony of Michael Carlin); March Testimony at 141 (testimony of
Rob Williams, Florida Legal Services). At times, legal services
workers have been threatened with charges of trespass. See March
Comments at 12 (comment of Anita Soucy); March Comments at 229
(comment of Melissa A. Pershing, Legal Services of North Carolina).
In Florida into the 1990s, "no trespassing" signs were posted at
the labor camps housing sugar cane workers, and a number of the
labor camps had gate houses and posted security guards. See March
Testimony at 140 (testimony of Rob Williams, Florida Legal
Services). Florida Rural Legal Services twice had to sue to gain
access to the sugar companies' labor camps. See id.; March Comments
at 272 (comment of Lisa Butler, Florida Rural Legal Services). When
legal services personnel did visit the camps, they generally were
followed by company supervisors, and workers who spoke to legal
services attorneys often were interrogated later by supervisors.
See March Testimony at 140-41 (testimony of Rob Williams, Florida
Legal Services). In North Carolina, a migrant health outreach
worker was told that as long as she was from the clinic and not
legal services, the outreach worker could visit the workers in the
camp. See March Comments at 190 (comment of Elizabeth Freeman).
Farmers have criticized religious workers and kept them off their
property for providing pamphlets to workers informing them of their
legal rights. March Testimony at 97, 100 (testimony of Jim
Albright, Catholic Diocese of Virginia).
d. Other barriers
Ethnic and cultural differences, language barriers, and lack of
information about their rights in the United States or
understanding of the U.S. legal system also contribute to the
isolation of H-2A workers and increase the probability that claims
will not be asserted until after the termination of the H-2A
contract. See March Comments at 11 (comment of Anita Soucy); March
Comments at 31-32 (comment of Bill Beardall, Texas Rural Legal
Aid); March Comments at 98 (comment of Nan Schivone and Phyllis
Holmen, Georgia Legal Services Program); March Comments at 121
(comment of Shelley Latin, Virginia Farmworkers Legal Assistance
Project); March Comments at 223-24 (comment of Melissa A. Pershing,
Legal Services of North Carolina). Their status as H-2A workers may
lead them to believe that they have no legal rights. See March
Comments at 127 (comment of Shelley Latin, Virginia Farmworkers
Legal Assistance Project); March Comments at 224 (comment of
Melissa A. Pershing, Legal Services of North Carolina). Experiences
with the legal systems of their own countries, or with U.S.
immigration and law enforcement authorities, may deter aliens from
seeking legal assistance. See March Comments 124 (comment of
Shelley Latin, Virginia Farmworkers Legal Assistance Project);
March Comments at 221 (comment of Melissa A. Pershing, Legal
Services of North Carolina); March Comments at 255 (comment of Alan
Houseman, Center for Law & Social Policy). Workers may fear
that seeking legal advice will jeopardize their immigration status
even though their status is entirely legal. See March Comments at
124 (comment of Shelley Latin, Virginia Farmworkers Legal
Assistance Project); March Comments at 221 (comment of Melissa A.
Pershing, Legal Services of North Carolina). Migrant farmworkers in
general are much more reliant upon personal contact and experience
for acquiring information than on print or other mass media, and
for this reason, health care providers, migrant ministries, and
legal services conduct outreach to effectively serve farmworker
populations. See March Comments at 121-25 (comment of Shelley
Latin, Virginia Farmworkers Legal Assistance Project); March
Comments at 221-24 comment of Melissa A. Pershing, Legal Services
of North Carolina). Some H-2A workers see the need to discuss their
legal problem with family members before seeking legal assistance.
See March Comments at 32 (comment of Bill Beardall, Texas Rural
Legal Aid); March Comments at 127 (comment of Shelley Latin,
Virginia Farmworkers Legal Assistance Project); March Comments at
228 (comment of Melissa A. Pershing, Legal Services of North
Carolina); April Comments at 103 (comment of Garry G. Geffert, West
Virginia Legal Services Plan).
E. Time Periods for Resolution of the Legal Claims of Eligible
Aliens


1. Unrestricted Aliens
Most of the comments and testimony provided to the Commission
concerning time periods to resolve claims dealt with the
representation of agricultural workers. Nevertheless, some of the
information in the record is relevant to non-agricultural worker
aliens. The Commission takes notice that representation of all
clients by LSC grantees frequently continues for many months. For
example, in Washington State, wrongful discharge claims which
cannot be resolved informally may take as long as one year to
resolve at the administrative level and as long as three years if
litigation is required. See April Testimony at 73, Exhibit 1
(testimony of Victor Lara, Attorney at Law). Sexual harassment
claims filed with the EEOC similarly may require six to eighteen
months at the administrative level, and as long as three years if a
case goes to trial. See id. Cases concerning education related
claims such as a challenge to the expulsion or suspension of a
student, or a denial of equal access claim can require between one
to three years in state court. See id. Social Security disability
claims can last two years at the administrative level in Washington
if the case goes to the Appeals Council. Housing matters similarly
may require a minimum of one month to resolve informally, and as
long as eighteen months for an unlawful eviction action in state
court, or three years relating to a claim for public housing
eligibility. See id. Unemployment compensation claims in California
frequently require pursuing a preliminary administrative process to
account for unreported earnings, which may take a year or more. See
March Comments at 205 (comment of Jose Padilla and Cynthia L. Rice,
California Rural Legal Assistance).
Cases which are filed in state or federal court on behalf of
alien farmworkers typically take months if not years to resolve
throughout the country. See March Comments at 49 (comment of
Francisco J. Bricio, Attorney at Law); March Comments at 58
(comment of Arthur N. Read, Friends of Farmworkers); March Comments
at 69 (comment of Patrick McIntyre, Northwest Justice Project);
March Comments at 100 (comment of Nan Schivone and Phyllis Holmen,
Georgia Legal Services Program); March Comments at 142 (comment of
D. Michael Dale, Oregon Law Center, and Janice Morgan, Legal Aid
Services of Oregon); March Comments at 168 (comment of Kevin G.
Magee, Legal Action of Wisconsin); March Comments at 173 (comment
of Daniel G. Ford, Columbia Legal Services); March Comments at 196
(comment of Garry M. Restaino, Community Legal Services); March
Comments at 198 (comment of Vincent H. Beckman, III, Illinois
Migrant Legal Assistance Project); March Comments at 206 (comment
of Jose Padilla and Cynthia L. Rice, California Rural Legal
Assistance); March Comments at 216 (comment of Sarah M. Singleton,
Attorney at Law); March Comments at 246 (comment of Marci Seville,
Golden Gate University School of Law); March Comments at 271
(comment of Lisa Butler, Florida Rural Legal Services). Similarly,
administrative matters may also take months to years to resolve.
See March Comments at 205 (comment of Jose Padilla and Cynthia L.
Rice, California Rural Legal Assistance); March Comments at 247
(comment of Marci Seville, Golden Gate University School of Law);
April Testimony at 19 (testimony of Cynthia Rice, California Rural
Legal Assistance Program); April Testimony at 73, Exhibit 1
(testimony of Victor Lara, Attorney at Law). Consequently, there is
a strong likelihood that alien clients, especially those from
Mexico, will be out of the United States temporarily during the
adjudication of their case.
In Pennsylvania, effective advocacy of farmworker claims may
take years. See March Comments at 58 (comment of Arthur N. Read,
Friends of Farmworkers). In Washington, litigation takes from one
to two years to resolve. See March Comments at 69 (comment of
Patrick McIntyre, Northwest Justice Project); April Testimony at
73, Exhibit 1 (testimony of Victor Lara, Attorney at Law). Trial
dates in Washington are rarely set less than a year from the date
of filing a complaint. See March Comments at 69 (comment of Patrick
McIntyre, Northwest Justice Project). Employment cases in
Washington typically take from several months to several years to
resolve. See March Comments at 173 (comment of Daniel
G. Ford, Columbia Legal Services). In Georgia, litigation
involving federal labor laws protecting farmworkers may take up to
two or three years to resolve from the date of violation. See March
Comments at 100 comment of Nan Schivone and Phyllis Holmen, Georgia
Legal Services Program). In some instances, a Georgia case may take
five or more years to fully resolve. See id. In Oregon, cases dealt
with through a mediation program take an average of six to eight
months. See March Comments at 142 (comment of D. Michael Dale,
Oregon Law Center, and Janice Morgan, Legal Aid Services of
Oregon). Full scale litigation, with discovery, arbitration, and
sometimes trial and appeal may continue for years in Oregon. See
id. This is especially true in farmworker cases where delays in
scheduling and communicating with the farmworker plaintiffs occur
because of the workers' migratory lifestyle. See id.
In the U.S. District Court for the Eastern District of
Wisconsin, trials are scheduled within eighteen months of filing a
complaint and in the Western District, trials are held within ten
months after filing. See March Comments at 168 (comment of Kevin G.
Magee, Legal Action of Wisconsin). In Wisconsin small claims court,
trials are scheduled six weeks to two months after filing the
complaint. See id. Farmworkers may have already left the state
before their small claims trials are scheduled. See id. In Arizona,
cases take up to two years to litigate and even negotiated
settlements take a number of months to resolve. See March Comments
at 196 (comment of Garry M. Restaino, Community Legal Services).
Litigation on behalf of Arizona farmworkers who live in Mexican
border towns is delayed because of difficulties in communicating
with the client. See id. Very few Arizona clients, who live in
Mexico, have telephones or daily postal service, which requires the
legal services representative to go to the Mexican border town to
locate the client. See id. In Illinois, claims involving false
promises, failure to pay wages, unsafe housing, dangerous field
conditions, illegal wage deductions take months to resolve. See
March Comments at 198 (comment of Vincent Beckman, III, Illinois
Migrant Legal Assistance Project). In California, cases in the
areas of labor and employment, housing, education, public benefits
and health, which cannot be resolved informally, take months to
years to resolve at the administrative level or in court. See March
Comments at 246-47 (comment of Marci Seville, Golden Gate
University School of Law); March Comments at 205-206 (comment of
Jose Padilla and Cynthia L. Rice, California Rural Legal
Assistance). In New Mexico, farmworker claims may take several
months to longer than a year to resolve. See March Comments at 216
(comment of Sarah M. Singleton, Attorney at Law). In Florida, the
period to resolve a farmworker's claim can range from within a
month to years, depending on various circumstances, including the
type of claim, the complexity of the issue, the time needed to
investigate the claim, the evidence needed to establish the claim,
and the damages at issue. See March Comments at 270 (comment of
Lisa Butler, Florida Rural Legal Services). Administrative actions
on behalf of Florida farmworkers, including complaints to federal
or state departments of labor and workers compensation claims, may
take six months to over a year to resolve. See id. at 271.
Litigation in Florida involving substantial claims may go on for
six months to two or more years if the case goes to trial. See id.
Even pre-litigation settlement of employment claims are time
consuming, often requiring the attorney to fully investigate the
workers' claims. See id. at 270-71. In many of these cases,
additional time will be required if cases are appealed or new
trials are granted.


2. H-2A Aliens
In most instances, as discussed above, H-2A aliens seek legal
assistance when they are in the process of leaving the United
States or after they have returned to their home country. In those
few cases where H-2A workers seek legal assistance on work issues
while they are still in the United States, it is generally
impossible for those issues to be resolved before the workers leave
the United States. See March Comments at 22 (comment of Robert J.
Willis, Attorney at Law); March Comments at 46-47 (comment of
Carolyn Corrie, Attorney at Law); March Comments at 50 (comment of
Francisco J. Bricio, Attorney at Law); April Comments at 101
(comment of Garry G. Geffert, West Virginia Legal Services Plan);
March Comments at 108 (comment of Robert Salzman, Legal Aid Society
of Mid-New York, and Charlotte Sibley and Patricia C. Kakalec,
Farmworker Law Project); March Comments at 231 (comment of Melissa
A. Pershing, Legal Services of North Carolina); March Comments at
188 (comment of Janet
E. Hill, National Employment Lawyers Association); March
Testimony at 107 (testimony of Javier Riojas, Texas Rural Legal
Aid); March Testimony at 41 (testimony of Garry G. Geffert, West
Virginia Legal Services Plan); March Testimony at 52 (testimony of
Mary Lee Hall, Legal Services of North Carolina); March Testimony
at 148 (testimony of Rob Williams, Florida Legal Services). Legal
Services of North Carolina testified that, with the exception of
claims for delayed mid-contract transportation reimbursement,
ninety-eight percent of H-2A cases cannot be successfully completed
while the H-2A worker is still in the country. See March Testimony
at 67-68 (testimony of Mary Lee Hall, Legal Services of North
Carolina); see also March Comments at 231-33 (comment of Melissa A.
Pershing, Legal Services of North Carolina). For example, in North
Carolina the average time period to pursue work related injury, bad
housing, and wage claims in state or federal court or before the
North Carolina Industrial Commission is "well beyond a full year if
not two full years." March Comments at 22 (comment of Robert J.
Willis, Attorney at Law). Contested North Carolina workers
compensation claims may take years to resolve. See March Comments
at 231-32 (comment of Melissa A. Pershing, Legal Services of North
Carolina). Even uncontested North Carolina workers compensation
claims cannot be resolved during the H-2A contract period. See id.
at 232. North Carolina state court litigation takes at least two
years before the case is set for trial. See id. at 233. State and
federal employment discrimination claims often require
pre-litigation exhaustion of administrative processes, which under
North Carolina law require at least 180 days to complete. See id.
at 232-33.
In West Virginia, federal court litigation on behalf of H-2
workers from Jamaica took four years to resolve in one case and
three years in another, including the time period to distribute the
back wage award. See April Comments at 101 (comment of Garry G.
Geffert, West Virginia Legal Services Plan). A West Virginia state
court case routinely takes one year to go to trial and longer if a
jury is demanded. See id. West Virginia workers compensation claims
continue long after the worker has left the United States even in
uncontested cases. See id. In New York, developing, filing, and
resolving litigation on behalf of H-2A workers takes well over one
year. See March Comments at 112 (comment of Robert Salzman, Legal
Aid Society of Mid-New York, Charlotte Sibley and Patricia C.
Kakalec, Farmworker Law Project). In Virginia, virtually all H-2A
claims are settled without resorting to litigation or
administrative complaints. See March Comments at 128 (comment of
Shelley Latin, Virginia Farmworkers Legal Assistance Project). But
even these cases often cannot be resolved while the worker is still
in the United States. See id. at 128-29. This is especially true
for Virginia workers compensation claims. See id. at 129. In
Georgia, it regularly takes from two to three years for federal
court litigation. See March Comments at 188-89 (comment of Janet E.
Hill, National Employment Lawyers Association). Texas cases
typically involve preliminary disputes regarding jurisdiction and
venue before the case reaches the merits, and civil cases on the
border move very slowly due to court congestion with alien and drug
smuggling cases. See March Testimony at 108 (testimony of Javier
Riojas, Texas Rural Legal Aid). Florida cases involving H-2A sugar
workers have resulted in full-blown litigation sometimes lasting a
decade or more. See March Testimony at 144 (testimony of Rob
Williams, Florida Legal Services).
F. Availability of Alternative Representation for Low-income
Aliens


