[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]


 
                         GUEST WORKER PROGRAMS:
                    IMPACT ON THE AMERICAN WORKFORCE
                      AND U.S. IMMIGRATION POLICY

=======================================================================

                                HEARING

                               before the

                         COMMITTEE ON EDUCATION
                           AND THE WORKFORCE
                     U.S. HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                             July 19, 2006

                               __________

                           Serial No. 109-47

                               __________

  Printed for the use of the Committee on Education and the Workforce



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                COMMITTEE ON EDUCATION AND THE WORKFORCE

            HOWARD P. ``BUCK'' McKEON, California, Chairman

Thomas E. Petri, Wisconsin, Vice     George Miller, California,
    Chairman                           Ranking Minority Member
Michael N. Castle, Delaware          Dale E. Kildee, Michigan
Sam Johnson, Texas                   Major R. Owens, New York
Mark E. Souder, Indiana              Donald M. Payne, New Jersey
Charlie Norwood, Georgia             Robert E. Andrews, New Jersey
Vernon J. Ehlers, Michigan           Robert C. Scott, Virginia
Judy Biggert, Illinois               Lynn C. Woolsey, California
Todd Russell Platts, Pennsylvania    Ruben Hinojosa, Texas
Patrick J. Tiberi, Ohio              Carolyn McCarthy, New York
Ric Keller, Florida                  John F. Tierney, Massachusetts
Tom Osborne, Nebraska                Ron Kind, Wisconsin
Joe Wilson, South Carolina           Dennis J. Kucinich, Ohio
Jon C. Porter, Nevada                David Wu, Oregon
John Kline, Minnesota                Rush D. Holt, New Jersey
Marilyn N. Musgrave, Colorado        Susan A. Davis, California
Bob Inglis, South Carolina           Betty McCollum, Minnesota
Cathy McMorris, Washington           Danny K. Davis, Illinois
Kenny Marchant, Texas                Raul M. Grijalva, Arizona
Tom Price, Georgia                   Chris Van Hollen, Maryland
Luis G. Fortuno, Puerto Rico         Tim Ryan, Ohio
Bobby Jindal, Louisiana              Timothy H. Bishop, New York
Charles W. Boustany, Jr., Louisiana  [Vacancy]
Virginia Foxx, North Carolina
Thelma D. Drake, Virginia
John R. ``Randy'' Kuhl, Jr., New 
    York
[Vacancy]

                       Vic Klatt, Staff Director
        Mark Zuckerman, Minority Staff Director, General Counsel


                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on July 19, 2006....................................     1
Statement of Members:
    Hinojosa, Hon. Ruben, a Representative in Congress from the 
      State of Texas, prepared statement of......................    58
    McKeon, Hon. Howard P. ``Buck,'' chairman, Committee on 
      Education and the Workforce................................     2
        Prepared statement of....................................     3
    Miller, Hon. George, ranking minority member, Committee on 
      Education and the Workforce................................     4
        Prepared statement of....................................     6
    Norwood, Hon. Charlie, a Representative in Congress from the 
      State of Georgia, prepared statement of....................    64
    Owens, Hon. Major R., a Representative in Congress from the 
      State of New York:
        Prepared statement of....................................    64
        Newspaper article: 3-part series from the Sacramento Bee, 
          November 13-15, 2005...................................    65

Statement of Witnesses:
    Dickson, Elizabeth, immigration services manager, global 
      mobility services team, Ingersoll Rand Co., and on fehalf 
      of the U.S. Chamber of Commerce............................     8
        Prepared statement of....................................    10
    Hallstrom, Luawanna, Harry Singh & Sons, on behalf of the 
      National Council of Agricultural Employers and the 
      Agriculture Coalition for Immigration Reform...............    19
        Prepared statement of....................................    21
    Martin, Jack, special project director, Federation for 
      American Immigration Reform................................    26
        Prepared statement of....................................    27
    Martin, Philip, Ph.D., professor of agricultural economics, 
      University of California-Davis.............................    41
        Prepared statement of....................................    43
    Smith, Rebecca, coordinator, immigrant worker project, 
      National Employment Law Project............................    32
        Prepared statement of....................................    34

Additional Material Submitted:
    Associated Builders and Contractors, prepared statement......    81
    Building and Construction Trades Department, AFL-CIO, 
      prepared statement.........................................    86
    Chamber of Commerce of the United States, letter.............    80
    Coalition for Immigration Security, prepared statement.......    89
    Construction industry, letter................................    81
    Textile Rental Service Association of America (TRSA), 
      prepared statement.........................................    84


                         GUEST WORKER PROGRAMS:
                    IMPACT ON THE AMERICAN WORKFORCE
                      AND U.S. IMMIGRATION POLICY

                              ----------                              


                        Wednesday, July 19, 2006

                     U.S. House of Representatives

                Committee on Education and the Workforce

                             Washington, DC

                              ----------                              

    The committee met, pursuant to call, at 10:30 a.m., in room 
2175, Rayburn House Office Building, Hon. Howard McKeon 
[chairman of the committee] presiding.
    Present: Representatives McKeon, Petri, Johnson, Norwood, 
Ehlers, Biggert, Osborne, Wilson, Porter, Kline, Inglis, 
McMorris, Price, Foxx, Drake, Kuhl, Miller, Kildee, Payne, 
Andrews, Woolsey, Hinojosa, McCarthy, Tierney, Kucinich, Wu, 
Holt, Davis of California, Van Hollen, Ryan, and Bishop.
    Staff present: Robert Borden, General Counsel; Byron 
Campbell, Legislative Assistant; Steve Forde, Communications 
Director; Ed Gilroy, Director of Workforce Policy; Rob Gregg, 
Legislative Assistant; Jessica Gross, Press Assistant; Kai 
Hirabayashi, Professional Staff Member; Richard Hoar, 
Professional Staff Member; Jim Paretti, Workforce Policy 
Counsel; Molly McLaughlin Salmi, Deputy Director of Workforce 
Policy; Deborah L. Emerson Samantar, Committee Clerk/Intern 
Coordinator; Loren Sweatt, Professional Staff Member; Toyin 
Alli, Staff Assistant; Jody Calemine, Counsel, Employer and 
Employee Relations; Tylease Fitzgerald, Legislative Assistant/
Labor; David Hartzler, Junior Technology Assistant; Tom Kiley, 
Communications Director; Ricardo Martinez, Legislative 
Associate/Education; Rachel Racusen, Press Assistant; Marsha 
Renwanz, Legislative Associate/Labor; Michele Varnhagen, Labor 
Counsel/Coordinator; and Mark Zuckerman, Staff Director/General 
Counsel.
    Chairman McKeon [presiding]. A quorum being present, the 
Committee on Education and the Workforce will come to order.
    We are holding this hearing today to hear testimony on 
guest worker programs' impact on the American workforce and 
U.S. immigration policy.
    I ask unanimous consent for the hearing record to remain 
open 14 days to allow member statements and other extraneous 
material referenced during the hearing to be submitted in the 
official hearing record.
    Without objection, so ordered.
    Good morning. Thank you for joining me at this hearing on 
U.S. immigration policy and proposals, the first in a series of 
similar discussions this panel will hold here in Washington and 
throughout the Nation over the next several weeks.
    Last fall, our committee held a broad-based hearing on 
immigration and its impact on the American workforce, and this 
morning we will continue to direct our attention toward that 
topic, while sharpening our focus on guest worker programs and 
proposals in particular.
    We will hear testimony about the state of these programs 
currently, the impact they have on our workforce and the 
ramifications of their potential expansion as part of a 
congressional response to the illegal immigration crisis.
    Anyone familiar with this committee knows that we are not 
shy about confronting controversial and often divisive topics, 
and today is no exception. But the fact is, illegal immigration 
is a threat to our nation's workforce, and as Congress 
considers proposals to secure the borders and strengthen 
enforcement, this panel is obligated to address it head on.
    But before we begin, let me remind my colleagues about an 
unspoken rule we have adopted in recent years. That is that we 
may disagree, but we don't have to be disagreeable. And I hope 
and trust that we will continue that tradition here this 
morning.
    There is no one in this room--committee members, witnesses, 
staff or the general public--who does not have strong feelings 
on the subjects of illegal immigration and border security. And 
on guest worker programs I don't suspect the feelings are much 
weaker. Some Democrats support an expansion of guest worker 
programs, and some don't. And the same goes for Republicans.
    In recent months, we have seen these divisions manifest 
themselves here on Capitol Hill and throughout the nation. Some 
see an expansion of guest worker programs as a path to 
citizenship, while others see it as a slippery slope toward 
amnesty.
    But even amidst all of this disagreement, there has been 
one common, consistent thread in this debate: Everyone involved 
shares the desire to tighten our borders and embolden our 
enforcement measures. Let's not lose of that important fact.
    I had that fact in mind during the Independence Day 
District Work Period when I had the opportunity to tour the 
U.S.-Mexico border. Though we have made advances--this was the 
first time I would been there, I mean the first time recently, 
but I had been to the border before, and I have seen the 
advances made in our ability to catch illegal immigrants as 
they cross the border. The illegals and their smugglers have 
made advances as well. And as a result, for lack of a better 
phrase, it is a warlike atmosphere down there.
    When I was down there several years ago, there really 
wasn't much talk of violence. This time, there was quite a bit 
of showing the violence that has been erupting lately.
    As a representative of southern California for more than a 
decade, the burdens of illegal immigration are neither new to 
me nor to my constituents. However, having recently been 
elected chairman of this committee, I have begun to view the 
issue from a slightly different perspective, one that is often 
overlooked by the national media and even some of our 
colleagues here in Washington.
    Without a doubt, border security is first and foremost a 
national and homeland security priority, and I cannot imagine 
that many here would argue with that statement. However, 
securing our borders also will pay major dividends for our 
nation's students and workers, the two groups of greatest 
interest to this panel. These two groups will be the focus of a 
series of hearings we are kicking off here today.
    These hearings also will give us a chance to probe more 
deeply the border security proposals offered by both the House 
and the Senate. Stakeholders, advocates and media reports have 
unearthed some troubling provisions, particularly with the 
Senate proposal, that I believe need a closer look. Members 
should feel free to take that closer look during these upcoming 
hearings.
    Before us today is an incredibly balanced, diverse panel of 
witnesses who will offer us testimony on guest worker 
programs--their past, their present and their future. I look 
forward to gathering valuable input from them as our committee 
fulfills its responsibility to engage in this critical process.
    Our goal is to send President Bush a stronger border 
security and enforcement bill that will serve the interests of 
American students and workers--nothing more, nothing less.
    I look forward to further engaging in this debate, and I 
now yield to my friend, Mr. Miller, so that he may present his 
opening statement.
    [The prepared statement of Mr. McKeon follows:]

    Prepared Statement of Hon. Howard P. ``Buck'' McKeon, Chairman, 
                Committee on Education and the Workforce

    Good morning, and thank you for joining me at this hearing on U.S. 
immigration policy and proposals--the first in a series of similar 
discussions this panel will hold here in Washington and throughout the 
nation over the next several weeks.
    Last fall, our Committee held a broad-based hearing on immigration 
and its impact on the American workforce, and this morning, we'll 
continue to direct our attention toward that topic, while sharpening 
our focus on guest worker programs and proposals in particular. We'll 
hear testimony about the state of these programs currently, the impact 
they have on our workforce, and the ramifications of their potential 
expansion as part of a congressional response to the illegal 
immigration crisis.
    Anyone familiar with this Committee knows that we are not shy about 
confronting controversial and often divisive topics. Today is no 
exception. But the fact is, illegal immigration is a threat to our 
nation's workforce, and as Congress considers proposals to secure the 
borders and strengthen enforcement, this panel is obligated to address 
it head-on. But before we begin, let me remind my colleagues about an 
unspoken rule we have adopted in recent years: we may disagree, but we 
don't have to be disagreeable. I hope and trust we'll continue that 
tradition this morning.
    There is no one in this room--Committee Members, witnesses, staff, 
or the general public--who does not have strong feelings on the 
subjects of illegal immigration and border security.
    And on guest worker programs, I don't suspect the feelings are much 
weaker. Some Democrats support an expansion of guest worker programs, 
and some don't. And the same goes for Republicans. In recent months, 
we've seen these divisions manifest themselves here on Capitol Hill and 
throughout the nation. Some see an expansion of guest worker programs 
as a path to citizenship, while others see it as a slippery slope 
toward amnesty. But, even amidst all of this disagreement, there has 
been one common, consistent thread in this debate: everyone involved 
shares a desire to tighten our borders and embolden our enforcement 
measures. Let's not lose sight of that important fact.
    I had that fact in mind during the Independence Day district work 
period, when I had the opportunity to tour the U.S.-Mexico border. 
Though we've made advances in our ability to catch illegal immigrants 
as they cross the border, the illegals and their smugglers have made 
advances as well. And as a result--for lack of a better phrase--it's a 
war-like atmosphere down there.
    As a representative of southern California for more than a decade, 
the burdens of illegal immigration are neither new to me, nor to my 
constituents. However, having recently been elected chairman of this 
committee, I've begun to view the issue from a slightly different 
perspective, one that is often overlooked by the national media and 
even some of our colleagues here in Washington.
    Without a doubt, border security is first and foremost a national 
and homeland security priority, and I cannot imagine that many here 
would argue with that statement. However, securing our borders also 
will pay major dividends for our nation's students and workers--the two 
groups of greatest interest to this panel. And these two groups will be 
the focus of the series of hearings we're kicking off today.
    These hearings also will give us a chance to probe more deeply the 
border security proposals offered by both the House and the Senate. 
Stakeholders, advocates, and media reports have unearthed some 
troubling provisions--particularly within the Senate proposal--that I 
believe need a closer look. Members should feel free to take that 
closer look during these upcoming hearings.
    Before us today is an incredibly balanced, diverse panel of 
witnesses, who will offer us testimony on guest worker programs--their 
past, their present, and their future. I look forward to gathering 
valuable input from them, as our Committee fulfills its responsibility 
to engage in this critical process. Our goal is to send President Bush 
a strong border security and enforcement bill that will serve the 
interests of American students and workers. Nothing more, nothing less.
                                 ______
                                 
    Mr. Miller. Thank you, Mr. Chairman.
    I must say, like many in the press and in the Congress and 
in the public, I am somewhat confused as to why we now have 
this sort of spasm of hearings on immigration coming at the end 
of this congressional session when we have had almost 2 years 
to consider this subject.
    I don't know if this is about immigration or whether this 
is about an internal fight within the Republican caucus, both 
in this House and in the Senate, and whether there is some 
effort here to now disassociate members of the Republican 
caucus from legislation supported by President Bush and Senator 
Hagel and Senator Reid and Senator Kennedy and Senator McCain 
and Frist and others, I guess, but hopefully that will evolve 
as these hearings continue to play themselves out.
    The hearing today on the guest worker programs and its 
implications for immigration policy and domestic policy comes 
at a time when there is a great deal of discussion going on, 
both on Wall Street and on Main Street, about the American 
middle class and the security of the American middle class, the 
fact that its wages, if they have risen at all for some 
workers, have risen very slowly, the fact that a 
disproportionate amount of the increase in productivity has 
been taken through corporate profits and by corporate CEOs and 
the upper echelon and not shared with the workers at the same 
time that these very same workers see their wages stagnating, 
their pensions and health care benefits are disappearing, 
costing them more or are outright being terminated. People are 
deeply concerned about their future.
    And so when we discuss the implications of a guest worker 
program, we have to discuss it in the atmosphere of where the 
American middle class clearly feels that it is starting to lose 
ground and becomes concerned about whether or not their 
children will in fact, as so many generations have believed and 
have come true in this magnificent country will their children 
live a better life than they have lived.
    We have been here once before during the 1980's when we 
dealt with immigration reform, and at that time we did create 
an amnesty program for immigrants that met certain conditions, 
but what we didn't do is we really never dealt with the 
question of enforcement of the laws of this nation, either at 
the border or internally in terms of the workers protections 
and the wage and hour laws of this nation.
    Since that time, obviously, we have seen a huge demographic 
change and economic changes here at home, in our hemisphere, 
and around the world as we live in a more globalized world in 
terms of our trade and our economy.
    It is no secret to anyone in this country that we have had 
a great number of illegal immigrants entering the United States 
year after year, and it is estimated now that we have some 12 
million individuals living in this country without benefits of 
the law. And that has caused a great deal of concern in the 
country.
    But, again, I think any discussion of the guest worker 
program must begin with the question of enforcement, both on 
the border and internally. On the border, we see where the 
administration and the Congress to date have not kept faith 
with the American people in terms of either with the 9/11 
report told us we should be doing or what the administration 
told us they would do in terms of additional detention beds, in 
terms of additional immigration agents, and we see that that is 
in fact lacking a great deal.
    We also see that worksite immigration enforcement 
operations where companies were dramatically scaled back. As a 
matter of fact, they were scaled back by 99 percent, which the 
Immigration and Naturalization Service, which is now in 
Homeland Security, in 1999, they initiated fines against 417 
companies for these illegal policies. In 2004, they initiated 
three fines operations against people for that illegal policy. 
So, obviously, the enforcement of those immigration laws has 
been lacking greatly, and employers have felt free that there 
was no jeopardy into flaunting the laws to hiring whoever they 
would, with or without a legal documents.
    We also see that the Wage and Hour Divisions have continued 
to be cut. We now have one staff person for every 2,800 
businesses, and we see that even in this year's budget it is in 
for a continued cut, as is OSHA and as we see also the fact 
that the National Labor Relations Board gives scant attention 
to some 22,000 workers who are fired or otherwise discriminated 
against each year.
    So at a time when we are talking about what rights and how 
many guest workers we will have in this country, we must 
understand that these labor laws that are intended to protect 
the workers of this nation must be strengthened, additional 
resources must be given to them, and they must be vigorously 
enforced against all workers, old and new, that benefit from 
the strength of our economy. If we fail to do that, then in 
fact I think you can reasonably predict that a guest worker 
program would undermine the wages of this country, it would 
undermine the working conditions in this country, it would 
undermine the employment opportunities in this country of many 
workers who are desperately seeking that work or to hold on to 
the jobs that they now have.
    We also are presented, and I would like to enter into the 
record, account after account of employers using subcontractors 
or the classification of workers as independent contractors 
time and again to avoid the discussion of the legal status of 
these workers at the workplace. And, again, that undermines 
people who are not--we are no longer in the realm of the jobs 
that Americans don't want. We are in the jobs that Americans 
would like to have but because of subterfuge and the failure to 
obey the law, they are able to either pay people off of the 
books and therefore not have the cost of hiring that person as 
opposed to an American worker, a legal worker in this country.
    So all of a sudden people who find themselves working at a 
decent wage in this country find that job undermined because 
the cash payment of workers and the violation of the laws with 
scant chance of them being caught by Federal authorities now 
see an economic advantage to hiring that illegal worker.
    We also must know the terms and conditions under which 
these guest workers would come to this country, they would 
reside in this country and what would their rights be. Are 
these workers who are going to live at the will of their 
employer, can their opportunity to secure a second--as the 
Senate bills provides for, a second permit, would that be held 
so that an employer could disrupt that by firing them, unjustly 
or otherwise? And what will the status of those workers be to 
be able to enforce those same laws that are designed there to 
protect the entire workforce?
    So there are a lot of questions to be answered in this 
hearing, but first and foremost we must begin with the 
enforcement, the resources of the laws in this country that are 
designed, one, to protect the border and, two, to protect the 
workers of this country so that they can in fact earn those 
wages that are sufficient to support their families.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Miller follows:]

  Prepared Statement of Hon. George Miller, Ranking Minority Member, 
                Committee on Education and the Workforce

    Good morning. This hearing comes at a time when the rights and 
living standards of workers in the U.S. are being threatened as they 
have been at no other time in the postwar history of our country. 
Workers' wages have stagnated over the last several years; their 
pension and health benefits are disappearing; and their rights to 
organize are being constantly eroded. The policies pushed by the Bush 
administration and the Republican Congress are partly to blame.
    The truth is that any discussion about immigration must include a 
discussion of the fact that American workers are losing ground--and 
it's not because they don't work hard enough.
    The expressed purpose of this hearing is to examine the 
desirability of enacting a new guest worker program, as President Bush 
has proposed.
    Congress has not comprehensively considered our immigration laws 
since 1986. At that time, it was estimated that the number of illegal 
immigrants inside the country was between 2 and 3 million. The Congress 
acted, on a bipartisan basis, to create an amnesty program for 
immigrants in the U.S. who met certain conditions, establish new visa 
programs for legal immigration, and impose sanctions on employers who 
continued to hire illegal immigrants. Regrettably, the employer 
sanctions were never seriously enforced.
    Illegal immigration started to explode again in the late 1990's as 
demographic and economic changes, including globalization, NAFTA, and 
the creation of the World Trade Organization, forced additional 
immigrants to seek employment and economic opportunities in the U.S.
    In recent years, the number of illegal immigrants entering the U.S. 
each year has approached 500,000. Today, it is estimated that 12 
million people are in the U.S. illegally, either without a visa or 
after having overstayed a visa. Most of these immigrants of working age 
are employed.
    President Bush and the Republican majority have largely ignored 
this growing problem and in many ways have actively made it worse.
    The Bush Administration has cut back on the number of visas 
available for individuals to arrive legally and increased delay times 
for individuals who try to play by the rules. It's no surprise that 
making it harder for people to enter the country legally would make it 
more likely that they would enter the country illegally.
    Until recently, the Bush Administration and Republican Congress 
also failed to beef up border enforcement. In the 9/11 Act of 2004, 
they promised to provide 2,000 additional border patrol agents, 8,000 
additional detention beds, and 800 additional immigration agents per 
year. Instead, they have delivered only 800 border patrol agents and 
5,000 detention beds, and they are short nearly 1,000 immigration 
agents.
    Between 1999 and 2004, worksite immigration enforcement operations 
against companies were scaled back 99 percent--99 percent!--by the 
Immigration and Naturalization Service, which subsequently was merged 
into the Department of Homeland Security. In 1999, the U.S. initiated 
fines against 417 companies. In 2004, it issued fine notices to only 
three.
    The Bush administration also has failed miserably to enforce our 
nation's labor laws and ensure decent working conditions for all 
workers.
    The Wage and Hour Division at the Department of Labor, which 
enforces minimum wage, overtime, and child labor protections, has seen 
a 12 percent cut in staffing since 2001, with just one staff person for 
every 2,800 business establishments. The 2007 appropriation for wage-
and-hour law enforcement in the Labor Department spending bill falls 
$4.1 million short of what even the Bush Administration claims is 
necessary to maintain current service levels.
    The Occupational Safety and Health Administration has seen an 8 
percent cut in staffing since 2001, with one OSHA staff person for 
every 1,700 business establishments. Its budget has been cut by 3 
percent since 2001, adjusted for inflation.
    The National Labor Relations Act, which guarantees workers the 
right to organize and collectively bargain, has extremely weak 
remedies. As a result, some 22,000 workers are fired or otherwise 
discriminated against each year for exercising their rights under the 
National Labor Relations Act.
    We cannot let globalization or immigration become a race to the 
bottom. Our labor laws must be strengthened and vigorously enforced to 
ensure that all workers--old and new--benefit from the strength of our 
economy. The violation of one worker's rights hurts all workers, 
regardless of whether that worker is documented or not or U.S.-born or 
not.
    I look forward to the testimony of today's witnesses. I hope we can 
have an honest and open discussion about our economic and employment 
needs and how we would need to structure a guest worker or any other 
program to ensure that it treats all workers fairly and makes our 
country stronger for all.
                                 ______
                                 
    Chairman McKeon. Thank you, Mr. Miller.
    We have a distinguished panel of witnesses here with us 
today, and I will begin now by introducing them.
    First, we have Ms. Elizabeth Dickson, the general manager 
of Global Immigration Services for Ingersoll-Rand Company, a 
large and diversified industrial manufacturer. She directs the 
company's immigration and international visa functions to 
facilitate the transfer of international personnel worldwide 
and develops company policy for international assignments, 
immigration, I-9 regulatory compliance and associated travel 
issues. Ms. Dickson has 17 years experience in human resources, 
immigration and expatriate management.
    Then we will hear from Ms. Luawanna Hallstrom, chief 
operating officer and general manager of Harry Singh and Sons, 
the largest single-vine grape tomato producer in the nation. 
For 2 decades, she has worked on immigration reform targeted to 
sustain the country's agriculture industry so that it remains 
economically viable and helps to create secure borders. In 
addition, she has been appointed to the California Board of 
Food and Agriculture by Governor Schwarzenegger.
    Then we will hear from Mr. Jack Martin, special projects 
director for the Federation for American Immigration Reform, F-
A-I-R, or FAIR. Having joined FAIR in 1995, Mr. Martin is a 
retired U.S. diplomat with consular experience who has authored 
studies of immigration issues. Mr. Martin has testified on the 
issue before the U.S. Congress, the U.S. Civil Rights 
Commission and the U.S. Commission on Immigration Reform.
    Then we will hear from Ms. Rebecca Smith, the coordinator 
of the Immigrant Worker Project at the National Employment Law 
Project, NELP--I love these acronyms. Ms. Smith has 20 years' 
worth of experience working on behalf of low-wage and immigrant 
workers. Her primary areas of practice include immigrant 
workers' employment rights and wage and hour and unemployment 
insurance. Ms. Smith is a graduate of the University of 
Washington Law School.
    And finally, we will hear from Dr. Phil Martin, professor 
of Agricultural and Resource Economics at the University of 
California-Davis and chair of the Comparative Immigration and 
Integration Program. Along with studying the effects of 
migration and its economic impact on a number of countries, Dr. 
Martin was appointed to the Commission on Agriculture Workers 
to assess the effects of the Immigration Reform and Control Act 
of 1986. He received his doctorate degree from the University 
of Wisconsin-Madison.
    You notice that you have those little lights in front of 
you. We have asked that your testimony be limited to 5 minutes, 
and if you have more, the full testimony will be included in 
the record. When your time starts, a green light comes on; when 
you have a minute left, a yellow light comes on; when you are 
supposed to be finished, the red light comes on. I would ask 
that you follow that.
    And the members will follow that, as we have our 
questioning period after the testimony.
    Thank you very much.
    Ms. Dickson?

 STATEMENT OF ELIZABETH DICKSON, MANAGER OF GLOBAL IMMIGRATION 
SERVICES, INGERSOLL-RAND CO., TESTIFYING ON BEHALF OF THE U.S. 
                      CHAMBER OF COMMERCE

    Ms. Dickson. Chairman McKeon, Ranking Member Miller and 
distinguished members of the committee, good morning, and thank 
you for the opportunity to testify today.
    I am Elizabeth Dickson, the corporate immigration service 
manager for Ingersoll-Rand Company, and I am part of the Global 
Mobility Services Team. I also chair the U.S. Chamber of 
Commerce Subcommittee on Immigration, and our company is a 
member of the Essential Workers Immigration Coalition.
    I am testifying today on behalf of my company and the U.S. 
Chamber of Commerce.
    It is a privilege for me to be here today discussing 
immigration policy, as Congress wrestles with comprehensive 
immigration reform issues. It is very important to note that an 
overhaul of our immigration policy to meet our national 
security and economic needs is vital after a 20-year hiatus.
    Common demographic and job growth projections, combined 
with numerous on-the-ground reports from many employers across 
the economic spectrum faced with the day-to-day realities of 
the workplace, indicate that this country is facing, and will 
continue to face, a growing shortage of workers in many areas.
    The Chamber's testimony reviews much statistical data, the 
view of various experts and reports from across the employer 
community to bolster this conclusion. Depending on the state of 
the economy, job growth and levels of unemployment, this 
shortage will rise and fall and will vary across industries and 
in different categories of jobs.
    We believe it is also apparent that the very limited nature 
of the country's current temporary worker program is inadequate 
to meet these challenges in the future. The H-1B Program is 
focused on highly skilled immigrant workers, while the H-2B 
Program allows for recruitment of lower-skilled workers, but it 
is limited to short-term seasonal types of work.
    Both programs have very low caps--65,000 and 66,000, 
respectively--considering the overall workforce of 140 million 
employees.
    This year the United States hit the H-1B cap for fiscal 
year 2007 on May 26 before many students even received their 
diplomas, a development which has profound impact on American 
companies and their ability to hire highly skilled workers who 
contribute to our economy and innovative product design.
    Ingersoll-Rand has five foreign students caught in this, in 
our Advanced Development Program, which recruits highly 
talented graduates from U.S. universities. Their employment 
authorization will expire in May 2007 before any H-1B visas 
will be available in October. Ingersoll-Rand will be required 
to send these talented individuals overseas to wait for visa 
numbers. Obviously, this is going to impact business 
initiatives, project work and hurts our competitiveness.
    Currently, there is no temporary worker program that 
addresses the huge gulf between these programs and many other 
kinds of skilled and semi-skilled workers. We had gotten 
involved in this because we had difficulty recruiting welders 
to our facility. We have our own welding school, and we train 
welders. Even when we train workers, many of the students 
cannot grasp the techniques and skilled nuances.
    Welders are neither seasonal to meet the requirements of 
the H-2B Program, nor qualified to meet the requirements of an 
H-1B visa. This can mean severe delays in product delivery to 
our customers, which impacts our goodwill and can affect our 
competitiveness.
    Additionally, we have no mechanism to bring in some of our 
own IR Canada service technicians to support service and repair 
business when required, because, again, they don't meet either 
the H-1B and it is not seasonal work. Tool and die workers and 
machinists, we have also experienced shortages in finding those 
types of workers.
    Employers need a way to recruit foreign workers when they 
can't find U.S. workers. We need a reasonably efficient manner 
without navigating a lot of bureaucratic hoops to fill jobs 
when U.S. workers are not available.
    How such a program would be structured and what steps 
employers would go through, what enforcement mechanisms would 
be in place are still to be determined. The Senate has put 
forth one approach, and there are some limits to that approach.
    And one of those issues I would just like to highlight is 
the Davis-Bacon Act prevailing wage issue, which appears to 
require that the level of wages paid to workers on Davis-Bacon 
Act contracts would have to be paid to temporary workers even 
if they are on non Davis-Bacon Act projects. The result could 
be that foreign workers could be paid much more than American 
workers. Obviously, this is an irrational result. I am not an 
expert in this area, but it is something that concerns the 
Chamber and its members.
    Experts have often noted a temporary worker program that 
meets the needs of our economy will also increase national 
security, creating an orderly, legal, open process, which 
foreign workers could be recruited for jobs, screened and 
tracked while in the United States, will eliminate the job 
magnet, which now spurs illegal immigration, as those jobs 
would have to be filled through a new temporary worker program.
    Additionally, we understand the need for a tougher 
employment verification system and support that, but the new 
system must be efficient, foolproof, failsafe and provide 
employers who comply with protections from liability. After 
all, an I-9 must be completed for every worker that you hire, 
including U.S. nationals.
    It is clear that the economy cannot expand without the 
workers it needs and that an expanding economy benefits 
everybody.
    Thank you for this opportunity to testify on behalf of the 
chamber and the business community.
    [The prepared statement of Ms. Dickson follows:]