1. Private Attorneys and Non-LSC Funded Non-profit
Organizations
a. Unrestricted aliens
Private attorneys are unlikely to undertake the representation
of alien agricultural worker clients. See March Comments at 28
(comment of Georgia J. Lewis, Attorney at Law); March Comments at
70 (comment of Patrick McIntyre, Northwest Justice Project); March
Comments at 76-77 (comment of Mark Talamantes, Attorney at Law);
March Comments at 81 (comment of Marilyn J. Endriss, Attorney at
Law); March Comments at 101 (comment of Nan Schivone and Phyllis
Holmen, Georgia Legal Services Program); March Comments at 143
(comment of D. Michael Dale, Oregon Law Center, and Janice Morgan,
Legal Aid Services of Oregon); March Comments at 168 (comment of
Kevin G. Magee, Legal Action of Wisconsin); March Comments at
174-75 (comment of Daniel G. Ford, Columbia Legal Services); March
Comments at 187 (comment of Michael L. Monahan, State Bar of
Georgia); March Comments at 199 (comment of Vincent H. Beckman,
III, Illinois Migrant Legal Assistance Project); March Comments at
216 (comment of Sarah M. Singleton, Attorney at Law); March
Comments at 247 (comment of Marci Seville, Golden Gate University
School of Law); April Comments at 6 (comment of Emma Torres,
Puentes de Amistad); April Comments at 41 (comment of Nieves
Negrete, Washington Alliance for Immigrant and Refugee Justice);
April Comments at 45 (comment of Doreen Dodson, American Bar
Association Standing Committee on Legal Aid and Indigent Defendants
(ABA/SCLAID)); April Testimony at 41 (testimony of Jack Londen,
Attorney at Law). Four chief reasons are the mobility of the client
population, language barriers involved in serving a non-English
speaking population, the high costs incurred in cases involving
aliens, and the lack of any potential for large fee awards. See
March Comments at 46-47 (comment of Carolyn Corrie, Attorney at
Law); March Comments at 49-50 (comment of Francisco J. Bricio,
Attorney at Law); March Comments at 74 (comment of Keith S. Ernst,
Attorney at Law); March Comments at 81, (comment of Marilyn J.
Endriss, Attorney at Law); March Comments at 84 (comment of John W.
Morehouse, Wake County Human Services); March Comments at 85 (Dawn
Burtt, Wake County Human Services); March Comments at 130-31
(comment of Shelley Latin, Virginia Farmworkers Legal Assistance
Project); March Comments at 143 (comment of D. Michael Dale, Oregon
Law Center, and Janice Morgan, Legal Aid Services of Oregon); March
Comments at 160 (comment of Michael Wyatt, Texas Rural Legal Aid,
et. al); March Comments at 168 (comment of Kevin G. Magee, Legal
Action of Wisconsin); March Comments at 174-75 (comment of Daniel
G. Ford, Columbia Legal Services); March Comments at 187 (comment
of Michael L. Monahan, State Bar of Georgia); March Comments at 189
(comment of Janet E. Hill, National Employment Lawyers
Association); April Comments at 41 (comment of Nieves Negrete,
Washington Alliance for Immigrant and Refugee Justice); April
Comments at 44 (comment of Walt Auvil, Attorney at Law); April
Comments at 48 (comment of Doreen Dodson, ABA/SCLAID); March
Testimony at 70 (testimony of Mary Lee Hall, Legal Service of North
Carolina); April Testimony at 23 (testimony of Cynthia Rice,
California Rural Legal Assistance); April Testimony at 139
(testimony of Sylvia Argueta, Mexican American Legal Defense and
Education Fund).
The migratory and isolated nature of alien farmworker
populations makes them extremely difficult for private attorneys to
represent. See April Testimony at 23 (testimony of Cynthia Rice,
California Rural Legal Assistance); April Testimony at 78
(testimony of Victor Lara, Attorney at Law). Private attorneys are
unfamiliar with the location of rural labor camps and lack the
resources and knowledge of farmworker migratory behavior necessary
to maintain contact with their clients. Farmworker cases are very
labor intensive - clients generally cannot be accessed by phone or
fax, clients may not be able to communicate in writing, and
interviewing a client or obtaining or preparing documents may
require multiple visits in person to the worker's location. See
April Testimony at 78 (testimony of Victor Lara, Attorney at Law);
March Comments at 208 (comment of Jose Padilla and Cynthia L. Rice,
California Rural Legal Assistance). Farmworkers' long and
unpredictable hours of work may require that the attorney be
available to meet with them at a labor camp late at night, or when
work is canceled due to rain and the client happens to show up.
April testimony at 80; March Comments at 76 (comment of Mark
Talamantes, Attorney at Law). The time, energy, and expense
involved in communicating with the client can preclude
representation by private attorneys and most pro bono programs. See
March Comments at 47 (comment of Carolyn Corrie, Attorney at Law);
March Comments at 74 (comment of Keith S. Ernst, Attorney at Law);
March Comments at 77 (comment of Mark Talamantes, Attorney at Law);
March Comments at 143 (comment of D. Michael Dale, Oregon Law
Center, and Janice Morgan, Legal Aid Services of Oregon); April
Testimony at 43, 46 (testimony of Jack Londen, Attorney at Law);
April Testimony at 80-81 (testimony of Victor Lara, Attorney at
Law).
Language barriers are formidable. Spanish speaking attorneys are
rare, and for attorneys who do not speak Spanish, representing
farmworker clients is unfeasible. See April Testimony at 80-81
(testimony of Victor Lara, Attorney at Law); March Comments at 45
(comment of Jena L. Matzen, North Carolina Justice and Community
Development Center); March Comments at 50 (comment of Francisco J.
Bricio, Attorney at Law). Many states in the southeastern United
States where farmworkers are common lack a significant
Spanish-speaking bar. See id. North Carolina, for example, is
estimated to have fewer than one hundred private attorneys with
bilingual capacity in the state, and most live in metropolitan
areas. See March Comments at 45 (comment of Jena L. Matzen, North
Carolina Justice and Community Development Center); see also March
Comments at 235 (comment of Melissa A. Pershing, Legal Services of
North Carolina). Farmworkers from southern Mexico and Central
America may speak indigenous languages such as Mixtec, posing "an
absolute showstopper" even for firms with significant pro bono
resources. April Testimony at 43 (testimony of Jack Londen,
Attorney at Law); see also March Comments at 124 (comment of
Shelley Latin, Virginia Farmworkers Legal Assistance Project);
March Comments at 208 (comment of Jose Padilla and Cynthia L. Rice,
California Rural Legal Assistance); March Comments at 223 (comment
of Melissa A. Pershing, Legal Services of North Carolina).
The barriers involved in representing alien farmworkers are
compounded by the low compensation available in such cases. The low
level of farmworker wages results in damages awards that are
extremely low. See April Testimony at 49 (testimony of Jack Londen,
Attorney at Law). Fees on wage and hour cases, farm labor safety
cases, and many workers compensation cases are too low relative to
the time needed to resolve the case for most private attorneys to
litigate. See March Comments at 50 (comment of Francisco J. Bricio,
Attorney at Law); March Comments at 74 (comment of Keith S. Ernst,
Attorney at Law). In California, even large labor rights cases are
difficult to refer to the private bar because of the unavailability
of contingency fees, the inadequacy of statutory fees, and the
difficulty involved in representing farmworker clients. See March
Comments at 208 (comment of Jose Padilla and Cynthia L. Rice,
California Rural Legal Assistance). Private attorneys are not
available to represent aliens in California administrative
proceedings, for which legal fees are not provided. See id.; April
Testimony at 18 (testimony of Cynthia Rice, California Rural Legal
Assistance). It is extremely difficult to obtain alternative
representation for housing eviction, benefits, education, and
health access cases, whether the client is an alien or a citizen.
See March Comments at 208 (comment of Jose Padilla and Cynthia L.
Rice, California Rural Legal Assistance).
Alien farmworker representation is further compromised by the
lack of private attorneys in rural areas. Georgia, for example, has
several rural agricultural counties with fewer than five practicing
lawyers, and at least one such county with no attorney at all. See
March Comments at 187 (comment of Michael
L. Monahan, State Bar of Georgia). Private attorneys who engage
in the most pro bono work are located in large firms in major
cities, far removed from farmworker locales. See April Testimony at
41-42 (testimony of Jack Londen, Attorney at Law). The few
attorneys who do reside in locations where farmworkers are likely
to live and work generally represent agricultural employers and are
conflicted out of representing farmworkers. See March Comments at
174 (comment of Daniel G. Ford, Columbia Legal Services); April
Testimony at 42 (testimony of Jack Londen, Attorney at Law); April
Testimony at 87 (testimony of Victor Lara, Attorney at Law). Even
in major cities located near farmworker areas, it is extremely
difficult to find pro bono lawyers able to represent farmworkers
because agricultural employers are predominant clients in those
areas. See April Testimony at 42 (testimony of Jack Londen,
Attorney at Law). The Florida sugar industry, for example, retained
many of the major firms in Florida to defend H-2A litigation. See
March Testimony at 144 (testimony of Rob Williams, Florida Legal
Services).
Attorneys with expertise in employment matters, a common claim
of alien farmworkers, also generally practice in urban areas far
from the farmworker clients. See March Comments at 81 (comment of
Marilyn J. Endriss, Attorney at Law). The National Employment
Lawyers Association, whose members represent plaintiffs in
employment law matters, reports that while its members have
expertise on employment law matters, very few attorneys, other than
legal services lawyers, are willing to take on these cases because
of the complexity of farmworker legal claims, the time and
financial resources needed to litigate these cases, and the
practical problems of representing farmworkers. See March Comments
at 189 (comment of Janet E. Hill, National Employment Lawyers
Association); see also March Comments at 81 (comment of Marilyn J.
Endriss, Attorney at Law).
The American Bar Association reports that pro bono programs,
operated through its Center for Pro Bono, typically do not
represent aliens for many of the reasons noted above. See April
Comments at 48 (comment of Doreen Dodson, ABA/SCLAID). The ABA
further notes that while the immigration bar is generous with its
time and equipped to overcome some of the practical barriers in
representing aliens, its members often do not have expertise to
deal with general civil matters. See id. The ABA further reports on
efforts it has made to expand pro bono services to the immigrant
community. See id. at 49. These efforts have yet to result in
significant new pro bono resources and it is not expected that
private pro bono lawyers will be able to meet a significant portion
of the demand for service. See id. The President of the North
Carolina Bar Association reports that "there just are not enough
civil legal resources available from the private bar, paid or pro
bono, to ensure that migrant workers achieve even minimum access to
their basic human and contract rights." See April Comments at 50
(comment of Larry B. Sitton, North Carolina Bar Association). The
limited lawyers available and the barriers to farmworker
representation make farmworker cases more difficult to place with
pro bono attorneys than any other type of case, including death
penalty convictions. See April Testimony at 44 (testimony of Jack
Londen, Attorney at Law). Moreover, it would be impossible to find
private counsel to handle emergency situations that arise for
eligible alien clients. See April Testimony at 97 (testimony of
Bruce Iwasaki, Legal Aid Foundation of Los Angeles).
To the extent that private attorneys are willing to take cases
involving aliens, they are likely to cocounsel with LSC-funded
programs. See March Comments at 21 (comment of Robert J. Willis,
Attorney at Law); March Comments at 77 (comment of Mark Talamantes,
Attorney at Law); March Comments at 130-31 (comment of Shelley
Latin, Virginia Farmworkers Legal Assistance Project); March
Comments at 160 (comment of Michael Wyatt, Texas Rural Legal Aid,
et. al); March Comments at 208 (comment of Jose Padilla and Cynthia
L. Rice, California Rural Legal Assistance); March Comments at 216
(comment of Sarah M. Singleton, Attorney at Law); March Comments at
234 (comment of Melissa A. Pershing, Legal Services of North
Carolina); April Comments at 51 (comment of Larry B. Sitton, North
Carolina Bar Association); April Testimony at 43-45, 47 (testimony
of Jack Londen, Attorney at Law); April Testimony at 81 (testimony
of Victor Lara, Attorney at Law). Co-counseling with LSC recipients
remedies many of the barriers to private representation of aliens
by providing private attorneys access to specialized legal
expertise, language capability, familiarity with aliens'
communities, and the skills and resources necessary to keep in
touch with migrating witnesses and clients. If the assistance of
the LSCfunded program were not available in these co-counseled
cases, it is very unlikely that the private attorney would agree to
become involved in the case. See April Testimony at 45 (testimony
of Jack Londen, Attorney at Law).
Finally, the availability of legal assistance from non-LSC
funded, non-profit organizations is limited. See March Comments at
45 (comment of Jena L. Matzen, N.C. Justice & Community
Development Center); March Comments at 65 (comment of James F.
Schmidt, Farmworker Legal Services of New York); March Comments at
76 (comment of Mark Talamantes, Attorney at Law); March Comments at
143 (comment of D. Michael Dale, Oregon Law Center, and Janice
Morgan, Legal Aid Services of Oregon); March Comments at 147
(comment of Mary Bauer, Virginia Justice Center); March Comments at
236 (comment of Melissa A. Pershing, Legal Services of North
Carolina); March Comments at 247 (comment of Marci Seville, Golden
Gate University School of Law); March Comments at 208 (comment of
Jose Padilla and Cynthia L. Rice, California Rural Legal
Assistance); March Comments at 110 (comment of Robert Salzman,
Legal Aid Society of Mid-New York, Charlotte Sibley and Patricia C.
Kakalec, Farmworker Law Project); March Testimony at 149 (testimony
of Rob Williams, Florida Legal Services); April Testimony at 44
(testimony of Jack Londen, Attorney at Law). These organizations
have very limited resources and small staffs, and often receive
funding for specific projects. April Testimony at 44 (testimony of
Jack Londen, Attorney at Law); March Testimony at 149 (testimony of
Rob Williams, Florida Legal Services); March Comments at 45
(comment of Jena L. Matzen, N.C. Justice & Community
Development Center); March Comments at 131 (comment of Shelley
Latin, Virginia Farmworkers Legal Assistance Project); March
Comments at 208 (comment of Jose Padilla and Cynthia L. Rice,
California Rural Legal Assistance); March Comments at 236 (comment
of Melissa A. Pershing, Legal Services of North Carolina). Many
important agricultural states, such as Arkansas, Kentucky, New
Mexico, and Texas have no such entities. See March Comments at 160
(comment of Michael Wyatt, Texas Rural Legal Aid, et. al). Major
nonprofit organizations, such as the Mexican American Legal Defense
and Education Fund, rely heavily on referrals of low income clients
to LSC providers. See April Testimony at 146 (testimony of Sylvia
Argueta, Mexican American Legal Defense and Education Fund).
Consequently, these non-profit legal organizations are not a
feasible alternative to LSC-funded representation.
b. H-2A Workers
Private attorneys are extremely unlikely to serve as sole
counsel in H-2A cases. See March Comments at 15 (comment of Michael
Carlin); March Comments at 20 (comment of Robert J. Willis,
Attorney at Law); March Comments at 26 (comment of Melinda Wiggins,
Student Action with Farmworkers); March Comments at 65 (comment of
James F. Schmidt, Farmworker Legal Services of New York); April
Comments at 103 (comment of Garry G. Geffert, West Virginia Legal
Services Plan); March Comments at 109 (comment of Robert Salzman,
Legal Aid Society of Mid-New York, Charlotte Sibley and Patricia C.
Kakalec, Farmworker Law Project); March Comments at 234-35 (comment
of Melissa A. Pershing, Legal Services of North Carolina); March
Comments at 130-31 (comment of Shelley Latin, Virginia Farmworkers
Legal Assistance Project); March Comments at 147 (comment of Mary
Bauer, Virginia Justice Center); March Comments at 160 (comment of
Michael Wyatt, Texas Rural Legal Aid, et. al); April Comments at 44
(comment of Walt Auvil, Attorney at Law); April Testimony at 41
(testimony of Jack Londen, Attorney at Law). This is due to
problems faced by representation of alien farmworkers generally, as
well as by difficulties particular to the H-2A program.
Assuming an H-2A worker wants to retain private counsel, the
H-2A worker's isolation makes it practically impossible to reach
private counsel while residing in the U.S. See March Comments at
271 (comment of Lisa Butler, Florida Rural Legal Services); April
Comments at 103 (comment of Garry G. Geffert, West Virginia Legal
Services Plan). As discussed above, H-2A workers live in labor
camps outside of towns and depend on their employers for
transportation. See id. They have no access to telephones while in
the labor camp. See March Comments at 11 (comment of Anita Soucy);
March Comments at 46 (comment of Carolyn Corrie, Attorney at Law);
March Comments at 122 (comment of Shelley Latin, Virginia
Farmworkers Legal Assistance Project); March Comments at 222
(comment of Melissa A. Pershing, Legal Services of North Carolina);
March Comments at 106 (comment of Robert Salzman, Legal Aid Society
of Mid-New York, Charlotte Sibley and Patricia C. Kakalec,
Farmworker Law Project). The workers' lack of language ability or
familiarity with the rural communities in which they work acts as a
further barrier to accessing private counsel. Private counsel do
not engage in outreach or education efforts with H-2A workers. See
March Comments at 130 (comment of Shelley Latin, Virginia
Farmworkers Legal Assistance Project).
Private attorneys also have no financial incentive to undertake
H-2A cases. See March Comments at 47 (comment of Carolyn Corrie,
Attorney at Law); March Comments at 50 (comment of Francisco J.
Bricio, Attorney at Law); March Comments at 74 (comment of Keith S.
Ernst, Attorney at Law); March Comments at 109 (comment of Robert
Salzman, Legal Aid Society of Mid-New York, Charlotte Sibley and
Patricia C. Kakalec, Farmworker Law Project); March Comments at 131
(comment of Shelley Latin, Virginia Farmworkers Legal Assistance
Project); March Comments at 235 (comment of Melissa A. Pershing,
Legal Services of North Carolina); April Comments at 44 (comment of
Walt Auvil, Attorney at Law). H-2A aliens lack financial resources
to retain private counsel. See March Comments at 235 (comment of
Melissa A. Pershing, Legal Services of North Carolina); March
Comments at 20 (comment of Robert J. Willis, Attorney at Law);
March Comments at 26 (comment of Melinda Wiggins, Student Action
With Farmworkers). Damages generally are too low for attorneys to
accept H-2A cases on a contingency basis. See March Comments at 21
(comment of Robert J. Willis, Attorney at Law). The H2A statute
does not provide for attorneys fees, and statutory fees are not
always available. See id. at 20; March Testimony at 32 (testimony
of Garry G. Geffert, West Virginia Legal Services Plan). In North
Carolina, statutory attorneys fees are awarded only on contract
claims involving wages or wage-like benefits. See March Comments at
235 (comment of Melissa A. Pershing, Legal Services of North
Carolina). Statutory fees are not available for wrongful discharge,
housing and health and safety contract claims. See id. In North
Carolina, the statutory twenty-five percent contingent fee
available in workers compensation cases includes all out-of-pocket
costs the attorney has incurred on the case. See March Comments at
21 (comment of Robert J. Willis, Attorney at Law). These costs can
be substantial. See id.
Consequently, workers compensation recoveries, except in
catastrophic injury cases, are too small to make it financially
feasible for the private attorney to undertake these cases. See
id.; March Comments at 235 (comment of Melissa A. Pershing, Legal
Services of North Carolina). Moreover, H-2A contract cases are
expensive to litigate. See March Comments at 131 (comment of
Shelley Latin, Virginia Farmworkers Legal Assistance Project);
March Comments at 235 (comment of Melissa A. Pershing, Legal
Services of North Carolina); April Comments at 104 (comment of
Garry G. Geffert, West Virginia Legal Services Plan). These costs,
which may include the costs of bringing the client back to the
United States for hearings or depositions, must be advanced by the
attorney. See id.
Private counsel also lack expertise in legal claims under the
H-2A program. See March Comments at 21 (comment of Robert J.
Willis, Attorney at Law); March Comments at 130 (comment of Shelley
Latin, Virginia Farmworkers Legal Assistance Project); March
Comments at 234 (comment of Melissa A. Pershing, Legal Services of
North Carolina); April Comments at 104 (comment of Garry G.
Geffert, West Virginia Legal Services Plan). Representing H-2A
workers typically requires specialized knowledge of the H-2A
administrative law and regulations, OSHA field sanitation and other
health and safety standards, and venue laws controlling access to
forums. See March Comments at 130 (comment of Shelley Latin,
Virginia Farmworkers Legal Assistance Project); March Comments at
234 (comment of Melissa A. Pershing, Legal Services of North
Carolina). Even attorneys who specialize in employment law are
unfamiliar with the specialized practice involved in presenting
H-2A claims. March Comments at 189 (comment of Janet E. Hill,
National Employment Lawyers Association).
Finally, as with the representation of other alien farmworkers,
private attorneys typically do not have the language skills,
special resources and knowledge necessary to maintain contact with
a client, who resides thousands of miles from their office and does
not have a telephone or regular mail delivery, and who may not even
know the name of his employer. See March Comments at 20 (comment of
Robert J. Willis, Attorney at Law); see also March Comments at 235
(comment of Melissa A. Pershing, Legal Services of North Carolina).
Often it is difficult, if not impossible, to conduct a client
interview and fact investigation before the H-2A alien leaves the
United States, see discussion infra Part III(D)(2), and
difficulties of communicating are compounded by the fact that many
H-2A workers reside in small Mexican villages where the mail system
is unreliable and telephone access extremely limited. See March
Comments at 235 (comment of Melissa A. Pershing, Legal Services of
North Carolina).
As in other alien cases, in H-2A cases private counsel have
depended upon the assistance and expertise of LSC recipients to
identify H-2A employers, locate supporting witnesses in the U.S.
and Mexico, locate H-2A housing sites, communicate the client and
witnesses, and assist with other basic access issues that are
essential to the successful resolution of any legal claim. See
March Comments at 21 (comment of Robert J. Willis, Attorney at
Law); April Comments at 51 (comment of Larry B. Sitton, North
Carolina Bar Association); March Comments at 65 (comment of James
F. Schmidt, Farmworker Legal Services of New York); March Comments
at 236 (comment of Melissa A. Pershing, Legal Services of North
Carolina); March Testimony at 70 (testimony of Mary Lee Hall, Legal
Services of North Carolina). Farmworker Legal Services of New York
reports that it has not successfully referred an H-2A case to
private counsel in fifteen years unless the LSC recipient remained
actively involved. See March Comments at 65 (comment of James F.
Schmidt, Farmworker Legal Services of New York); see also March
Comments at 130-31 (comment of Shelley Latin, Virginia Farmworkers
Legal Assistance Project).


2. Mediation and Alternative Dispute Resolution
Mediation mechanisms alone, to the extent that these are
available to settle legal claims, will not necessarily resolve
aliens' claims. Commentators recognize that people will often
refuse to participate in mediation if the other parties to the
dispute lack the resources to litigate, and they question the
fairness of mediation if only one side is represented by counsel or
if a disputant has difficulty negotiating effectively in English.
Stephen Goldberg et al., Dispute Resolution: Negotiations,
Mediation and Other Processes
rd
(3 ed. 1999). The barriers to private bar representation
experienced by alien clients are also applicable to ADR. See March
Comments at 209 (comment of Jose Padilla and Cynthia L. Rice,
California Rural Legal Assistance).
Further, mediation mechanisms may not be available to many
eligible aliens. Alien clients may not have the financial means to
use these procedures. See March Comments at 77 (comment of Mark
Talamantes, Attorney at Law); March Comments at 209 (comment of
Jose Padilla and Cynthia L. Rice, California Rural Legal
Assistance). Pre-litigation mediation is almost always subject to
sharing of costs. See March Comments at 209 (comment of Jose
Padilla and Cynthia L. Rice, California Rural Legal Assistance).
Court referred mediation is available after litigation is filed,
and often has a cost-sharing component. See id. Even if a party
agrees to pay the costs of the mediator, for example, in
California, there are other costs which the alien must bear, such
as paying for interpreters and translation of documents. See id. In
some cases, the possibility of a mediated settlement does not forgo
the need to file litigation, conduct discovery or obtain pre-trial
orders. See March Comments at 173 (comment of Daniel
G. Ford, Columbia Legal Services); March Comments at 233
(comment of Melissa A. Pershing, Legal Services of North Carolina).
Oregon has an effective mediation program, but pre-trial mediation
still requires representation by counsel and the availability of
counsel to pursue litigation should mediation fail. See March
Comments at 142 (comment of D. Michael Dale, Oregon Law Center, and
Janice Morgan, Legal Aid Services of Oregon). Mediation conducted
in bad faith by a party can delay resolution of the case. See March
Comments at 49 (comment of Francisco J. Bricio, Attorney at
Law).
Finally, as a practical matter in farmworker litigation,
agricultural employers may choose not to use mediation programs.
See March Testimony at 28-31 (testimony of Garry G. Geffert, West
Virginia Legal Services Plan). In New York, the legal services
program, the New York Farm Bureau, the state Department of Labor
and Cornell University established a mediation program operating
out of Cornell University. See March Comments at 65-66 (comment of
James F. Schmidt, Farmworker Legal Services of New York). In its
three years of operation not one agricultural employer agreed to
use the procedures as an alternative to litigation. See id. at 66.
A similar program established in West Virginia also proved
ineffective. See March Testimony at 31 (testimony of Garry G.
Geffert, West Virginia Legal Services Plan).