Prepared Statement of Elizabeth Dickson, Immigration Services Manager, 
Global Mobility Services Team, Ingersoll Rand Co., and on Behalf of the 
                        U.S. Chamber of Commerce

    Chairman McKeon, Ranking Member Miller, and distinguished members 
of the Committee, good morning, and thank you for the opportunity to 
testify today before the Committee.
    I am Elizabeth Dickson, the Corporate Immigration Services Manager 
and work with the Global Mobility Services Team for Ingersoll Rand 
Company. I am also Chair of the U.S. Chamber of Commerce Subcommittee 
on Immigration and our company is a member or the Essential Worker 
Immigration Coalition (EWIC). I am testifying today on behalf of 
Ingersoll Rand Company and the U.S. Chamber of Commerce. It is a 
privilege for me to be here today discussing immigration policy as 
Congress wrestles with comprehensive immigration reform issues. It is 
very important to note that an overhaul of our immigration policy to 
meet our national security and economic needs is vital after a 20-year 
hiatus.
    The U.S. Chamber of Commerce is the world's largest business 
federation, representing more than three million businesses of every 
size, sector, and region. The Chamber's membership also includes 104 
American Chambers of Commerce abroad (``AmChams'') located in 91 
countries, which represent American companies and individuals doing 
business overseas as well as foreign companies with significant 
business interests in the United States.
    The Essential Worker Immigration Coalition (EWIC) is a coalition of 
businesses, trade associations, and other organizations from across the 
industry spectrum that support reform of U.S. immigration policy to 
facilitate a sustainable workforce for the American economy while 
ensuring our national security and prosperity.
    Ingersoll Rand Company Limited, a Bermuda corporation, and its 
affiliated group (``Ingersoll Rand'' or ``IR'') with worldwide 
corporate headquarters located in Montvale, NJ, USA, is a global 
provider of products, services and integrated solutions to industries 
as diverse as transportation, manufacturing, construction and 
agriculture. The company brings to bear a 100-year-old heritage of 
technological innovation to help companies be more productive, 
efficient and innovative. Its business sectors encompass the global 
growth markets of Climate Control Technologies, Industrial 
Technologies, Compact Vehicles Technologies, Construction Technologies, 
and Security Technologies. Ingersoll Rand features a portfolio of 
worldwide businesses comprising leading industrial and commercial 
brands such as Bobcat compact equipment, Club Car golf and utility 
vehicles, Hussmann stationary refrigeration equipment, Ingersoll Rand 
industrial and construction equipment, Schlage Locks, and Thermo King 
transport temperature-control equipment.
    Ingersoll Rand operates more than 80 manufacturing facilities, 38 
of which are located within the United States, and markets its products 
and services, along with its subsidiaries, through a broad network of 
distributors, dealers, and independent sales and service/repair 
organizations. Ingersoll Rand employs approximately 40,000 employees 
worldwide. Annual net sales of IR products in 2005 were in excess of 
$10.5 billion. Since 2000, the company has acquired more than 50 
businesses, extending the range of products and services it can provide 
to customers and enhancing its ability to drive total and recurring 
revenue growth in international markets.
Overview
    Common demographic and job growth projections, combined with 
numerous ``on the ground'' reports from many employers across the 
economic spectrum faced with the day to day realities of the workplace, 
indicate that this country is facing, and will face, a growing shortage 
of workers in many areas. Depending on the state of the economy, job 
growth and levels of unemployment, this shortage will rise and fall and 
will vary across industries and in different categories of jobs.
    It is apparent that the very limited nature of the country's 
current temporary worker programs is inadequate to meet the challenges 
of the future. We are requesting that Congress consider these issues 
and structure expanded temporary worker programs that employers could 
use, in a reasonably efficient manner without numerous bureaucratic 
hoops and hurdles to fill jobs with immigrant workers when U.S. workers 
are not available. Obviously, there are many details to be sorted out 
as to how such a program should be structured, and how many steps 
employers should go through and what enforcement mechanisms are 
adequate. The Senate bill has outlined one version of a possible 
program, but it is certainly only one possible approach and has its own 
problems.
    Importantly, as experts have often noted, a temporary worker 
program that meets the needs of our economy will also increase national 
security. Creating an orderly, legal open process by which foreign 
workers can be recruited into jobs when U.S. workers are not available, 
and screened and tracked while in the United States, will eliminate the 
``job magnet'' which now spurs illegal immigration as those jobs would 
have been filled through the new temporary worker program. Hence, 
adequate temporary worker programs will strongly complement our efforts 
to control the nation's borders.
    Of course, a tougher employer verification system has to part of 
this mix in order to ``seal the system'' and prevent participants in 
the new programs from dispersing into the economy outside of legal 
channels.
    Lastly, it appears that specific economic data is relatively 
limited with regard to the impact of temporary worker programs (with 
the exception of agriculture), perhaps because of the very limited 
nature of our current existing programs, particularly when viewed as a 
very small part of the workforce of over 140 million employees. 
However, it is clear that an economy cannot expand without the workers 
it needs and that an expanding economy benefits everyone. Further, the 
studies with regard to immigration, in general, overwhelmingly conclude 
that immigration provides a net benefit to the economy, with perhaps 
some adverse impact on the very low skilled. This adverse impact cannot 
be dismissed lightly and needs to be addressed, but must also be 
weighed against the overwhelming net benefits of immigration to the 
economy.
Demographic Realities and Workforce Needs
    While the population of the United States as a whole is admittedly 
set to increase over the next few decades, the population is aging, 
more educated, and participating at lower rates in the workforce. A 
brief review of the relevant statistics and analysis may be helpful. Of 
course, when discussing workforce growth and future demographics, there 
is some guess-work involved, but in general the data leads to the 
conclusion that, without change, workforce growth will not be great 
enough to fill available jobs.
    The number of people in the labor force ages 25 to 54 (the prime 
workforce) is projected to increase by only 0.3 percent between 2004 
and 2014. Those in the age group of 16 to 24 years are actually 
expected to decrease in numbers as part of the labor force.\1\ Those 
age 55 years and older will increase by 11 million between 2004 and 
2014-going from 15.6 percent to 21.2 percent of the workforce. By 2014, 
those aged 55 and older will have the fastest growth rate and will be a 
little more than one-third of the working-age population at 33.7 
percent (compared with only 26.2 percent in 1994).\2\ According to 
estimates released in February 2005, the fertility rate in the United 
States is projected to fall below ``replacement'' level by 2015 to 
2020, declining to 1.91 children per woman (lower than the 2.1 children 
per woman rate needed to replace the population).\3\ By 2010, 77 
million baby boomers will begin to retire and, by 2030, one in every 
five Americans is projected to be a senior citizen.\4\
    The increase in school attendance has also affected the number in 
people going into lower-skilled worker positions, or positions that do 
not require a college degree. Young people have stayed in school 
longer, and there has been an overall labor force participation decline 
among those 16-24 years old. In fact, almost counter intuitively, the 
Bureau of Labor Statistics (``BLS'') declared that rising school 
attendance actually strengthened the impact of the recession in 
2001.\5\ Another factor that will lead to a decline in overall 
workforce participation is the growing phenomenon of early retirement. 
The participation rate of those 55 years and older drops off sharply 
and is about half of the 24-54 year old age group, at 43.2 percent. It 
is also expected that women's participation rate in the workforce has 
peaked, and will no longer help fuel the labor force as it has over the 
last few decades The aggregate labor force participation rate has 
continued to decline, from 61.7 percent over the 1997-2000 period to 
66.0 percent in 2004 and is set to continue its downward trend.\6\
    The BLS also has projected job growth, both in low-skilled and 
high-skilled occupations. The BLS expects between 2004 and 2014 the 
number of U.S. jobs will increase by 18.9 million.\7\
    Many occupations projected to grow in our economy will not require 
a college degree-only two of the top 10 largest growth occupations will 
require a Bachelor's degree or more. Six of the top 10 largest growth 
occupations from 2004-2014 require only moderate or short-term ``on-
the-job'' training, including retail salespersons, customer service 
representatives, nursing aides, janitors and cleaners, waiters and 
waitresses, and combined food preparation and serving workers\8\ About 
37 percent of new job openings in the 2004-2015 period are projected to 
be filled by people with a high school education, or less.\9\ These 
jobs are most often held by either younger or less-educated cohorts, 
which are not expected to grow in number at all.
    The Construction Labor Research Council issued a labor supply 
outlook where it found that the construction industry would need 
185,000 new workers annually for the next 10 years.\10\ The National 
Restaurant Association projects that the restaurant industry will add 
more than 1.8 million jobs between 2005 and 2015, an increase of 15 
percent.\11\ However, the U.S. labor force is only projected to 
increase 10 percent during the next 10 years, which will make it more 
challenging than ever for restaurants to find the workers they 
need.\12\ The National Restaurant Association study notes that the 16 
to 24 year old labor force-the demographic that makes up more than half 
of the restaurant industry workforce-is not predicted to grow at all in 
the next 10 years.\13\
    A panel on the future of the health care labor force in a graying 
society concluded that ``[t]his will not be a temporary shortage. * * * 
Fundamental demographic changes are occurring in America, and the 
coming labor crisis will be with us for decades.''\14\ Currently, the 
American Hospital Association reports high vacancy rates and more 
difficulty in recruiting workers for positions ranging from 
housekeeping and maintenance to nursing assistants and registered 
nurses.\15\ The impact of such workforce shortages, according to the 
Association, translates into severe emergency room overcrowding, 
emergency patients diverted to other hospitals, delayed discharge/
increased length of stay, increased wait times for surgery, cancelled 
surgeries, discontinued programs, reduced service hours, and 
others.\16\
    The BLS reports that the hospitality industry will need 304,200 
additional employees by 2014 and predicts a 16.4 percent growth rate. 
At a recent hearing, a hotel corporation in Harrisburg, Pennsylvania 
reported that they have on average 25 to 40 job openings posted every 
week. This corporation participates in about 25 job fairs a year, 
advertises in newspapers and recruits extensively, and yet still has 
trouble finding workers.\17\
    The views of experts reflect this reality. Edward Lazear, Chairman 
of the President's Council of Economic Advisers said in a speech on 
July 13, 2006 that ``the slowing growth of the population and the aging 
of the baby boomers will mean a smaller supply of workers to support 
the economic engine. By far the single most important determinant of 
jobs in the economy is population.''\18\ In The Jobs Revolution: 
Changing How America Works by Steve Gunderson, Robert Jones, and 
Kathryn Scanland, the authors note that the ``most inescapable 
challenge facing the American workforce in the coming 20 years is that, 
barring substantial change, we will not have enough people to fill 
it.''\19\
    Justin Heet of the Hudson Institute acknowledged in Beyond 
Workforce 2020: The Coming (and Present) International Market for Labor 
that the ``level of productivity gains that would be necessary to 
alleviate workforce growth declines will be too high to be relied on as 
a public solution to the triangle of retirement/healthcare/workforce 
considerations.'' \20\ He concluded that governments in the developed 
world will need to use immigration in order to compliment their native 
workforce.
    Secretary of Labor Elaine Chao has noted the phenomenon of the 
``Incredible Shrinking Workforce.'' \21\ She stated that to keep up 
with the slower growth of the workforce and the increasing number of 
retired Americans we needed ``to introduce new populations * * * into 
the workforce * * * to meet this challenge head-on.'' \22\
    The Chicago Council on Foreign Relations issued a report in 2004 
which noted that today's economies are ``highly dependent on 
immigration, legal and illegal, temporary and permanent.'' It explained 
how the different economies rely ``on the labor of those who arrived 
under employment-based categories as well as those who arrived under 
family reunification or humanitarian categories.'' It also reaffirmed 
the demographic trends and labor market projections explained earlier 
that ``foreshadow increasing economic dependency on immigrant labor.'' 
\23\
    It should be noted that the BLS predicted that there would be job 
growth in lower-skilled areas, it also predicted that there would be 
growth in higher-skilled areas. Job growth will be most significant at 
opposite ends of the spectrum, in professional and related occupations 
and service occupations, which will make up over 60 percent of expected 
job growth.\24\ The BLS expects large increases in highly-skilled 
occupational groups such as education and training, health care, 
computer and mathematical science, architecture and engineering, life 
and physical science, community and social services, and legal.\25\ 
There will also be a need in the United States for more highly-skilled 
workers to fill these jobs.
    The Chamber's own surveys, not surprisingly, reflect the problems 
employers have in finding the workers that they need. On April 19, 
2005, the Chamber's Center for Workforce Preparation, which was created 
as a Chamber affiliate to address labor shortages and to engage 
businesses in incorporating effective recruitment, retention, and 
training solutions, launched a Workforce Needs Assessment Survey of 
chambers, businesses, and associations. Difficulties in finding both 
entry-level and skilled workers, and developing solutions for this 
problem, ranked extremely high in importance to those surveyed.
Existing Temporary Worker Programs
    The three commonly used temporary worker programs in existence 
today are the H-1B, the H-2B and the H-2A programs. The H-1B program is 
exclusively for workers with a minimum of a bachelor's degree or the 
equivalent. The cap is currently at 65,000, but there is an additional 
20,000 reserved for graduates of U.S. colleges and universities with a 
master's or doctorate degree. The H-1B cap has been reached eight times 
in the last ten years.
    Companies use the H-1B visa to recruit professionals and highly-
skilled workers. Companies also use these visas to recruit workers that 
have just graduated from U.S. colleges and universities, often in the 
math and science fields (which many times graduate more foreign-born 
students than native-born students). The employer must pay a $1,500 fee 
that provides scholarships and training for U.S. workers and a $500 
anti-fraud fee. An employer must notify its U.S. workforce of the 
potential hire, in addition to certifying, according to established 
wage surveys, that it is paying the H-1B employees at the prevailing 
wage for U.S. workers and that the H-1B professionals are working under 
the same conditions as their U.S. counterparts, including hours, shifts 
and benefits. The employer must also attest that the H-1B worker is not 
a replacement worker for a labor dispute or strike. The employer must 
then receive approval from the Department of Labor, the Department of 
Homeland Security, and then receive the visa through the Department of 
State.
    The Chamber, as part of the steering committee of the Compete 
America coalition, has consistently urged Congress to increase this cap 
or to make it market-based. The cap in 2006 was hit on June 1, and 
thus, without congressional intervention, most employers must wait more 
than a year to be able to hire new H-1B workers. Congress increased the 
cap on these visas during the high-tech boom at the end of the 1990s, 
but the cap reverted to its original number in 2003. These visas have 
historically responded visibly to market demand; demand decreased 
significantly and the cap was not even close to being hit as the tech 
bubble burst and the economy declined in 2001.
    Ingersoll Rand prides itself on being a U.S. based company that 
strives to keep the majority of its manufacturing operations within the 
U.S. borders. We have manufacturing plants in 24 states and 120 
facilities located throughout the United States. Over 45-50% of our 
profits are tied to export sales. Unfortunately, market forces and the 
lack of highly qualified U.S. workers have created a problem of 
identifying and retaining U.S. workers. Indeed, recruiting engineers 
within the U.S. often results in foreign born applicants. Let me give 
you some examples of the difficulties we face:
     As the company continues to expand its quality 
initiatives, Metrologists have become a professional engineering 
occupation in very short supply. There are only about five universities 
in the U.S. with Masters programs specializing in metrology and almost 
all the students enrolled in such programs are foreign nationals. Human 
Resource Managers advise me that they simply cannot find Americans to 
fill such positions. Metallurgical engineers have been an identified 
shortage occupation for years in the United States and are key 
contributors to machinery development projects for construction 
products.
     Thermo King refrigeration technologies unit conducted a 
13-month search for a qualified plastics engineer for their product 
development team and could only locate a Canadian national. This same 
division looks for researchers on cooling technologies. We funded 
research at Pennsylvania State University and hired a Graduate Research 
Assistant performing the work. This man was a PhD candidate from China 
with extensive research projects experience. Thermo King could not 
locate any qualified U.S. applicant.
     We have also recently recruited for Product Design 
Engineers with specialized skills and experience. In one position, the 
engineer is responsible for Power Electronics Engineering, as a member 
of a dedicated Product Development team to create globally competitive, 
robust, and maintainable power products for the Industrial 
Technologies' electric power tool business. The minimum requirements 
for this position are a Master's degree in Power Electronics, with 
three or more years of professional experience in Power Electronics 
design. We had been unsuccessful in locating a U.S. worker, but were 
able to recruit a U.S.-educated worker with a Ph.D. who has a thorough 
understanding of switched mode power supply design and all aspects of 
power electronics.
     At Security Technologies we hired a Senior Reliability 
Test Engineer with a BS degree in Engineering from Turkey and an MS 
degree in Industrial and Systems Engineering from a U.S. university to 
work on new product development for locking devices. In 2005 this 
sector acquired an electronic lock company based in Turkey and this 
foreign national engineer has been invaluable to the integration of 
this acquisition into our Security Technologies portfolio of products 
as he has a thorough understanding of both European and U.S. 
engineering standards.
    The other major temporary worker program is the H-2B program, which 
is designed specifically to allow foreign nationals to work for a 
sponsoring employer in a job that is only temporary in nature; for 
example, to fill a seasonal job (but not in agriculture), to meet a 
one-time project or need, to add additional staff during a time of 
exceptionally high peak load, or to fill a position that is 
intermittently used in the business. H-2B visas are used in industries 
such as landscaping, seasonal hospitality (such as resort hotels, 
restaurants and attractions), and seasonal construction, as well as to 
meet specific needs in manufacturing, retail and other industries.
    The cap on H-2B visas is 66,000 annually, and the cap has been hit 
the last two years, affecting small businesses in particular. Congress 
passed an exemption for repeat users, but that will soon sunset, and 
without relief, many small employers quite possibly will be adversely 
impacted. The H-2B program helps supplement the native-born workforce, 
but it cannot be used to fill all types of jobs because of the seasonal 
nature of the visa. A company has to first recruit and advertise for 
the opening in the U.S. The employer must then obtain a temporary labor 
certification from the Department of Labor, receive approval from the 
Department of Homeland Security, and then request that the visa be 
issued through consular process of the Department of State.\26\
    Unfortunately, for Ingersoll Rand, market forces and the 
unavailability of U.S. workers has created a problem of identifying and 
retaining lesser-skilled workers. Here are some examples:
     Ingersoll Rand cannot find the welders it needs in the 
domestic economy, despite its best efforts to do so, and has no option 
to use a temporary worker program under current law to fit this 
situation. We train welders at our own facilities. Even when we train 
U.S. workers, many of the students cannot grasp the technique and skill 
nuances. Welders are neither seasonal to meet the requirements of the 
H-2B program, nor qualified to meet the requirements of an H-1B visa. 
This can mean severe delays, which impedes the good will we have with 
our customers, and can affect our competitiveness.\27\
     Technicians for the Air Solutions Group's service and 
repair business are also in short supply. We have identified skilled 
technicians at our IR Canada operations who have the product knowledge 
and technical experience to service IR compressors in the U.S., however 
as the products they would be servicing are manufactured in the U.S., 
not Canada, they would require work permits and there is no appropriate 
visa category to allow such skilled technicians to travel 
intermittently to the U.S. to perform service on U.S.-manufactured 
machinery.
     Experienced tool and die workers, with knowledge in 
stamping technology and machining are scarce. Our manufacturing plants 
in the Detroit area continue to experience difficulty finding 
electricians for their manufacturing operations, with the automotive 
industry being primary competitors for such skilled workers. 
Experienced machinests are also critical. We are very concerned about 
the looming shortage or these types of workers as the older generation 
retires, and we see no evidence of younger skilled and semi-skilled 
workers coming into the ranks to backfill these key positions.
    Another type of temporary visa available for employers today is the 
H-2A agricultural visa. This visa will be covered by another panelist, 
but the program has proven to be difficult to use and not responsive to 
the realities of the agricultural workplace, and as even the Department 
of Labor has said, it is cumbersome and litigation-prone.\28\
    The existing types of temporary worker programs do not begin to 
meet all of the complex needs of the U.S. economy. In sum, the H-1B 
program is focused on higher-skilled immigrant workers, while the H-2B 
program is limited to short-term, seasonal types of work, although it 
allows for recruitment of lower-skilled workers. Further, particularly 
when viewed against a domestic economy of over 140 million workers, and 
given the demographics and job growth projections already discussed, 
the caps are simply unrealistic. There is no temporary worker program 
that addresses the huge gulf between these programs and the 
complexities of the many different kinds of jobs and skill levels. 
Employers need a way to recruit foreign workers when they cannot find a 
U.S. worker, and currently there are few realistic mechanisms to 
accomplish that.
The Impact of Temporary Worker Programs on the Economy
    As the discussion above has indicated, based on demographic and job 
projection data, and reports from the employer community and various 
experts, this country faces worker shortages across a spectrum of 
occupations and industries. The discussion has also indicated that 
existing temporary worker programs are inadequate to meet this need.
    While it appears that there are few studies that evaluate the 
direct effect of a low-skilled temporary worker program on U.S. 
workers, there is data on how H-1B temporary workers affect the wages 
of natives and how immigration in general affects U.S workers. Studies 
have found that H-1B workers have little or no adverse impact on wages 
or unemployment rates on native-born workers.\29\ The majority of more 
general studies have found that immigration does not, or else rarely, 
depresses wages. In a January 2006 study, economists Gianmarco 
Ottaviano and Giovanni Peri found that during the period of 1980-2000 
the average U.S. worker experienced an increase of 2 percent in the 
real value of his wage because of immigration, primarily because 
capital increases as labor increases.\30\ Even studies that have found 
that immigration lowers wages have estimated that a 10 percent increase 
in the share of foreign-born workers reduces native wages by less than 
1 percent.\31\ Immigrants spend money, which creates jobs, and can 
often increase the wages in areas that are depressed.\32\ Again, the 
vast majority of studies indicate a net plus to the economy from 
immigration and workers in general.\33\
    As labor economist Dan Siciliano stated, ``the empirical evidence 
indicates that businesses expand through the investment of more capital 
when the labor supply is not artificially constrained.''\34\ The United 
States sees real economic growth from immigration, and immigrants help 
fill the growing gaps in our labor force, as native-born workers obtain 
higher levels of education and retire. In fact, the Bureau of Labor 
Statistics includes immigrant labor in its forecasts, and it predicts 
high levels of growth in the U.S. economy assuming that immigrant 
labor, legal and illegal, continues at least at the same rate as it is 
now.\35\ A temporary worker program is needed to ensure that U.S. 
companies have enough workers to fill the jobs they are creating.
    It is a myth that employers are just pursuing a temporary worker 
program to avoid using domestic workers or so that they can hire 
``cheap labor.'' Many industries pay much more than minimum wage and 
still cannot find workers-the debate is not about cheap labor, it is 
just about finding labor. For example, an average construction worker 
makes $20.03 an hour.\36\ Many roofers earn well over $50,000 annually, 
yet many of these jobs go wanting.\37\ Further, any temporary worker 
program enacted by Congress will require that employers pay 
participants in the program at least the same wages and benefits they 
pay comparable U.S. workers. The upfront fees and legal costs 
associated with any program provide a built in disincentive to use 
these programs unless a real shortage exists.
    The Chamber recognizes that the business community must also help 
domestic workers find suitable employment, and through its Center for 
Workforce Preparation, these efforts include:
     Identifying and supporting programs that bring new sources 
of labor into the workforce-mature workers, former welfare recipients, 
individuals with disabilities, youth, and others. By bringing these 
skilled individuals into the workforce, employers will have greater 
access to qualified employees.
     Replicating successful workforce and education models that 
focus on partnership development between businesses, chambers, 
government, and education institutions.
     Educating businesses on innovative recruitment and 
retention strategies such as workplace flexibility as a management tool 
that allows businesses to address the labor shortage by retaining their 
workers.
     Connecting businesses to qualified and skilled youth who 
are already trained and available to establish careers in high-demand 
industries such as construction and health care.
     Informing businesses on using the Earned Income Tax Credit 
as a retention tool to support entry-level workers.
     Working with five states and the District of Columbia to 
develop a national and portable credential that defines, measures, and 
certifies that entry-level job seekers have the employability skills 
like problem solving and critical thinking that employers require.
     Forming solutions around issues such as workplace housing 
that impact an employer's ability to recruit and retain skilled 
workers.
     Building the capacity of over 135 chambers to advance 
their role in building workforce and education partnerships between 
businesses, community colleges, and the public workforce system.
     Helping the Chamber's federation of 3,000 state, local, 
and regional chambers of commerce to effectively engage in workforce 
development by providing tools and promising practices.
     Connecting businesses to market-responsive community 
colleges and other educational programs available to them to create 
continuous skills training for their employees to ensure that their 
skills keep pace with changes in technology.
    It is also important to restate the Chamber's commitment to filling 
jobs with U.S workers before seeking to fill these vacancies with 
potential new guestworkers or immigrants abroad. Indeed, industries and 
businesses that are our members are some of the leaders in the nation's 
welfare-to-work, school-to-work, and prison-to-work efforts. Because 
many of these jobs are entry-level, requiring little or no experience, 
and often few skills, they are the stepping stones for many on their 
road to the American dream. Employers are taking all the reasonable 
steps that they can to fill these jobs with the current United States 
workforce, but still many jobs are going unfilled.
Realistic Temporary Worker Programs Will Strengthen National Security 
        and Our Borders
    While much of the above discussion has focused on the need for 
expanded temporary worker programs to meet the needs of an expanding 
economy, these programs will also enhance our national security and 
control over our borders. This precise point was explained in a letter 
by several past governmental officials charged with enforcing our 
immigration and border security laws, which has been attached to this 
testimony for your review.\38\ This linkage is also clear by a matter 
of simple logic. When available jobs are filled (after recruitment in 
the domestic labor pool) by legal foreign workers, there will no longer 
be jobs to be filled by those who may come here illegally and thus, the 
magnet that drives much illegal immigration will be gone.\39\ Further, 
because these workers will have been screened and channeled through a 
controlled program, border officials will be able to focus their 
resources on those that pose a real threat to our country-not job 
seekers, but criminals.
The Senate Temporary Worker Program
    The Comprehensive Immigration Reform Act of 2006 recognizes the 
importance of an adequate labor force for economic growth, and creates 
a new temporary worker program (an H-2C visa) beyond the programs 
already in existence. The Senate-passed bill has numerous labor 
protections to both ensure that U.S. workers will not be adversely 
affected by the program and to ensure that those coming as temporary 
workers receive appropriate protection. For example, employers cannot 
use the program unless they have first tried to recruit U.S. workers 
for the job. Employers must pay the higher of the wage paid to 
similarly situated employees or the prevailing wage for the occupation, 
adding a further incentive to look for U.S. workers first. The bill 
includes strong provisions to ensure that these workers are not used to 
replace laid off workers or to be used in the case of a labor dispute, 
such as a strike. H-2C workers must receive the benefits and have the 
same working conditions typical to similarly employed U.S. workers. 
Temporary workers would be eligible for worker's compensation coverage, 
and they would be able to change jobs the day they arrived, so they 
would not be tied to their employer. Employers in areas of high 
unemployment, of 9 percent or more for workers who have not finished a 
high school degree, would be unable to use the temporary worker 
program.
    The Chamber and EWIC believe the number of temporary workers in the 
Senate passed bill is inadequate, capped at only 200,000. The Chamber 
supports a market-based cap that was included the Senate bill as 
introduced. This market-based cap could increase and decrease based on 
need for these visas, within limitations.
    The bill would also provide temporary workers with a way to obtain 
permanent legal status if they are sponsored by their employer. The 
employer must go through a labor certification process, called the PERM 
process, to ensure that the worker they are sponsoring will not 
displace a U.S. worker or be used in lieu of a U.S. worker. This is not 
a wide open door for a green card. This PERM process is a complicated 
test of the labor market. The Department of Labor must certify that 
there are not sufficient U.S. workers who are able, willing, qualified 
and available; and that the employment will not adversely affect wages 
or working conditions of similarly situated U.S. workers. Employers are 
required to perform extensive tests of the local job market prior to 
filing the application. The Department of Homeland Security must then 
approve the application, and then the employee would be required to 
undergo full background checks and security clearances through the 
adjustment process of the Department of Homeland Security or the 
Consular Process of the Department of State.
    The temporary worker provisions of the Senate-passed bill also 
contain a number of troubling provisions. In particular, section 404 of 
the bill, related to employer obligations, includes a number of 
requirements that are unclear, unnecessary, or simply unwise and we 
hope that should Congress move to enact a new temporary worker program 
that these problems will be addressed. The most troubling provisions 
include:
     A requirement to pay adverse affect wage rates when such a 
provision is unnecessary because the bill also contains a requirement 
to pay prevailing wages (compare new sections 218B(c)(1)(A) with 
218B(c)(2));
     An overly long non-displacement attestation of 180 days, 
where 60 days would be more appropriate (see new section 
218B(c)(1)(B));
     Confusing prevailing wage language that could be read as 
vastly expanding the Davis-Bacon Act so that temporary worker 
participants on a non Davis-Bacon Act projects could have to be paid 
Davis-Bacon wages (see new section 218B(c)(2));
     Overly broad and vague language regarding the working 
conditions for the temporary worker. Conditions should be normal to 
those similarly employed by the employer at the same place of 
employment (see new section 218B(c)(3);
     Confusing new language in the no strike / lockout 
language. The new term ``work stoppage'' has been introduced, which is 
unclear and significantly broader than similar language for other 
temporary worker programs (see new section 218B(c)(4));
     We are unsure of the real world impact of requiring the 
provision of insurance for workers not covered by state workers 
compensation laws. We would certainly support the proposition that a 
temporary worker be covered under state workers' compensation laws in 
the same manner as U.S. workers, but if state law does not cover a 
similarly situated U.S. worker, we do not believe it is appropriate to 
cover a temporary worker (see new section 218B(c)(5));
     The requirement that the petition be filed within the 60 
day period before the employer needs services does not reflect reality. 
DHS simply cannot process applications that quickly. We suggest 180 
days so that the employer can properly plan ahead and to be more 
consistent with other nonimmigrant program requirements (see new 
section 218B(c)(12)); and
     The debarment requirements do not give the government 
enough discretion. It appears one error on a petition would lead to a 
three year debarment period from use of the program. We suggest DOL be 
given the discretion to review the facts to see if a pattern or 
practice exists by making it clear the government has the discretion to 
debar the employer.