3. Government Agency Enforcement
In alien agricultural worker cases, including cases involving
H-2A workers, state and federal government agencies are unable to
fully enforce a worker's legal rights. See March Comments at 32
(comment of Bill Beardall, Texas Rural Legal Aid); March Comments
at 63 (comment of James F.
Schmidt, Farmworker Legal Services of New York); March Comments
at 205 (comment of Jose Padilla and Cynthia L. Rice, California
Rural Legal Assistance); March Comments at 143-44 (comment of D.
Michael Dale, Oregon Law Center, and Janice Morgan, Legal Aid
Services of Oregon); March Comments at 160 (comment of Michael
Wyatt, Texas Rural Legal Aid, et. al); April Comments at 10
(comment of D. Michael Hancock, USDOL); March Testimony at 108
(testimony of Javier Riojas, Texas Rural Legal Aid); April
Testimony at 57 (testimony of Jack Londen, Attorney at Law). The
USDOL reports that despite high violation rates in agriculture,
farmworkers generally do not file complaints with USDOL due to
their isolation, lack of knowledge regarding labor protections, and
fear of government agencies. See April Comments at 10 (comment of
D. Michael Hancock, USDOL). Wage and Hour Division investigations
of H-2A cases during FY 1996, 1997 and 1998 found an employer
violation rate of fifty-seven percent, though only nineteen percent
of the cases investigated were the result of a complaint from an
H-2A worker. See id.
Moreover, government agencies have competing priorities and
limited resources. See id. By law, the USDOL has only seven days to
review an application for H-2A certification to determine its
compliance with the statutory requirements. See March Testimony at
109 (testimony of Javier Riojas, Texas Rural Legal Aid). The USDOL
relies on private enforcement to play a major role in the overall
enforcement scheme. See March Comments at 160 (comment of Michael
Wyatt, Texas Rural Legal Aid, et. al). The USDOL reports that
"[t]here is no certainty that the Wage and Hour Division will be
able to represent all aggrieved H-2A workers if they are no longer
able to bring private actions on their own behalf." April Comments
at 10-11 (comment of D. Michael Hancock, USDOL). This is not
surprising. The USDOL lacks adequate resources to enforce its
regulations, April Testimony at 57 (testimony of Jack Londen,
Attorney at Law), and has a long history of weak enforcement of the
H-2A program. See March Comments at 160 (comment of Michael Wyatt,
Texas Rural Legal Aid, et. al). In 1991 a congressional committee
found that USDOL failed to enforce the rights of both H-2A and
United States workers. The USDOL had documented repeated and
long-standing violations of the H-2A statute and regulations, but
failed to take action either to correct the violations or to ensure
that full restitution was made to the workers. See 1991 HOUSE
REPORT, cited in April Comments at 104 (comment of Garry G.
Geffert, West Virginia Legal Services Plan). The GAO reports that
USDOL continues to face inherent obstacles in enforcing the H-2A
protections. GAO REPORT at 58; see also March Comments at 160
(comment of Michael Wyatt, Texas Rural Legal Aid, et. al).
Enforcement by state agencies may be less effective. Over a nine
year period, the California Industrial Relations Department issued
only 120 citations for minimum wage violations to the state's
80,000 agricultural employers and their farm labor contractors. By
contrast, in a targeted enforcement of the Fresno County raisin
harvest in September 1998, USDOL found a fifty percent violation
rate among farm labor contractors, and a twenty percent violation
rate among growers. See April Testimony at 147-49 (testimony of
Mark Schacht, California Rural Legal Assistance Foundation). The
Oregon state agency responsible for housing enforcement inspects
labor camps once every seventeen years. See March Comments 143
(comment of D. Michael Dale, Oregon Law Center, and Janice Morgan,
Legal Aid Services of Oregon).
Government agencies may also lack the legal authority to seek
private remedies for individual workers. For example, USDOL cannot
seek private remedies for violations of the Migrant and Seasonal
Agricultural Worker Protection Act. See id. at 143-44. Even when
the government agency has the legal authority to seek private
remedies for individuals, as in the case of unpaid wages, the
agency may choose not to pursue those remedies and only seek civil
money penalties against the employer. See March Comments at 111
(comment of Robert Salzman, Legal Aid Society of Mid-New York,
Charlotte Sibley and Patricia C. Kakalec, Farmworker Law
Project).
G. Burdens of Requiring LSC Funded Attorneys to Withdraw from
Cases When the Client Leaves the United States
1. Administrative Burdens
Several witnesses testified about terminating representation
once the alien left the country. An interpretation that legal
services recipients can represent aliens only during the times that
they are physically present in the United States would present LSC
providers with two options. Either they would be required to
terminate representation each time the client leaves the country,
April Testimony at 12 (testimony of Cynthia Rice, California Rural
Legal Assistance), or clients at the outset of representation would
be faced with having to choose between giving up their right to
travel outside the country, even for a family emergency, or giving
up their right to legal services representation. See March Comments
at 70 (comment of Patrick McIntyre, Northwest Justice Project);
April Testimony at 12, 17-18 (testimony of Cynthia Rice, California
Rural Legal Assistance); April Testimony at 72 (testimony of
Gabriel Medel, Parents for Unity). Faced with this choice, clients
likely would preserve their right to leave the country. See April
Testimony at 12, 17-18 (testimony of Cynthia Rice, California Rural
Legal Assistance); April Testimony at 72 (testimony of Gabriel
Medel, Parents for Unity); March Comments at 209 (comment of Jose
Padilla and Cynthia L. Rice, California Rural Legal
Assistance).
Requiring LSC attorneys to terminate representation whenever a
client left the country would impose substantial administrative
burdens on attorneys. See March Comments at 209 (comment of Jose
Padilla and Cynthia L. Rice, California Rural Legal Assistance);
March Comments at 247 (comment of Marci Seville, Golden Gate
University School of Law); April Comments at 46 (comment of Doreen
Dodson, ABA/SCLAID); April Testimony at 25 (testimony of Cynthia
Rice, California Rural Legal Assistance). LSC-funded attorneys
would be required to monitor the movements of their clients, and to
withdraw from cases whenever their alien clients leave the United
States. See April Testimony at 12, 2425 (testimony of Cynthia Rice,
California Rural Legal Assistance); March Testimony at 155-56
(testimony of Rob Williams, Florida Legal Services); April
Testimony at 90 (testimony of Bruce Iwasaki, Legal Aid Foundation
of Los Angeles). Notices to opposing counsel and the court or
administrative agency would have to be sent. See March Comments at
204 (comment of Jose Padilla and Cynthia L. Rice, California Rural
Legal Assistance). In federal court, a formal motion to withdraw
would have to be filed. See id. Similar motions would have to be
filed in state court actions. See id. In all cases, significant
steps would have to be taken to avoid prejudicing the client's
claims. See id. Case files would have to be copied and provided to
the client. See id. Case files may need to be translated for those
clients who read a language other than English. See id. For clients
who are illiterate in any language, materials would have to be
carefully explained to them. See id.
A motion to withdraw may be denied by the court, and the
attorney required to personally support the costs of the
litigation. See April Testimony at 83 (testimony of Victor Lara,
Attorney at Law). Courts may be unlikely to allow withdrawal where
no substitute counsel is available. See March Comments at 22
(comment of Robert J. Willis, Attorney at Law). Some state courts
could reject a motion to withdraw sua sponte if they believed
withdrawal would compromise the court's ability to maintain the
litigation. See April Testimony at 21 (testimony of Cynthia Rice,
California Rural Legal Assistance). Even if withdrawal were
allowed, this may not protect the attorney from ethical obligations
to vigorously represent the client, or from claims of malpractice.
See April Testimony at 82 (testimony of Victor Lara, Attorney at
Law).
Temporarily suspending legal representation during a client's
absence by seeking a continuance is not a viable alternative to
formally withdrawing from the case. The court may not grant a
continuance, and other plaintiffs and defendants in the litigation
may object to suspending the proceedings. See April Testimony at 82
(testimony of Victor Lara, Attorney at Law). Absent a formal motion
to withdraw, an attorney of record in federal court remains
responsible, both ethically and under the rules of court, for
responding to any matter that should arise. See April Testimony at
30 (testimony of Cynthia Rice, California Rural Legal Assistance);
April Testimony at 82 (testimony of Victor Lara, Attorney at Law).
If opposing counsel filed a motion for summary judgment while a
client was out of the country and the court refused to grant a
continuance, the attorney would be placed in the impossible
position of either taking the steps necessary to respond to the
motion, or violating her ethical and professional responsibility.
See April Testimony at 30 (testimony of Cynthia Rice, California
Rural Legal Assistance). As one witness put it, "it's hard to know
what we could do if we found out that a client was outside the
country. Would we not answer a phone call, not respond to a
question, cancel a deposition, or not go to the library and
research a case? None of those things would advance any interest at
all." April Testimony at 90 (testimony of Bruce Iwasaki, Legal Aid
Foundation of Los Angeles).
Requiring attorneys to monitor the movements of eligible aliens
at all times of the year would impose monumental burdens on LSC
grantees. See April Testimony at 24-25 (testimony of Cynthia Rice,
California Rural Legal Assistance); April Testimony at 90
(testimony of Bruce Iwasaki, Legal Aid Foundation of Los Angeles).
Alien farmworkers move frequently within the United States. It
would be extremely difficult for a legal services attorney in
California to know whether a client, who has been working in the
migrant stream in Arizona, has temporarily crossed the border into
Mexico. See April Testimony at 24-25 (testimony of Cynthia Rice,
California Rural Legal Assistance). Requiring the client to contact
the attorney periodically is not technically feasible for many of
farmworker clients. See id. at 25. In border communities where
aliens travel back and forth across the border on a daily basis,
legal services offices would have to require their clients -- who
may be illiterate -- to keep a daily log to account for their
movements. See April Testimony at 109 (testimony of Lynn Coyle,
Lawyers Committee for Civil Rights Under Law). The confusion
created by a such a requirement would be significant.
When the client returned to the United States, the
administrative burdens to resume representation would once again
have to be undertaken. This start-and-stop representation would be
confusing to the client and would significantly undermine the
effectiveness of representation. See March Comments at 209 (comment
of Jose Padilla and Cynthia L. Rice, California Rural Legal
Assistance); April Comments at 47 (comment of Doreen Dodson,
ABA/SCLAID); April Testimony at 90 (testimony of Bruce Iwasaki,
Legal Aid Foundation of Los Angeles). The rule would also create
significant administrative burdens for the client, other parties,
the courts, and administrative agencies. See March Comments at 209
(comment of Jose Padilla and Cynthia L. Rice, California Rural
Legal Assistance); April Comments at 47 (comment of Doreen Dodson,
ABA/SCLAID). Withdrawal may severely prejudice the clients' claim.
See March Comments at 50 (comment of Francisco J. Bricio, Attorney
at Law). Clients whose counsel withdrew would face the possibility
of having their case dismissed if the client failed to respond to
discovery or comply with procedural requirements. See April
Testimony at 82 (testimony of Victor Lara, Attorney at Law). In
California, the client's rights to representation would be lost in
certain administrative proceedings. See March Comments at 209
(comment of Jose Padilla and Cynthia L. Rice, California Rural
Legal Assistance); April Testimony at 19-20 (testimony of Cynthia
Rice, California Rural Legal Assistance).
The rule would also invite abuse. Opposing counsel and parties
could seek to compromise the alien client's rights by delaying the
litigation or intentionally filing discovery and other motions when
they know the client is out of the country and unrepresented. See
March Comments at 74 (comment of Keith S. Ernst, Attorney at Law);
March Comments at 209 (comment of Jose Padilla and Cynthia L. Rice,
California Rural Legal Assistance); April Testimony at 21
(testimony of Cynthia Rice, California Rural Legal Assistance).
Opponents could also seek to dismiss the litigation or to
disqualify the alien's counsel for engaging in unauthorized
representation. See April Testimony at 83 (testimony of Victor
Lara, Attorney at Law).


2. Professional Obligations
After examining rules of professional responsibility in their
states, attorneys in North Carolina, Pennsylvania, Washington,
Oregon, and New Mexico have concluded that the rules would prohibit
them from commencing representation of an alien client if they
would be required to terminate representation upon the alien's
temporary departure from the United States. See March Comments at
22 (comment of Robert J. Willis, Attorney at Law); March Comments
at 52 (comment of Arthur N. Read, Friends of Farmworkers); March
Comments at 70 (comment of Patrick McIntyre, Northwest Justice
Project); March Comments at 73 (comment of Keith S. Ernst, Attorney
at Law); March Comments at 143 (comment of D. Michael Dale, Oregon
Law Center, and Janice Morgan, Legal Aid Services of Oregon); March
Comments at 217 (comment of Sarah M. Singleton, Attorney at Law).
In Georgia, the rules of professional responsibility would limit
representation to matters that could be quickly settled while the
client was still in the United States. See March Comments at 101
(comment of Nan Schivone and Phyllis Holmen, Georgia Legal Services
Program). A professor at the College of William and Mary School of
Law, on the other hand, concludes that ethical obligations do not
bar representation of aliens who will not be in the United States
continuously during the course of the representation. See March
Comments at 26263 (comment of John Levy, College of William &
Mary School of Law). This commentator concluded that if the client
agrees to the representation with the knowledge that the attorney
must seek to withdraw under the rules, and the court refuses to
grant the withdrawal motion, the attorney would be required to
continue the representation. See id. at 262. Other commentators
stated that, even where rules of professional responsibility would
not absolutely bar representation, the unavailability of substitute
counsel could ethically compel LSC attorneys to refuse
representation. See March Comments at 38 (comment of Bill Beardall,
Texas Rural Legal Aid); March Comments at 73 (comment of Keith S.
Ernst, Attorney at Law); March Comments at 209 (comment of Jose
Padilla and Cynthia L. Rice, California Rural Legal
Assistance).

H. Practice of Grantees
It has been a long-standing practice of legal services
recipients to continue legal representation of alien clients,
including H-2A clients, after the clients have left the United
States. See March Comments at 203 (comment of Jose Padilla and
Cynthia L. Rice, California Rural Legal Assistance); March Comments
at 144 (comment of D. Michael Dale, Oregon Law Center, and Janice
Morgan, Legal Aid Services of Oregon); March Testimony at 51
(testimony of Mary Lee Hall, Legal Services of North Carolina);
March Testimony at 113 (testimony of Javier Riojas, Texas Rural
Legal Aid). Virtually every legal services recipient that submitted
written comments to this Commission described cases where the
program continued to represent alien clients after they have left
the U.S. See, e.g., March Comments at 32 (comment of Bill Beardall,
Texas Rural Legal Aid); March Comments at 54-55 (comment of Arthur
N. Read, Friends of Farmworkers); March Comments at 69 (comment of
Patrick McIntyre, Northwest Justice Project); March Comments at
99-100 (comment of Nan Schivone and Phyllis Holmen, Georgia Legal
Services Program); March Comments at 107 (comment of Robert
Salzman, Legal Aid Society of Mid-New York, Charlotte Sibley and
Patricia C. Kakalec, Farmworker Law Project); March Comments at 129
(comment of Shelley Latin, Virginia Farmworkers Legal Assistance
Project); March Comments at 159 (comment of Michael Wyatt, Texas
Rural Legal Aid, et. al); March Comments at 168 (comment of Kevin
G. Magee, Legal Action of Wisconsin); March Comments at 194
(comment of Gary M. Restaino, Community Legal Services); March
Comments at 198 (comment of Vincent H. Beckman, III, Illinois
Migrant Legal Assistance Project); March Comments at 201 (comment
of Jose Padilla and Cynthia L. Rice, California Rural Legal
Assistance); March Comments at 228 (comment of Melissa A. Pershing,
Legal Services of North Carolina); March Comments at 271 (comment
of Lisa Butler, Florida Rural Legal Services); April Comments at
106 (comment of Garry G. Geffert, West Virginia Legal Services
Plan); April Testimony at 89 (testimony of Bruce Iwasaki, Legal Aid
Foundation of Los Angeles).
To date, LSC has never taken action against programs that have
continued to represent alien clients after they have left the
United States. See March Comments at 144 (comment of D. Michael
Dale, Oregon Law Center, and Janice Morgan, Legal Aid Services of
Oregon); March Comments at 201 (comment of Jose Padilla and Cynthia
L. Rice, California Rural Legal Assistance); April Comments at 106
(comment of Garry G. Geffert, West Virginia Legal Services Plan);
April Testimony at 22 (testimony of Cynthia Rice, California Rural
Legal Assistance). This lack of LSC action on the alien
representation issue occurred in the face of vigorous LSC audits
and scrutiny of the recipient's practices. See March Comments at
144 (comment of D. Michael Dale, Oregon Law Center, and Janice
Morgan, Legal Aid Services of Oregon); April Testimony at 22
(testimony of Cynthia Rice, California Rural Legal Assistance).
In 1993 the American Bar Association's Standing Committee on
Legal Aid and Indigent Defendants published an exhaustive study of
farmworker legal services. AMERICAN BAR ASSOCIATION, STUDY
OFFEDERALLY FUNDED LEGAL AID FORMIGRANT FARMWORKERS (1993). See
April Testimony at 37 Exhibit 2 (testimony of Jack Londen, Attorney
at Law). This study addressed the list of legislative proposals
which agricultural enterprises were attempting to impose on legal
services recipients. In preparation of the final report, the
Standing Committee during a fourteen month period conducted
hearings, solicited comments and testimony, and reviewed the
literature from supporters and critics of legal services for
migrant farmworkers. See id at 39. Throughout the study period, the
presence requirement was never mentioned as an issue. See id.
-41-
The agricultural employer community has been aware that alien
farmworkers, both H-2As and other aliens, continued to be
represented by LSC-grantees after workers had left the country.
Individual employers were aware as claims were pursued against them
after their former H-2A workers had left the United States. See
April Testimony at 22 (testimony of Cynthia Rice, California Rural
Legal Assistance). LSC attorneys have requested and received court
continuances, special provisions, and discovery orders based on
representations to the court and to the opposing party that the
client would be out of the country when the hearing or deposition
was scheduled. See id; March Comments at 203 (comment of Jose
Padilla and Cynthia L. Rice, California Rural Legal Assistance).
Courts and opposing counsel have cooperated in scheduling hearings
for times when the parties are likely to be in the country. See id.
No evidence was submitted to the Commission that either the
agricultural community or individual growers have ever previously
contended that an LSC recipient was acting improperly by
representing an alien who was out of the United States. See March
Testimony at 26-27 (testimony of Garry G. Geffert, West Virginia
Legal Services Plan); April Testimony at 32 (testimony of Cynthia
Rice, California Rural Legal Assistance). The North Carolina Farm
Bureau stated that since 1983, it had never complained that an LSC
recipient was improperly representing aliens who were no longer in
the United States. See March Testimony at 77 (testimony of Paula
Gupton, North Carolina Farm Bureau Federation). The Farm Bureau
witness testified that the Bureau was more concerned about
recruitment of new clients outside the United States than about
ongoing representation of aliens. See id. at 85-86.
III. LEGAL ANALYSIS
Part III of this report analyzes applicable law and applies it
to the findings in Part II.
A. The Statutory Language
The appropriations language that regulates the scope of
representation that may be provided by LSC recipients to aliens
provides that:
None of the funds appropriated in this Act to the Legal Services
Corporation may be used to provide financial assistance to [a
recipient] . . . (11) that provides legal assistance for or on
behalf of any alien, unless the alien is present in the United
States and is :


(A)
an alien lawfully admitted for permanent residence as
defined in section 101(a)(20) of the Immigration and Nationality
Act (8 U.S.C. 1101(a)(20));


(B)
an alien who - (i) is married to a United States citizen
or is a parent or an unmarried child under the age of 21 years of
such a citizen; and (ii) has filed an application to adjust the
status of the alien to the status of a lawful permanent resident
under the Immigration and Nationality Act (8


U.S.C. 1101 et seq.), which application has not been
rejected;
(C) an alien who is lawfully present in the United States
pursuant to an admission under section 207 of the Immigration and
Nationality Act (8
U.S.C. 1157) (relating to refugee admission) or who has been
granted asylum by the Attorney General under such Act;


(D)
an alien who is lawfully present in the United States as
a result of withholding of deportation by the Attorney General
pursuant to section 243(h) of the Immigration and Nationality Act
(8 U.S.C. 1253(h));


(E)
an alien to whom section 305 of the Immigration Reform
and Control Act of 1986 (8 U.S.C. 1101 note) applies, but only to
the extent that the legal assistance provided is the legal
assistance described in such section; or


(F)
an alien who is lawfully present in the United States as
a result of being granted conditional entry to the United States
before April 1, 1980, pursuant to section 203(a)(7) of the
Immigration and Nationality Act (8


U.S.C. 1153(a)(7)), as in effect on March 31, 1980, because of
persecution or fear of persecution on account of race, religion, or
political calamity.
Omnibus Consolidated Recissions and Appropriations Act of 1996,
Pub. L. No. 104-134, tit. V, § 504(a)(11), 110 Stat. 1321, 1321-54
(emphasis added).
A statutory term is to be interpreted based on its plain and
ordinary meaning, in light of its context and the purpose and
design of the statute as a whole. "[I]t is a 'fundamental principle
of statutory construction that the meaning of a word cannot be
determined in isolation, but must be drawn from the context in
which it is used.'" Textron Lycoming Reciprocating Engine Div.,
Avco Corp. v. United Automobile, Aerospace, & Agricultural
Implement Workers of America, Int'l Union, 523 U.S. 653, 118 S.Ct.
1626, 1629 (1998) (citation omitted). "The plainness or ambiguity
of statutory language is determined by reference to the language
itself, the specific context in which that language is used, and
the broader context of the statute as a whole." Robinson v. Shell
Oil Co., 519 U.S. 337, 341 (1997); see also Bailey v. United
States, 516 U.S. 137, 145 (1995) ("We consider not only the bare
meaning of the word but also its placement and purpose in the
statutory scheme."). Moreover, it is a well-established rule that
Congress is presumed not to have intended absurd results. See
United States v. X-Citement Video, Inc., 513 U.S. 64, 69 (1994),
citing Public Citizen v. United States Department of Justice, 491
U.S. 440, 453-55 (1989); cf. Green v. Bock Laundry Mach. Co., 490
U.S. 504, 527-30 (1989) (Scalia, J., concurring) ("We are
confronted here with a statute which, if interpreted literally,
produces an absurd, and perhaps unconstitutional, result. Our task
is to give some alternative meaning to the [language] that avoids
this consequence. . . .").
Analyzed in light of these canons of interpretation, the
Corporation's appropriations act requires that an alien must be
"present in the United States" in order to be eligible for legal
assistance.12 Construing the term "present" according to its
ordinary meaning, it is clear that the statute requires the alien
to be
13
physically present in the United States at some point. This
conclusion does not end the inquiry, however, because the question
before the Commission is not whether an alien must be physically
present in the United States, but when the alien must be present in
order to be entitled to LSC representation. Here, the language
provides no express statement on when an alien must be present in
the United States and other familiar terms of immigration law, such
as "continuous physical presence" are not used.
The factual record and the statutory scheme in which the
language arises, on the other hand, provide an important context
for consideration of the legal question of when an alien must be
"present in
12 The statutory provision is implemented in the corporation's
alien eligibility rule. 45 C.F.R. pt. 1626 (1999).
13 The term "United States" is defined in the INA and Part 1626
as "the continental United States, Alaska, Hawaii, Puerto Rico,
Guam, and the Virgin Islands of the United States." See id
§1626.2(h); 8 U.S.C.§ 1101(a)(38).
the United States." As the Corporation has noted, the statutory
language may be read alternately to require that (1) an alien must
be physically present in the United States when the cause of action
for which the recipient provides legal assistance arises; (2) an
alien must be physically present only when legal representation is
commenced; or (3) an alien must be physically present in the United
States any time the alien is provided legal assistance from an LSC
grantee.14 No single interpretation, however, is clearly compelled
by the statutory language. For example, nothing in the LSC
authorization language keys representation to when the cause of
action arises or specifically requires that the alien be present
when the representation commences. In particular, the statute does
not expressly require that an alien be continuously physically
present in the United States throughout the period of
representation in order to be eligible for legal assistance.
Consideration of the immediate context in which the language
appears raises further questions regarding the meaning of the
presence requirement. The statute's application of the presence
requirement to legal permanent residents, for example, is in some
tension with the fact that those aliens are legally entitled to
leave the United States temporarily without affecting their
immigration status. See discussion supra Part II(C)(1).
Furthermore, H-2A workers by definition are physically present in
the United States only temporarily. Reading "presence" in the
statute to require uninterrupted, continuous physical presence
would mean that Congress, without using such language, intended to
deny LSC representation to aliens who engaged in
federally-authorized travel that did not affect their immigration
status. In the case of H-2A workers, the reading would require the
conclusion that Congress intended to provide H-2A workers with
legal services representation on claims arising from their
employment contracts only for the very brief periods that the
workers are in the United States -- potentially rendering the
promise of legal representation largely meaningless. These
difficulties support further inquiry into the meaning of the
presence requirement.
In short, an examination of the language of the presence
requirement and the statutory context in which it arises raises a
number of interpretive problems and fails to resolve the question
of when an alien must be present in the United States in order to
be entitled to legal services representation. The Commission
concludes that the statutory language is ambiguous on this
point.