                                ENDNOTES

    \1\ Bureau of Labor Statistics, Labor Force Projections to 2014: 
Retiring Boomers at 26, November 2005.
    \2\ Id at 28.
    \3\ World Population Prospects: The 2004 Revisions at 71, February 
24, 2005, available at http://www.un.org/esa/population/publications/
WPP2004/2004Highlights--finalrevised.pdf.
    \4\ Jim Edgar, Doris Meissner, Alejandro Silva, Keeping the 
Promise: Immigration Proposals for the Heartland at 12, Report of an 
Independent Task Force, which brought together forty leaders from 
business, academia, and civil society (The Chicago Council on Foreign 
Relations)(2004).
    \5\ Bureau of Labor Statistics, Labor Force Projections to 2014: 
Retiring Boomers, at 30, November 2005.
    \6\ Id at 32-37.
    \7\ Bureau of Labor Statistics, Occupational Employment Projections 
to 2014 at 70.
    \8\ Id at 77.
    \9\ Id at 80.
    \10\ Information from the National Roofing Contractors Association. 
See also Bureau of Labor Statistics, Occupational Employment 
Projections to 2014 at 94.
    \11\ From information gathered and forwarded to the Chamber by the 
National Restaurant Association.
    \12\ Id.
    \13\ From information gathered and forwarded to the Chamber by the 
National Restaurant Association.
    \14\ American Hospital Association, Trend Watch, June 2001.
    \15\ 2004 American Hospital Association Survey of Hospital Leaders; 
some occupations, such as registered nurses, come under the H-1B visa 
program. While the primary focus of this testimony is on the projected 
shortages of low skilled workers, the Chamber is acutely aware of the 
continued need to also increase access to highly skilled workers under 
the H-1B visa program.
    \16\ Id.
    \17\ Carol Green Ross, Harrisburg Hotel Corporation, testimony 
before the Senate Judiciary Committee, July 5, 2006.
    \18\ Edward Lazear, Chairman, Executive Office of the President 
Council of Economic Advisors speech before the National Economists Club 
July 13, 2006 ``A Success Story: American Productivity.'' http://
www.whitehouse.gov/cea/lazear-national-econ-club-speech-20060713.pdf1
    \19\ Steve Gunderson, Robert Jones, and Kathryn Scanland, The Jobs 
Revolution: Changing How America Works at 29 (2004).
    \20\ Justin Heet, Hudson Institute Beyond Workforce 2020: The 
coming (and present) international market for labor June 23, 2003 at 
11, available at http://www.hudson.org/files/publications/workforce--
international--mkt--labor.pdf
    \21\ Secretary of Labor Elaine Chao, State of the Workforce, August 
30, 2001, available at http://www.dol.gov/--sec/media/speeches/
20010830--stateoftheworkforce.htm.
    \22\ Id.
    \23\ The quotes in this paragraph come from Keeping the Promise: 
Immigration Proposals for the Heartland at 33; a more complete citation 
of the report can be found in footnote 4.
    \24\ Bureau of Labor Statistics, Occupational Employment 
Projections to 2014 at 71-80, November 2005.
    \25\ Id at 72.
    \26\ Carol Green Ross, Harrisburg Hotel Corporation, testimony 
before the Senate Judiciary Committee, July 5, 2006. To see the 
process, visit the Department of Labor Web site, http://
www.flc.doleta.gov/foreign/h-2b.asp
    \27\ ``Finding What Works: Immigration Helps Fill Jobs for Many 
Companies'' The Record: Business at B-1, June 4, 2006.
    \28\ John Hancock, Department of Labor before the Subcommittee on 
Immigration and Claims of House Committee on the Judiciary, Sept. 24, 
1997 cited in Stuart Anderson, ``Making the Transition from Illegal to 
Legal Immigration,'' The National Foundation for American Policy, 
November 2003, available at http://www.nfap.com/researchactivities/
studies/Nov--study2.pdf
    \29\ Stuart Anderson, ``H-1B Professionals and Wages: Setting the 
Record Straight'' National Foundation for American Policy, March 2006, 
available at http://www.nfap.com/research activities/articles/
NFAPPolicyBriefH1BProfessionalsAndWages0306.pdf
    \30\ Gianmarco I.P. Ottaviano and Giovanni Peri, University of 
Bologna and University of California, Berkley. ``Rethinking the Gains 
from Immigration: Theory and Evidence from the U.S''. (Working Paper). 
National Bureau of Economic Research. See also, David Card, University 
of California Berkley, ``Is the New Immigration Really So Bad?'' 
National Bureau of Economic Research, January 2005, available at http:/
/www.phil.frb.org/econ/conf/immigration/card.pdf
    \31\ Economic Report of the President at 105, February 2005.
    \32\ Orn Bodvarsson and Hendrik Van den Berg ``The Impact of 
Immigration on a Local Economy: The Case of Dawson County, Nebraska.'' 
Great Plains Research Vol. 13, No. 2, 2003, at 291-309. For a good 
summary of the differences in how economists calculate the effects 
immigrants have on the economy, see Alan B. Krueger, Princeton 
University, Memo on : ``Two Labor Economic Issues for the Immigration 
Debate'' April 4, 2006, available at http://www.americanprogress.org/
atf/cf/(E9245FE4-9A2B-43C7-A521-5D6FF2E06E03)/krueger--immigration.pdf. 
For a broad overview and discussion on the economic theory surrounding 
the impact of immigrants on wages, see Roger Lowenstein, ``The 
Immigration Equation.'' New York Times Magazine, July 11, 2006.
    \33\ While of course it can be debated, many economists have found 
that immigration represents a net plus for the economy. For example, 
see the open letter economists signed June 19, 2006 available at http:/
/www.independent.org/newsroom/article.asp?id=1727
    \34\ Dan Siciliano, a labor economist at Stanford University, 
testimony before the House Committee on Education and the Workforce, 
November 16, 2005.
    \35\ Bureau of Labor Statistics, Labor Force Projections to 2014: 
Retiring Boomers at 26-27, November 2005.
    \36\ Information gathered from the Associated General Contractors, 
wage rates can also be found at the Bureau of Labor Statistics June 
2006 hourly earnings on construction, available at http://www.bls.gov.
    \37\ Richard Birkman, President, Texas Roofing Company in Austin, 
testimony before the Immigration, Border Security and Citizenship 
Subcommittee of the Senate Judiciary Committee, February 12, 2004.
    \38\ Coalition for Immigration Security, composed of numerous 
former DHS officials, stated this very point in their April 2006 letter 
on the relationship to importance of legal channels of immigration for 
border security. See also Stuart Anderson ``Making the Transition from 
Illegal to Legal Migration'' National Foundation for American Policy, 
November 2003.
    \39\ For an example of how a temporary worker program would lower 
illegal immigration, see Stuart Anderson ``The Impact of Agricultural 
Guest Worker Programs.'' The National Foundation for American Policy, 
November 2003. The bracero program operated from 1942-1964, allowed 
U.S. farmers and growers to employ temporary Mexican farm workers. The 
Immigration and Naturalization Service (``INS'') encouraged farmers to 
use only legal labor through the bracero program, and about 300,000 to 
445,000 were permitted each year. The bracero program essentially 
brought illegal immigration to a halt as the U.S. government increased 
legal means of entry. Farmers and growers willingly used the program 
instead of hiring illegal workers. The INS admitted itself that the 
bracero program helped them control the border. When the bracero 
program was discontinued, illegal immigration rose sharply almost 
overnight.
                                 ______
                                 
    Chairman McKeon. Thank you very much.
    Ms. Hallstrom?

STATEMENT OF LUAWANNA HALLSTROM, GENERAL MANAGER AND COO, HARRY 
     SINGH AND SONS, ON BEHALF OF THE NATIONAL COUNCIL OF 
   AGRICULTURAL EMPLOYERS AND THE AGRICULTURE COALITION FOR 
                       IMMIGRATION REFORM

    Ms. Hallstrom. Mr. Chairman and members of the committee, I 
appreciate the opportunity to testify on behalf of Harry Singh 
and Sons, a third-generation, family owned farming operation 
located in Oceanside, California. We are currently the largest 
single fresh market vine ripe tomato producer in the U.S.
    I am also here to testify----
    Chairman McKeon. Can you pull your mike just a little 
closer, please?
    Ms. Hallstrom. I am also here testifying as co-chair of the 
Agricultural Coalition for Immigration Reform and officer of 
the National Council of Agriculture Employers that serve as the 
national voices of labor-intensive agriculture on immigration 
reform.
    I am extremely grateful that this committee is addressing 
the critical issue of the guest worker programs and their 
impact on American workers and immigration policy, as I live 
with these issues every day.
    It is imperative that Congress enact legislation this year 
that in addition to enforcement provisions also contains a 
reformed guest worker program for agriculture and a workable 
mechanism for addressing a large number of undocumented workers 
that contribute to our economy by filling jobs that Americans 
will not take and are not available for.
    My grandfather was an immigrant from India and came here 
with nothing in his pockets at the age of 16. He had a very 
strong work ethic and a dream. From these humble beginnings, he 
was able to build a very successful farming business.
    Labor-intensive agriculture in the U.S. faces a shortage of 
workers, as well as a shortage of legal workers. Our business 
has experienced difficulty for a number of years in obtaining a 
sufficient number of workers for vegetable production and 
harvesting. Given the topic of this hearing, I will focus on 
the guest worker issue.
    We have a large farming operation on Camp Pendleton where 
we have been farming on the military base since 1940. And after 
the terrorist attacks of 9/11, we became involved with the 
Department of Homeland Security in designing security 
guidelines for the access of our farm workers onto a military 
base to work on the farm. This resulted in a loss of 75 percent 
of our workforce after the extensive document verification 
process was completed.
    With the loss of most of our workforce at the peak of our 
harvesting of our tomatoes, we lost $2.5 million within 45 
days, as we watched our crop rot in the field. We believe that 
our 9/11 experience illustrates what will happen to most farm 
employers involved in labor-intensive agriculture if an 
electronic employment verification system, like that contained 
in the bill passed by the House, is enacted without a workable 
guest worker program.
    Must of the national agriculture workforce estimated is at 
about 75 percent undocumented. They would be excluded through 
an effective verification system, and our industry would 
collapse without a workable guest worker program to replace it.
    In order for us to survive post-9/11, we had no choice but 
to attempt the use of the H-2A Agriculture Guest Worker 
Program. We are now the largest California user of a 
dysfunctional 50-year-old H-2A Program, which currently 
supplies less than 3 percent of the U.S. seasonal agricultural 
workforce. The program is administratively cumbersome, it is 
costly, it requires farmers to wade through 33 pages of Federal 
regulations to try and comply with the complex requirements.
    We have had to hire additional staff, lawyers and 
consultants to keep up with the demands of the program and to 
protect ourselves from frivolous lawsuits. And we struggle to 
keep up with the spiraling adverse effect wage rate. Every year 
it changes on March 1. The wage rate is not market based, it 
does not relate to the specific job. In the area of employment, 
this year's average wage hike came at a half-a-million-dollar 
price tag that we could have not budgeted for.
    The H-2A Program does not take jobs away from American 
workers. We are required to recruit U.S. workers, and we may 
end up with hundreds of calls, several interviews and a few 
hires, of which many don't show up to work, oftentimes, maybe 1 
or 2 days, at best.
    Americans do not raise their children to be farm workers. 
They aspire for higher education, upward mobility and year-
round employment. In 1998, Senator Feinstein encouraged 
California growers to work with the State Welfare and 
Employment Development Offices to recruit U.S. workers for farm 
jobs. And after extensive advertising, there were 137,000 able-
bodied candidates that were identified, but only 503 of those 
applied for work, and only three actually showed up. This 
effort substantiated what growers in all states will tell you: 
American workers do not want to perform seasonal, agricultural 
work.
    We strongly believe that a workable guest worker program 
would substantially reduce illegal migration of workers into 
agricultural jobs, and we believe this is supported by a 
program that went from 1942 to 1964, called the Bracero 
Program. It greatly reduced illegal migration into farm jobs.
    It is my belief that our nation will not solve the problem 
of illegal migration without comprehensive approach to 
immigration, and as part of our strategic plan for national 
security, I would like to see us maintain the ability to 
provide a safe, reliable and domestic food source.
    I thank the committee for listening to my views.
    [The prepared statement of Ms. Hallstrom follows:]

Prepared Statement of Luawanna Hallstrom, Harry Singh & Sons, on Behalf 
 of the National Council of Agricultural Employers and the Agriculture 
                    Coalition for Immigration Reform

    Mr. Chairman and members of the Committee: I appreciate the 
opportunity to testify on behalf of Harry Singh & Sons, a third 
generation family-owned farming operation located in Oceanside, 
California. I serve as General Manager of the company, as well as 
Business Manager for its marketing company, Oceanside Produce, Inc. We 
are the largest vine-ripe tomato producer in the U.S.
    I also am testifying as co-chair of the Agriculture Coalition for 
Immigration Reform (ACIR) and officer of the National Council of 
Agricultural Employers (NCAE). ACIR is a coalition of over 150 state, 
regional and national agricultural organizations and commodity groups, 
representing thousands of employers that was formed six years ago for 
the purpose of promoting comprehensive immigration reform as it relates 
to agricultural employers. NCAE is a Washington, D.C.-based national 
association representing growers and agricultural organizations on 
agricultural labor and employment issues. NCAE's membership includes 
agricultural employers in fifty states who employ a substantial portion 
of the nation's hired farm workforce. Its members include growers, farm 
cooperatives, packers, processors and agricultural associations.
    I am very pleased that this Committee is addressing the critical 
issue of guest worker programs and their impact on American workers and 
immigration policy. As Congress hopefully attempts to reconcile the 
differences between the House and Senate immigration reform bills this 
year, it is imperative that a final product contain a reformed guest 
worker program for agriculture and a workable mechanism of addressing 
the large number of undocumented workers that contribute to our economy 
by filling jobs that Americans will not take.
    My testimony focuses on the following issues that are raised by the 
topic of this hearing:
    1) What is the current experience of American agriculture with a 
guest worker program?
    2) What impact will a workable agricultural guest worker program 
have upon the American workforce?
    3) Will an agricultural guest worker program help reduce illegal 
migration of workers into agricultural jobs? and,
    4) What are the consequences of enacting immigration reform 
legislation that includes enforcement only or enforcement first 
provisions without providing a means toward a legal workforce?
1. What is the current experience of American agriculture with a guest 
        worker program?
    Our farm's experience with 9/11 illustrates what will happen to 
most agricultural employers once an effective electronic employment 
eligibility verification system similar to that proposed in H.R. 4437, 
the House-passed immigration reform bill, is established. Let me 
explain. Part of our farming operation has been on a military base, 
Camp Pendleton, since 1940. After the terrorist attacks on 9/11, the 
Department of Homeland Security (DHS) was tasked to secure our military 
bases. As a result, DHS established security procedures that checked on 
the background of all of the farm workers who worked on the Camp 
Pendleton property. While these workers provided us with documents that 
appeared genuine, DHS was able to check the documents against 
government databases and determined that most our workforce was not 
properly documented. We terminated those workers without proper work 
authorization. The result of eliminating most of the workforce 
necessary to hand harvest our tomato crop was disastrous, as we lost 
$2.5 million because we were unable to harvest our crop in a timely 
manner.
    Enactment of a mandatory electronic verification of the 
authenticity of employment documents would have the same effect on 
nearly all agricultural employers. Agriculture is the one U.S. 
industrial sector where the government has some reasonably good 
statistics on the employment of illegal aliens and they are stunning! 
In the U.S. Department of Labor's (DOL) most recent survey (1998-99), 
52 percent of the seasonal agricultural workers surveyed indicated that 
they were unauthorized to work. Agricultural labor economic experts 
indicate that a straight-line extrapolation to 2005 of the last DOL 
study suggests that the percentage of U.S. farm workers who were 
unauthorized to work in 2005 was approximately 75 percent.
    Once the current system of visual inspection of employment 
documents is replaced by an electronic means of quickly checking 
records against government databases, we anticipate that the vast 
majority of the agricultural workforce will be screened out of jobs. 
The question then becomes, how do we replace them? A guest worker 
program and some means of dealing with the current experienced, but 
undocumented workforce, become essential to the survival of labor 
intensive agriculture.
    Agriculture has a guest worker program called the H-2A program that 
has been around for nearly 50 years without significant reform. It does 
not work. Our business has learned this the hard way. Our experience is 
instructive.
    To survive the events after 9/11 that I have described, we were 
forced into the H-2A agricultural guest worker program. Our experience 
with this program has been almost as bad as that we encountered in 
losing our crop. The government bureaucracy did not move quickly enough 
to approve our emergency application in a timely manner. The regulatory 
complexity of the program has forced us to hire an army of lawyers and 
consultants in order to try to make it work. It is now clear to us why 
this dysfunctional guest worker program provides less than three 
percent of the temporary and seasonal agricultural workers required by 
labor intensive agriculture. The vast majority of family farms in this 
country do not have the resources required to make this program work.
    There are three broad reasons why the H-2A program needs to be 
reformed.
    First, the program is administratively cumbersome and costly. Even 
at its present level of admission, fewer than 50,000 workers annually, 
which accounts for less than three percent of the 1.6 million seasonal 
job opportunities nationwide, the program is nearly paralyzed. 
Secondly, the program sets minimum wage and benefit standards that many 
employers cannot afford or cannot qualify for. The vast majority of 
agricultural workers, legal and illegal, get little or no benefit from 
the H-2A ``protections''.
    The regulations governing the program cover 33 pages of the Code of 
Federal Regulations. ETA Handbook No. 398, the compendium of guidance 
on program operation, is more than 300 pages. Employers must apply for 
workers a minimum of 40 days in advance of the date workers are needed. 
Applications, which often run more than a dozen pages, are wordsmithed 
by employers, by DOL and by attorneys. Endless discussions and 
arguments occur over sentences, phrases and words.
    Each employer applicant goes through a prescribed recruitment and 
advertising procedure, regardless of whether the same process has been 
undertaken for the same occupation by another employer only days 
earlier. The required advertising is strictly controlled by the 
regulations and looks more like a legal notice than a help wanted ad. 
Increasingly, DOL is requiring that advertising be placed in major 
metropolitan dailies, rather than the local newspapers that farm job 
seekers are most likely to read, if they are looking for farm work at 
all. The advertisements rarely result in responses, yet they are 
repeated over and over again, year in and year out.
    Certifications are required by law to be issued not less than 20 
days before the date of need, but the GAO reported in 1997 that they 
were issued late more than 40 percent of the time. Even after all this, 
the employer has no assurance that the ``domestic'' workers referred to 
it are, in fact, legal. Most state job services refuse even to request 
employment verification documents, much less verify that they are 
valid. It is the experience of H-2A employers that a substantial and 
increasing proportion of the ``domestic'' workers referred, are in fact 
illegal aliens themselves. Yet, these referrals are often the basis for 
denial of certification to employ legal alien workers.
    Finally, a high proportion of the workers referred to H-2A 
employers--referrals that are the basis for denial of the employer's H-
2A labor certification--either fail to report for work or quit within a 
few hours or days. This forces the employer to file with DOL for a 
``redetermination of need''. Even though redeterminations are usually 
processed within a few days, the petition and admission process after 
redetermination means that aliens will, at best, arrive about two weeks 
late.
    The second reason why reform is needed is that the current H-2A 
program requires wage and benefit standards that are unreasonably rigid 
or not economically feasible in many agricultural jobs, and effectively 
exclude those jobs from participating in the H-2A program. The most 
glaring example is the so-called Adverse Effect Wage Rate (AEWR). The 
AEWR sets an artificially high minimum wage standard that makes it 
uneconomical to use the H-2A program in many agricultural occupations. 
The current AEWR in California is $9.00 an hour. The AEWR standard, in 
effect, makes the average wage in one year the minimum wage in the 
ensuing year. Since the AEWR is set at the average of the wages for all 
agricultural workers in the state, it will be above the actual wages 
paid for about half of the agricultural employment in the state, and 
below the actual wage for about half of all agricultural employment in 
the state. Since, by definition, half of all employment will always 
have an actual wage below the average wage, this standard will always 
set an uncompetitive wage for some occupations, no matter how much 
agricultural wages rise.
    A third major problem area with the current H-2A program is that it 
is litigation-prone. Hostility to the program by those who oppose guest 
worker programs coupled with overly complex and burdensome regulatory 
requirements have combined to make the few users of the program 
litigation magnets. We are living examples of this truth. 
Notwithstanding the fact that we hired lawyers and experts to guide us 
through this complex program, we were nonetheless sued and incurred 
significant costs through the process. Most agricultural employers 
could not have withstood the costs and interference with their farming 
operations.
    In sum, our personal experience with the current H-2A guest worker 
program has been a nightmare, as has that of a substantial number of 
other current users that are part of ACIR and NCAE. Others in 
agriculture closely observe the difficulties that we have experienced 
and are discouraged from using the program. A reformed guest worker 
program that is simple to use, provides legal workers in a timely 
manner and is affordable is essential to the survival of labor 
intensive agriculture.
2. What effect will a workable guest worker program have upon the 
        American workforce?
    As I have indicated above, agricultural labor economists indicate 
that a substantial number of agricultural jobs are filled by persons 
who identify themselves as falsely documented. They are not so-called 
American workers or domestic workers. More importantly, however, they 
are not taking the jobs of Americans. No informed person seriously 
contends that wages, benefits and working conditions in seasonal 
agricultural jobs can be raised sufficiently to attract domestic 
workers away from their permanent nonagricultural jobs in the numbers 
needed to replace the illegal alien agricultural work force and 
maintain the economic competitiveness of U.S. producers.
    Seasonal farm jobs have attributes, which make them inherently 
uncompetitive with nonfarm work. First and foremost is that they are 
seasonal. Many workers who could do seasonal farm work accept less than 
the average field and livestock worker earnings because they prefer the 
stability of a permanent job. Secondly, many seasonal farm jobs are 
located in rural areas away from centers of population. Furthermore, to 
extend the period of employment, workers must work at several such jobs 
in different areas. That is, they must become migrants.
    It is highly unlikely that many U.S. workers would be willing to 
become migrant farm workers at any wage, or for that matter that, as a 
matter of public policy, we would want to encourage them to do so. In 
fact, the U.S. government has spent billions of dollars over the past 
several decades attempting to settle domestic workers out of the 
migratory stream. The success of these efforts is one of the factors 
that has led to the expansion in illegal alien employment. In addition 
to seasonality and migrancy, most farm jobs are subject to the 
variations of weather, both hot and cold, and require physical strength 
and stamina. It is highly unlikely that a significant domestic worker 
response would result even from substantial increases in wages and 
benefits for seasonal farm work.
    In one of the most ambitious efforts to recruit domestic workers to 
fill seasonal agricultural jobs in eight rural counties compromising 
the San Joaquin Valley of California, California agricultural 
organizations in 1998 sought the assistance of the State Department of 
Social Services and its offices in the eight Valley counties to recruit 
persons to work in agriculture. This effort followed passage of the 
federal welfare reform legislation. The agricultural groups also sought 
the assistance of the Employment Development Departments in these 
counties in a widespread effort to recruit seasonal agricultural 
workers to prevent a labor shortage.
    This effort was encouraged by Senator Feinstein and was overseen by 
State agencies, working in cooperation with the growers. The State 
welfare agency advertised for the agricultural jobs through bilingual 
radio and television, as well as traditional channels. Of the 137,000 
able-bodied candidates identified by the welfare agencies in the San 
Joaquin Valley, only 503 applied for work and only 3 actually showed up 
to work. This effort substantiated what growers in all states will tell 
you is the case. American workers do not want to perform seasonal or 
even much year-round agricultural work. A workable agricultural guest 
worker program will not take jobs from U.S. workers. Coupled with a 
workable employment verification system it will fill agricultural jobs 
with legal guest workers who will replace the undocumented-not U.S. 
workers.
3. Will an agricultural guest worker program help reduce illegal 
        migration of workers into agricultural jobs?
    We strongly believe based on history and our personal experience 
that a workable guest worker program will substantially reduce illegal 
migration of workers into agricultural jobs. We work very closely with 
the workers on our farms. Most of my family and I have performed work 
in the fields and hear the stories of the workers, their families and 
friends. We know that the natural desire of most economic migrants is 
to visit their families in Mexico or wherever their homes are during 
the Christmas holidays. While we support a controlled border and the 
enforcement of our immigration laws, ironically, one of the 
counterproductive effects of increasing border interdiction efforts 
during the past decade has been to force these persons to remain 
permanently in the U.S. and put down roots.
    The Immigration Reform and Control Act of 1986 (IRCA) has been 
subject to criticism, much of it justified. One of the conspicuous 
absences among the provisions of the IRCA was enactment of significant 
guest worker provisions. While it attempted to address the problem of 
the job magnet for undocumented workers and legalization of the 
undocumented, it failed to include meaningful guest worker provisions 
that would provide future legal channels for aliens seeking to fill 
jobs in the U.S. for which domestic workers were unavailable. In our 
opinion, without the legal channels provided by workable guest worker 
programs, an enforcement-only policy directed at the border will never 
succeed.
    History supports my viewpoint. The largest guest worker program in 
the U.S. in recent memory involved agricultural workers. It was called 
the ``bracero'' program and was implemented in various forms between 
1942 and 1964. While the bracero program had its problems, in part 
because many of the labor laws that exist today were not in place 
during its existence, it was extremely successful in controlling 
illegal migration of aliens into agricultural jobs. A recent study of 
the bracero program by Stuart Anderson of the National Foundation for 
American Policy on ``The Impact of Agricultural Guest Worker Programs 
on Illegal Immigration,'' concluded:
    ``By providing a legal path to entry for Mexican farm workers the 
bracero program significantly reduced illegal immigration. The end of 
the bracero program in 1964 (and its curtailment in 1960) saw the 
beginning of the increases in illegal immigration that we see up to the 
present day.'' (Anderson, at page 2).\1\ The Anderson study quoted a 
Congressional Research Service report in 1980 that also concluded that 
``Without question the bracero program was * * * instrumental in ending 
the illegal alien problem of the mid-1940's and 1950's.'' (Anderson at 
page 2). During period from 1964 (when the bracero program ended) to 
1976, INS apprehensions of illegal aliens in agriculture increased more 
than 1000 percent. (Anderson, page 3.)
---------------------------------------------------------------------------
    \1\ Stuart Anderson is the Executive Director for the National 
Foundation for American Policy. He served as executive Associate 
Commissioner for Policy and Planning and Counselor to the Commissioner 
at the Immigration and Naturalization Service from August 2001 to 
January 2003. He also served previously as a staff member and Staff 
Director of the Senate Subcommittee on Immigration for Senators Abraham 
and Brownback.
---------------------------------------------------------------------------
    Interestingly, a commentary in the Wall Street Journal last week by 
leading conservative thinkers picked up on this point and concluded:
    ``What this history teaches us is that the only way to control 
immigration is with a combination package-securing the border, 
enforcing the law in the workplace and create legal channels for 
workers to enter the country.''\2\
---------------------------------------------------------------------------
    \2\ Wall Street Journal, ``A Conservative Statement for Immigration 
Reform,'' July 10, 2006, Page A11.
---------------------------------------------------------------------------
    The article cited as examples of this point the history of the 
bracero program noted above.
4. What are the consequences of enacting immigration reform legislation 
        that includes enforcement only or enforcement first provisions 
        without providing a means toward a legal workforce?
    ACIR and NCAE, representing a vast cross-section of labor-intensive 
agriculture throughout the U.S., have supported for many years a 
simple, effective and nondiscriminatory process of determining the 
employment eligibility of new hires. We supported such a system ten 
years ago as part of Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996, as long as the process is simple, 
manageable and provides clear delineation of compliance 
responsibilities. Growers are tired of living with the uncertainty of 
the current legal system where we have to accept employment documents 
but are never certain whether they are legitimate or not and get sued 
if we are ``too picky'' in seeking employment documents.
    It is imperative that a workable verification system be coupled 
with a workable H-2A guest worker program and means of providing earned 
legal status for our experienced agricultural workers. Without this 
comprehensive approach to the problem of illegal immigration, it is my 
opinion that our nation will not solve the problem of illegal 
immigration nor will many industries, like agriculture, be able to 
survive. A comprehensive approach to immigration reform is absolutely 
essential.
    As I stated at the beginning of my statement, American agriculture 
is suffering under an unworkable, costly and litigious guest worker 
program that is almost worse than not having one at all. We know that 
between 50 and 75 percent of our workforce provides employment 
documents that we must accept under the law or face discrimination 
suits, but which are invalid. A workable verification system hopefully 
will eliminate document fraud, but it also will eliminate an estimated 
75 percent of the labor intensive agricultural workforce. The workers 
need to be replaced with legal alien workers because few American 
workers will perform seasonal and physically difficult agricultural 
production jobs. As discussed above, the current H-2A agricultural 
guest worker program simply is too dysfunctional to provide a legal 
source of labor to supplement the domestic agricultural work force.
    Given the large proportion of illegal workers in the current farm 
labor market, the reduction in domestic production as a result of 
enforcement only or enforcement first approach to immigration reform 
likely will be substantial. A leading agricultural labor economist who 
has studied this issue for many years, Dr. James Holt, indicates that 
the loss of agricultural production resultant from labor shortages will 
have employment impacts well beyond farm workers and farmers. Since 
agricultural production is tied to the land, the labor intensive 
functions of the agricultural production process cannot be foreign-
sourced. We cannot, for example, send the harvesting process or the 
thinning process overseas. Either the entire product is grown, 
harvested, transported and in many case initially processed in the 
U.S., or all of the functions are done somewhere else, even though only 
one or two steps in the production process may be highly labor 
intensive.
    When the product is grown, harvested, transported, and processed 
somewhere else, all the jobs associated with these functions are 
exported, not just the seasonal field jobs. These include the so-called 
``upstream'' and ``downstream'' jobs that support, and are created by, 
the growing of agricultural products. U.S. Department of Agriculture 
studies indicate that there are about 3.1 such upstream and down stream 
jobs for each on-farm job. Most of these upstream and downstream jobs 
are ``good'' jobs, i.e. permanent, average or better paying jobs held 
by citizens and permanent residents. Dr. Holt anticipates that we would 
be exporting about three times as many jobs of U.S. citizens and 
permanent residents as we would farm jobs filled by aliens if we 
restrict access to alien agricultural workers. Not only would the 
volume of U.S. agricultural production be reduced, but the U.S. would 
be substantially more dependent on foreign suppliers for food. I 
believe that substantial reliance on foreign countries to feed us 
creates a national security issue for America.
    While agriculture confronts the challenges of the proposed 
immigration reform legislation that we have discussed today, growers in 
many parts of the country have faced or now face shortages of farm 
workers. Growers in Yuma, Arizona, central California, Oregon, 
Washington, Florida, New York and many other states cannot find 
sufficient labor to produce or harvest crops and tend livestock. We 
truly are facing a ``perfect storm'' of labor shortages. We lack a 
sufficient number of workers in many areas and clearly lack a 
sufficient legal workforce.
    In conclusion, I want to thank again the Committee for allowing me 
to share my views. On behalf of my business and the vast number of 
American farmers whose views I have shared with you today, I urge 
Congress to pass comprehensive immigration reform this year. 
Agriculture has been actively encouraging Congress for the past ten 
years to fix the broken immigration system and provide our vital 
industry a means to obtain a legal workforce. We cannot wait another 
year. Thank you.
                                 ______
                                 
    Chairman McKeon. Thank you very much.
    Mr. Martin?

STATEMENT OF JACK MARTIN, SPECIAL PROJECTS DIRECTOR, FEDERATION 
                FOR AMERICAN IMMIGRATION REFORM

    Mr. Jack Martin. Mr. Chairman, Mr. Ranking Minority Member, 
members of the committee, I appreciate this opportunity to 
testify on behalf of the 200,000 members and activists of the 
Federation for American Immigration Reform. We are concerned 
about temporary worker visas, as currently authorized and 
administered, and in particular the proposed expansion of those 
visa programs contemplated by legislation, adopted by the 
Senate in May.
    I know that my testimony will run longer than 5 minutes. I 
would appreciate it if my written testimony were included in 
the record.
    In summary, I would note that at the current debate with 
regard to legislation on national security and border security 
between the Senate and the House of Representatives, that the 
House legislation does not directly address the issue of 
temporary workers. But, of course, the Senate legislation does, 
and therefore I find it entirely appropriate that the House 
revisit this issue of temporary workers with the view in mind 
toward reconciling differences with the Senate approach.
    First of all, I would note that there has been a tremendous 
increase in the issuance of temporary worker visas into the 
United States, as may be seen on the chart that I have included 
in my testimony. The increase between 2004, from 1995, is more 
than two and a half times. In 1995, it was more than double the 
number of temporary workers admitted in 1985.
    This tremendous expansion in temporary workers authorized 
by our immigration law is vastly in excess of the expansion of 
the workforce and therefore is definitely having an impact on 
job opportunities for American workers.
    Second, I will discuss briefly why this has an impact on 
American workers. Third, I would point out that in this 
scenario of impact on American workers we are looking at a very 
significant further increase if the provisions adopted by the 
Senate bill should happen to go in to force.
    And, finally, I would like to share with you a number of 
recommendations of the Federation for American Immigration 
Reform for reforms in temporary worker programs.
    First of all, I would note that this enormous increase in 
temporary workers in the United States leaves in the United 
States at the present time, according to estimates put out by 
the Department of Homeland Security, roughly 1.2 million 
temporary workers at any time in the United States. This is in 
addition to illegal workers who are also working in many of the 
same jobs in which legal temporary workers are working.
    Turning to the harmful effects of temporary workers, I 
would point out articles that recently appeared in the major 
media. For example, in the Washington Post, on July 10, they 
reported surveys of wages paid in the United States in various 
categories. What they found is that there is a widening wage 
gap and that the increasing number of foreign workers in the 
workforce is one of the components that explains this widening 
wage gap between the well off in our society, the well paid and 
those who are working in the lowest paid jobs in the country.
    The Congressional Budget Office noted in November of 2005 
that, ``Although the impact of an influx of foreign-born 
workers on the earnings of native-born workers is difficult to 
quantify, the presence of an increasing number of immigrant 
workers clearly reduces overall earnings growth.''
    A teamster's local spokesman in Hayward, California was 
reported in the Contra Costa Times just this week as saying, 
``In our struggle to get higher wages for our employees, our 
problem is probably magnified in occupations where there is an 
immigration population workforce. It is particularly a problem 
where there are undocumented workers in those occupations. But, 
in addition, where there are temporary workers, it will have 
the same effect as undocumented workers, particularly if a 
program is adopted that would convert undocumented workers into 
legal, temporary workers.''
    Basically, we are also facing a pincer squeeze between 
offshoring of U.S. jobs and importing foreign workers.
    And, finally, in summary, I would say that this problem is 
going to be aggravated if the enormous increases in temporary 
workers, which would more than double temporary workers in the 
next 6 years, proposed by the Senate is adopted. And if the 
Congress should return to legislation similar to bills already 
proposed by members on both sides of the aisle, the Federation 
for American Immigration Reform would be pleased to work with 
Members of the Congress.
    [The prepared statement of Mr. Jack Martin follows:]

Prepared Statement of Jack Martin, Special Project Director, Federation 
                    for American Immigration Reform

    Mr. Chairman, Ranking Minority Member and members of the committee, 
on behalf of the more than 200,000 members and activists of the 
Federation for American Immigration Reform (FAIR), thank you for this 
opportunity to share with you our concerns about temporary worker visas 
as currently authorized and administered and about the proposed 
expansion of those visa programs contemplated by S. 2611.
    I am Jack Martin, FAIR's special projects director. FAIR is a 
national, non-profit public interest organization working to end 
illegal immigration, to restore moderate legal immigration and to 
reform our immigration laws to bring them into accord with long-tem 
national interests.
    First, I would direct your attention to the fact that temporary 
worker visas have been enormously increased in recent years and the 
fact that those increases will continue if nothing is done to limit 
them. Second, I will describe why the large-scale admission of foreign 
workers as currently authorized and with currently inadequate oversight 
is harmful to American workers. Third, adding insult to injury, the 
current harmful situation would be made even more of a threat to the 
American worker if the provisions of S.2611 were adopted. Finally, I 
would like to share with you a series of recommendations that we think 
are essential to bringing foreign worker programs into accord with the 
nation's long-term interests.
Background: Enormous Increases in Recent Years
    In fiscal year 2004 the federal government recorded more than 1.3 
million entries of foreigners with visas that allowed them to work in 
the United States. This was two-and-one-half times as many entries as 
in 1995. The 1995 entries more than doubled the number of work-related 
entries recorded in 1985.1 So, it is clear that there is an ongoing 
very large expansion of foreign temporary workers in the U.S. workforce 
who legally have been admitted into the country.
    Temporary foreign workers and trainees (H visas) numbered 74,869 in 
FY-85. They rose to 152,460 in FY-95 and to 506,337 in FY-04. Those 
represented increases of 104% and 232% respectively--overall a 576% 
increase.
    Intra-company transfer entries (L visas) numbered 65,349 in FY-85. 
They rose to 112,124 in FY-95 and to 314,484 in FY-04. Those 
represented increases of 72% and 181% respectively--overall a 381% 
increase.
    Exchange visitor entries (J visas), which allow temporary 
employment and are increasingly used for workers who shuttle between 
summer season and winter season jobs, numbered 110,942 in FY-85. They 
rose to 201, 095 (81%) in FY-95 and to 321,975 (60%) in FY-04--overall 
a 190% increase.
    Those were the only three programs that existed in 1985 for foreign 
nonimmigrant workers. Ten years later those three programs had been 
augmented by several additional programs created in 1990 to provide 
visas for workers of ``extraordinary ability,'' athletes, artists, 
religious workers, NAFTA treaty workers, etc. These additional 
categories accounted in FY-95 for an additional 68,204 entries, and by 
FY-04 these programs accounted for 178,044 entries, an increase of 
161%.
    There are annual limits for some of these temporary worker 
programs, i.e., H-1B professional workers (65,000) and H-2B unskilled 
workers (66,000). However, the H-1B visa category allows workers 
without limitation to enter outside the limit if they are working for 
universities, or for a non-profit organization or a governmental 
research center. A further exemption exists for aliens who have earned 
an advanced degree from a U.S. school--up to an additional 20,000 
workers. H-2B unskilled workers who had received visas in prior years 
were also exempted from the ceiling by a provision proposed by Sen. 
Mikulski that was enacted this year.
    Because of the exemption from limits for some H-visa temporary 
workers and the absence of limits on other categories of temporary 
workers, it may be assumed that admission of foreign workers will 
continue its rapid escalation without changes in the law. In addition, 
the limit on the entry of Mexican professionals under the NAFTA treaty 
ended in 2004, and it is likely that a surge of entries under that 
provision will occur. In FY-04, only 2,100 of the 66,200 entries were 
by Mexicans, with the rest by Canadians. With the limit on Mexican 
entries now expired, entries from that country could surge to the 
Canadian level or still higher.
    Some of the employment categories for nonimmigrant workers allow 
the worker to stay for extended periods of time, e.g., H-1B workers for 
up to 6 years and intra-company transferees for up to 5-7 years. Other 
workers may enter for periods of less than one year. The Office of 
Immigration Statistics in the Department of Homeland Statistics (DHS) 
estimated the number of the temporary workers on average during 2004 at 
more than 1.5 million persons.2 Based on 2004 admission records, about 
20% of that number is likely to be accompanying family members, so the 
number of workers would be about 1.2 million, although the OIS cautions 
that its estimate is probably understated--in effect they acknowledge 
that their records do not allow them to know how many temporary foreign 
workers there are in the country. Thus, about one percent of the entire 
civilian labor force is filled with legally admitted foreign workers. 
While the number of foreign-worker admissions has increased by 426% 
since 1985, the civilian workforce has increased by about 29%.
    These estimates do not include the illegal alien population, which 
we estimate to be between 11 and 13 million persons, about 7.2 million 
of whom are in the workforce according to a Pew Hispanic Center 
estimate.3 That represents about an additional 5 percent of the 
workforce.
Large-Scale Admission of Foreign Workers is Harmful to American Workers
    What is the impact of the rising influx of foreign workers on U.S. 
workers? The Washington Post reported on July 10 on the national trend 
of a widening wage gap which contributes to growing income inequality 
in our nation.4 The report noted that immigration is a factor 
contributing to this phenomenon, especially for the country's low-wage 
workers. Of course, it is not just legal and illegal immigrants that 
compete for jobs and contribute to the pool of job applicants available 
to employers, but foreign nonimmigrant workers as well.
    Just as the massive influx of illegal workers has depressed wages 
in regions and industries where large numbers of those workers are 
employed, so to is the current flow of legal foreign temporary workers 
already at a level where they too can affect overall wage conditions. 
As the Congressional Budget Office noted in a recent report, ``Although 
the impact of an influx of foreign-born workers on the earnings of 
native-born workers is difficult to quantify, the presence of an 
increasing number of immigrant workers clearly reduces overall earnings 
growth.''5
    A similar observation was made recently by a Teamsters Local 
spokesman in Hayward, California, ``In our struggle to get higher wages 
for employees, our problem is probably magnified in occupations where 
there is an immigrant population work force. It is particularly a 
problem when there are undocumented workers in those occupations.''6 
This observation was buttressed by a study by the Contra Costa Times. 
It reported that using occupations identified by the Pew Hispanic 
Center as having the largest share of foreign-born Latinos, it found 
that between 2001 and 2005 the area's average wage in those occupations 
had fallen from 22 percent below the average wage to 27 percent below 
the average wage.7
The Pincer Squeeze
    The American public has become painfully aware of the fact that 
workforce opportunities are increasingly constricted not just by 
competition from the increase in both foreign legal and illegal 
workers, but also by the export overseas, i.e., ``outsourcing,'' of a 
rapidly escalating number of jobs previously done at home. The American 
worker has to contend not only with the jobs exported abroad but also 
with foreign workers imported into the country--or not kept out of the 
country--who are taking American jobs.
    This pincer squeeze may benefit American employers who strive to 
hold down labor costs as they attempt to maximize profits and justify 
multi-million dollar bonuses, but it is not appreciated by the American 
worker who finds jobs rebuilding New Orleans--his home city--denied to 
him because they are filled by foreign workers. It is not appreciated 
by unemployed high-tech workers who have been unable to find permanent 
jobs in their professional field since being laid off several years ago 
by high-tech firms, even though the employers have continued to hire 
tens of thousands of foreign high-tech workers since then. Those 
American workers wonder why foreign temporary workers are needed when 
highly-skilled American workers are laid off.
L-1 Visas
    There is evidence that the L-1 visa is being used as a means to get 
around the H-1B numerical limit. Because L-1 visas have no numerical 
limit, and because there is no prevailing wage test for these visas, 
they offer a means to a company headquartered abroad or with foreign 
operations to circumvent the conditions in the H-1B visa program to 
protect American workers from unfair foreign competition.8 According to 
the DHS Office of Inspector General, ``...the [approval criteria] is so 
broadly defined that adjudicators believe they have little choice but 
to approve almost all petitions.''9
H-1B Visas
    While U.S. employers argue that the H-1B program is essential to 
their competitiveness by allowing them to hire the ``best and 
brightest'' from wherever, their practices belie this claim. If 
employers were truly hiring the ``best and brightest,'' they would be 
sponsoring them for immigrant visas rather than letting them go. In FY-
05, there were only about 19,500 professionals foreign workers holding 
advanced degrees--out of the hundreds of thousands currently working in 
the country--who changed status to permanent resident through 
sponsorship by an employer. It appears that U.S. employers are content 
to discard their supposed ``best and brightest'' foreign workers and 
hire new foreign workers at lower starting wages. Further, a large 
share of H-1B's go to consulting companies, e.g. Tata, Infosys, HCL, 
that operate as ``body shops'' using the visas to bring in people from 
overseas and then rent them out to companies in the US as some sort of 
commodity.
    The only semblance of protection for American workers in the H-1B 
program is a requirement that employers pay the prevailing wage to 
their foreign workers. However, a recent study found that the 
Department of Labor (DoL) was approving Labor Condition Applications 
(LCAs) even though the wage offers were below the prevailing wage. In 
addition, according to the Programmers Guild, DoL uses as a standard 
for determining the prevailing wage the 17th percentile of the average 
U.S. worker. It is obvious that such a standard allows employers to use 
the visa program as a way to hire foreign workers at lower wages than 
American workers.10 The Programmer's Guild has assembled recent 
evidence of discrimination against U.S. high-tech workers by about 
employers who advertise jobs as ``H-1B only.''11
H-2A Visas
    The widespread hiring of illegal alien workers in seasonal 
agriculture rather than using existing programs for temporary workers 
(H-2A visas) is not because those visas are limited. They are 
unlimited. The reason is that the employers are able to evade the 
protections in the visa program for both U.S. workers and for the 
foreign temporary workers. While it is understandable that agricultural 
producers want to minimize their labor costs, it is unconscionable to 
continue to permit the conditions that have driven down real wages 
today in seasonal agricultural labor to less that they were decades 
ago. It is not fair to U.S. workers including those who are legal 
residents of our country.
J-Visas
    The exchange visitor program (J visas) has morphed into a program 
very different from what was intended when it was created. It was 
designed to provide foreign youth the opportunity to come here on 
vacation and work temporarily to defray the expenses of their travel 
and living costs. Some might work as au pairs in a family while others 
worked in resorts, but the idea was that these would be temporary 
seasonal jobs after which these visitors would return home. Instead, 
there is now a large foreign workforce using these visas to work here 
year-round moving from seasonal summer job to seasonal winter job.
Treaty Visas (TN)
    The NAFTA Treaty provisions for mobility of foreign professional 
workers might make sense among countries of comparable economic 
development, such and the U.S. and Canada, but it makes little sense 
between the U.S. and Mexico. TN visas that were capped at a low level 
during the first 10 years after adoption of NAFTA became unlimited in 
2004. We do not yet have evidence that this will lead to a large 
migration of Mexican professionals to the United States, but we do not 
need an infusion of Mexican professionals coming here to gain a larger 
income, and Mexico will not benefit from losing its professionals.
Adding Insult to Injury--S. 2611
    As if there were not already enough foreign competition for U.S. 
jobs, the Bush administration has proposed and the Senate has passed 
legislation that would further increase the rate at which foreign 
temporary workers taking U.S. jobs. S.2611 would create a new temporary 
worker category (H-2C visas) that would annually admit an additional 
200,000 foreign unskilled workers for stays up to 6 years. It would 
increase the ceiling for professional foreign workers (H-1B visas) by 
50,000 per year and expand it much further both by broadening the 
exemption from the ceiling to cover any foreigner with a university 
degree and by providing for a potential annual increase in the ceiling 
by 20%. Increasing anything by 20% per year allows for a doubling in 
size in less than 4 years and an increase by ten-fold in less than 13 
years.
    The Senate bill would also expand the criteria for issuing visas 
for foreign athletes (P visas) and allow indefinite stays for intra-
company foreign workers (L visas) if an employer has sponsored the 
worker for immigrant status. Finally, the Senate bill would increase 
work opportunities for foreign students studying in the United States 
and for up to two years after graduating, and it would expand the NAFTA 
categories under which workers from neighboring countries are allowed 
to take U.S. jobs without limit.
    Just the increased H-1B ceiling and the new H-2C visa provisions 
alone, because they allow for stays of up to 6 years, could result in a 
foreign workforce that in six years could grow to more than 2.8 million 
workers--more than double the 2004 level. In effect, even if there 
continued to be an H-1B visa ceiling, which was established to limit 
the impact of foreign workers on job opportunities for U.S. 
professionals, it would become meaningless.
FAIR's Perpsective and Recommendations
    FAIR believes that foreign temporary worker programs make sense 
only if they are carefully circumscribed to prevent their use by 
employers as a means to undercut wages and working conditions for 
American workers. In general, we believe that with a population that 
will reach 300 million this year the talent and skills to meet any job 
requirement can be found or trained within our own labor force without 
importing foreign workers.
    We accept that there is a legitimate role for intra-company 
exchanges in a global economy, but those foreign assignments should be 
only for management personnel, not for run-of-the-mill employees who 
could be hired from within the U.S. workforce. There is substantial 
indication that U.S. and foreign companies are using the L-visa program 
to train foreign workers in the United States as part of a strategy to 
use them abroad in order to facilitate the off-shoring of U.S. jobs.12 
We do not believe that facilitating the trend in off-shoring is 
essential to U.S. competitiveness. We note the effort of some Members 
of Congress to correct abuses in the L-visa program--for example 
H.R.3322 and H.R. 4378 introduced last year--and the former also aimed 
at correcting H-1B abuse.
Recommendations
     Temporary foreign workers should be admitted only to take 
temporary jobs. Visas should not allow entry for multi-year periods--
those jobs are not temporary jobs, and they should be reserved for U.S. 
workers. Temporary foreign workers should not be allowed to bring 
accompanying family members, thereby underscoring their temporary 
nature. Exceptions to this principle are appropriate for the H-1B 
program, because it is used as a precursor for permanent residence, and 
for intra-company transfers, because those jobs in theory are generated 
by international investment.
     The test of a need for temporary foreign workers should be 
based on market forces. Only if the wages offered are rising 
significantly faster than inflation, can it be assumed that a shortage 
exists. Rising wages are the signal that employers are attempting to 
encourage more Americans to enter that job field.
     Temporary foreign workers should never be admitted during 
a period when similarly qualified U.S. workers are being laid off, as 
was done during the high-tech melt-down and is currently occurring in 
the automobile industry. The H-1B visa program as well as other 
temporary worker provisions should be amended to tie admissions to 
changing employment conditions. As long as employers continue to be 
able to substitute foreign workers willing to work for lower wages than 
comparable American workers, there will be an incentive for them to 
discriminate in favor of the lower wage worker.
     Numerous studies have documented that the ``comparable 
wage'' criteria in the H-1B visa program is violated on a wide-scale 
basis.13 This is possible because of the lack of any systematic follow-
up monitoring by the Department of Labor to assure that employers are 
abiding by the terms of the Labor Certification Application that led to 
the issuance of the visa. Employers of temporary foreign workers should 
be required to submit periodic reports to the DoL that identify the 
wages paid to such workers as they are reported to the SSA and to the 
IRS. Those reports should then be compared by the DoL with the LCA to 
assure that employers are in compliance with the approved employment 
conditions.
     Temporary foreign workers should be laid off before U.S. 
workers are laid off during any company down-sizing. The foreign 
workers should not be available to employers to use as a means to lower 
U.S. wages and working conditions. While it is possible that reforms 
might lead to some employers off-shoring jobs, the U.S. should compete 
internationally on the basis of productivity rather than depressing 
wages in the United States towards Third-World levels.
     The number of unskilled foreign workers--both legal and 
illegal--should be decreased to create greater opportunity for our 
unemployed workers to find jobs that pay a living wage. The large 
number of unskilled, unemployed Americans belies the need to continue 
the increase in admission of foreign unskilled workers, let alone 
further increase their numbers as proposed in S.2611. The shrinking 
opportunities for American high-school drop outs increasingly consign 
them to permanent under-class status.
     The Intra-company transfer program (L visas) should be 
restricted to only foreign management personnel. Other workers that 
they wish to train or serve as trainers in this country should be 
admitted only as temporary workers, i.e., for periods of less than a 
year rather than the current 5 year period that demonstrates that the 
position is not temporary.
     The religious worker program is riddled with fraud, as 
documented in a recent report by the DHS Office of the Inspector 
General.14 Not only is there widespread use of false documents to 
obtain R visas, the loophole is being used by persons with potential 
links to terrorist organizations. The federal government should not be 
required to judge whether persons calling themselves religious workers 
are bona fide members of a legitimate religious organization. A hands-
off approach would result in a natural test based on whether a 
religious movement is able to grow from within its domestic supporters.
     The NAFTA Treaty has opened a door for an unlimited flow 
of Mexican professionals to enter the United States in search of 
improved working conditions. This is in the interest of neither 
American professionals, whose earnings could be diminished by this 
flow, nor the Mexican people, who can be stripped of important human 
resources in their efforts to develop their country. Congress should 
call on the administration to negotiate a modification to the treaty 
that would establish that the reciprocity provision be interpreted to 
limit the number of visas issued to nationals of any of the parties to 
no more than the number issued reciprocally to Americans applying to 
work in that country.
     The creation of a plethora of new special visa categories 
in 1990 was, in effect, simply a means to increase the number of 
foreign workers taking U.S. jobs. All of the additional categories, 
except for visas created by treaty, should be abolished, and the 
foreign applicants for U.S. jobs should be required to enter the 
country with either an intra-company transfer visa (L)--narrowed to 
managerial personnel, or a temporary worker visa (H)--with a market-
based test, or an exchange visitor visa (J)--limited in duration and 
non-renewable.
    After all, if visas for fashion models can be accommodated within 
the H-visa category, there is no reason a special visa category is 
required for professional athletes or any other specialized workers.
Conclusion
    It will be clear from the above analysis that FAIR views the 
various current visa programs that allow aliens to work temporarily in 
the United States as excessive, poorly conceived, subject to abuse, and 
in many ways unfair to the American worker. It should also be clear 
that FAIR finds the expansion of foreign temporary worker programs 
provided for in S.2611 unwarranted, and injurious to the American 
workforce.
    It must be noted H.R.4437, passed by the House last December, while 
essential in gaining control over the enormous flood of illegal 
immigrants entering the U.S. workforce, does not attempt to deal with 
the reforms to foreign worker programs that we have identified. 
Therefore, while we commend this committee for focusing on the 
potential harmful effects of S.2611, if its provisions were enacted, we 
call on the House of Representatives at an early opportunity to take up 
the issue of reforming the existing temporary foreign worker programs 
to provide better safeguards to both American workers and foreign 
temporary workers. FAIR would welcome the opportunity to work with 
Congress in this process.

                                ENDNOTES

    \1\ These visa admissions data and those following are compiled 
from the Immigration Statistical Yearbook annual reports of the 
Immigration and Naturalization Service and currently by the Department 
of Homeland Security.
    \2\ Grieco, Elizabeth M., ``Estimates of the Nonimmigrant 
Population in the United States: 2004,'' Office of Immigration 
Statistics, DHS, June 2006.
    \3\ Passel, Jeffrey S., ``The Size and Characteristics of the 
Unauthorized Migrant Population in the U.S.: Estimates Based on the 
March 2005 Current Population Survey,'' Pew Hispanic Center, March 
2006.
    \4\ ``Well-Paid Benefit most As Economy Flourishes,'' Washington 
Post, July 10, 2006 (A01).
    \5\ ``The Role of Immigrants in the U.S. Labor Market,'' 
Congressional Budget Office, November 2005.
    \6\ ``Analysis finds that industries with a large number of 
foreign-born workers experience depressed wages,'' Contra Costa Times, 
July 16, 2006.
    \7\ Ibid.
    \8\ Wasem, Ruth E., ``Immigration Policy for Intracompany Transfers 
(L Visas): Issues and Legislation, Congressional research Service 
(RS21543), June 12, 2003.
    \9\ ``Review of Vulnerabilities and Potential Abuses of the L-1 
Visa Program,'' (OIG-06-22), DHS Office of Inspector General, January 
2006.
    \10\ See ``The H-1B Prevailing Wage is Substantially Below the 
Median Wage of U.S. Workers,'' Programmer's Guild website at http://
www.prweb.com/releases/2006/7/prweb407549.htm, consulted July 13, 2006.
    \11\ ``Programmers file federal complaints over `H-1B only' ads,'' 
The Computer World, June 19, 2006.
    \12\ Brian Grow, ``A Mainframe-Size Visa Loophole,'' Business Week, 
March 6, 2003.
    \13\ The State of Asian Pacific America, Paul Ong, LEAP Asian 
Pacific American Public Policy Institute and UCLA Asian American 
Studies Center, 1994, pp. 179-180; Balancing Interests: Rethinking U.S. 
Selection of Skilled Immigrants, Stephen Yale-Loehr and Demetrios 
Papademetriou, Carnegie Endowment for International Peace, 1996; 
Debunking the Myth of a Desperate Software Labor Shortage, Norm 
Matloff, testimony to the U.S. House Judiciary Committee, Subcommittee 
on Immigration, April 21, 1998 (as updated, September 10, 2002); 
Characteristics of Specialty Occupation Workers (H-1B), Immigration and 
Naturalization Service, July 2002; Building a Workforce for the 
Information Economy, National Research Council, 2001; The State of 
Working America 2000/2001, Economic Policy Institute, Cornell 
University Press, January 2001.
    \14\ ``Fraud Found in Visas for Churches,'' The Boston Globe, July 
11, 2006.
                                 ______
                                 
    Chairman McKeon. Thank you very much.
    Ms. Smith?

   STATEMENT OF REBECCA SMITH, COORDINATOR, IMMIGRANT WORKER 
            PROJECT, NATIONAL EMPLOYMENT LAW PROJECT

    Ms. Smith. Good morning, and thank you for this opportunity 
to testify on behalf of the National Employment Law Project. We 
are a nonprofit advocacy organization, and we work with groups 
across the country on issues of concern to low-wage workers.
    Because we work with all kinds of workers in all kinds of 
industries and immigration statuses, I would like to talk about 
protection of the wages and working conditions of American 
workers, broadly defined, protection of the wages and working 
conditions of all those at work in America.
    I would like to look at this through the lens of wage and 
hour law enforcement for low-wage workers and then talk a bit 
about immigrant workers and guest workers and their special 
vulnerabilities and then suggest ways in which we might be able 
to do a better job for workers in our country and level the 
playing field for honest employers and reduce the incentives 
for exploitation.
    We have 7.5 million workers in our country who work full-
time but earn poverty-level or less than poverty-level wages. 
Many of the industries in which they work are frequent 
violators of wage and hour laws. Government studies show 
between 50 and 100 percent of employers in garment, in nursing 
homes and in the poultry sectors in violation of basic wage and 
hour laws.
    In our work with community groups and lawyers who represent 
low-wage workers, we hear about straight up violations of 
minimum wage laws, and we also hear about other processes by 
which employers misclassify workers as independent contractors 
or pass their labor responsibilities to a chain of 
subcontractors.
    These violations have a huge impact on the low-wage 
workforce to the tune of about $19 billion per year. But 
government and other studies also show they have an impact on 
revenue--between $3 billion and $4.7 billion a year in lost 
taxes because of misclassification of workers as independent 
contractors alone.
    Enforcement of wage and hour laws has been on a 30-year 
decline in the number of investigators at the Department of 
Labor, Wage and Hour Division, and the number of compliance 
actions.
    In the years 2000 to 2004, the number of compliance 
investigators at DOL went from 946 to 788, at a time when the 
number of employers in the country increased from 7.8 million 
to 8.3 million. Clearly, we can do a better job at enforcement 
of wage and hour rights and all sorts of basic labor rights for 
low-wage workers.
    Guest worker programs, in particular, are ripe for 
violations of the law. I am most familiar with temporary worker 
programs for low-wage workers, H-2B and H-2A. Particularly in 
H-2B, recruitment of U.S. workers is so casual that employers 
who wish to bypass a local workforce can do so. Once they have 
done that, guest workers who sometimes enter the country after 
mortgaging their very homes for the privilege of working in the 
United States are also subject to labor law violations.
    And because both their job and their ability to remain in 
the United States is tied to an employer, they are especially 
vulnerable to exploitation.
    What are some things that we can do? An overriding 
principle I think must be that American workers are best 
protected when all workers in America are protected. The first 
level, I believe, and the most important thing that this body 
can do is to create a legalization program so that the workers 
who are at work building our economy are released from fear and 
can assert their own labor rights.
    But beyond that, we need more enforcement. We need more 
personnel and more focus on industries that are known 
violators. We have to look at the mechanisms that protect 
workers such as whistleblower protections, access to legal 
counsel, the ability to bring their own claims, and I believe 
that enforcement must be immigration status blind. Employers 
must be sanctioned for violating core labor rights no matter 
what the status of workers at work on their worksite in order 
to reduce the incentive to exploit workers.
    For guest workers, we need to make sure we have an adequate 
labor market test. We need to make sure that wages are at a 
level to avoid wage depression, and we need enforcement, 
enforcement, enforcement, coupled with portability.
    I also believe that we need to work on family unity 
provisions for guest workers so as a reward for building our 
economy these workers are allowed to step forward and become 
citizens of our United States.
    These are some suggestions that would provide a measure of 
justice to low-wage workers who build our economy and a level 
playing field for the honest employers, the majority of 
employers who abide by our labor laws.
    Thanks for the opportunity to testify.
    [The prepared statement of Ms. Smith follows:]

  Prepared Statement of Rebecca Smith, Coordinator, Immigrant Worker 
                Project, National Employment Law Project