B. Legislative History



1. Origins of the Presence Requirement
The legislative history provides assistance in analyzing the
presence requirement. The LSC Act of 1974, as amended, was adopted
"to provide equal access to the system of justice in our Nation for
individuals who seek redress of grievances; . . . to provide high
quality legal assistance to those who would otherwise be unable to
afford adequate legal counsel; . . . [and to] provid[e] legal
assistance to those who face an economic barrier to adequate legal
counsel." 42 U.S.C. § 2996 (1994). The LSC Act itself
14 64 Fed. Reg 8140, 8141 (1999).
includes no restrictions on the provision of legal assistance by
LSC recipients to aliens. However, in the early 1980s Congress
began restricting legal assistance to aliens by LSC recipients
pursuant to provisos in the Corporation's appropriations acts.
Originally, these provisos permitted the use of LSC funds for legal
assistance to an alien if the alien was "a resident of the United
States" and fell within one of the permissible alien categories,
all of which required that an alien was in lawful status.15 See,
e.g., Fiscal Year Appropriations, 1982, Pub. L. No. 97-51, 95 Stat.
958 (1981); Fiscal Year Appropriations, 1983, Pub.
L. No. 97-377, 96 Stat. 1830 (1982); and a long series of
continuing resolutions which included the residency requirement.
"Residence" is a term of art within the meaning of immigration law
and is not synonymous with physical presence. In re Olan, 257 F.
Supp. 884 (S.D. Cal 1966).16 Resident aliens are allowed to enter
and leave the United States temporarily without relinquishing their
status. See discussion infra Part II (C)(1). Thus, prior to FY
1984, LSC recipients were authorized to represent aliens who were
legal residents of the United States regardless of whether the
alien was absent from the United States during some part of the
representation.
In drafting the Corporation's Fiscal Year (FY) 1984
appropriations act, Congress for the first time replaced the
language "resident of the United States" with "present in the
United States." Departments of Commerce, Justice, and State, the
Judiciary, and Related Appropriations Act, 1984, Pub. L. 98-166, 97
Stat. 1071 (1983). The legislative history reveals no explanation
for this change. The phrase "present in the United States" appears
to have originated in proposed legislation that would have expanded
the categories of aliens eligible for LSC funded representation.17
The shift in language may have been based
15 From before the 1983 amendment until 1986, the categories of
eligible aliens included: (1) an alien lawfully admitted for
permanent residence; (2) an alien who was either married to a
United States citizen or was a parent or an unmarried child under
the age of twenty-one years of such a citizen and who had filed an
application for adjustment of status under the INA; (3) an alien
who was lawfully present in the United States as a refugee or who
had been granted asylum by the Attorney General; (4) an alien who
was lawfully present in the United States as a result of the
Attorney General's withholding of deportation; and (5) an alien
lawfully present in the United States as a result of being granted
conditional entry. See e.g., Public Laws 98-107 (1983); 98-166
(1983); 98-411 (1984); 99-103 (1985).
16The term "residence" is defined in the INA as "the place of
general abode; the place ofgeneral abode of a person means his
principal, actual dwelling place in fact, without regard to intent.
8 U.S.C.§ 1101(a)(33) (1994).
17 The expanded list of eligible aliens included: "(1) spouses,
parents, and unmarried citizens [sic] [children] of permanent
residents; (2) Cuban and Haitian entrants as defined in paragraph
(1) or
(2) of § 501(e) of Public Law 96-422, as in effect on April 1,
1983; (3) persons paroled into theUnited States; and (4) aliens
eligible for derivative U.S. citizenship under § 212(d)(5) of the
Immigration and Nationality Act." H.R. REP. NO. 98-206, at 49
(1983). Spouses and parents of permanent residents could only be in
the United States, if at all, in temporary, nonimmigrant
classification and therefore would not be residents of the United
States.
-46on the recognition that aliens in some of the proposed
categories would not possess "residence" in the United States under
the meaning of the INA (for example, parolees and Cuban/Haitian
entrants). As noted above, the requirement of "presence" is
frequently used in immigration laws to describe categories of
aliens within the United States who may not have established
"residence." The proposed legislation was defeated, but the phrase
"present in the United States" replaced the residence language
found in earlier statutes. The new language received virtually no
discussion; nothing in the legislative history suggests that
Congress intended to adopt new or more stringent restrictions on
alien representation. Statements in the Senate suggest that
Congress may not have been aware that the presence language
survived the defeat of the amendment.18 In short, the FY 1984
change appears to have been the result of the proposal to expand
LSC representation to aliens who were merely "present" as opposed
to lawful residents. There is no evidence that Congress intended to
deprive permanent resident aliens of continuous representation upon
their leaving the country. Following the statutory change, LSC
issued no new regulations interpreting the language, Congress
called for no new interpretation, and LSC grantee practice did not
change.


2. H-2A Representation
In 1986, Congress passed the Immigration Reform and Control Act
of 1986, which expressly authorized LSC recipients to provide legal
assistance to H-2A workers and Special Agricultural Workers (SAWS).
Immigration Reform and Control Act of 1986 § 305, 302, Pub. L. No.
99-603, 100 Stat. 3359 (codified at 8 U.S.C.§§ 1101 note and
1160(g) (1994)). Congress avoided having to amend the LSC
appropriations bills by specifically creating in IRCA the legal
fiction that H-2A workers would be deemed lawful "permanent
resident aliens" for the purposes of legal services representation
under the existing categories of eligible aliens. IRCA § 305, 8
U.S.C. § 1101 note; April Comments at 55 (comment of Howard L.
Berman, Member of Congress); April Testimony at 131 (testimony of
Romano L. Mazzoli, Louis D. Brandeis School of Law, University of
Louisville); April Testimony at 128 (testimony of Mark Schacht,
California Rural Legal Assistance Foundation). Because SAWS and
H-2A workers were deemed to be permanent resident aliens, they
became subject to the presence requirement in the Corporation's
appropriations act. See March Comments at 33 (comment of Bill
Beardall, Texas Rural Legal Aid). Legal assistance to H-2A workers
was expressly limited to "matters relating to wages, housing,
transportation, and other employment rights as provided in the
worker's specific contract." IRCA § 305, 8 U.S.C. § 1101 note
(1994).
The legislative history establishes that legal representation
for H-2A workers was a crucial part of the legislative compromise
that established the H-2A program. The creation of the H-2A program
was controversial, given the history of prior temporary
agricultural programs such as the Bracero program. Congress was
aware of the problems that had arisen under such programs, and of
the special vulnerability of temporary foreign workers.19 During
floor debate, considerable concern was expressed about the
18
See 129 CONG. REC. S28937 (Oct. 21, 1983) (Statement of Sen.
Grassley); 129 CONG. REC. S29836 (Oct. 21, 1983) (Statement of Sen.
Rudman).
19The Conference Report on IRCA noted in discussing the SAW
program that "the Committeewas ever mindful of the reports of
abuses that occurred during the old Bracero program." See H.R.
vulnerability and exploitation of such workers and the need for
legal representation to give meaning to their legal rights.
Congressman Berman explained on the House floor:
Part and parcel of that agreement was an understanding that the
H-2 workers would be entitled if they otherwise qualified, and only
if they otherwise qualified, to legal services representation,
because without that, the protections contained for those workers,
the housing protections, the domestic, the transportation
protections, the piecework rate and adverse impact wage rates
protections become utterly meaningless. The fact is the history of
the abuses in that H-2 program, which has been documented time and
time again, cannot be corrected without effective representation,
as you could easily contemplate guest workers coming here for a
short period of time, hoping to come back again, anxious to pick up
a wage considerably higher than the wage they might be making in
their own country, have no individual ability and no effective
collective ability to enforce the protections that the U.S. law is
supposed to guarantee them.
132 CONG. REC. H9866-68 (Oct. 10, 1986) (statement of Rep.
Berman); see also March Comments at 35 (comment of Bill Beardall,
Texas Rural Legal Aid); April Comments at 53-58 (comment of
Howard
L. Berman, Member of Congress). Representative Schumer
agreed:
[Y]ou can give people all the rights you want, but if they have
no way to enforce those rights, those rights are meaningless. We
all know that INS is terribly overburdened; we all know that the
Department of Agriculture,
REP. NO. 99-682(I), at 83 (1986). The Report quoted the
following testimony from the Western Growers Association:
The Bracero program has been likened by some to indentured
slavery where employer exploitation was rampant and inhumane. . . .
Some of the abuses that took place underthe Bracero program can be
directly attributed to the way the program was administered. The
most glaring problem was the contractual relationship that existed
requiring an employee to work for one employer. This, some argue,
gave employers the ability to require more from Bracero workers
based on a threat or promise they would be sent back to Mexico. . .
."
Id. at 83-84. The House Report noted that the H-2A program was
designed to remedy "the inadequacy of current protections for
farmworkers," id. at 80, and to "protect the rights and welfare of
all workers," id. at 106; see also April Comments at 56 (comment of
Howard L. Berman, Member of Congress).
the Department of Labor are overburdened . . . If we are not
going to have legal services, why kid ourselves? Why not just
abolish all the laws that are supposed to protect these folk;
because if you do not have legal services, the laws are
unenforceable and useless.
132 CONG. REC. H9867 (Oct. 10, 1986) (statement of Rep.
Schumer). Representative Morrison also stressed the importance of
giving H-2A aliens "a realistic way to enforce their rights." 132
CONG. REC. H9868 (Oct. 10, 1986) (statement of Rep. Morrison).
The legislative history of IRCA makes clear that Congress
intended for LSC recipients to provide meaningful legal
representation to H-2A workers on matters arising under the
employment contract. The conference report to IRCA explained the
provision of legal services to H-2A aliens as follows:
Legal services are to be made available to H-2 aliens with
regard to housing, wages, transportation and other conditions of
employment under their H-2 contract. . . . It is the intent of the
Conferees that contractsentered into shall not violate any
provision of the Immigration and Nationality Act authorizing the
H-2 program or any regulations issued pursuant to that Act.
Further, the Conferees intend that the Conference substitute will
secure the rights of H-2 agricultural workers under the specific
contract under which they were admitted to this country.
See H. CONF. REP. NO. 91-1000, at 3 (1986); see also March
Comments at 34 (comment of Bill Beardall, Texas Rural Legal Aid).
The legislative history contains no evidence that Congress believed
it was limiting legal representation of H-2A workers to the period
when such workers were physically present in the United States.
Neither the proponents nor the opponents of legal services
representation argued that such a time limit applied. All the
comments made regarding limitations on LSC representation for H-2A
workers focused on the restriction of the subject matter of such
representation to claims arising from the worker's employment
contract.20
In adopting the H-2A provision in IRCA, Congress was aware that
H-2A workers were allowed
20Representative Simpson, for example, stressed that "[t]he
legal services that will be availableto H-2 workers - and they are
foreign nationals . . . - are limited only to housing, and
transportation and wages and anything within the terms of the
contract, nothing more. . . .The legal services are strictlylimited
to that." 132 CONG. REC. S16900 (Oct. 17, 1986) (statement of Rep.
Simpson); see also 132 Cong. Rec. H10588 (daily ed. Oct. 15, 1986)
(statement of Rep. McCollum); 132 CONG. REC. H10587 (daily ed. Oct.
15, 1986) (statement of Rep. Mazzoli); 132 CONG. REC. H10590 (daily
ed. Oct. 15, 1986) (statement of Rep. Rodino); 132 CONG. REC.
S16911 (Oct. 17, 1986) (statement of Sen. Kennedy); March Comments
at 36 (comment of Bill Beardall, Texas Rural Legal Aid); April
Comments at 55 (comment of Howard L. Berman, Member of
Congress).
-49to remain in the United States only temporarily. Congress
must also be presumed to have authorized the representation with
knowledge of the presence requirement in the Corporation's
appropriations act. South Dakota v. Yankton Sioux Tribe, 522 U.S.
329, 118 S.Ct. 789, 801 (1998); United States v. Hanousek, 176 F.3d
1116, 1121 (9th Cir. 1999). It is unlikely that Congress would have
added H-2A workers to the categories of eligible aliens without
reviewing the restrictions on representation - including the
presence requirement - that had been included annually in the
Corporation's appropriations act. Indeed, Congress crafted the
provision in IRCA permitting H-2A representation to be consistent
with the language in the LSC appropriations act. Thus, IRCA deemed
H-2As to be "permanent resident aliens" -a category eligible for
LSC legal assistance -- for the purposes of receiving legal
assistance from the Corporation.21 According to the comment from
Representative Berman provided to the Commission, Congress was
aware of the presence requirement and intended that the requirement
be consistent with the provision of meaningful representation to
the H-2A workers under IRCA:
Those of us who actively participated in drafting section 305,
granting LSC the ability to represent H-2A workers and H-2A
eligibility for such services, were very much aware of the
alien-representation restrictions in the annual LSC appropriations
bills... Congress did not view the present in the United States
language in the appropriations bill as limiting the representation
of H-2A workers to the time period during which they remained in
the United States. The H-2A workers' presence in the United States
under the temporary worker visa entitled them to LSC
eligibility.
April Comments at 55-56 (comment of Howard L. Berman, Member of
Congress). H-2A workers were to be treated as permanent legal
residents for the limited purpose of legal services representation
for claims on their contracts.
This legislative history suggests that Congress, with full
knowledge that H-2A workers were only in the United States on a
temporary basis, intended that their rights under their H-2A
contracts be protected by being given access to meaningful legal
services. Nothing in the congressional debate discussing the
21 Section 305 of IRCA provided that:
A nonimmigrant worker admitted to or permitted to remain in the
United States under section 101(a)(15)(H)(2)(a) of the Immigration
and Nationality Act . . . for agricultural labor or service shall
be considered to be an alien described in section 101(a)(2) of such
Act [a permanent resident alien] . . .for purposes of establishing
eligibility for legal assistance under the Legal Services
Corporation Act (42 U.S.C. 2996 et seq.) But only with respect to
legal matters relating to wages, housing, transportation, and other
employment rights as provided in the worker's specific contract
under which the nonimmigrant was admitted.
limitation of legal services to rights under the H-2A contract
ever suggested that representation could last only as long as the
H-2A worker remained in the United States. Therefore, we should
choose the interpretation of presence that effectuates the
Congressional purpose to provide meaningful representation to H-2A
workers under their contracts.