    On behalf of the National Employment Law Project (NELP), I thank 
the Committee for the opportunity to submit testimony on immigration 
and labor policy. National Employment Law Project is a nonprofit law 
and policy organization dedicated to research and advocacy on issues of 
concern to low wage, immigrant and jobless workers. These include 
automobile industry workers in the Midwest currently suffering job 
losses, those displaced from their jobs due to Hurricane Katrina, home 
health care workers and grocery delivery workers not paid minimum 
wages, and the some six million undocumented workers laboring at the 
lowest-paid, highest-risk jobs in our economy. For over 30 years, NELP 
has served as a leading voice for low-wage workers, with an emphasis on 
policies and practices that defend and expand baseline workplace 
rights.
Summary of Testimony: Immigration Reform and Labor Law
    Across the country, low-wage U.S. citizens and immigrant workers 
are all too frequently paid less than the minimum wage, denied overtime 
pay, and retaliated against for speaking up about it. In particular, 
immigrant workers in the United States work exceedingly hard, often in 
situations of wage exploitation, discrimination and exposure to life-
threatening dangers on the job. Because of their recent arrival in the 
United States and immigration status, undocumented immigrants can face 
staggering levels of vulnerability to exploitation by unscrupulous 
employers, and nearly insurmountable barriers to enforcing rights. 
Guestworker programs offer additional avenues for abusive employers, by 
their ability to undercut wage and working conditions for workers 
already present in the country, and the opportunity for abuse of 
guestworkers themselves, from extortionate recruiting fees, to wage 
abuses, to unaddressed workplace injuries and blacklisting.
    Today's Committee Hearing is a welcome opportunity to discuss ways 
in which America can better protect the labor rights of all those who 
work to build our economy. These protections must begin with beefed-up 
enforcement of existing labor standards that protect all workers' most 
basic rights to minimum wage and overtime pay. Further, we must look at 
the mechanisms that protect workers, such as ``whistleblower'' 
protections, access to legal counsel and to enforcement of their own 
rights.
    For currently undocumented immigrant workers, the biggest reform 
that will protect labor rights is to eradicate the fear of retaliation 
that comes with their status. Only a legalization program will do this. 
Next, we must guarantee that core labor standards apply to all 
workplaces, no matter what the immigration status of the workers 
employed there. By so doing, we can reduce incentives for unscrupulous 
employers to hire and exploit vulnerable guestworkers and undocumented 
workers.
    Finally, a guestworker program should not be the centerpiece of any 
immigration reform proposal, and additional policies and resources must 
be devoted to ensuring that they are not used to undermine labor 
standards at home, while protecting the basic human rights and labor 
rights of guestworkers themselves.
Problem: Inadequate Enforcement of Labor Rights of Low-Wage Workers
    In 2003, 7.5 million individuals in America were classified as 
``working poor,'' working at least 27 hours per week, but still making 
below the federal poverty threshold. Three in five of these workers 
were employed full time, many of them in service industries, natural 
resources and construction.\1\ Two-thirds of the undocumented 
workforce, or four million workers, are low-wage workers making less 
than twice the minimum wage.\2\ Many employers of low-wage workers, 
especially in industries in which immigrant workers are 
overrepresented, are also frequent violators of wage and hour laws. 
Recent government studies find as many as 50-100% of garment, nursing 
home, and poultry employers in violation of the basic minimum wage and 
overtime protections of the Fair Labor Standards Act.\3\ The Bureau of 
Labor Statistics found that 2.2 million hourly workers were paid at or 
below the federal minimum wage in 2002.\4\
    Enforcement of the wage and hour rights of low-wage workers has not 
kept up with the frequency of violations. Between 1975 and 2004:
     The number of federal DOL Wage and Hour investigators 
declined by 14%.
     The number of compliance actions completed declined by 
36%. This is a rough indicator of the number of establishments 
investigated each year, and includes a range of actions taken by the 
U.S. Department of Labor--from full investigations into a workplace 
(often covering all workers) that result in a judgment against the 
employer, to individual complaints where the Department settles with 
the employer, to investigations that uncover no violations.
     The total amount of back wages assessed by the Department 
of Labor grew by 7%, after adjusting for inflation. ``Back wages'' are 
the wages that the employer owes the worker--for example, as a result 
of paying less than the legally-required minimum wage.
     The number of workers due to receive back wages declined 
by 24%.\5\
    In the period between 2000 and 2004, the number of Department of 
Labor Wage and Hour compliance investigators shrank from 946 to 788 
nationwide, while the number of businesses in the United States grew 
from 7.8 million to 8.3 million. In that same period, the number of 
compliance actions completed by the Department of Labor went down 
15%.\6\
    In addition, employers all too frequently pass off their workplace 
responsibilities to subcontractors or misclassify workers as 
independent contractors. The laws enacted to protect workers' right to 
be paid for their labor were crafted with an understanding of the need 
to hold liable all of those who employ workers, regardless of certain 
employers' attempts to disclaim liability; \7\ but sometimes companies 
are successful in structuring their relationship with low-wage workers 
to evade liability for gross violations of wage and hour laws. For 
example, a federal district court in Florida held that large timber 
companies did not employ and thus were not responsible for egregious 
wage and hour violations experienced by the H-2B guestworkers who 
planted seedlings developed by the timber companies' laboratories and 
greenhouses on the timber companies' land, according to the timber 
companies' planting schedule and following the timber companies' 
extremely precise planting guidelines.\8\
    In the area of workers' freedom of association, many workers who 
would choose to be represented by a union do not have that opportunity. 
While most workers would vote for union representation if an election 
was held at their worksite, employers often pressure workers not to 
join a union. A recent study shows that about thirty per cent of 
employers fire pro-union employees.\9\
    All totaled, labor law violations have a huge impact on the low-
wage workforce's ability to get by: The Employer Policy Foundation 
estimated that workers would receive an additional $19 billion annually 
if employers obeyed workplace laws.\10\ These violations also have an 
impact on revenue: the General Accounting Office estimated that 
misclassification of employees as independent contractors alone reduces 
federal income tax up to $4.7 billion.\11\ Coopers & Lybrand (now 
PriceWaterhouse Coopers) estimated in 1994 that proper classification 
of workers would increase tax receipts by $34.7 billion over the period 
1996-2004.\12\ A government-sponsored national review of 
misclassification of workers in the context of the unemployment 
insurance program estimated losses at $436 million annually in 
underreported wages.\13\
    In particular, undocumented workers, who form a large part of the 
low-wage workforce in the United States, are vulnerable to workplace 
abuse, discrimination and exploitation, as well as the fear of being 
turned over to immigration authorities.\14\ These workers' ability to 
exercise freedom of association and to bargain over terms and 
conditions of employment was severely undermined by the U.S. Supreme 
Court's decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 
137 (2002), holding that an undocumented worker fired in ``crude and 
obvious'' violation of the National Labor Relations Act, is nonetheless 
ineligible for a back pay award under the NLRA.\15\
    At a time when the federal minimum wage is at its lowest level in 
51 years, we must do better to protect the most basic minimum wage and 
other labor rights of the lowest-paid workers in our workforce.\16\
Additional Challenges: Guestworker Programs Can Mean an Unfair Deal for 
        U.S. Workers and Foreign Workers Alike.
    The single most important thing that this body can do to protect 
the labor rights of immigrant workers is to adopt a legalization 
program that allows currently undocumented workers to be full 
participants in civil and economic society. Being in legal status would 
allow workers to make claims for compensation for workplace injuries, 
complain about substandard conditions, organize, or simply vote with 
their feet. By contrast with legalization programs, guestworker 
programs present a huge challenge for labor law enforcement.
    The United States long has depended on immigrants to compensate for 
perceived and actual shortfalls in the native-born labor force. Many 
programs have been created over the years in an effort to regulate the 
flow of immigrant labor, most notably the bracero program that brought 
millions of Mexican farm workers to the United States between 1942 and 
1964. More recently, industries in the service and manufacturing 
sectors rely upon immigrant workers who enter the country through both 
temporary and permanent visas.
    Numerous examples of abuses exist under the current programs.\17\ A 
recent example from my home State of Washington illustrates how the 
system works, at its worst, for both US and foreign workers:
    In 2004, workers from Thailand were brought to the Yakima Valley in 
Washington State in 2004 as H2A agricultural workers.\18\ As required 
under the program, the jobs were first announced through the local 
Yakima County Worksource agency, which, according to court documents, 
referred over a thousand farm workers for the some 250 jobs. Workers 
say that they were interviewed and told they had a job, but not told 
when and where to show up for work, so the company was able to claim 
that it did not have enough workers.\19\
    An international subcontractor recruited workers from Thailand as 
H-2A workers. In order to get work, these workers say they incurred 
costs of $10,000--17,000 for transportation, passports, visa fees and 
other fees. If they didn't have the money, the labor contractor was 
only too happy to lend it, often secured by mortgages on the workers' 
homes.\20\
    Once in the U.S., the workers were housed in overcrowded, 
substandard housing, according to their complaint. Deductions from 
wages were made for state and federal income tax--in a state that 
doesn't have an income tax.\21\ In September, a settlement with the 
state required restitution of $230,000 to workers and the state.\22\
    The workers covered by this settlement agreement are among the 
lucky ones. Lucky because both state and federal departments of Labor 
got involved in their dispute. Further lucky because they are now among 
the only H-2A workers in the country covered by a union contract. The 
notoriety of the case and intense efforts by workers and their 
advocates produced a first-ever contract with the United Farm Workers. 
UFW, and its Vietnamese and Thai speaking organizers, now administer a 
contract that covers hundreds of workers in several states and is far 
more protective of workers' rights than the H-2A program provisions 
themselves.\23\
    The H2A program is not the only U.S. guestworker program subject to 
abuse. For example, a number of lawsuits have alleged that recruiters 
require that employees pay large recruitment fees and/or pledge 
collateral with the employer's representatives in order to be hired 
under the H-2B non-agricultural temporary worker program.\24\ A recent 
compilation of the stories of individual guestworkers chronicles 
unredressed workplace complaints, unaddressed workplace injuries and 
retaliation in the forestry industry.\25\ The L-1 intra-company 
transfer visa, and the temporary H-1B and TN visas, all generally 
focused on high-tech workers, draw allegations that they drastically 
lower wages, by ``in-shoring'' technical workers and then sending jobs 
overseas.\26\ These visa programs are generally less protective of both 
US and foreign workers than the H2A program, in that they have less 
regulations about the amount of work offered or wage levels, or of 
transportation and ``recruitment'' fees. None requires that employers 
make as extensive a search for U.S. workers as is required under H-2A.
    Nor is the U.S. the only country to struggle with guestworker 
programs. Recent news reports include allegations of 36,000 Chinese, 
Bangladeshi and other foreign workers employed in Jordan, housed two 
dozen workers in a 20 by 10 foot space and threatened with guns when 
they asked for their minimum wages.\27\ In the United Kingdom, Indian 
workers testify they are ``too frightened to stand up for themselves'' 
are recruited with the promise of good working conditions and housing, 
but are then required to work many more hours, and for less pay, than 
promised.\28\ In Ireland, allegations last year of Turkish construction 
workers employed at slave wages for up to 80 hours per week became a 
national issue.\29\
    Guestworker programs have the potential to undermine labor 
standards for U.S. and foreign workers alike. Specifically, for U.S. 
workers, they have the potential to decrease job availability, since 
labor shortages can be more perceived than real.\30\ In certain labor 
markets and certain geographic locations, they have the potential to 
dilute labor standards.\31\ For the foreign workers, guestworker status 
often results in a system of bondage, where, by law, the workers cannot 
change employers, remedies for labor law violations are limited,\32\ 
and termination of employment subjects them not only to loss of jobs 
but to deportation. Moreover, the H-2A and H-2B programs have produced 
a veritable army of recruiters who profit from selling the right to 
work in the United States to desperate workers.
Solution: Policies That Protect All Workers
    The lessons of low-wage work in the United States, including work 
by U.S. citizens, guestworkers under various programs, and undocumented 
workers, show that comprehensive immigration reform for low-wage 
immigrant workers is inextricably linked to labor rights enforcement 
for all low-wage workers. Comprehensive immigration reform must mean 
comprehensive enforcement of the hard-won labor protections that all 
workers in the United States rely upon, as a matter of law, economics 
and human rights.\33\
    A true legalization program for currently undocumented workers in 
the United States is the first line of protection for workers--a path 
to citizenship and reduction of fear of retaliation will act as a wage-
buoying mechanism. Some additional suggestions for policy makers as you 
look at this area include the following:
    Beefed up labor law enforcement: Workplace enforcement of labor 
standards should be at a level designed to send a message that America 
will not tolerate non-payment and underpayment of wages. This means 
more emphasis on enforcement: more personnel, and more focus on 
industries that are known violators of wage and hour laws, so that at a 
minimum, low-wage workers get the wages that they are entitled to under 
current law.
    Combat independent contractor and subcontracting abuse: Companies 
should not be allowed to evade responsibility by contracting it away to 
labor brokers. This means holding accountable worksite employers who 
use contractors and regulating both domestic and foreign labor 
recruiters themselves.
    An ``immigration status-blind'' enforcement system: Immigration 
status should be entirely irrelevant to whether or not a worker is 
protected by core labor standards, including protection against 
discrimination on the job, access to workers' compensation, and ability 
to exercise freedom of association and bargain collectively. Workplaces 
with immigrant workers should have the same labor protections as those 
with only citizen workers, so that employers are not allowed to misuse 
immigration laws to circumvent their legal obligations.
    All workers should have meaningful access to systems of labor law 
enforcement: This means preserving historic boundaries between labor 
law enforcement and enforcement of immigration law; protecting workers 
who come forward with complaints by granting ``whistleblower'' 
protections; and that all workers, without discrimination, should have 
access to representation by federally-funded legal services programs.
    Firewall between immigration and labor law enforcement. Federal 
agencies in the United States have specifically recognized that the 
failure to ensure equal access to labor law enforcement for 
undocumented migrants has a detrimental impact on all workers, 
nationals and migrants alike. Since the late 1990's U.S. immigration 
authorities have had a policy which gives some protection to workers 
when an employer threatens to turn them into immigration personnel in 
retaliation for workplace complaints.\34\ Unfortunately, incidents of 
retaliation are sometimes overlooked.\35\
    ``Whistleblower'' protections. As noted above, it is all too common 
for employers to misuse immigration status and cause the deportation of 
workers who complain. Measures must be taken to ensure that workers 
with valid claims have the right to be present in the U.S. to present 
them.
    Eligibility for legal help. In 1974, the U.S. Congress passed the 
Legal Services Corporation Act (LSCA), which was designed to provide 
equal access to the civil justice system for people who cannot afford 
lawyers.\36\ Legal Services Corporation programs are prohibited from 
providing legal assistance ``for or on behalf of'' most immigrant 
workers who are not lawful permanent residents.\37\ One of the key 
reasons that working people need access to the civil justice system is 
to enforce their labor rights. As a practical matter, without the means 
to bring suit in court, workers' rights cannot be adequately 
enforced.\38\
Principles for a Guestworker Program
    These same principals of stepped-up enforcement of core labor 
standards, regulation of subcontracting activities and guaranteed 
equality under the law apply equally to workplaces with guestworkers. 
Because of the enormous potential for guestworker programs to be 
misused to bypass an available workforce and to take advantage of the 
lack of freedom of guestworkers themselves, the following is a list of 
additional principles that would need to be a part of guestworker 
program reform designed to protect the labor rights of both American- 
and foreign-born workers.
    Developing a labor market test. The notion of a labor market test 
under current guestworker programs generally means that the employer is 
required to advertise jobs in order to test the availability of U.S. 
workers. As illustrated in the example from Yakima, these efforts can 
be less than good-faith. They should be combined with efforts to 
develop a set of objective labor market indicators that will help 
identify the industries and geographical areas in which there is an 
undersupply of workers.
    Wages and working conditions that avoid depression of wages. While 
most economists agree that the presence of immigrant workers does not 
cause a general depreciation in wages for United States workers, the 
data on the bracero program show wage depression caused by the presence 
of foreign workers from poorer countries who accept lower pay to obtain 
jobs in this country. Therefore, it is necessary to include enhanced 
wage standards in a viable guestworker program.\39\
    Portability. One of the primary problems with guestworker systems 
is that a guestworker's job AND his or her ability to remain in the 
country depend on remaining in the good graces of the employer. This is 
a situation made for employers who would take advantage of workers. 
Along with beefed up enforcement of wage and hour laws, workers must 
have the ability to change jobs in order to equalize bargaining power.
    Regulation of megacontractors and the entities that use them. 
Subcontracting of workplace responsibilities and classifying workers as 
``independent contractors'' are a large and growing problem within the 
United States. The H-2A and H-2B programs have engendered an industry 
of international labor recruiters who profit from selling the right to 
work in the United States. These recruiters must be regulated, but 
experience has shown that they cannot be adequately regulated without 
placing responsibility on the employers who use them. Recruiters should 
be licensed, bonded, required to make written disclosures of terms and 
conditions of employment, and transportation and ``recruitment'' fees 
should be abolished.\40\
    Family Unity. Some principles make sense as a matter of law. Others 
make sense as a matter of economics. Two additional principles make 
sense as a matter of human rights and human dignity. An observer of the 
German guestworker programs once said, ``we wanted guestworkers, but 
they brought us human beings.'' In recognition that guestworkers are 
people with families, they should be allowed to bring their families 
with them as they come to the U.S., and to travel in and out of the 
country. In addition, while some guestworkers would prefer to return 
home after their term of work in the U.S. is over, others put down 
roots and wish to stay. Guestworkers should be provided a path to 
citizenship in exchange for their help in building our economy.
Conclusion
    Protection of the labor rights of low-wage workers, both citizens 
and immigrants, has not been as central to the national debate on 
immigration reform as we believe it should. All too often, the 
immigration debate has been framed in terms of ``us''--U.S. citizens--
against groups of ``them'' that may include lawfully present immigrants 
and undocumented immigrants.
    The foregoing are some suggestions that would provide a measure of 
justice to low-wage workers who cook and clean and build and harvest 
and take care of our children and elders, no matter when or how they 
entered the country, or where they were born. Ultimately, the choices 
about a guestworker program need to be made in consultation with low-
wage worker groups who are most directly affected by the choices that 
you make here, and who have come out in the millions to show their 
support for comprehensive immigration reform in recent months. I thank 
you for the opportunity to share my own thoughts and experiences.

                                ENDNOTES

    \1\ U.S. Bureau of Labor Statistics, A Profile of the Working Poor, 
2003 (Mar. 2005), at http://www.bls.gov/cps/cpswp2003.pdf.
    \2\ Jeffrey S. Passel, Randolph Capps, Michael E. Fix, Undocumented 
Workers, Facts and Figures, Urban Institute (2004), at http://
www.urban.org/url.cfm?ID=1000587&renderforprint=1.
    \3\ (Poultry--100% noncompliance) U.S. Department of Labor, FY 2000 
Poultry Processing Compliance Report (2000); (Garment--50% 
noncompliance) Labor Department: Close to Half of Garment Contractors 
Violating Fair Labor Standards Act, DAILY LAB. REP. (BNA) 87 (May 6, 
1996); (Garment--54% noncompliance) David Weil, Compliance With the 
Minimum Wage: Can Government Make a Difference? at http://
www.soc.duke.edu/sloan--2004/Papers/Weil--Minimum%20Wage%20paper--
May04.pdf. (agriculture--``unacceptable'' levels of noncompliance) U.S. 
Department of Labor, Compliance Highlights 1,3 (Nov. 1999); (nursing 
homes--60% noncompliance), U.S. Department of Labor, Nursing Home 2000 
Compliance Fact Sheet, available at http://www.dol.gov/esa/healthcare/
surveys/printpage--nursing2000.htm. In addition, last year a 
nongovernmental survey of hundreds of New York City restaurants found 
that more than half were violating overtime or minimum wage laws 
Restaurant Opportunities Center of New York and New York City 
Restaurant Industry Coalition, Behind the Kitchen Door: Pervasive 
Inequality in New York City's Thriving Restaurant Industry, Jan. 25, 
2005, at http://www.rocny.org/documents/ROC-NYExecSummary.pdf.
    \4\ See, Workers are Paid at or Below Minimum Wage in 2002, BLS 
Says, 173 Lab.Rel.Rptr. 16, Economic News, (Sept. 1, 2003). Certain 
workers, such as domestic workers and home health care workers subject 
to FLSA's ``companionship exemption,'' are not covered by minimum wage 
at all. See, 29 USC Sec. 213 (a)(15).
    \5\ Annette Bernhardt and Siobh n McGrath, Trends in Wage and Hour 
Enforcement by the U.S. Department of Labor, 1975--2004, Brennan Center 
for Justice (September 2005), at http://www.brennancenter.org/
resources/downloads/Trends%20in%20Wage%20and%20Hour%20 
Enforcement%20Revised.pdf.
    \6\ Data from Brennan Center for Justice.
    \7\ Nationwide Mutual Insurance v. Darden 503 U.S. 318, 326 (1992).
    \8\ Gonzalez-Sanchez, et al. v. International Paper, et al., No. 
4:00cv36/RV/SMN (March 27, 2002). The definitions of the employment 
relationship under the NLRA and the anti-discrimination laws are 
significantly narrower than under the FLSA, thus making it harder for 
workers to enforce their rights under those laws with respect to the 
businesses that benefit from their labor. Recent court opinions 
regarding independent contractor status and joint employment under 
Title VII have applied the restrictive common law approach that has 
been developed under the National Labor Relations Act. See Cilecek v. 
Inova Health System Services, 115 F.3d 256 (4th Cir. 1997); Llampallas 
v. Mini-Circuits Lab., Inc., 163 F.3d 1236 (11th Cir. 1998). See also, 
Caldwell v. Servicemaster Corp., 966 F. Supp. 33 (D.D.C. 1997). 
Congress gave the NLRA the restrictive common-law definition of 
employment relationships and rejected the Supreme Court's early effort 
to apply a broader definition. See NLRB v. United Ins. Co., 390 U.S. 
254 (1968). The National Labor Relations Board (NLRB), which is owed 
deference by the courts in interpreting and enforcing the NLRA, has 
developed its own method of implementing the common law standard. 
Similarly, the narrower definition under the OSHA makes it harder for 
workers to hold businesses liable. In considering whether an employment 
relationship exists, the Occupational Safety and Health Review 
Commission (OSHRC) states that it relies primarily on who has control 
over the work environment such that ``abatement'' of occupational 
hazards can be obtained. The OSHRC examines a series of factors related 
to control over the day-to-day details of a worker's employment. The 
OSHRC's approach differs slightly from the common law right-to-control 
test. In one way, it is even harsher on workers than the common law: 
the OSHRC ignores several of the factors used in the right-to-control 
test that that would help subcontracted workers prove the existence of 
multiple employers. In another way, the OSHRC slightly liberalizes the 
common law standard: in determining who has control, the agency will 
analyze the ``economic realities,'' or the substance of relationships, 
rather than merely their form or contractual labels. However, this 
standard is not nearly as broad as the test under the Fair Labor 
Standards Act (which also looks at ``economic realities'' but 
emphasizes the ``economic dependence'' of workers rather than on 
control over the work environment.)
    \9\ Peter D. Hart Research Associates, The Public View of Unions 
(2005), Chirag Mehta and Nik Theodore, Undermining the Right to 
Organize: Employer Behavior During Union Representation Campaigns, 
University of Illinois at Chicago: Center for Urban Economic 
Development, (December 2005), at www.araw.org/docUploads/
UROCUEDcompressedfullreport%2Epdf.
    \10\ Craig Becker, A Good Job for Everyone, Legal Times, Vol. 27, 
No. 36 (Sep. 6, 2004), at http://www.aflcio.org/issues/jobseconomy/
overtimepay/upload/FLSA.pdf.
    \11\ U.S. General Accounting Office, Pub.No. GAO/GD-89-107, Tax 
Administration Information: Returns Can Be Used to Identify Employers 
Who Misclassify Employees (1989).
    \12\ Projection of the Loss in Federal Tax Revenues Due to 
Misclassification of Workers, Coopers & Lybrand (1994).
    \13\ Planmatics, Inc., Independent Contractors: Prevalence and 
Implications for Unemployment Insurance Programs (February 2000).
    \14\ See, e.g., Rivera v. NIBCO, 364 F.3d 1057, 1064 (9th Cir. 
2004), cert. denied, 125 S.Ct. 1603 (2005). For more stories of 
immigrant workers subject to workplace abuse and threats of 
retaliation, see, Anais Sensiba and Shaun Yavrom, Student Attorneys, 
International Human Rights Law Clinic, American University, Washington 
College of Law Employment Rights are Human Rights, (Mar. 2005), at 
http://www.nelp.org/docUploads/workersrights1205%2Epdf.
    \15\ Hoffman has engendered unexpected consequences in other areas 
of law. both New Jersey and California courts have concluded that 
victims of discrimination who are undocumented have no right to certain 
forms of compensation. See, Morejon v. Terry Hinge and Hardware, 2003 
WL 22482036 (Cal.App, 2 Dist. 2003); Crespo v. Evergo Corp., 841 A.2d 
471 (N.J. Super. A.D. 2004), cert. denied 849 A.2d 184 (2004). Since 
Hoffman, at least two state courts have limited undocumented workers' 
access to workes' compensation in certain circumstances. Sanchez v. 
Eagle Alloy, 658 N.W. 2d 510 (Ct. Apps. Mich 2003); The Reinforced 
Earth Company v. Workers' Compensation Appeal Board, 810 A.2d 99 (Pa, 
2002).
    \16\ Jared Bernstein and Isaac Shapiro, BUYING POWER OF MINIMUM 
WAGE AT 51-YEAR LOW, Congress Could Break Record for Longest Period 
Without an Increase, Economic Policy Institute and Center for Budget 
and Policy Priorities (Jun. 20, 2006), at http://www.epinet.org/
issuebriefs/224/ib224.pdf.
    \17\ For example, a number of lawsuits have alleged that recruiters 
require that employees pay large recruitment fees and/or pledge 
collateral with the employer's representatives in order to be hired 
under the H-2B programs. Perez-Perez, et al, v. Progressive Forestry 
Services, Inc., et al, U.S. District Court for the District of Oregon, 
Civ. No 98-1474-KI (D. Or.) (1998); Vicente Vera-Martinez v. Grano 
Reforestation, Inc., U.S. District Court for the Western District of 
Arkansas; Case No. 03-6002 (2003); Escolastico De Leon Granados,et al. 
v. Eller and Sons Trees Inc., et al. , Northern District of Georgia, 
Case No. 1:05-CV-1473 (2005); Hugo Martin Recinos-Recinos, et al. v. 
Express Forestry, et al. U.S. District Court for the Eastern District 
of Louisiana, Case No. 05-1355 (2005).
    \18\ Under the H2A program, foreign agricultural workers can be 
allowed to enter the country temporarily to fill jobs for which there 
is a worker shortage. Employers must file a job offer with the US 
Department of Labor which must meet certain minimum standards for 
wages, amount of work guaranteed, and provision of housing and 
transportation, among other things. They must first recruit within the 
US, and, if no workers can be found, they may then be ``certified'' to 
recruit abroad. Like many other recruiters, Global Horizons advertises 
itself and its world-wide network of contract labor providers on the 
internet.http://www.gmpusa.com/
    \19\ Employment Security Department Notice of Discontinuation of 
Services, May 10, 2005; Plaintiff's First Amended Complaint for 
Declaratory and Injunctive Relief and Damages, Perez-Farias v. Global 
Horizons, Inc., U.S. District Court, Eastern District of Washington, 
No. 05-DV 3061 MWL, (filed Apr 13, 2006). In addition, workers allege 
they were subjected to production standards not part of the job offer 
and not provided with promised transportation.
    \20\ Class Action Complaint, Yapunya v. Global Horizons, Inc. et 
al. U.S. District Court, Eastern District of Washington (filed Jun. 10, 
2006).
    \21\ Settlement Agreement, Global Horizons Inc., Department of 
Labor and Industries, Employment Security Department,  6-8.
    \22\ State Agencies Reach Settlement with Farm-Labor firm, Press 
Release, Washington State Department of Labor and Industries, (Sep. 22, 
2005), at http://www.lni.wa.gov/news/2005/pr050922a.asp.
    \23\ For example, the contract provides for seniority provision, 
wage payments 2% above the required pay under the H-2A program, and a 
grievous procedure for violations of the contract or H-2A requirement, 
bereavement and transportation pay for workers who must return home to 
deal with family emergencies.
    \24\ The H-2B program is the non-agricultural temporary worker 
program, typically used in the reforestation, landscaping and 
hospitality industries, among others. Under federal rules, labor 
contractors and employers must guarantee them a minimum hourly wage, or 
``prevailing wage,'' and certify that they have been unable to find 
enough domestic workers to do the job. The program policies are in a 
U.S. Department of Labor policy memorandum, U.S. Deparatment of Labor, 
Employment & Training Admin, Attachment to GAL No. 1-95,Procedures for 
Temporary Labor Certification in Non-Agricultural Occupations, (Nov. 
10, 1994), at http://wdr.doleta.gov/directives/attach/GAL1-95--
attach.pdf. A number of lawsuits have alleged that recruiters require 
that employees pay large recruitment fees and/or pledge collateral with 
the employer's representatives in order to be hired under the H-2B 
programs. Perez-Perez, et al, v. Progressive Forestry Services, Inc., 
et al, U.S. District Court for the District of Oregon, Civ. No 98-1474-
KI (D. Or.) (1998); Vicente Vera-Martinez v. Grano Reforestation, Inc., 
U.S. District Court for the Western District of Arkansas; Case No. 03-
6002 (2003); Escolastico De Leon Granados,et al. v. Eller and Sons 
Trees Inc., et al. , Northern District of Georgia, Case No. 1:05-CV-
1473 (2005); Hugo Martin Recinos-Recinos, et al. v. Express Forestry, 
et al. U.S. District Court for the Eastern District of Louisiana, Case 
No. 05-1355 (2005).
    \25\ Beneath the Pines: Stories of Migrant Tree Planters, Southern 
Poverty Law Center, http://www.splcenter.org/images/dynamic/main/ijp--
beneaththepines--web.pdf
    \26\ Grant Gross, U.S. lawmakers: L-1 visa program needs changes, 
Computerworld, February 5, 2004), at http://www.computerworld.com/
printthis/2004/0,4814,89884,00.html; L Visas: Losing Jobs through 
Laissez-Faire Policies? Hearing before the Comm. On International 
Relations, 108th Cong., 2d Sess. (Feb. 4, 2004) Serial No. 108-78.
    \27\ Jordan Accused of Harboring Sweatshop Factories, National 
Public Radio (Jun 26, 2006).
    \28\ One of many stories recounted in ``Nowhere to Turn: Citizens' 
Advice Bureau Evidence on the Exploitation of Migrant Workers,'' 
(2004), at http://www.citizensadvice.org.uk/nowhere-to-turn.pdf
    \29\ Statement by Minister Micheal Martin to Seanad Eireann in 
relation to Rights of Migrant Workers, (April 12, 2005), at http://
www.entemp.ie/press/2005/20050413.htm.
    \30\ [O]ne often gets the feeling that when growers say they can't 
find workers, they fail to complete the sentence. What they really mean 
is that they can't find workers at the extremely low wages and working 
conditions they offer. * * * Guest Worker Programs: Hearing before the 
Subcomm. on Immigration and Claims of the H. Comm. on the Judiciary, 
104th Cong. (1995) (statement of Richard M. Estrada, Commissioner, U.S. 
Commission on Immigration Reform), at http://www.utexas.edu/lbj/uscir/
120795.html.
    \31\ See, e.g., Ernesto Galarza, MERCHANTS OF LABOR: THE MEXICAN 
BRACERO STORY (1964).
    \32\ For example, H-2A workers are excluded from the protections of 
the Migrant and Seasonal Agricultural Worker Protection Act (MSAWPA), 
which is the principal federal employment law for agricultural workers. 
29 U.S.C. A.Sec. 1802(8)(B)(2) and (10)(B)(iii); A Federal appeals 
court in North Carolina has held that it is not unlawful for an 
employer to practice age discrimination in hiring prospective guest 
workers Reyes Gaona v. North Carolina Growers' Association, 250 F.3d 
861 (4th Cir. 2001).
    \33\ Recently, the Inter-American Court of Human Rights issued an 
advisory opinion (Opini"n Consultiva 18) on the treatment of 
unauthorized migrant workers and their labor rights in the countries 
that make up the Organization of American States. OC-18 provides that 
as a matter of compliance with the anti-discrimination provisions of 
various Inter-American human rights treaties, countries must protect 
the rights of all migrant workers. The Legal Status and Rights of 
Undocumented Migrants, September 17, 2003, at http://
www.corteidh.or.cr/serie--a--ing/serie--a--18--ing.doc.
    \34\ U.S. Immigration and Naturalization Special Agent Field 
Manual, Sec. 33.14 (on file with author).
    \35\ See, Brendan Coyne, Immigrants Face Retaliation for Asserting 
Workplace Rights, THE NEW STANDARD, (Jun. 1, 2006) at http://
newstandardnews.net/content/index/dfm/items/3241; Did Injury Claim 
Prompt Cessna Raid?, IMMIGRATION NEWS BRIEFS, Vol. 9, No. 21 (Jun. 4, 
2006).
    \36\ Legal Services Corporation Act, as amended 1977, 42 U.S.C.A. 
Sec. 2996, et. seq.
    \37\ 42 U.S.C.A. Sec. 2996, 45 C.F.R. Sec. 1626.1. This provision 
is currently being challenged as a violation of the NAFTA Labor Side 
Agreement. Mexico NAO Submission 2005-1 (H-2B Visa Workers), http://
www.dol.gov/ilab/media/ reports/nao/submissions/2005-01petitition.htm, 
http://www.dol.gov/ilab/media/reports/nao/submissions/ 2005-01memo.htm.
    \38\ For example, in adopting the Migrant and Seasonal Agricultural 
Workers Protection Act, Congress identified the lack of a private right 
to sue as a primary reason for failure of its predecessor statute. 
S.Rep.No. 1206, 93d Cong., 2d Sess. 3 (1974); H.R.Rep.No. 1493, 93d 
Cong., 2d Sess. 1 (1974). Accordingly, one of the ``major purpose[s]'' 
of the 1974 Amendments was to ``creat[e] a civil remedy for persons 
aggrieved by violations of the act.'' Id. Congress deemed ``an 
unfettered federal civil remedy'' to be ``crucial to the effective 
enforcement of existing law,'' Id.
    \39\ 20 C.F.R. Sec. 655.102(b)(9); Under the current H-2A program, 
an employer, by regulation, is required to pay at least the highest of 
the state or federal minimum wage rate, the local ``prevailing wage'' 
for the particular job, or an ``adverse effect wage rate (AEWR). The 
AEWR was created under the bracero program as a necessary protection 
against wage depression. The Department of labor issues an AEWR for 
each state based on U.S. Department of Agriculture data. In the H-2A 
program, while AEWRs are typically a higher wage than either minimum or 
prevailing wages, they have in effect become a ``maximum'' wage for 
workers. Whatever its specific shortcomings, the notion of an adverse 
effect wage rate for workplaces that hire guestworkers could guard 
against wage depression.
    \40\ Some of these provisions are in the pending Senate bill, S. 
2611, as well as in H.R. 2298, sponsored by some members of this 
Committee. Others are already outlaws in at least two of the source 
countries for guestworkers in the U.S. See, Art 28 Ley Federal de 
Trabajo (Mexico) and Art 34 of Decree Number 14-41 (Guatemala). The 
11th Circuit has ruled that recruitment fees and travel costs must be 
repaid by employers at the beginning of employment to the extent that 
they reduce wages below the minimum wage. Arriaga v. Fla. Pac. Farms, 
L.L.C., 305 F.3d 1228, 1231 (11th Cir. 2002).
                                 ______
                                 
    Chairman McKeon. Thank you.
    Dr. Martin?