3. 1996 Continuing Resolution
In the 1996 Omnibus Continuing Resolution, Congress revised the
restrictions on alien assistance by applying the restrictions to
all funds received by LSC entities. Pub. L. No. 104-134, 110 Stat.
1321. Congress also for the first time explicitly added H-2A
workers to the categories of aliens eligible for legal assistance
under the LSC appropriations act, although that assistance remained
limited to claims under the workers' employment contract. The other
categories of aliens and the presence requirement were retained.
Omnibus Consolidated and Emergency Supplemental Appropriations Act,
1999, Pub. L. No. 105-277, 112 Stat. 2681, incorporating by
reference Omnibus Consolidated Recissions and Appropriations Act of
1996, § 504(a)(11), Pub. L. No. 104-134, 110 Stat. 1321. Nothing
about the application of the "is present" language to the alien
categories was altered.
The legislative history of the 1996 revision contains no
discussion of the "present in the United States" requirement and no
indication that Congress sought to alter existing practice
regarding the representation of aliens. See March Comments at 251
(comment of Alan Houseman, Center for Law & Social Policy). The
McCollum-Stenholm bill, on which the 1996 appropriations were
based, did not address the presence requirement, and the statement
accompanying the introduction of that bill noted only that the bill
incorporated the provisions from IRCA into the existing
appropriation's provisions on representation of certain aliens. See
id. Thus, the 1996 revision simply brought together in one place
the pre-existing provisions regarding representation of aliens, and
applied these restrictions to all funds of an LSC recipient.
Neither the language nor the legislative history of the statute
suggest that Congress intended to alter the application of the
presence requirement.
In sum, the legislative history of the presence requirement
confirms that Congress intended to provide meaningful
representation to eligible aliens, including H-2A workers on claims
arising from their employment contract; and that Congress did not
understand the presence requirement to severely alter or restrict
this representation. The Legal Services Act was adopted to provide
effective legal representation to low income persons. See April
Testimony at 9 (testimony of Cynthia Rice, California Rural Legal
Assistance Program). The presence language appeared in the LSC
appropriations act as part of an effort to expand LSC
representation to aliens other than lawful residents, and does not
appear to have been intended to limit LSC representation to aliens
who were continuously physically present in the United States.
Similarly, the express purpose of section 305 of IRCA was to
"secure the rights of H-2 agricultural workers under the specific
contract under which they were admitted to this country." See H.
CONF. REP. NO. 91-1000, (1986). Such representation was intended to
prevent the exploitation of foreign H-2A workers and to ensure that
the wages and working conditions of U.S. workers would not be
undermined. Finally, nothing in the 1996 legislation altered the
effect of the presence requirement on H-2A's or any other alien
category.
C. Implications of the Presence Requirement
The factual record provides an important context for
consideration of the legal question of the meaning of the presence
requirement for representation by LSC grantees. As noted above,
three possible interpretations of the presence language were listed
in the Corporation's Federal Register notice: (1) an alien must be
physically present in the United States when the cause of action
for which the recipient provides legal assistance arises; (2) an
alien must be physically present only when legal representation is
commenced; and (3) an alien must be physically present in the
United States any time the alien is provided legal assistance from
an LSC grantee.22 Upon careful consideration of the language and
purposes of the statute and the legislative history, the Commission
has determined that none of these formulations fully responds to
the purposes of the statute or the intent of Congress. Furthermore,
the record demonstrates that the interpretations initially offered
by the Corporation in the Federal Register notice would contradict
Congress' clear purpose of providing meaningful legal
representation to indigent lawful aliens and lead to absurd
results.


1. Unrestricted Categories
In giving content to the presence requirement, it is important
to distinguish between the unrestricted categories of aliens and
H-2A workers. The record before the Commission establishes that
permanent residents and other aliens frequently leave the United
States to visit spouses and children, to address family problems,
and to survive during long periods of unemployment in the United
States. The category of permanent residents includes commuter
aliens, who work in the United States but whose actual residence is
across the border in Mexico. All of these aliens are legally
authorized to leave and re-enter the United States.
As applied to the situation of unrestricted aliens, the three
interpretations of the presence requirement suggested in the
Federal Register notice would lead to unintended and absurd
results. Under an interpretation that the alien must be physically
present when the cause of action commenced, or legal representation
began, an alien who was evicted from her apartment, or against whom
divorce proceedings were commenced while she was temporarily out of
the United States to attend a funeral or attend to a family
emergency, would be barred from LSC representation. LSC attorneys
representing commuter aliens who migrate daily would be placed in
the predicament of representing such aliens only in claims that
happened to arise during the portion of the day when the alien was
in the United States. Under an interpretation that the alien must
be physically present when the representation commenced, an alien
who was temporarily outside the United States would be barred from
obtaining legal services representation on
22 64 Fed. Reg. 8140, 8141 (1999).
any matter during her absence. These interpretations would also
invite exploitation by allowing litigants to simply wait until an
alien temporarily departed the United States before cutting off
workers compensation benefits, initiating eviction, repossession,
divorce or child custody proceedings, or otherwise triggering the
cause of action or a need for representation. U.S. agricultural
recruiters in Mexico could willfully misrepresent working
conditions to permanent legal residents across the border, knowing
the alien would be barred from legal assistance on her
federally-protected MSWPA claim.
Requiring a permanent legal resident alien to be physically
present in the United States throughout the course of LSC legal
representation would also be unworkable and lead to absurd results.
The record is undisputed that many of the kinds of lawsuits
involving permanent resident aliens and other unrestricted aliens
take months, if not years, to reach a conclusion, and that
permanent residents and other eligible aliens regularly travel
outside the United States. An interpretation that required the
alien to be continuously present throughout the course of the
litigation would confront indigent aliens with the Hobson's choice
of either accepting representation or visiting their families
abroad.
Moreover, requiring legal services attorneys to monitor their
clients' movements and formally withdraw whenever the client left
the country would creating extraordinary burdens for the LSC
grantees, the clients, opposing parties, and the courts. An
attorney whose client had to travel to Mexico to attend her
father's funeral, for example, would have to withdraw from the case
during the client's absence. See April Testimony at 139-140
(testimony of Sylvia Argueta, Mexican American Legal Defense and
Education Fund). LSC attorneys representing alien clients living in
border communities would face the prospect that they could work on
a client's case in the morning when the client was in El Paso but
not in the afternoon when the client was shopping in Juarez. See
April Testimony at 109 (testimony of Lynn Coyle, Lawyers Committee
for Civil Rights Under Law). Application of this interpretation to
the U.S.-Mexico border would disrupt access of permanent legal
residents to the legal system in the poorest region of the United
States. See March Comments at 155 (comment of Michael Wyatt, Texas
Rural Legal Aid, et. al). It also would provide perverse incentives
to opposing litigants to drag out legal proceedings with the
expectation that an alien might have to temporarily depart from the
country, or engage in other forms of procedural abuse. See March
Comments at 74 (comment of Keith S. Ernst, Attorney at Law); March
Comments at 201 (comment of Jose Padilla and Cynthia L. Rice,
California Rural Legal Assistance); April Testimony at 21
(testimony of Cynthia Rice, California Rural Legal Assistance).
The private bar and other nonprofit legal services providers are
neither available, willing, or able to take over the representation
of these populations. As one witness with extensive experience
organizing private pro bono activities put it, "the likelihood that
private lawyers will take on clients who would be excluded from LSC
representation by the stringent interpretation of [the presence]
requirement is zero." April Testimony at 41 (testimony of Jack
Londen, Attorney at Law).
The legislative history contains no evidence that Congress
intended LSC representation of legal permanent residents and other
aliens to turn on the accident of where an alien happened to be at
the moment the cause of action arose or the litigation commenced,
or to require the alien to be continuously physically present
throughout the course of representation. The Commission does not
believe that Congress intended to force resident aliens to choose
between temporary trips outside the United States and continued
representation in pending litigation. The Commission has not been
able to discern any congressional purpose that would be served by
tying the right to representation on movements that have no effect
on either the alien's lawful immigration status or her legal right
to pursue her claim in U.S. courts. The Commission is unwilling to
recommend an interpretation of the statute that produces such
consequences, absent an express congressional intent that such
burdens be imposed.
2. H-2A Aliens
The factual record before the Commission demonstrates that
Congress' purpose of providing meaningful representation to H-2A
workers for claims arising under their employment contracts cannot
be accomplished under the original interpretations offered in the
Federal Register notice. Many of the contract rights that were
mandated by Congress in IRCA -- such as reimbursement for return
transportation, workers compensation, the 3/4 guarantee, and claims
that a grower failed to mail the worker's final paycheck -- often
do not arise until after the worker has returned home. A
requirement that the H-2A worker be physically present in the
United States when the cause of action arises or the representation
commences thus would deprive H-2A workers of representation on many
of the most basic employment contract protections afforded by
Congress, directly contrary to Congress' purpose. As a practical
matter, this interpretation would also bar most other legal
representation for H-2A workers, since the record clearly
demonstrates that, due to their fear of losing their jobs, their
isolation, lack of resources and language skills, and
vulnerability, H-2A workers often are both unwilling and unable to
contact a legal services office until after they have left their
employment. H-2A aliens are required by law to leave the country
within ten days of the termination of their employment, and
generally remain in the control of the employer during this
period.
The interpretations could also create incentives for abuse. An
interpretation that the representation must commence while the
alien is still in the United States would encourage employers to
create even greater obstacles to access to legal services while the
workers are physically in the United States. Employers who
successfully excluded legal services representatives from their
labor camps or intimidated workers into not contacting legal
services during the course of employment could ensure a workforce
without access to legal representation. Under an interpretation
that the claim must arise while the worker was in the United
States, unscrupulous employers would be able to exploit the system
by, for example, failing to mail a final paycheck or 3/4 guarantee
payment after the H-2A worker left the country, with knowledge that
the worker would not be entitled to legal representation on the
claim.
Alternatively, an interpretation of the presence requirement
that required H-2A workers to be present in the United States
throughout the course of the representation would eviscerate their
right to legal representation altogether. H-2A workers by
definition are required to leave the United States within a year,
and the record establishes that most H-2A workers are physically
present in the United States for only two to five months. The
record establishes that, with the exception of the most minor and
undisputed claims, none of the employment claims for which Congress
authorized representation can be completed during the brief period
that the H-2A worker is in the country, even if the claim arose
early during the worker's stay and the worker was immediately able
to contact legal services. Many of the claims of H-2A workers are
legally complex, and all take months, if not years, to litigate to
completion. The contradiction between this interpretation and
Congress' purpose of providing meaningful representation for H-2A
workers is patent. The interpretation assumes that Congress took
from H-2A workers with one hand what it gave with the other. The
law will not impute such a purpose to Congress.
The factual record, moreover, demonstrates the absurdity of this
approach. As the record shows, it is not uncommon for H-2A workers
to contact legal services for the first time as they board the bus
on the way home, and an interpretation that LSC representation is
available only while the alien is physically present creates the
prospect that Congress authorized legal services attorneys to
represent such H-2A workers only during the bus ride to the border.
The rule again would invite exploitation. Employers could veto a
worker's decision to seek legal representation by terminating the
worker and immediately deporting her. See March Comments at 128
(comment of Shelley Latin, Virginia Farmworkers Legal Assistance
Project); March Comments at 231 (comment of Melissa A. Pershing,
Legal Services of North Carolina); March Comments at 272 (comment
of Lisa Butler, Florida Rural Legal Services). Employers wishing to
avoid paying workers compensation could deny coverage until the
worker was no longer in the country, or discontinue payments after
the worker had returned home. Opposing litigants and H-2A employers
could prolong the legal process simply by refusing to return legal
service attorneys' phone calls or delaying provision of records to
which the worker was entitled to ensure that the H-2A worker left
the United States before a dispute could be resolved. See March
Comments at 231 (comment of Melissa A. Pershing, Legal Services of
North Carolina); March Testimony at 34 (testimony of Garry G.
Geffert, West Virginia Legal Services Plan). In all of these cases,
legal services would be barred from assisting the worker in these
valid employment contract claims.
In short, the record is clear that H-2A workers are unlikely to
raise legal claims before the end of their employment contract,
that they are required to leave the United States at the end of
their contracts, that many of their claims arise after their
departure, and that legal proceedings cannot be completed before
they depart. Furthermore, the availability of legal services for
H-2A workers from non-LSC funded nonprofit organizations and
private attorneys is extremely limited; and government agencies
either lack the resources or the legal authority to enforce the
statutory rights of these workers. The Commission recognizes that
representation of agricultural workers was a central element in the
legislative crafting of the H-2A program. We conclude that a
reading of the statute that would bar representation of an H-2A
worker based on the fact that he or she has left the United States
would leave H-2A workers without meaningful representation on their
employment contract claims, directly contrary to Congress' express
purpose, and we decline to sanction such a result.
IV. CONCLUSION: THE MEANING OF THE PRESENCE REQUIREMENT
Together, the language, purpose, and legislative history of the
applicable statutes, and the factual record before the Commission,
suggest an interpretation of the statute that would authorize the
following representation:
For an alien in one of the unrestricted categories
representation would be authorized so long as the eligible alien is
present sufficient to maintain residence or lawful immigration
status. Under this interpretation, LSC grantees who have begun
representation of a permanent resident alien may continue that
representation should the alien be temporarily outside the United
States. Grantees may also initiate representation of aliens in the
unrestricted categories who are temporarily outside the United
States, provided that they have been present sufficient to maintain
and have not abandoned their residence or INA status. LSC grantees
may not represent aliens in this category who have never entered or
been present in the United States.
For H-2A workers, representation is authorized if the workers
have been admitted to and have been present in the United States
pursuant to an H-2A contract, and the representation arises under
their H-2A contract. LSC grantees are authorized to litigate this
narrow range of claims to completion, despite the fact that the
alien may be required to depart the United States prior to or
during the course of the representation. LSC grantees may not
represent aliens in this category who have never entered or been
present in the United States.
As discussed above, this interpretation comports with the
language of the presence requirement in light of Congress' object
and purpose. The language and legislative history of the LSC
appropriations acts and the H-2A statute make clear that Congress
intended to provide meaningful legal representation to aliens in
the designated categories, and there is no evidence that Congress
considered the presence requirement to severely restrict this
interpretation. To the contrary, the presence requirement was
inserted into the statute for the apparent purpose of expanding LSC
representation of legal aliens. Moreover, as interpreted by the
Commission, the presence requirement sustains Congress' clear goal,
since the early 1980s, of restricting LSC representation to aliens
with lawful status.
The Commission's interpretation also comports with the
consistent practice of LSC grantees, and the understanding of
growers, and of Congress. As noted above, LSC grantees have
regularly provided legal assistance to eligible aliens who have
left the United States at some point during the representation. LSC
has never taken action against a recipient which continued to
represent alien clients after the client had left the United
States. Until recently critics of legal services recipients, who
had knowledge of the alien representation practices of legal
services recipients, never questioned the legality of a recipient's
representation of an alien after the alien had left the United
States. It is well settled that a history of practice under a
statute can aid in its interpretation, particularly when Congress
has amended the statute without disapproving of the administrative
practice. N.L.R.B. v. Hendricks County Rural Elec. Membership
Corp.,454 U.S. 170, 177 (1981). In this case, the practices of LSC
recipients, of growers, and of Congress all support the
Commission's interpretation.
Finally, the Commission's interpretation of the presence
requirement is fully consistent with the overarching purpose of the
relevant congressional statutes. The Legal Services Act was adopted
to provide full and effective legal representation to low income
persons. In enacting the LSC Act, Congress declared the need to
provide equal access to the nation's system of justice for
individuals who seek redress of grievances and said attorneys
providing legal assistance must have full freedom to protect the
best interests of their clients in keeping with the Code of
Professional Responsibility, the Canon of Ethics, and the high
standards of the legal profession. The protections of the H-2A
statute were adopted, inter alia, to ensure that the employment of
foreign workers would not undermine the wages and working
conditions of U.S. workers, and Congress provided legal services
representation "to secure the rights of H-2 agricultural workers"
under their employment contracts. The record before the Commission
is undisputed that LSC entities cannot provide full and meaningful
representation to H-2A workers and to many other eligible aliens
under the alternative constructions of the presence requirement.
See March Comments at 132 (comment of Shelley Latin, Virginia
Farmworkers Legal Assistance Project); March Comments at 143
(comment of D. Michael Dale, Oregon Law Center, and Janice Morgan,
Legal Aid Services of Oregon); March Comments at 267 (comment of
Lisa Butler, Florida Rural Legal Services); March Testimony at 41
(testimony of Garry G. Geffert, West Virginia Legal Services Plan);
March Testimony at 51-52 (testimony of Mary Lee Hall, Legal
Services of North Carolina); March Testimony at 107 (testimony of
Javier Riojas, Texas Rural Legal Aid); March Testimony at 148
(testimony of Rob Williams, Florida Legal Services). Instead, such
interpretations would simply promote the exploitation of
vulnerable, low income aliens. The Commission's interpretation is
the only interpretation which comports with the language and
legislative history of the presence requirement and which permits
full and meaningful representation to aliens eligible for legal
assistance consistent with Congress' purpose.
APPENDIX
ERLENBORN COMMISSION MEMBERS
Thomas Alexander Aleinikoff
Thomas Alexander Aleinikoff is a Professor of Law at Georgetown
University Law Center, where he has taught courses in immigration
and refugee law, citizenship law, constitutional law, and public
law and legislation since June 1997. He also serves as a Senior
Associate at the Carnegie Endowment for International Peace where
he is Director of the Comparative Citizenship Project.
Professor Aleinikoff has experience both in the public sector
and in academia that has provided him with expertise in immigration
law. After serving as a law clerk to the Honorable Edward
Weinfeld,
U.S. District Judge , from 1977-8, he worked for the Department
of Justice from 1978 through 1981, first as an Attorney Advisor in
the Office of Legal Counsel then as Counselor to the Associate
Attorney General. He then began his academic career at the
University of Michigan, where he earned the title of full Professor
in 1986. He took a leave of absence in 1994 to join the Clinton
Administration as General Counsel of the Immigration and
Naturalization Service, then moved into the position of Executive
Associate Commissioner of Programs for this agency from 1995
through 1997.
Professor Aleinikoff's own education consists of a Bachelor of
Arts degree, earned summa cum laude from Swarthmore College in
1974, and a Juris Doctor from Yale Law School in 1977. He has been
engaged in many activities through his professional and university
life, including serving on the Editorial Board of the Journal of
Legal Education, as Faculty Advisor for the Georgetown Immigration
Law Journal, and on the Committee on International Migration for
the Social Science Research Council.
Additionally, Professor Aleinikoff has published several books
and countless articles relating to immigration, international
migration, and constitutional law. These include Immigration:
Process and Policy, co-authored with Professor David A. Martin and
first published in 1985, which helped to define immigration law as
a legitimate field of academic study. The articles he has authored
include "Between Principles and Politics: The Direction of United
States Citizenship Policy" (Carnegie Endowment of International
Peace, 1998), and "A Multicultural Nationalism?" (American
Prospect, Jan.-Feb. 1998).
Gilbert F. Casellas
Gilbert Casellas is currently the President and Chief Operating
Officer of the Swarthmore Group, an Investment and Financial
Advisory firm located in West Chester, Pennsylvania. Before coming
to the firm in January 1999, Mr. Casellas had over twenty years of
successful leadership and management experience in the public and
private sectors.
Mr. Casellas began his career at the Philadelphia law firm
Montgomery, McCracken, Walker & Rhoads, where he worked for
sixteen years. He also taught at the University of Pennsylvania
School of Law and was a frequent lecturer at professional seminars
throughout the United States. Mr. Casellas began his government
service in 1993 when he was appointed General Counsel of the U.S.
Department of the Air Force, where he served as the chief legal
officer and final legal authority to more than 2000 military,
civilian, and reserve attorneys. In 1994, President Clinton
appointed Mr. Casellas as Chairman of the U.S. Equal Employment
Opportunity Commission, a position he held until January 1998.
Mr. Casellas received a Bachelor of Arts degree from Yale
University and his Juris Doctor from the University of Pennsylvania
School of Law. From 1978 to 1980 he also served a two year
clerkship with the Honorable A. Leon Higginbotham, Jr., of the
United States Court of Appeals for the Third Circuit.
To add to his outstanding career achievements, Mr. Casellas has
been a leader in many local, state, and national associations and
received numerous awards for service and leadership, including the
"Spirit of Excellence" Award from the American Bar Association. He
has served as President of the Hispanic National Bar Association,
Chairman of the Board of Directors of the Philadelphia Bar
Association and a member of the House of Delegates of the American
Bar Association. Currently, he serves on the boards of the
University of Pennsylvania, the Prudential Insurance Company of
America, the Puerto Rican Legal Defense & Education Fund, and
the American Arbitration Association. In March 1998, he was
appointed to serve on the bi-partisan U.S. Census Monitoring Board
to oversee the 2000 decennial census.
Sarah H. Cleveland
Sarah Cleveland is currently an Assistant Professor at the
University of Texas School of Law teaching courses and doing
research in foreign affairs and the Constitution, public
international law, international human rights, and federal civil
procedure.
Professor Cleveland's distinguished career includes experience
working with refugee issues, human rights, and legal services. At
the Yale Law School Lowenstein International Human Rights Clinic,
she codirected a litigation effort on behalf of Haitian refugees in
federal challenge to the United States interdiction program, which
included testifying before the U.S. Congress. From 1993 through
1994 she clerked for Associated Justice, Harry A. Blackmun of the
U.S. Supreme Court. Professor Cleveland worked for two years
(1994-1996) for Florida Legal Services as a Skadden Fellow,
conducting civil impact litigation on behalf of Caribbean H-2A
migrant farmworkers in the southeastern U.S.
Professor Cleveland earned a Bachelor of Arts degree magna cum
laude from Brown University in 1987. She studied at Oxford
University as a Rhodes Scholar from 1987 - 1989 then attended Yale
Law School and was awarded her Juris Doctor in 1992.
In addition to receiving various academic awards, such as the
Annual Human Rights Award from the American Immigration Lawyers'
Association (1992) and a Mary McCarthy Fellowship in Public
Interest Law (1992), Professor Cleveland has published several
articles. She was the author of "Global Labor Rights and the Alien
Tort Claims Act," published in the Texas Law Review in 1998, and
the coauthor of "Aliens and the Duty of Nonrefoulement: Haitian
Centers Council v. McNary," published in the Harvard Human Rights
Journal in 1993.
John N. Erlenborn
John Erlenborn has been an adjunct professor at Georgetown
University Law Center since 1994 and member of the Legal Services
Corporation Board of Directors since 1996. Mr. Erlenborn previously
served on the LSC Board from 1989 - 1990. He has been serving as
Vice Chair of the Board since 1997.
Mr. Erlenborn's career of public service has spanned four
decades. In Illinois, he served as an Assistant State's Attorney in
DuPage County from 1950 - 1952 and as State Representative in the
Illinois General Assembly from 1957 - 1964. Mr. Erlenborn then was
elected as U.S. Congressman from the 14th District of Illinois in
1965 and remained in office until 1984. He served on the Committee
on Government Operations and the Committee on Education and Labor,
and was one of the managers of the legislation that established
LSC. In addition to his service on the LSC Board, he has also
served special appointments to the International Labor
Organization, the U.S. Department of Labor, the Pension Benefit
Guaranty Corporation, and the U.S. Chamber of Commerce.
Mr. Erlenborn attended undergraduate courses at the University
of Notre Dame, Indiana University, the University of Illinois, and
Loyala University of Chicago. He received a Juris Doctor from
Loyola University of Chicago in 1949.
Nancy Hardin Rogers
In addition to her position on the Board of Directors of the
Legal Services Corporation, Nancy Rogers is the Vice Provost for
Academic Administration and Platt Professor of Law at Ohio State
University.
Professor Rogers began her career by clerking for The Honorable
Thomas D. Lambros of the United States District Court for the
Northern District of Ohio. She also worked as a staff attorney for
the Legal Aid Society of Cleveland. She first taught at Ohio State
as a visiting professor in 1975, then as an adjunct professor. She
became an assistant professor in 1983.
Professor Rogers earned a Bachelor of Arts degree from the
University of Kansas and a Juris Doctor from Yale Law School.
Among Professor Rogers' publications are two books on mediation
and the law that received Book Prizes in 1987 and 1989,
respectively: a text for law students written with Richard A. Salem
and a legal treatise written with Craig McEwen.
Enid F. Trucios-Haynes
Enid Trucios-Haynes is an Associate Professor at the Louis D.
Brandeis School of Law at the University of Louisville, where her
main areas of academic interest are immigration law and
administrative law.
Professor Trucios-Haynes began her legal career in the
litigation department of the New York firm Rosenman & Colin. In
1988, she began to practice immigration and nationality law at the
firm of Fragomen, Del Rey & Bernsen, P.C., where she
participated in Congressional and Executive Department lobbying
efforts and successfully engaged in appellate work before the U.S.
Department of Labor's Board of Alien Labor Certification Appeals.
Among her many professional achievements, her work resulted in the
revising of the U.S. Department of Labor's standard of review
regarding U.S. employment experience acquired by foreign nationals
in the permanent resident process.
Professor Trucios-Haynes graduated from Stanford Law School in
1986, where she served as Associate Editor of the Stanford Law
Review and also volunteered at The Kingston Legal Aid Clinic in
Kingston, Jamaica, West Indies, during a semester abroad. Her most
recent publication, "Training Visas in the United States," appeared
in Immigration Briefings in May 1993.
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