  STATEMENT OF PHILIP MARTIN, PH.D., PROFESSOR, DEPARTMENT OF 
 AGRICULTURAL AND RESOURCE ECONOMICS, UNIVERSITY OF CALIFORNIA-
                             DAVIS

    Dr. Philip Martin. Good morning, and thank you, Mr. 
Chairman and members of the committee, for the opportunity to 
testify on guest worker programs. I am Philip Martin, a 
professor of agricultural and resource economics at the 
University of California-Davis.
    The intent of guest worker programs is to add workers to 
the labor force temporarily but not add permanent residents to 
the population. If we wanted to add both workers and people 
long term, of course, we would have immigration policy.
    But the guest worker program really aims to slot people in 
to the labor force temporarily and then later have them leave. 
There are many such programs around the world, and almost 
without exception their results can be summarized in a simple 
phrase: There is nothing more permanent than temporary foreign 
workers.
    In almost all countries, in virtually all time periods, 
guest workers programs tend to become larger and to last longer 
than originally anticipated, and some of the migrant workers 
settle with their families.
    The reasons why guest worker programs fail to live up to 
their promise are straightforward. Employers make investment 
decisions that assume migrant workers will continue to be 
available, and that is an economic distortion because some, but 
not all, employers are assuming that migrants will keep labor 
costs lower than if migrants were not available.
    The result is that we get examples of farmers, for example, 
planting apple trees in places where there really aren't many 
people and then complain that without the migrants they will go 
out of business.
    The political effect is very predictable. Guest worker 
programs are always easier to start than to stop.
    The distortion is the one ``D''. The second ``D'' is 
dependence, the fact that some migrant workers, their families, 
communities and the workers' governments of origin assume that 
the foreign jobs and remittances will continue. If the 
opportunity to work is curbed, then migrants may migrate 
illegally to avoid reductions in their income.
    Distortion and dependence should make governments cautious 
about guest worker programs. If the United States launches new 
guest worker programs, steps should be taken to minimize both 
distortion and dependence by ensuring that U.S. employers who 
hire migrants have incentives to look for alternatives and to 
give foreign workers incentives to follow programs rules and 
return to their countries of origin.
    Most guest worker programs allow employers to hire migrants 
after recruitment does not yield local workers, and as you 
know, government is ill-suited to second-guessing employer 
hiring decisions, which is one reason why the labor 
certification process is contentious.
    Once employers learn the tricks of getting their need for 
guest workers certified, most assume they will continue to hire 
guest workers, and that is where the distortion creeps in.
    U.S. law and international norms call for U.S. workers to 
be hired if they are available and any migrant workers to be 
treated as U.S. workers. One way to minimize distortion is to 
realize that the payroll taxes for Social Security and 
unemployment insurance add at least 20 percent to wages. Those 
taxes should be collected on migrant wages to level the playing 
field between U.S. and migrant workers, but some of those 
payroll taxes could be used to combat distortion.
    For example, in an industry such as agriculture, it is hard 
for one farmer to mechanize since the packers and processors 
have to handle either hand or mechanically picked fruit but not 
both. If guest workers had an easily identifiable class of 
Social Security numbers, distortion could be reduced if, for 
example, half of the payroll taxes on their wages were devoted 
to labor-saving or job-improving innovations. The amount of 
funds available would depend on the number and the wages of 
guest workers, and to recognize that each sector is different, 
you could have boards of employers, workers and government 
deciding how to spend the funds.
    Since guest workers are supposed to be temporary workers, 
many do arrive with plans to return, but many wind up settling. 
To reinforce returns, the other half of payroll taxes could be 
refunded when the migrant surrenders his or her work visa to a 
U.S. consulate in the country of origin. And those refunds 
could be matched to promote development.
    Instead of launching a massive new guest worker program, it 
might be prudent to experiment with several types of programs 
on a pilot basis to determine which works best, and that way we 
could answer important questions, such as whether payroll taxes 
devoted to mechanization and labor force development do in fact 
avoid distortion in sectors employing guest workers and whether 
refunds of Social Security taxes encourages the returns 
required by guest worker program rules.
    Thank you for your attention, and I look forward to your 
questions.
    [The prepared statement of Dr. Philip Martin follows:*]
---------------------------------------------------------------------------
    *Submitted and placed in permanent archive file, Migration News. 
July 2006. Vol. 13, No. 3. Editor Philip Martin., http://
migration.ucdavis.edu.
---------------------------------------------------------------------------
      

    Prepared Statement of Philip Martin, Professor of Agricultural 
               Economics, University of California-Davis

    Thank you for the opportunity to testify on guest worker programs. 
I am Philip Martin, Professor of Agricultural and Resource Economics at 
the University of California at Davis. I served as one of 11 members of 
the bipartisan U.S. Commission on Agricultural Workers that reported on 
the effects of the Immigration Reform and Control Act in 1992.
    The intent of guest worker programs is to add workers to the labor 
force temporarily, but not add permanent residents to the population. 
There are many such programs. Almost without exception, their results 
can be summarized in a simple phrase: there is nothing more permanent 
than temporary foreign workers. In almost all countries and in 
virtually all time periods, guest worker programs tend to become larger 
and to last longer than anticipated, and some of the migrant workers 
settle with their families.
    The reasons why guest worker programs fail are straightforward. 
Employers make investment decisions that assume migrant workers will 
continue to be available, an economic distortion because some but not 
all employers are assuming that migrants will keep labor costs lower 
than if migrants were not available. The result is that some farmers 
plant apple trees in places with few residents, and then complain that 
without migrants they will go out of business. The political effects 
are predictable: guest worker programs always prove to be far easier to 
start than to stop.
    The second D is dependence, the fact that some migrant workers, 
their families and communities, and the workers' governments assume 
that foreign jobs and remittances will continue to be available. If the 
opportunity to work abroad is curbed, migrants may migrate illegally to 
avoid reductions in their incomes. Most researchers conclude that 
Bracero programs sowed the seeds of subsequent unauthorized Mexico-US 
migration, via distortion in US agriculture and dependence in rural 
Mexico.
    Guest worker programs aim to admit workers at the extremes of the 
job ladder, such as health care and IT professionals at upper levels 
and farm workers and landscapers at the bottom. This testimony focuses 
on unskilled workers, but there is also distortion and dependence in 
programs admitting foreign professionals. The major policy option to 
deal with ``shortages'' of professionals is to add to the supply with 
additional training and higher wages, while the major policy option to 
deal with ``shortages'' of unskilled workers is to reduce the demand 
for farm workers and landscapers via mechanization, job restructuring, 
and trade policies.
    We could have an interesting discussion of what is now being called 
``human capital mercantilism,'' the policy of maximizing the brainpower 
within the borders of a country to gain a competitive edge in a 
globalizing world. Centuries ago, mercantilism was a theory that aimed 
to maximize a country's gold and silver holdings. It ultimately failed, 
proving to be capable of providing only short-term wealth.
    The same may prove to be the case for mercantilism focused on 
``human capital.'' Moreover, if industrial countries were to succeed in 
attracting more human capital from developing countries, they may wind 
up widening the inequalities that stimulate and encourage unwanted 
south-north migration.
Rules and Incentives
    Distortion and dependence should make governments cautious about 
guest worker programs. If the US launches new guest worker programs, 
steps should be taken to minimize distortion and dependence by ensuring 
that US employers hiring migrants have incentives to look for 
alternatives and to give foreign workers incentives to follow program 
rules and return to their countries of origin.
    Most guest worker programs allow employers to hire migrants after 
recruitment does not yield local workers. Government is ill-suited to 
second-guess employer hiring decisions, which is one reason why the 
labor certification process is often contentious. However, once 
employers learn the tricks of getting their ``need'' for guest workers 
certified, most assume they will continue to hire foreign workers. As a 
result, investments in labor-saving and job-improving innovations slow, 
and distortions increase as migrant-dependent sectors become isolated 
from the wider US labor market.
    US law and international norms call for US workers to be hired if 
available and any migrant workers to be treated as US workers. One way 
to minimize distortion is to realize that payroll taxes for social 
security and unemployment insurance add at least 20 percent to wages. 
These taxes should be collected on migrant wages to level the playing 
field between US and migrant workers, but some of these payroll taxes 
could be used to combat distortion. For example, in an industry such as 
agriculture, it is often hard for one farmer to mechanize, since peach 
packers and processors handle either hand or mechanically picked fruit, 
but not both.
    If guest workers were given an easily-identifiable class of Social 
Security numbers, distortion could be reduced if, say, half of the 
payroll taxes on their wages were devoted to labor-saving and job-
improving innovations. The amount of funds available for such projects 
would depend on the number and wages of guest workers. To recognize 
that each sector is different, boards representing employers, workers, 
and government could decide how to spend the funds.
    Guest workers are supposed to be temporary workers, not settled 
residents. Most are young and, despite plans to return, many form or 
unite families in the countries in which they work. To reinforce rules 
that expect returns after one, two or three years abroad, the worker's 
share of payroll taxes could be refunded when the migrant surrenders 
his/her work visa to a US consulate in the country of origin. 
Government and NGO institutions could match payroll tax refunds to 
support development projects that create jobs in migrant home areas.
Enforcement and Pilots
    One promised effect of guest worker programs is reduced illegal 
migration. However, if unauthorized workers are also available, some 
employers will hire them rather than guest workers, and some migrants 
will elect illegal entry and employment instead of the legal program.
    During 22 years of Bracero programs between 1942 and 1964, some 4.6 
million Mexicans were legally admitted, but over 5.3 million were 
apprehended, demonstrating that even a large guest worker program can 
be accompanied by larger illegal migration. Note that both admissions 
and apprehensions double-count individuals who were admitted/
apprehended several times. (see table below)
    Instead of launching a massive new guest worker program, it may be 
more prudent to experiment with several types of programs on a pilot 
basis to determine which works best. In this way, we could have answers 
to important questions, such as whether payroll taxes devoted to 
mechanization and labor force development avoid distortion in 
agriculture, meatpacking, and other sectors, and refunds of Social 
Security taxes encourage the returns required by guest worker program 
rules.
    Thank you for your attention, and I look forward to your questions.

                                           BRACEROS PROGRAM STATISTICS
                                                   [1942-1964]
----------------------------------------------------------------------------------------------------------------
                        Year                               Braceros          Apprehensions    Mexican immigrants
----------------------------------------------------------------------------------------------------------------
1942................................................               4,203              11,784               2,378
1943................................................              52,098              11,175               4,172
1944................................................              62,170              31,174               6,598
1945................................................              49,454              69,164               6,702
1946................................................              32,043              99,591               7,146
1947................................................              19,632             193,657               7,558
1948................................................              35,345             192,779               8,384
1949................................................             107,000             288,253               8,803
1950................................................              67,500             468,339               6,744
1951................................................             192,000             509,040               6,153
1952................................................             197,100             528,815               9,079
1953................................................             201,380             885,587              17,183
1954................................................             309,033           1,089,583              30,645
1955................................................             398,650             254,096              43,702
1956................................................             445,197              87,696              61,320
1957................................................             436,049              59,918              49,321
1958................................................             432,857              53,474              26,721
1959................................................             437,643              45,336              22,909
1960................................................             315,846              70,684              32,708
1961................................................             291,420              88,823              41,476
1962................................................             194,978              92,758              55,805
1963................................................             186,865              88,712              55,986
1964................................................             177,736              86,597              34,448
                                                     -----------------------------------------------------------
      Total.........................................           4,646,199           5,307,035             545,941
----------------------------------------------------------------------------------------------------------------

                          additional materials
Kuptsch, Christiane and Eng Fong Pang. Eds. 2006. Competing for Global 
        Talent. Geneva. ILO. www.ilo.org/public/english/bureau/inst/
        publ/books.htm
Martin, Philip, Manolo Abella and Christiane Kuptsch. 2006. Managing 
        Labor Migration in the Twenty-First Century. Yale University 
        Press. http://yalepress.yale.edu/yupbooks/
        book.asp?isbn=0300109040
Martin, Philip, Susan Martin and Patrick Weil. 2006. Managing 
        Migration: The Promise of Cooperation. Lexington Books. 
        www.rowmanlittlefield.com/Catalog/
        SingleBook.shtml?command=Search&db= -DB/
        CATALOG.db&eqSKUdata=0739113410&the passedurl=[thepassedurl]
Martin, Philip. 2005. Mexico-US Migration. Pp 441-486 in Gary Hufbauer 
        and Jeffrey Schott. Nafta Revisited: Achievements and 
        Challenges. Institute for International Economics. http://
        bookstore.iie.com/merchant.mvc?Screen=PROD&Product--Code=332
                                 ______
                                 
    Chairman McKeon. Thank you very much.
    There has been a lot of good thought that has gone into 
your testimony, a lot of expertise, and I appreciate the things 
that you have said. And I know that your full comments, if you 
didn't get a chance, will also be in the record and give us a 
chance to read those.
    The reason that we are holding this and a series of 
hearings in this and other committees is there is such a vast 
difference between the Reid-Kennedy Senate bill and the House 
bill, and the problem with the revenue generator in the Reid-
Kennedy bill that precludes us from going to conference that 
needs to be fixed on their side. It gave us the opportunity to 
hold these hearings to point out the differences and to 
readdress this issue again so that we could really focus on 
this, because it is a major important issue in front of the 
Congress, in front of the country right now, something that we 
really need to deal with.
    And it was brought home to me when I made my visit to the 
border last week. We went to the San Ysidro Depot. That is the 
busiest entry point in our border. And you almost have to go 
there to see it to really get a feel for what is going on. They 
handle 50 million checks a year through that entry point. 
Twenty-four lanes of traffic lined up as far back as you can 
see people waiting to enter the country and then a line of 
people walking across the border that extended back about a 
mile.
    They had agents there that there were checking, they had 
technology, a lot of things happening, but still just the day 
before we got there they had caught a convicted criminal, they 
had caught, I think, 169 people trying to enter illegally, they 
had caught, I think, 40-some cases of contraband, either drugs 
or agricultural things that were being brought into the 
country, weapons, illegally. That was in 1 day through that one 
entry point.
    They showed us pictures of some of the sophisticated means 
that were being used to bring people in. They had a person that 
had been sewed into the seat of the car, another picture of a 
person that was sewed into the dashboard. They had a couple 
that had been put into the engine compartment of a car and then 
the gas tank. I mean, these are the kinds of methods that are 
being used to just come through those entry points. So it is a 
very sophisticated matter.
    Then we visited with the Border Patrol and saw the things 
that are happening there to bring people in, and it really is a 
very serious matter.
    And then they told me about--we have heard the number 11 
million to 12 million people that are here in the country 
illegally, and the number that they are using down there is 
more like 20 million that are already here in the country 
illegally. And then the difference we see between, I think you 
mentioned in your testimony, between the House bill and the 
Reid-Kennedy bill was that, if it were passed, it would open up 
over the next 20 years another 60 million people coming into 
the country.
    So there is great concern out there.
    One of the things that I think was mentioned in your 
testimony that has been troubling to me, you know, we have 
debates about Davis-Bacon and we can have different feelings on 
that, but when you see in the Reid-Kennedy bill, the underlying 
legislation, an amendment that was in there expanded the guest 
worker program would require or guarantee that federally 
determined prevailing wage of Davis-Bacon would be guaranteed 
for guest workers, which would mean in some locations the wage 
would be guaranteed to guest worker even if that same wage was 
not guaranteed to American citizens.
    And I would like to know what the panel thinks about that 
difference between the two bills. Anyone wish to comment on 
that?
    Dr. Martin?
    Dr. Philip Martin. This was actually the provision under 
the Bracero Program. Braceros was guaranteed a minimum wage, 
U.S. farm workers were not, between 1942 and 1964 because the 
minimum wage did not apply to agriculture at that time.
    My assumption is, is that the Davis-Bacon thing would 
likely be changed since it seems difficult in today's 
environment to maintain that. But there is a precedent for 
that, because, in a sense, that is actually what happened under 
the Bracero Program. There was a minimum wage guarantee for 
braceros but not for U.S. workers.
    Chairman McKeon. And you said that was when?
    Dr. Philip Martin. Forty-two to 1964.
    Chairman McKeon. OK, but that has been fixed.
    Dr. Philip Martin. Well, the program ended, but I would 
assume----
    Chairman McKeon. But that has been fixed.
    Dr. Philip Martin [continuing]. That we would not repeat 
that kind of thing.
    Chairman McKeon. Well, we would if we had that bill, and 
that is why--I would hope that that would not happen, but that 
is why we are trying to hold these hearings to show these 
differences. Because one of the things I think that really 
upsets people is where you have people that are in the country 
illegally that are receiving benefits that citizens would not 
receive.
    Does that red mean my time is up already? I talk too much?
    Ms. Dickson. I think I mentioned in my statement that that 
is one of the concerns that the Chamber has. We don't obviously 
want to see anything that is not going to be equal. And the 
other provisions of the guest worker program would require not 
only the recruitment of U.S. workers but prevailing wage. We 
want to make sure that everybody gets the same wage.
    Chairman McKeon. Doing the same job.
    Ms. Dickson. Yes.
    Chairman McKeon. Thank you.
    Ms. Hallstrom. I also wanted to comment. We use the guest 
worker program at this time. Our wages are $9 an hour. We 
provide free housing, free transportation, and these are not 
benefits that are taken away from American workers because we 
first and foremost have to recruit and offer these same 
benefits to American workers.
    I would like to remind everybody that the Federal minimum 
wage is at $5.15. We are well above that, even without all of 
the benefits that are provided even the current guest worker 
programs.
    Mr. Jack Martin. Mr. Chairman, in my prepared testimony, I 
point out that one of the criteria that we insist is necessary 
for the operation of any type of a temporary worker program is 
that it reflect real wage measures, supply and demand. If wages 
are holding steady in an area or are declining, this is an 
indication of the fact that there is no real need for bringing 
in any temporary workers, and we would insist that only if wage 
offers are increasing that there is any demonstration of any 
need for bringing in temporary workers.
    And if they are brought in, they should only be brought in 
temporarily, not as in many of the temporary worker programs 
that are operating at the present time for multiple years. 
Those are not temporary jobs. The workers are not temporary. 
They will end up staying in the United States.
    Ms. Smith. I think your comments illustrate the lengths 
that people will go to come to the United States to work when 
you talked about the border and two-thirds of the undocumented 
workers in our workforce are low-wage workers, are these folks 
who are earning poverty-level wages. I think a legalization 
program will have an effect on that.
    Beyond that, we do have to be careful to offer prevailing 
wages, both to the U.S. workers that we are recruiting and to 
foreign workers, and I don't think we have got that figured out 
yet. Even the adverse effect wage rate that is used in 
agriculture operates, in some sense, as a maximum wage rather 
than a minimum wage, because employers can bypass U.S. workers 
who are not willing to work for the lower amount, who want to 
work for a higher amount.
    Chairman McKeon. Mr. Andrews?
    Mr. Andrews. Thank you, Mr. Chairman.
    I would like to thank the chairman for declaring Democratic 
victory in the effort to take over the Senate by recognizing 
that Senators Reid and Kennedy are the lead forces in this 
bill. I thought that the lead forces were----
    Chairman McKeon. Would the gentleman yield?
    Mr. Andrews. Sure, in a minute.
    Chairman McKeon. I am happy to do that because they did, 
they won. Only 23 Republicans voted for it over there.
    Mr. Andrews. Among which was Senator McCain who is the 
leading candidate for your Presidential nomination and with 
whom is the president of the United States, President Bush. So 
I think we should call it the Bush-McCain-Reid-Kennedy bill, 
just as a beginning.
    [Laughter.]
    Chairman McKeon. I have no problem with that.
    Mr. Andrews. Mr. Martin, a woman in my state had worked in 
a small factory for about 9 years, and there was a raid on that 
factory by immigration officials in February. She was detained 
in the raid; she is an undocumented worker. She had three 
children who are U.S. citizens. She has no record of any 
criminal activity. She has, by all accounts, met her financial 
and social obligations to the country.
    Should she be deported?
    Mr. Jack Martin. Well, Mr. Andrews, I assume that you are 
not suggesting that the immigration authorities of this country 
should not be enforcing the immigration laws.
    Mr. Andrews. I am certainly not. Should she be deported?
    Mr. Jack Martin. The immigration law of the country, which 
has been adopted by the Congress, specifies that people who 
have illegally entered the country or who have overstayed their 
permitted entry are subject to deportation, and, yes, certainly 
they should be deported.
    I think, Congressman, that most people do not recognize 
that the children born in this country of foreign parents who 
are here illegally in most cases acquire the citizenship of the 
parent as well. And in the case of the deportation of a person 
who is illegally in the country, if there is an issue of 
children having U.S. citizenship because they were born here, 
they can return to the home country where they also have 
nationality, and it is the decision of----
    Mr. Andrews. But your position is their mother should not 
be able to stay with them here in the United States.
    Mr. Jack Martin. If there is an issue of separation of 
children from the parents, that is an issue that is decided by 
the parent. That is not decided by U.S. law or U.S. policy.
    Mr. Andrews. So the woman would decide to be deported and 
leave her children here?
    Mr. Jack Martin. If a woman decides to leave children in 
this country, that is the decision of the parent, and I would 
hope that provisions are made under our law for the appropriate 
care for those children.
    Mr. Andrews. Now, Ms. Dickson, I assume from your testimony 
that you would favor, if she met the criteria, the right of 
this individual to earn legal working status; is that correct?
    Ms. Dickson. Well, I think we have this large undocumented 
population that we have to deal with in a reasonable way. I 
think if you deported all these people, it is going to have a 
definite impact on the economy. And, certainly, in this area 
there are humanitarian concerns that come in as well. To me, 
the path that the president and the Senate bill has outlined is 
an earned legalization. There are a number of steps to it.
    This woman, from what you are describing her, has paid her 
taxes, has been a responsible citizen, has held the job, 
probably has a home and is raising three children.
    Mr. Andrews. So my understanding is that you would support 
the Bush-McCain-Reid-Kennedy approach.
    Ms. Dickson. Yes, or something like that.
    Mr. Andrews. Let me ask you this, though: Should this woman 
be paid prevailing wage? If people make $9.50 an hour doing 
this work in her labor market, should she also be paid $9.50 an 
hour at a minimum?
    Ms. Dickson. Yes. We believe that that is part of the 
temporary guest worker program, that the person would be paid a 
prevailing wage.
    Mr. Andrews. And how should that standard be calculated? 
Should we simply, if the employers says, ``Well, the prevailing 
wage here is $7.50 an hour,'' should we just accept that or she 
we have some objective criterion against which to measure that 
assertion?
    Ms. Dickson. Well, we do have a similar situation in the H-
1B Program where there is a tiered level of salaries that are 
acceptable for different occupations. They are put out by the 
Office, what is it, OES----
    Mr. Andrews. But is there a similar Federal agency in 
unskilled work? Isn't the only real measure of relatively 
unskilled labor rates prevailing wage rates under the Davis-
Bacon law?
    Ms. Dickson. I don't believe so. I am certainly not an 
expert in that. But, I mean, when you go on to the Bureau of 
Labor Statistics, they do have listed a four-tier wage system 
for almost every occupation, and I think it is based on 
education, experience, work. You could probably slot people 
into that and see what--and those wages are geographic, so the 
wages we use for H-1B workers are tied to a certain state, a 
geographic area and vary depending on where it is, and we are 
required by law to pay prevailing wages.
    Mr. Andrews. I see that my time is up. I would simply refer 
you to a 40-year record of using the Davis-Bacon standards for 
guest workers that I think should be included as it has been in 
the Senate bill.
    Thank you, Mr. Chairman.
    Chairman McKeon. Thank you.
    Mr. Kline?
    Mr. Kline. Thank you, Mr. Chairman.
    I would like to thank the witnesses today for their hard 
work and terrific testimony.
    I am going to try abide--in fact, I am sure the chairman 
will insist that I abide by the 5-minute rule, so I would like 
to move to this pretty quickly.
    Just a quick question, Mr. Martin. Looking at your numbers, 
it looks like, according to your chart, that the legal 
temporary workers here today constitute just under 1 percent of 
the workforce. Did I read that right?
    Mr. Jack Martin. That is correct.
    Mr. Kline. OK. Then very quickly I would like to ask each 
of you, just to make sure I know where you stand, do you or the 
organization that you are representing believe that we need, 
and therefore should have, a temporary guest worker program? 
Not addressing the undocumented illegal aliens that are here 
today but just in general, does our economy do we need a 
temporary guest worker program?
    If you could just go right down the line.
    Ms. Dickson. Yes, we believe that a temporary guest worker 
program that was based on market need.
    Mr. Kline. Thank you.
    Ms. Hallstrom. Absolutely. At this point, we know that we 
could not operate just with what happened to us after 9/11 
without the guest worker program. And, again, if we were to 
have an enforcement-only policy, our industry would collapse.
    Mr. Kline. Thank you.
    Mr. Martin?
    Mr. Jack Martin. We believe that there may be temporary 
needs but only on a temporary basis and that a temporary worker 
program should not be used as a permanent feature of the labor 
market.
    Mr. Kline. Thank you.
    Ms. Smith. We already have a number of temporary worker 
programs, and our point of view would be we need to enforce the 
standards we have in those programs.
    Mr. Kline. I understand we have them. The question is, do 
you think we need temporary guest workers?
    Ms. Smith. I think that depends on the particular labor 
market and the particular labor market test.
    Mr. Kline. OK. Thank you.
    Dr. Philip Martin. I would keep the temporary workers. I 
would try to improve their operation, and instead of expanding 
them a lot, if we are going to need workers for future labor 
shortages, expand immigration.
    Mr. Kline. All right. OK. Thank you very much.
    So you all agree that we need or should have a temporary 
guest worker program of some sort. Mr. Martin is squirming just 
a bit, but I think that is what I heard from that. It could be 
case-by-case basis.
    Let me ask this question now, and I am not--I will run out 
of time before we get the answer, but what do you think is the 
greatest single obstacle to having an effective temporary guest 
worker program today?
    And by that I mean, is it difficulty in acquiring the visa, 
is it length of regulation, is it restriction in the numbers 
and types of visas, H-1B, H-2A?
    And if you could just, sort of, give me your best shot. I 
will try to get all the way down the line again.
    Ms. Dickson. I think for some occupations, such as the 
semi-skilled workers and the unskilled workers, there is no 
visa category available. In addition to that, the cap on some 
of the temporary worker programs we have, the H-1B and H-2A, 
are not adequate as our workforce declines and baby boomers 
actually retire.
    Mr. Kline. OK. Thank you.
    Ms. Hallstrom?
    Ms. Hallstrom. First and foremost, I would say that in the 
agricultural industry, most farmers have not jumped into the 
current H-2A Program for lack of housing, which is 
fundamentally the most important thing that you have to have. 
We would have lost our entire crop had we not built housing 
back in 1986. And that is the only thing that allowed us to 
jump in and save that crop.
    The other thing is that if we were to have large numbers of 
farmers jump into the program right now, we don't have the 
infrastructure, even with the consulate in Mexico, to be able 
to handle that volume, so there would need to be a period of 
time to be able to phase and build that infrastructure.
    And I would also like to add that one of the major 
deterrents as well is the adverse effect wage rate that is not 
market-based.
    Mr. Kline. OK. Thank you.
    Mr. Martin?
    Mr. Jack Martin. I would say one of the greatest problems 
is the fact that the operation of most of the temporary worker 
programs that we have at the present time do not reflect real 
wage conditions.
    The best example of that was the continued hiring of H-1B 
professional workers during a period of time when tens of 
thousands of Americans, similarly qualified Americans, were 
being laid off. Any temporary worker program that we have ought 
to embody programs that would require hiring of Americans first 
when similar workers are available, laying off foreign 
temporary workers first when there is a downturn in the economy 
and in effect protecting jobs for American workers.
    Mr. Kline. OK. Thank you.
    Ms. Smith?
    Ms. Smith. I would say that the Department of Labor's 
enforcement obligations are not clear in at least some programs 
and not seriously enforced, that workers are subject to both 
job loss and deportation if they complain and that it is not a 
substitute for a legalization program.
    Mr. Kline. OK. Thank you.
    And I see my time has expired, but if you have got a 10-
second answer, I think I can get away with this.
    Dr. Philip Martin. Where there is no cap, the reason is 
there are undocumented workers available. So there is no cap in 
H-2A but there is plenty of unauthorized.
    On the other programs, it takes infrastructure to buildup 
infrastructure, the body brokers, the people to bring people 
in. That is why the programs usually start small. Remember 
these programs, H-1B, H-2A, started in 1990. It took a decade 
to buildup that infrastructure. Once it builds up, the tendency 
is for the programs to get larger, both in the United States 
and other countries.
    Mr. Kline. OK. Thank you.
    Thank you, Mr. Chairman.
    Chairman McKeon. Thank you.
    Mr. Grijalva?
    Mr. Grijalva. Thank you very much, Mr. Chairman. I 
appreciate the witnesses being here today.
    It is kind of an interesting meeting. Being a first-
generation American citizen in this country who is a proud son 
of a bracero who came to work in this nation, it is kind of a 
little--very interesting meeting.
    And I say that because I think we are kind of missing the 
point as we are talking about a temporary guest worker program.
    It is disheartening to read and be reported that the White 
House and the president are saying we are not going to deal 
with immigration until after November. It is disheartening to 
hear from our congressional leaders, Senator Frist and here in 
the House, saying we are not going to deal with immigration 
till after the election--I think an issue the American people 
are frustrated and demanding something be done.
    I was hoping these hearings were about debating something, 
but I think all we are doing with these hearings is deepening 
the divisions that exist in this country, hardening the 
attitudes and marginalizing--I have to say this--marginalizing 
people across this nation based on race and national origin. 
And I don't think that this is the purpose of a realistic 
debate and discussion about immigration reform. It is 
disheartening.
    And whatever short-term gain people might view politically 
from this delay in tactics and doing nothing, I repeat, is only 
short term. This issue must be dealt with, and it must be dealt 
wit comprehensively.
    I was going to ask a question that, Mr. Martin, you 
mentioned it in one of your responses to another question, that 
one of the realities, as we talk about temporary worker 
programs, is the reality of 12 million unauthorized, 
undocumented, living and working in this nation. What is FAIR's 
position about reconciling that reality as we talk about a 
temporary guest worker program? What do we do about those 
families, the children, et cetera?
    Mr. Jack Martin. Congressman, we basically would look at 
that as two separate issues. The focus of the legislation that 
was adopted by the House of Representatives in December was 
aimed at securing our borders, increasing enforcement of our 
immigration laws----
    Mr. Grijalva. Right.
    Mr. Jack Martin [continuing]. In the interior of the 
country, not a massive deportation program, as it has sometimes 
been characterized, but one that we create conditions over time 
that would encourage those illegally in the country to return 
to their home countries.
    Mr. Grijalva. But absent any earned legalization, as is in 
the Hagel-Martinez bill, compromise, absent any of that 
process, what do you do with that reality? You either ignore it 
or, as your organization promotes, you enforce it. And if you 
enforce it, doesn't that correlate to deportation at a massive 
level?
    Mr. Jack Martin. Our starting point with regard to that, 
Congressman, is that it is a mistake to work from the 
assumption that all of the people who are illegally in the 
country at the present are needed workers in our workforce. 
That seems to be the assumption from any plan that would accord 
those people permanent residence in this country.
    The fact is that a large number of illegal workers in this 
country are having adverse effects on all sectors of the 
population who are low-income workers in this country, and that 
cuts across the board with regard race and ethnicity. It hits 
all of those populations in this country.
    Mr. Grijalva. To quote you, Mr. Martin, ``The presence of 
increasing numbers of immigrants workers clearly reduces 
overall earning growth,'' as you said. ``This occurs simply 
because foreign-born workers earn less than the native workers, 
and that difference lowers the average earnings of the U.S. 
workforce as a whole.''
    That is what you just said, and I think that points to the 
point that Ms. Smith made about all workers should be treated, 
at least in the earning power side of it, with some level of 
equity.
    Mr. Jack Martin. Absolutely, Congressman. As my colleague, 
Dr. Martin pointed out, the fact that there is an unlimited 
number of temporary agricultural workers possible under the law 
that is not being used indicates the fact that employers find 
it more convenient----
    Mr. Grijalva. Thank you.
    Mr. Jack Martin [continuing]. To avoid following the legal 
provisions and hire----
    Mr. Grijalva. Let me get one question in to Ms. Smith, if 
you don't mind.
    Ms. Smith, I know that labor unions and lawyers are worried 
about temporary guest worker programs based on past history and 
abuses--the Bracero Program was one of them, ripe with 
exploitation and abuse--but if we were talking about a 
temporary guest program, what would be the three solid 
recommendations you would provide this committee if indeed we 
are going to talk about that program and indeed it is something 
that would become a part of legislation and implemented?
    What would be the three basic recommendations?
    Ms. Smith. Enforcement, enforcement, enforcement. But along 
with that portability so that workers can vote with their feet 
if conditions aren't adequate at a workplace and the ability to 
have a path to citizenship as part of the guest worker program.
    Mr. Grijalva. Thank you very much.
    And thank you, Mr. Chairman.
    Chairman McKeon. Thank you.
    Ms. Biggert?
    Mrs. Biggert. Thank you, Mr. Chairman. It certainly has 
been an issue that has been a topic of discussion for quite a 
while, and certainly I think is one of the toughest issues that 
we face in Congress, and I think that is why we have to spend a 
lot of time on this.
    Appreciate all your testimony.
    Ms. Hallstrom, many in Congress have been saying that first 
we have to secure the borders, and then we will move toward a 
comprehensive program where we move in to the guest worker 
programs and consider that once the border is secure.
    How would this approach affect the agricultural community?
    Ms. Hallstrom. Well, while other industries might have time 
to wait for other provisions of immigration reform, agriculture 
would not. There is already extensive losses to crops, as we 
speak, and they have been building over the last year and a 
half, and I know that this is also because of the increased 
border security. So already our industry is drastically feeling 
the pinch here. We can't survive with an enforcement only.
    I think that it is interesting that people seem so 
surprised by the large number of illegal immigrants in this 
country and the fact that they do support our country. This 
issue has been swept under the carpet for so long that we no 
longer can ignore it.
    The question even posed earlier from Mr. Andrews, one of 
the things that we have difficulty with answering these 
questions is because we have a law that is very much like a 25-
mile-an-hour speed limit; it doesn't work, and we are not 
prepared to answer a lot of these questions. We don't know how. 
We are all stymied by our situations.
    I think that we seriously need to take a look at this 
comprehensively because if we fail to do that, we will be in 
the same place 5, 10, 15, 20 years from now, and this country 
can't afford that anymore for many reasons, national security 
being foremost.
    Mrs. Biggert. One of the things I think that you said was 
that American workers do not want to perform seasonal work, and 
is that because--well, one would be because it is not full-time 
work, they are laid off, but the other question that always 
comes up is that American businesses would rather have four 
workers because they pay them less.
    Is there any statistics that show that that really isn't 
true, that we really cannot find the workers to do that and yet 
we have been talking about foreign workers are paid less?
    Ms. Hallstrom. Well, you could use us as the pilot child 
here. We have had to use the program since after 9/11, and we 
would much more prefer to have a domestic labor force, and the 
cost and the difficulties that we have incurred is not a choice 
that we would make if we had other choices.
    I think at this point we are desperately seeking reform, 
not only for ourselves but for the entire industry.
    Mrs. Biggert. Ms. Dickson, you talk about the labor 
shortage that your company has experienced at all levels, skill 
levels. Are there training schedules or training opportunities 
that you engage in to ensure that your workforce has the skills 
it needs?
    Ms. Dickson. Yes. My company and most large companies 
invest tremendous amounts of money in training programs. All of 
our manufacturing sites have training facilities for technical 
training skills, to be sure, like our welding schools and 
things like that. In addition to that, we have personal 
development programs. We have what is called Ingersoll-Rand 
University, which is based at one of our campuses in Davidson, 
North Carolina that provides training.
    We also have a number of programs with vocational and 
technical schools, junior colleges to improve training. We have 
a very generous tuition reimbursement program for both 
bachelor's degrees and for a masters program. We have a very 
highly competitive in-house masters MBA program.
    Mrs. Biggert. But you still need other----
    Ms. Dickson. Our biggest issue, as we are looking at the 
demographics in a manufacturing environment, and we have a lot 
of very highly skilled manufacturing workers who are now at the 
top age where they are going to start retiring, from the 
demographics we see, it does not appear that we are going to 
have the workers in the 25 to 45 age bracket coming in to fill 
these jobs, such as welders, machinists, tool and die workers. 
So that is at a different level all together.
    Mrs. Biggert. What about the guest worker that comes in and 
then doesn't work out?
    Ms. Dickson. Well, we are actually required----
    Mrs. Biggert. Can you hire----
    Ms. Dickson. I mean, the only guest worker programs that 
really we have access to right now are the H-1B programs, the 
L1s, which are limited to our own employees, TNs. We have 
always when we brought somebody from another country, H-1Bs 
your mandatory to return them to their home country. We do it 
with other people.
    One example is, one of our factories a couple of years ago 
we had hired a bunch of engineers from Canada and then the 
product was not selling due to the energy crisis, and we 
relocated all of them with their families back to Canada. If we 
brought somebody here, we feel it is our obligation to return 
them.
    Mrs. Biggert. Thank you.
    Thank you, Mr. Chairman.
    Chairman McKeon. Thank you. We have a couple of votes on 
the floor. We will get Ms. Davis's testimony, and then we will 
recess for the votes.
    Ms. Davis?
    Mrs. Davis of California. Thank you. Thank you, Mr. 
Chairman.
    And thank you to all of you for being here. I know that 
this is such an emotional issue to everybody, and sometimes we 
do see things a little differently.
    Mr. Chairman, I appreciate the fact that you were at the 
San Ysidro border station recently, and I think when we see 
that from San Diego, we are amazed by the thousands and 
thousands and thousands of legal crossers there, which are 
contributing to our economy. What we want to do is be sure that 
we can identify those people who are there to do us harm, not 
there to contribute to the economy. The vast bulk of people are 
there for that reason to contribute.
    I think we also see some differences, we see some 
desperation when you see people in gas tanks; the 
sophistication, surely, but also the desperation, and we need 
to change that.
    Could you please focus, and quickly, I guess, as well, on 
that which you think you actually hear from one another you 
agree on in this important debate? One thing I have heard is 
the enforcement at the employer workplace. Why do you think we 
have done such a poor job of this?
    Certainly, this administration, perhaps past 
administrations to a much lesser extent, have not done a good 
job. What do you ascribe that to? Do you ascribe it to the fact 
that people know there is nobody out there to check on them? 
But what is it, particularly?
    And, also, if you could speak very quickly to what kind of 
a verification system do you actually think employers would 
have some confidence in?
    Ms. Hallstrom, you mentioned that you have a stringent 
program that you had to create at Pendleton. Very 
understandable; that is a military base. What about that do you 
think would work?
    And for all of you, what do you think we could all have 
confidence in, and do you think that we have the capacity here 
in the country, knowing what we know about bureaucracy, to 
actually develop something that would work?
    Ms. Dickson. I am actually in charge of I-9 compliance in 
my company as well, so we certainly take I-9 very, very 
seriously. And we believe that we are complying with the law 
because we check the documents that are presented. 
Unfortunately, there are fraudulent documents that are 
presented, but you cannot ask for specific documents, you can't 
ask about somebody's national origin.
    So while a lot of employers are certainly thinking that 
they are doing the right thing, we certainly would welcome some 
sort of a foolproof system. And I know there is a lot of 
discussion about the Social Security Administration being able 
to make sure that we could verify Social Security numbers for 
people.
    Our concern is whatever system is put in place it has to 
have data integrity, because we do I-9s for everyone. We do I-
9s for anybody we are going to hire. So if the data is 
incorrect, and the current pilot program has a very high error 
rate, that would be unacceptable when an employer goes to 
verify an American worker's Social Security number and gets a 
false read and denies them a job.
    Mrs. Davis of California. Just to your information, 
quickly, how many times have you all been audited for those 
reasons? How many inspectors have ever come in terms of the 
people you are in contact with?
    Ms. Dickson. I don't think there has been a lot of I-9 
inspections over the last several years, and I think some of 
that relates to the fact that a new I-9 form was due to be 
developed a number of years ago, and it has been back and forth 
under development in OMB, and it is very difficult to enforce 
something when the list of documents that is on the current I-9 
form is no longer acceptable, but we can't ask for documents.
    Mrs. Davis of California. Thank you. I appreciate that. 
Because of time----
    Ms. Hallstrom. I think I would like to start, first off, by 
saying that I think part of the problem, again, is I will go 
back to the fact that we have got this 25-mile-an-hour speed 
limit and it doesn't work.
    There was a testimony made several years ago by a border 
enforcement officer and he was asked, how would we deal with 
this if we were to stop guest worker programs and some of these 
other programs, and he said that we can't do the impossible. 
And so that is what they are up against oftentimes. I have 
spent a fair amount of time on the border.
    We as employers do what we are asked to do, and we do the 
best job we can. I will say on the I-9 inspections, I 
frequently will come out--when I say frequently, you know, 
maybe once a year we will get an inspection. This last year, 
2006, we did get an inspection, and even though we used the H-
2A Program through some of the domestic hires, we were just 
recently sent a list of 12 employees that we have to release 
because their documents do not seem to be valid for employment.
    Mrs. Davis of California. Thank you.
    Mr. Jack Martin. We think that there should be a level 
playing field so that all employers are playing by the same 
rules. At the present time, employers are often forced to look 
the other way because of the fact that their competitor would 
put them out of business if they did not do so.
    The basic pilot system exists, it works. My organization 
participates in that program. We are sure because of that that 
we have nobody who is illegally in the country working for our 
organization. But very few employers have signed up for that 
because they would be at a competitive disadvantage if they did 
so. If----
    Mrs. Davis of California. Do you know how many employers--I 
am sorry--have actually been investigated?
    Mr. Jack Martin. There are about 6,000 employers across the 
country who are now participating in that system, which is a 
very small number. It has been evaluated by outside experts. It 
has been found to work efficiently, and that would go a long 
way toward solving the problem. But there would still be the 
problem of identity theft, and secure documents are going to be 
needed to get around that problem.
    Mrs. Davis of California. OK.
    Ms. Smith. We have serious concerns about employer 
sanctions. I think our history has shown that we really don't 
have the will to enforce this kind of employer sanctions 
against employers, and most observers, I think, would say that 
the employer sanction system has resulted in discrimination 
against workers who look or sound foreign.
    In addition, it has really been turned on its ear, in my 
view, by employers who don't take so much interest in knowing a 
worker's status when they hire them, but as soon as a worker is 
injured on a job or makes a complaint, employers then engage in 
intense efforts to find out that worker's status.
    So I would like to suggest a different kind of enforcement, 
and when I say enforcement I mean let's protect everyone on a 
work site, let's protect their basic core labor rights, and in 
that way deter employers who would misuse immigration status or 
would hire and take advantage of undocumented workers.
    Chairman McKeon. We really need to move on.
    Mr. Hinojosa. Mr. Chairman, I ask unanimous consent that my 
statement be allowed in the record?
    Chairman McKeon. No objection, so ordered.
    [The prepared statement of Mr. Hinojosa follows:]

Prepared Statement of Hon. Ruben Hinojosa, a Representative in Congress 
                        From the State of Texas

    Mr. Chairman, before I ask my questions, I would like to share with 
the committee the deep frustration in my community about the majority's 
refusal to work in a good faith effort to fix our broken immigration 
system and address our workforce needs in a way that benefits employees 
and employers equally. We are tired of road shows designed to fan the 
flames of anti-immigrant sentiment for potential gain at the ballot 
box. We want comprehensive immigration reform.
    If the majority were serious about border security and immigration 
policy, they would not be holding show hearings. Instead, they would be 
hard at work negotiating an immigration bill. The house passed a bill. 
The senate passed a bill. Now is the time to negotiate and compromise 
to produce a final product. That is how our legislative process works.
    It requires a good faith effort to produce the right policy to 
serve our nation. That is unfortunately, in short supply.
    The Republican record speaks for itself. The majority has 
consistently blocked efforts to increase resources for border security. 
Its record for protecting our workers is even worse. The federal 
minimum wage has not been increased in nearly a decade. Enforcement of 
our labor laws has fallen dramatically during this administration's 
tenure.
    This record of inaction and neglect cannot be papered over by a 
hearing.
Question for Ms. Rebecca Smith, National Employment Law Project
    In your testimony, you highlight a path to citizenship as a 
critical component to any guest worker program. Could you please 
elaborate on how this pathway benefits both U.S. born workers, 
immigrant workers, and the communities where they reside?
Question for Luawanna Hallstron, Harry Singh and Sons and Elizabeth 
        Dickson, U.S. Chamber of Commerce
    Both of you expressed concern about an enforcement-only or an 
enforcement-first approach to immigration reform. Could you discuss the 
economic impact of implementing a Sensenbrenner-type bill without 
addressing the workforce aspect of immigration?
                                 ______
                                 
    Chairman McKeon. We will recess for 15 minutes, if we can 
have your patience, and we will be back at 12:15. Thank you 
very much.
    [Recess.]
    Miss McMorris [presiding]. The committee will come to 
order.
    Welcome back. Thanks for your patience.
    We are expecting a few more members that have questions, so 
we are going to start with Mr. Bishop since he is here.
    Mr. Bishop. Thank you, Madam Chairman.
    I have, I guess, just two questions. One I would like to 
put to Mr. Martin.
    Douglas Holtz-Eakin, director of CBO, Congressional Budget 
Office, was here last year and gave testimony to this committee 
to the following effect. He indicated that if we want our 
economy to grow at roughly the rate of 3 or 4 percent a year, 
which is our historical rate, if that is our assumption, given 
the impending retirement of the massive baby boom generation 
and given significant reduction in the birth rate, the domestic 
birth rate, the only way we are going to have a sufficient 
workforce to accommodate an economy that grows at 3 or 4 
percent a year is if we have immigration reform that expands 
the number of guest workers. I am paraphrasing his testimony, 
but that was essentially his message.
    And so I have a two-part question. One, do you accept that 
assessment? Do you accept, in effect, the numbers? And, two, if 
you do, how would you suggest that we handle a labor market 
that we won't be able--or a labor need that we will not have 
bodies to fill?
    Mr. Jack Martin. As I understand the question, there are 
really two parts, one of them the demographic adjustment to 
baby boom.
    And I think that a panel of experts that I heard addressing 
this, speaking to the Social Security Advisory Board, 
unanimously agreed that immigration should not be used as a 
tool during an adjustment period, that that was a mistake. We 
are going to have an adjustment. It may require people working, 
but I personally am prepared to do that, and I am engaged in 
that process at present time.
    An aspect of that question is whether or not we simply need 
to have a large workforce, a continually expanding workforce, 
and my view on that, not as an economist, is that our economy 
has adjusted to a tremendous influx of additional workers, and 
I think that reciprocally if the workforce were to shrink, that 
our economy would also adjust to that shrinkage.
    Mr. Bishop. Let me now ask a question of each of the 
panelists. And thank you, by the way, very much for your 
testimony.
    The McCain-Hagel-Martinez compromise bill in the Senate has 
a path to earned legalization for people who have been here 5 
years or more.
    Let me just ask directly, do you or do you not support, 
either you or the organizations you represent, support a path 
to earned legalization for those who have been in this country 
working and basically living by the laws of our society for 
the----
    Ms. Dickson. The Chamber of Commerce definitely supports a 
path for earned legalization as long as they met the criteria 
that was outlined in those things.
    Mr. Bishop. OK. Thank you.
    Ms. Hallstrom. Yes, we do support what you are speaking of, 
because right now we have much of top management, I believe, 
that is supporting the agricultural business, and many of those 
people would be directed out of this country. I don't know 
where we would find that management and that experience.
    Also, it is very important, the adjustment of status is 
critical for our ability to be able to transition into a future 
guest worker program.
    Mr. Jack Martin. Our view is that an amnesty, which is 
basically what is referred to as an earned legalization, would 
be repeating the mistakes of 1986. It would send a message 
abroad that we were not serious about enforcing our immigration 
laws and would encourage a continuing flow of illegal workers 
coming into the country.
    Mr. Bishop. So the short answer is no.
    Mr. Jack Martin. So we are absolutely opposed to that 
provision.
    Mr. Bishop. I want to come to the other two, but if I could 
engage you for a second. So it is your honestly held belief 
that a path to earned legalization that is 11 years in 
duration, that requires the payment of a $4,000 fine, that 
requires learning English, learning civics and paying all back 
taxes constitutes a free pass? Is that your definition of 
amnesty?
    Mr. Jack Martin. In the sense that what you refer to as a 
fine was what was referred to in 1986 as a fee that paid for 
the administration of the program. We don't see that as 
anything that justifies, in effect, allowing people who come 
into the country to adjust their status and sends a signal 
abroad that others----
    Mr. Bishop. But, if I may, you use the term, ``amnesty,'' 
which is a term that has a fair amount of emotional content in 
it. Do you believe, for example, if someone is arrested for 
drunken driving and they are given probation, does that 
constitute amnesty or have they been sanctioned in some way?
    Mr. Jack Martin. I would say that that simply is not 
comparable to the situation of people who have come into the 
country illegally or overstayed their visas.
    Mr. Bishop. I will disagree with you, but fine.
    Ms. Smith?
    Ms. Smith. We absolutely believe in a legalization program 
as the centerpiece to immigration reform, as is provided in the 
Senate bill and also the ag jobs portion. We have some concerns 
that legalization may present some barriers to some folks, as 
you have indicated with the fines and the amount of time that 
it takes to legalize.
    Mr. Bishop. Dr. Martin?
    Dr. Philip Martin. I think the practical answer is, 
eventually some people are going to--it is too difficult to do 
anything other than provide a path for at least some of them.
    Mr. Bishop. Thank you. I see my time has expired.
    Thank you, Mr. Chairman.
    Miss McMorris. OK. I will ask a couple of questions.
    One for Dr. Martin. You suggested a pilot project, pilot 
program for any new guest worker proposals. Would you just 
share a little bit as to how you envision that being 
structured, and would you propose guest workers for specific 
industries, limiting the number of workers or some other 
outline for a new program?
    Dr. Philip Martin. OK. Thank you for the question.
    When we look at guest worker programs around the world, 
most of them are rule-based, which means employers have to 
satisfy certain rules, then they are allowed to recruit 
temporary workers.
    The general experience is that once the employers and the 
migrants abroad learn the rules, then the whole program gets 
static. There is not much incentive to look locally for 
workers, because you have now got an experienced workforce 
abroad, and you can get increased dependence in the sending 
areas on foreign jobs and remittances.
    So in order to make the programs live up to their name, 
which is adding workers temporarily to the labor force, not 
adding settlers to the population, it seems to me that you have 
to have economic mechanisms to reinforce those rules.
    What I have proposed is a pilot by which one takes the 
payroll taxes, which otherwise would accrue simply to the 
Federal Government, and divide them with some of the money 
going to employers or going to boards representing workers, 
employers and government, so that we are not faced with the 
same issue of dependence on foreign workers 10 or 15 or 20 
years down the road.
    I would do pilots on an industry basis, and you could even 
do them even on a subsector basis but with the amount of money 
available to be spent, dependent, of course, on how many guest 
workers there were and what wages they earn. And then on the 
side of the migrants, I would do refunds of part of their 
payroll taxes to give them an incentive to return back home.
    So I guess conceptually, no matter what rules you 
establish, the migrant and the employer often have an incentive 
to prolong what is supposed to be a temporary arrangement. If 
you are going to avoid that happening in a new set of guest 
worker programs, you are going to have to come up with economic 
mechanisms to reinforce the rules. If you have only rules, 
there will never be enough enforcement people, and that is why 
we get this line about, ``nothing more permanent than temporary 
workers.''
    Miss McMorris. So is there another country that has a 
similar type of program that you have seen?
    Dr. Philip Martin. Well, the countries that come closest 
are countries like Singapore where, remember, they have the 
things that start first with enforcement, which most people on 
the panel have said, you need to have enforcement so that 
people hire legal rather than unauthorized workers. And then, 
second, yes, they do have economic mechanisms, mostly on the 
employer side, because that is a country with fairly harsh 
rules on the worker side.
    I would rather see the United States use economic 
mechanisms to encourage returns rather than the fairly drastic 
kind of enforcement measures they use on the worker side. But 
that is an example of a country that uses economic mechanisms 
to try to reinforce what the program rules say.
    Miss McMorris. Thank you.
    Ms. Hallstrom, as someone who represents a district largely 
dependent upon agriculture, coming from Washington state, I 
just wanted to have you highlight--or you did in your testimony 
highlight some of the obstacles to the current H-2A Program, 
and we have heard some of those in the past.
    Would you talk a little bit--you mentioned the merit of 
litigation. Would you just kind of explain the kinds of 
lawsuits that have been brought against your company and if you 
have any suggestions for reducing the litigation?
    Ms. Hallstrom. Well, I would.
    I would also like to, before we get off of the last 
comment, to say that I don't think that there is any evidence 
out there to show that the domestic workforce is going to get 
any better for agriculture. I know that in California, and I 
believe to the U.S., there has been a lot of money, effort, 
time spent in trying to discourage migrant seasonal labor 
within the domestic workforce. We look more to provide 
opportunities for year-round work and not so much migrant 
because that doesn't really support the family unit. So I just 
wanted to mention that.
    In regards to your question on frivolous lawsuits, they run 
the gamut. And I will tell you that the current 50-year-old 
program is very cumbersome, it is very time-consuming. It is 
difficult, it is hard to understand. Our very first experience 
with a lawsuit was the first year that we had to, under an 
emergency request, jump into an H-2A Program that I thought I 
understood just on paper and looking at the issues around the 
need for reform guest worker program since 1986.
    I mean, the whole reason I got into this was because in 
1986 I saw what happened and I said, ``Oh, my God, this is a 
train wreck waiting to happen. In a few years, we are not going 
to have a labor force.'' So it was more of an interest of 
trying to figure out why we ended up with a one-legged stool 
approach back then.
    We immediately hired an immigration attorney, labor 
attorney to help us get through what we knew was going to be a 
difficult process. We were stumbling through, we had never gone 
through the program on the ground, and so we had to learn the 
hard way of the difficulties, the communication between the 
different departments and even within our own business between 
field and the advertisements that didn't really sound like much 
of a job offer, it sounds more like a legal document.
    And so in all of that there were miscommunications, and we 
ended up with in the first year a lawsuit based on the fact 
that we were told that we didn't communicate clearly.
    Well, you know, first time we would ever used the program, 
we jumped into it, we have legal counsel to avoid those things, 
and we still ended up there. And fortunately for us, the judge 
recognized that situation, and we got through it. But we 
probably spent about $250,000 in legal fees just trying to get 
to that decision.
    Later, we further saw problems with we would have a 
disagreement with maybe an employee that said that we didn't 
offer them a job, perhaps a domestic worker that said that they 
were not offered that particular job.
    And in doing the research, we have learned through the 
years how specifically you have to document every single thing 
you say, every phone call, every protocol. Because we found out 
through documenting that the job that the person was actually 
applying for was a completely different job, it had nothing to 
do with the H-2A Program at all, and we still ended up having 
to settle out of--I think it was $16,000. So it is more of a 
nuisance than anything else.
    So those are some of the examples that I am talking about. 
They take money, they take time, and, frankly, our fellow 
farmers around the country see this stuff and they just go, 
``You want to use that?''
    Miss McMorris. Thank you.
    Ms. Smith. If I may, my testimony, as well, includes 
examples of a number of non-frivolous serious abuses in the H-
2A Guest Worker Program as well as the H-2B Program, and what I 
would like to say that I think we need to have a little more 
focus on is in this delicate balance of protecting American 
workers and making sure that we respect the human rights and 
the labor rights of guest workers, prevailing wage and labor 
standards are the centerpiece.
    We need to make sure that U.S. workers are protected by 
recruitment at the prevailing wage and that then if it is true 
that U.S. workers cannot be located, that guest workers be 
brought in, again, at that higher wage. And prevailing wage is 
based on employers' own reports of what it is that they are 
paying workers. So we need to spend careful attention on labor 
standards in order to protect both our resident workforce and 
the foreign workforce.
    Miss McMorris. OK.
    Mr. Martin?
    Mr. Jack Martin. If I could just add with regard to that 
issue of prevailing wages, prevailing wages are of course one 
of the elements in the H-1B Program, but studies that have been 
done have found, first of all, that employers are paying 
significantly lower than the prevailing wage to H-1B workers, 
and there is hardly any enforcement at all by the Department of 
Labor, which encourages that type of activity, in addition to 
which the prevailing wage standard is interpreted by the 
Department of Labor in a fashion that, in effect, allows 
employers to pay lower wages to temporary foreign workers as 
opposed to American workers.
    So it is not sufficient simply to have a prevailing wage 
standard in the law but rather to have mechanisms to make sure 
that real prevailing wages are going to be paid in any 
situation where you have temporary workers. And those should be 
temporary rather than at present time where, in effect, they 
are being occupied by people who are staying permanently in the 
country.
    Ms. Dickson. I would have to beg to disagree. We certainly 
take the prevailing wage aspect of H-1B workers very seriously, 
and the way the law is actually written you have to pay the 
geographical prevailing wage, which there are a number of 
excellent surveys out there, including what is from the Bureau 
of Labor Statistics, which is the one we generally go to, or 
the actual wage paid to other workers in the same occupation.
    And large companies, we use the Hay System. We have 
minimum-maximums for every job, as rated in our company, and 
any H-1B worker that is hired is being paid the appropriate 
wage, if the geographical wage is higher or the actual wage. In 
our company, generally the actual wage is higher. So the person 
is generally paid higher than the geographical prevailing wage. 
This has to be documented. We also post at the worksite the 
wage that the person receives, and there are instructions on 
that how to notify wage and hour.
    There is an enforcement mechanism. I am not saying that 
there aren't some employers out there that are not doing it 
properly, but the majority of employers are doing it properly 
and take that very, very seriously. And there is an enforcement 
mechanism to come in an investigate those employers who are 
not.
    Miss McMorris. OK. I think that concludes our day.
    Thank you for appearing before the committee.
    If there is no further business, this initial hearing of 
the series is now adjourned.
    [Whereupon, at 1:02 p.m., the committee was adjourned.]
    [Additional submissions for the record follow:]
    [The prepared statement of Mr. Norwood follows:]

    Prepared Statement of Hon. Charlie Norwood, a Representative in 
                   Congress From the State of Georgia

    Mr. Chairman, I'm happy to engage in a real debate about the future 
of America's guest worker policy in this committee. The debate is long 
overdue, and the American people deserve an explanation from their 
elected representatives about where they stand on the issue.
    After all, 62 senators recently thumbed their noses at the average 
American worker by voting to pass S. 2611, the Reid/Kennedy 
``Comprehensive Immigration Reform Act of 2006.'' I find the title of 
the legislation insidious, since the only comprehensive aspect is the 
extent to which it sells out the rule of law.
    At its very core, the Reid/Kennedy legislation extends amnesty to 
millions of illegal aliens currently living in our country.
    The senior senators from Nevada and Massachusetts might disagree, 
but there is no denying this fact. And worse still, if Reid and Kennedy 
have their way, our government will likely open up a flood of up to 100 
million new legal immigrants over the next 20 years.
    This avalanche of humanity across our borders is not only 
unsustainable; it threatens the very way of life American citizens now 
enjoy.
    Mr. Chairman, our school systems, hospitals and social service 
networks cannot support the creation of the new ``guest worker'' 
program called for in the Reid/Kennedy bill. And I say the words guest 
worker with more than just a little irony, since there is nothing 
temporary about the Reid/Kennedy plan for earned legalization and a 
path to citizenship for millions of illegal aliens.
    Oh no, the folks that have flouted the rule of law time and time 
again will not be going home any time soon.
    But the Reid/Kennedy legislation goes even further. The Democrats 
who want to grant amnesty to the people who broke our immigration law 
also want to place them at the front of the line for a pay raise!
    This is not an exaggeration. The Reid/Kennedy legislation would 
expand Davis Bacon wage rates to the private sector for the first time 
in American history. And rather than extending this wasteful largesse 
to American workers, which would be bad enough, the Democrats want to 
shower it upon illegal aliens. This dastardly plan puts lawbreakers 
first at the expense of the American worker, offers them a better wage 
rate, and is completely unacceptable.
    Mr. Chairman, the U.S. Congress does not need to repeat the same 
mistakes it made in 1986 by granting amnesty to illegal aliens. History 
has shown that amnesty does not work. And we certainly do not need to 
compound those mistakes by dramatically extending Davis Bacon wage 
rates to current illegal aliens.
    House Republicans have a far better plan. First, we must secure the 
border and immediately stop the flood of illegal immigration. This is 
non-negotiable. Before Congress even begins to discuss a revamped guest 
worker program, the President must demonstrate once and for all that 
the border is secure.
    Second, we must strengthen existing interior enforcement law and 
actually apply penalties to illegal immigrants who break our 
immigration laws.
    When these critical demands are met, Congress can then begin to 
talk about a work-visa program that works.
    My colleagues on both sides of the aisle agree that we must work to 
achieve this goal. The American economy cannot survive without foreign 
labor, and it is foolish to deny that fact. However, it would be more 
than foolish to support the Reid/Kennedy legislation as means to 
achieve our goal. In fact, it would be downright treasonous. Thank you 
Mr. Chairman, I yield back.
                                 ______
                                 
    [The prepared statement of Mr. Owens follows:]

Prepared Statement of Hon. Major R. Owens, a Representative in Congress 
                       From the State of New York

    Mr. Chairman, as the witness for this side of the aisle, Rebecca 
Smith, will confirm this morning, the federal Department of Labor is 
failing to enforce important labor laws, especially those that apply 
specifically to low wage American workers and guest workers under the 
existing H2A and H2 B programs. This is no accident. The current 
Administration has failed to hold business owners and operators 
accountable for egregious safety violations that have killed 35 coal 
miners so far this year and we're only halfway through the calendar 
year. The recently confirmed Assistant Secretary for Occupational 
Safety and Health, Mr. Foulke, says that his number one priority is to 
promote voluntary compliance programs for employers as opposed to 
enforcing safety and health laws. And over the past 5 years, the number 
of private collective-action filings under the Fair Labor Standards Act 
(FLSA) has increased by 87 percent. That is a striking statistic and it 
is clearly a result of the Bush Administration's failure to enforce 
wage and hour laws.
    As for the current guest worker programs, rampant violations of 
FLSA, the Occupational Safety and Health (OSH) Act, the Service 
Contract Act, and the Migrant and Seasonal Agricultural Worker 
Protection Act simply are ignored by DOL, even when publicly documented 
in the press. Our next full Committee hearing should focus on these 
dangerous enforcement lapses at DOL.
    To encourage the Chairman to schedule such a hearing, I ask 
unanimous consent that the Sacramento Bee's investigative report on the 
H2 B program entitled ``The Pineros: Men of the Pines'' be included in 
the record in its entirety. This series documents the DOL's complete 
disregard of blatant wage and hour, child labor, safety and health, and 
federal contracting violations in our national forests. It also points 
out that the left hand doesn't know what the right hand is doing at DOL 
when it comes to H2B programs. Federal contractors who are repeatedly 
violating wage and hour laws may once in a while be cited by DOL's Wage 
and Hour Division, which would make them liable for immediate 
debarment. But even in those few instances where the Sacramento Bee 
reporter, Mr. Tom Knudson, found that forestry contractors had been 
cited by DOL for wage violations, rather than being debarred they were 
approved by the Employment and Training Administration at the very same 
time as meeting all DOL qualifications for obtaining a new cadre of H2B 
workers.
    Mr. Chairman, I also ask unanimous consent that a report by the 
Southern Poverty Law Center on this issue, ``Beneath the Pines: Stories 
of Migrant Tree Planters,'' be included in the record in its entirety.*
---------------------------------------------------------------------------
    *Submitted and placed in permanent archive file, ``Beneath the 
Pines: Stories of Migrant Tree Planters,'' Immigrant Justice Project, 
Southern Poverty Law Center, 2006. http://www.splcenter.org/ (Submitted 
by Rep. Owens).
---------------------------------------------------------------------------
    In closing, I would like to commend Attorney General Eliot Spitzer 
from New York State. Recognizing the federal DOL's failure to enforce 
FLSA and other important statutes designed to protect hard working 
Americans (including immigrants), Attorney General Spitzer has brought 
575 actions against employers for wage and hour and overtime 
violations. As a dedicated public official, he is holding unscrupulous 
employers accountable and helping low income workers get the wages they 
are legally entitled to get. He is ensuring that New York residents 
know if they work hard and play by the rules, they will be treated 
fairly, even if and when an employer tries to cheat them. I maintain 
that the Republican leadership in this House and in the Senate could 
learn a great deal about American fairness from Attorney General 
Spitzer. In fact, when the Chairman calls a hearing on DOL labor law 
enforcement failures, I promise to help him get Mr. Spitzer as a 
witness.
                                 ______
                                 
    [Newspaper article submitted by Mr. Owens follows:]

   [Three-part series from the Sacramento Bee, November 13-15, 2005]

          Part 1: Forest Workers Caught in Web of Exploitation

 Foreign guest laborers take jobs most Americans don't want. But those 
invited to work in the woods have hardly been offered our hospitality. 
   On public and private land, they suffer injury, abuse, even death.

          By Tom Knudson and Hector Amezcua, Bee Staff Writers

    During the day, the men swung machetes and worked in the woods. At 
night, they lay in ragged tents, wrapped themselves in layers of 
clothing and nearly froze.
    As the migrant workers suffered, U.S. Forest Service officials in 
Idaho supervising the work were taking notes. But their primary concern 
was trees, not people. ``Pace too slow,'' one jotted in a memo. 
``Foreman not active enough vis a vis quality, production, direction.''
    Pineros--pine workers, as Latino forest laborers are known--have 
long battled abusive working conditions. But today, there is a new edge 
to the drama: Much of the mistreatment is unfolding inside a government 
program that invites foreign workers to the United States to fill labor 
shortages.
    Unlike millions of Latin Americans who cross the border illegally 
to work in El Norte, the pineros toiling on federal land in Idaho were 
in this country legally, part of a small army of foreign residents who 
fill low-paying, non-farm jobs under a little-known federal guest 
worker program.
    Yet the 10,000 or so forest guest workers, who plant trees across 
the nation and thin fire-prone woods out West as part of the Bush 
administration's Healthy Forests Initiative, have hardly been treated 
with hospitality.
    A nine-month Bee investigation based on more than 150 interviews 
across Mexico, Guatemala and the United States and 5,000 pages of 
records unearthed through the Freedom of Information Act has found 
pineros are victims of employer exploitation, government neglect and a 
contracting system that insulates landowners--including the U.S. 
government--from responsibility.
    Foreign guest workers take jobs most Americans don't want--in fact 
that is a condition of their employment. They mow lawns, wash dishes, 
clean hotel rooms. Of the estimated 66,000 guest workers in this 
country, forest workers are the second-largest group, after landscape 
laborers.
    And employers want more of them. This spring, Congress passed 
legislation making it easier for companies to hire the nonresident 
employees, officially known as H2B workers to distinguish them from H2A 
guest workers in agriculture. Bush administration officials support 
expanding the H2B work force, saying legal temporary foreign workers 
help solve myriad problems of undocumented labor.
    But in the backwoods, where pineros often lack adequate training, 
protective gear or medical supplies, where they sweat, struggle and 
suffer, the current forest guest worker program casts a shadow across 
its future.
    ``There is a move to use this program and hold it up like it's a 
darling child, but on the ground, it's so problematic,'' said Maria 
Andrade, a Boise, Idaho, attorney who works with migrant laborers.
    Guest forest workers are routinely subjected to conditions not 
tolerated elsewhere in the United States, The Bee investigation found. 
They are gashed by chain saws, bruised by tumbling logs and rocks, 
verbally abused and forced to live in squalor.
    Rainstorms pummel them. Cold winds sweep over them. Hunger stalks 
them. And death claims them. Across Honduras and Guatemala, 14 guest 
workers lay in tombs, victims of the worst non-fire-related workplace 
accident in the history of U.S. forests.
    In addition:
     Over the past decade, forest contractors certified by the 
U.S. Department of Labor to hire foreign guest workers have shorted 
them out of hundreds of thousands of dollars in wages and violated 
scores of state and federal laws. Some employers have taken workers' 
visas and personal papers, including deeds to cars and even a home--in 
effect, holding them hostage to hard labor.
     The H2B forest workers toil in a regulatory void. Rules 
that protect H2A farmworkers--such as requirements for free housing and 
access to federal legal services--don't extend to forest guest workers.
     In national forests, where the contractors are paid with 
tax dollars, federal officials overseeing the work witness the 
mistreatment and wretched working conditions. But they don't intervene. 
Responsibility for workers, they say, rests with the Department of 
Labor and the forest contractors themselves.
     And, where government oversight of contractors exists, 
it's often inconsistent. Companies cited by one branch of the Labor 
Department for abusing forest guest workers are regularly certified by 
another branch to recruit and hire more.
    This fall, 17 guest workers slashed through dense stands of pine 
and fir in Montana's Bitterroot National Forest for a contractor with a 
history of labor violations: Universal Forestry of Orofino, Idaho.
    While cutting a dead tree without safety goggles--another 
violation--one of them was struck in the face by a branch, which gouged 
a deep crescent beneath his eye. The company declined to discuss the 
situation in Montana. But other crew members complained of unsafe 
working conditions, of unexpected payroll deductions and of hunger.
    ``We are uneasy because we don't even have enough money to eat,'' 
said Luciano Hernandez, who said he was down to his last $15.
    One worker found nutrition in a tiny pond behind a gas station. 
Tying a piece of line to a branch, he baited a hook with chicken scraps 
and caught two small trout. Back at his cabin kitchenette, as the fish 
were being fried, a colleague eyed them hungrily.
    ``You can even eat the bones!'' said Luis Andres Molina Hernandez.
    ``No, you can't,'' replied the fisherman, Johnny Beitia.
    ``Yes, you can,'' said Molina, peeling away a partly cooked bone, 
placing it on his tongue and swallowing. ``But you have to be 
careful.''
    For years, the plight of H2B forest workers has remained out of 
sight, concealed by the remote job sites and the wariness of the 
workers, who generally don't speak English and fear retaliation by 
employers. Last spring, though, allegations of shabby treatment 
surfaced in a petition filed with Mexico's government under the North 
American Agreement on Labor Cooperation, a part of the North American 
Free Trade Agreement devoted to labor rights and standards.
    ``Abuse is endemic to this system,'' said Mary Bauer, a lawyer with 
the Southern Poverty Law Center in Alabama who has sued three forest 
contractors on behalf of guest workers. ``Basically, we're importing 
indentured servants to perform government functions. That's really what 
this is.''
    The labor contractors who hire guest workers and put them to work 
on public and private land characterize accounts of mistreatment as 
overblown. They say they are beleaguered by government regulations, 
worker advocates and pineros who distort the truth and don't work hard 
enough.
    ``There are so many things you are continually battered with,'' 
said Robert ``Wade'' Zaharie, an Idaho contractor previously cited for 
federal labor violations and sued by his workers. ``In this industry, 
you are always going to be painted as a bad person.''
    Paved with yearning for a better life, the road to a forest guest 
worker job begins in the gullied fields and gritty towns of Mexico and 
Central America. It springs from a landscape of scrawny cattle, rickety 
bikes and stifling poverty, where workers earn as little as $2.50 a 
day.
    It weaves through a blur of bus stations, cheap motels and crowded 
work vans and ends in forests across the United States, where many 
arrive in debt to their employer for travel and other expenses.
    Mexicans and Central Americans first began to trek north as H2B 
workers in the late 1980s, following the landmark 1986 federal 
Immigration Reform and Control Act's sanctions for hiring undocumented 
workers.
    Since then, the demand for legal guest workers in forestry has 
soared, from about 4,000 in 1996 to about 27,000 in 2004, records show. 
Though not all those requests are filled, the H2B workers represent a 
large portion of the estimated 15,000 to 20,000 Latinos laboring in 
America's woods.
    Over the years, the work of novelist John Steinbeck, CBS newsman 
Edward R. Murrow and labor organizer Cesar Chavez thrust the plight of 
farmworkers into the public consciousness, peeling away their status as 
los olvidados, the forgotten ones.
    But forest workers continue to live and work in obscurity.
    ``Somos los desconocidos''--we are the unknown ones, said Odilio 
Castro, an undocumented pinero injured by a falling tree last year in 
the Sequoia National Forest. ``When you tell somebody you work in the 
woods, they have no idea what you do.''
    The forest worker season begins in November on corporate pine 
plantations in the South, where trees grow in rows and most of 
America's wood is now harvested. But by April, the pineros drift toward 
the jade-green forests of the mountain West.
    Pineros plant trees and thin vegetation on a gargantuan scale. 
Saddled with gear--from the bags of seedlings weighing up to 50 pounds 
that swing from their hips to the gallon-sized jugs of gas, oil and 
water strapped to their belts--they trudge across rough ground where 
heavy equipment can't go: the slippery slopes, soggy stream banks and 
rock-infested ridges.
    Whether here as legal or undocumented workers, pineros share a 
common experience. They tend to live on the rundown edges of rural 
towns, sleeping three or four to a bed and sprawling across the floors 
of rental homes, trailers, budget motels and even tarp lean-tos. Often, 
they're on the move--commuting long distances to work, slipping through 
mountain resorts before dawn.
    Other things set the legal guest workers apart.
    ``Most are the kind of people who would not pay a `coyote' to cross 
the border,'' said Maria Andrade, the Idaho lawyer. ``Some are 
professionals in their home countries. Most have never been to the U.S. 
before. They have no family members here, no support network.''
    That isolation increases the danger, as an inspector for the U.S. 
Occupational Safety and Health Administration discovered in 2002 at a 
job site in the Ouachita National Forest in western Arkansas.
    ``They go just as fast as they can through the woods, cutting on 
the run,'' the inspector wrote. ``Almost all the employees have been 
hit by branches of trees other employees have felled * * * . One worker 
was operating a chain saw * * * when the saw became pinched, he jerked 
the saw back and the chain on the saw tore into his leg, creating a 
gash approximately 5-6 inches in length * * * . When he exposed his 
injured leg, it was obviously infected.''
    Vicente Vera Martinez, a Mexican truck driver, remembers the 
incident well. He was the one hurt.
    ``It happened so fast,'' he said when tracked back to his home in 
Santiago Ixquintla, south of Mazatlan. ``The pine tree was a little 
crooked. The chain saw wasn't sharp. I had to force it. That's what 
caused the saw to kick back.''
    Sitting on a plastic chair in his father's backyard, Vera Martinez 
pulled up his left pant leg to show the scar. It resembled a giant 
brown leech. His father, Jesus Vera Flores, scowled.
    ``We had no training,'' said Vera Flores, who worked with his son 
in Arkansas. ``The foreman just took us to a place and said, `Get to 
work.' ''
    ``They wouldn't give us goggles,'' he added. ``The chaps only came 
to above our knees. The saws had no safety locks. When my son was hurt, 
we had to carry him down a hill. It took about an hour. The van we were 
riding in didn't have a first-aid kit.''
    Three years later, word of the critical OSHA inspection still had 
not reached top levels of the Ouachita National Forest, much to the 
surprise of some there. In response to The Bee's inquiries, the 
forest's public affairs officer, Cheryl Chatham, said, ``We're going 
back and taking a look at what's going on out there.''
    For many forest guest workers, though, the greatest pain is 
financial. Back home, recruiters tell them they will earn $7 to $13 an 
hour--a fortune for most Latin Americans. But once in the United 
States, many see their wages whittled away--sometimes to less than the 
minimum wage--by deductions for gas, food, lodging, tools and even, in 
one case, using a portable outhouse. Often, the work is spotty.
    Rafael Perez Perez listened to a recruiter and couldn't resist.
    Perez was a Mexican bookseller in 1996 when he traveled north as an 
H2B worker to earn some extra money for his wife and four children by 
planting trees in Mississippi. Earlier this year, he sat in a hotel 
restaurant in the provincial capital of Aguascalientes, took a sip of 
black coffee and pulled out a check he earned working on Georgia 
Pacific land.
    For 15 hours of work, Perez grossed $105.01--$7 dollars an hour. 
But after deductions for travel ($20), a recruiting fee ($50), a salary 
advance ($25), Social Security and Medicare ($8.03), his actual 
paycheck was for just $1.98--13 cents an hour.
    ``It was unbelievable,'' Perez said. ``I didn't even bother to cash 
it because it cost $2 to cash a check.''
    ``If we worked 12 hours, the foreman would write down eight,'' 
Perez said. ``If we planted 2,000 trees, they'd say you planted 500 of 
them bad. They had the perfect formula to have the worker unable to 
escape.''
    With so little money, Perez and his fellow guest workers had to 
borrow from their employer, contractor Progressive Forestry Services 
Inc. That meant more deductions. With every paycheck, ``we would earn 
less and owe more,'' he said, ``until we realized, `We're never going 
to be able to pay this off.' ''
    The low point came over a hot plate with other workers in a motel 
room on Dec. 25. ``We didn't have money to go to a restaurant. So we 
bought hot dogs for Christmas dinner--nothing else, just hot dogs. It 
was very sad.''
    Perez quit after two months and returned to Mexico. Later, he and 
three others sued Progressive Forestry in a class-action federal court 
case. The total settlement for 380 guest workers was $127,500. Perez 
recovered $4,175.
    Following the suit, Progressive Forestry's owners formed new firms 
and continue to employ H2B workers. They said Perez's lawsuit destroyed 
their company and they disputed his charges.
    ``The guy did not want to work,'' said Bruce Campbell, a co-manager 
of Progressive Environmental LLC in Idaho. ``He was--and I hate to use 
the word--a bad egg. He was not there to work. He was there causing 
problems.''
    Robert Zaharie, who signed Perez's $1.98 check as Progressive's 
president and has since formed the forest contracting firm Alpha 
Services LLC, responded via fax: ``Employers lose thousands of dollars 
each year being humanitarians,'' he wrote. ``When workers show up, 
employers give cash advances. * * * Sometimes they leave with the money 
and never work. We have been more indentured to our workers than they 
have ever been to us.''
    Former partners turned competitors, Zaharie and Campbell are part 
of a tangle of Idaho-based H2B contractors linked by legal woes and 
regulatory infractions. Zaharie began his career with Evergreen 
Forestry Services, which has been cited for hundreds of federal labor 
law violations. Evergreen's owner, Peter John Smith III, joined 
Campbell's company while appealing the government's efforts to put him 
out of business. Universal Forestry's owner, Heber Matute, once worked 
for Smith.
    ``Most of these guys know each other,'' said Jill Ellis, co-owner 
of Renewable Forestry Services Inc., an H2B reforestation firm in 
Georgia. ``It's amazing. If you tried to chart it, it would look like 
tree roots.''
    Only a handful of outsiders have peered into the world of forest 
guest workers. One is anthropologist Josh McDaniel, who interviewed 
contractors and pineros and published his findings with a colleague 
this year in the Journal of Forestry, one of the nation's most 
prestigious forestry publications.
    ``Contractors seemed to play a lot of games with workers' pay,'' 
said McDaniel, who recently stepped down as an assistant professor at 
Auburn University to move to Colorado with his wife. ``They would 
withhold money until workers had nearly fulfilled their contracts. Then 
they would work them really hard until they would leave and forfeit 
their last big chunk of money.''
    Pineros have little recourse. Under the H2B program, they cannot 
take a job with another employer. That, McDaniel said, is an invitation 
to abuse.
    Legal responsibility for guest workers is spread widely. The State 
Department, Immigration and Customs Enforcement and the Border Patrol 
oversee visas and entry to the United States. The Department of Labor, 
which certifies employers to hire workers, is charged with monitoring 
pay and working conditions.
    McDaniel found that oversight of workers is rare. ``There are not a 
lot of inspections,'' he said. ``The crews are really hidden. I had a 
hard time finding them--and I was really trying. There is very little 
regulation at all.''
    Regulation of H2B workers fell into a bureaucratic catacomb from 
the very start, when Congress split a pre-existing guest worker program 
for agriculture into two branches in 1986. At the time, it grafted 
rules to protect farmworkers, including the right to a federal legal 
aid lawyer, onto the H2A branch of the legislation. But it left the H2B 
limb bare.
    ``There weren't many H2B visas issued then, so it wasn't an 
issue,'' said Michael Dale, an Oregon lawyer and migrant advocate.
    Candelario Perez is one of many guest workers who have found 
themselves in need of those protections. Like most, he borrowed money 
for the journey to the United States--$900 for a plane ticket, $300 for 
his visa, even $50 for a physical required by the guest worker program.
    Back home in Panama, a company recruiter had told him he would earn 
$10.50 an hour. But that promise was evaporating. Working for Universal 
Forestry in Idaho, his paychecks were late. Deductions for gas, food, 
motels and a chain saw eroded his pay. Perez and his co-workers grew so 
desperate, they poached deer out of season. ``I was hungry,'' he said. 
``I had to eat.''
    Feeling cheated, he sought legal help. But by law, he could not 
turn to the first line of defense for most migrant workers: a legal aid 
lawyer. Instead, after months of looking, he found Andrade, the private 
attorney from Boise, who took his case.
    In general, H2B workers aren't that lucky.
    ``Most private attorneys don't want them,'' said Roman Ramos, a 
paralegal with Texas Rio Grande Legal Aid Inc. ``For all practical 
purposes, there is nobody to turn to. It would take an act of Congress 
to give these folks some protection.''
    Perez's plight was among those presented this spring in Mexico 
under the NAFTA labor accord. The petition bulges with allegations of 
wage exploitation, wretched living conditions, backbreaking labor and 
regulatory neglect.
    It says that Perez and five co-workers were forced to camp in the 
mountains as temperatures approached freezing. ``There were no sleeping 
pads, mattresses or sleeping bags,'' the petition reports. ``The only 
drinking water was untreated and came from a creek.''
    On Sept. 26, 2000, Perez and another worker filed complaints with 
the Department of Labor. Four months later, the department responded 
that, ``it could not take action because the complaints were in 
Spanish,'' says the petition.
    Finally, in early 2003, the federal agency found Universal had 
shorted 29 forest guest workers out of more than $6,400 in wages, 
including Perez, who was owed $631.25.
    Allegations about living conditions went unsubstantiated, the 
petition says, because the Labor Department was too slow. The work was 
done, and the workers gone, by the time the government got involved.
    Only months after the Labor Department's findings, Universal was 
back at work on a federal contract in the Clearwater National Forest in 
Idaho. The focus once again was the trees, not wages or working 
conditions.
    ``Francisco worked the crew straight thru lunch and finished 
planting out the trees at 1410 (2:10 p.m.),'' one Forest Service 
inspector wrote in his field diary on May 24.
    ``It was a sunny, hot day and the crew was dragging,'' he added. 
``I told Francisco that even though it was hot and the guys appeared 
tired they still needed to dig deep holes to accommodate the 14'' 
roots. Francisco got on the crew and they finished out the day OK.''
    Asked about that field diary, the supervisor of the Clearwater 
National Forest, Larry Dawson, said it did not bother him. Contractors 
set working hours, not the government, he said.
    ``If the contractor makes the choice to continue working, 
recognizing that they're hot and conditions are difficult, we continue 
to hold them accountable to plant the trees correctly,'' Dawson said.
    ``If they're hot, yeah, what else is there to say?'' he added. ``Of 
course, it is difficult work.''
    Migrant advocates had another take on such incidents. ``We are 
financing these abuses--and the profits people wring from them,'' said 
Maria Andrade.
    Universal's owner, Matute, said he doesn't mistreat his employees, 
but acknowledged he works them hard.
    ``With these government jobs, I have pressure to get the job 
done,'' he said. ``I am pressing the guys to do the job that needs to 
be done. Otherwise, I don't get paid.''
    Emilio Morales Donis of Guatemala City, who worked four months for 
Universal in 2002, said he felt Matute sometimes pushed too hard--and 
not always on the job. He said he watched Matute seize the passports of 
a group of Mexican H2B workers. ``They couldn't even go out on the 
street because they had no documents, Morales said. ``In my way of 
thinking, he detained them like slaves.''
    Matute said he needed the documents to fill out office paperwork. 
``Everybody got them back,'' he said.
    Jesus Vera Flores and Vicente Vera Martinez, the father and son 
from Santiago Ixquintla, say something similar happened to them as they 
sought employment with another contractor for work in the Arkansas 
national forest. They turned over the deeds to their cars as a 
guarantee they would finish the work.
    ``We felt like we were imprisoned, held captive,'' said Vera 
Martinez. ``What else did he need, a whip?''
    In the choppy, green hills of northern Guatemala, Edilberto Morales 
Luis has more than memories to remind him of his time as a guest worker 
in U.S. forests.
    A quiet, solidly built man in his mid-20s, Morales is the lone 
survivor of a van accident in Maine that took the lives of 14 H2B 
forest workers.
    It happened not on the job--but on the grueling drive to work on 
private land owned by a timber company called Pingree Associates. 
Shortly before 8 a.m. on Sept. 12, 2002, the driver of a van in which 
Morales was riding lost control while crossing a one-lane wooden bridge 
and tumbled upside-down into the Allagash River.
    One morning last spring, Morales shuffled across a small bedroom in 
his home and pointed to a picture of eight guest workers, posing for a 
group photo in the Maine woods.
    ``He died. He died. He died,'' he said, touching one face after 
another. ``That one's my uncle. He died.''
    In early 2002, Morales had left Guatemala with an H2B visa to work 
for Evergreen Forestry Services, an Idaho-based reforestation 
contractor. But there was something he and his co-workers on the Maine 
job did not know, something buried in the U.S. government's files: 
Evergreen had a long record of mistreating workers.
    ``Subject has a lengthy and woeful history of non-compliance,'' a 
federal inspector wrote in 1998. ``(Its) history reads like `The 
Anatomy of a Worst Violator.' '' Evergreen had altered timecards and 
failed to pay overtime, the files say, shorting workers out of more 
than $250,000 in all.
    Two years later, another investigator cited Evergreen for a thicket 
of additional violations, including transporting workers in an unsafe 
van. ``The vehicle * * * had visible bald tires,'' the investigator 
wrote.
    The Bee tried to reach Peter Smith, Evergreen's owner, on several 
occasions, but he did not return calls.
    Government files also contained letters from migrant advocates, 
pleading with the Labor Department to stop Evergreen from hiring 
foreign workers. Yet while one branch of the Labor Department, the wage 
and hour division, was repeatedly citing Evergreen, another branch--the 
employment and training administration--was authorizing it to hire H2B 
workers.
    After the van accident, migrant advocates were outraged.
    ``The very agencies whose duty it was to protect workers fell down 
on the job,'' said Lori Elmer, an attorney for forest workers in North 
Carolina. ``They had all the information and still didn't do anything. 
It was a complete breakdown.''
    In December 2002, the Labor Department revoked Evergreen's license. 
Last year, it fined the company $17,000--$1,000 for each fatality, 
$1,000 for Morales and $2,000 for failing to register the van or driver 
as required under the Migrant and Seasonal Agricultural Worker 
Protection Act.
    That fine has not been paid and Smith remains in business at 
Progressive Environmental, where he became president this year, Idaho 
state records show.
    Since 2003, Smith's new company has been awarded $238,000 in 
government contracts for work on Forest Service and U.S. Bureau of Land 
Management land in Oregon and Montana, according to the Federal 
Procurement Data System, an online inventory of federal contracts.
    Labor Department spokeswoman Dolline Hatchett said Smith's 
involvement with another reforestation company is legal because he has 
appealed the agency's revocation of his license. ``It's all still up in 
the air,'' she said.
    Scattered across Central America are the remains of 14 Evergreen 
workers whose perspectives on the matter will never be heard. One is 
Morales' uncle, Juan Saenz Mendez, who had journeyed north to earn 
money for his wife and six children.
    Today, Saenz lies in a concrete-block tomb draped with pink, green, 
white and black ribbons. At midday, the cemetery is quiet. The ribbons 
flutter in a hot breeze.
    ``We will always remember you dear Juanito,'' the inscription on 
the tomb reads, in Spanish. Below that, it adds:
    El sueno Americano nos privo de tu presencia--the American dream 
has deprived us of your presence.

                         Part 2: Hidden Hazards

 Although Congress has expressed it outrage at the treatment of forest 
  workers, the government has done little to improve conditions. For 
those who toil deep in the woods, the threat of being injured or killed 
                        is an everyday reality.

    Six federal departments and a constellation of state agencies share 
responsibility for reforestation workers. But the occupational safety 
and health officials who inspect work sites rarely visit a 
reforestation job. Redding Tree Growers, for example, has not been 
inspected by the California Division of Occupational Safety and Health 
in more than a decade.
    The reason? Workers, most of whom speak no English, rarely complain 
to authorities. Accidents, which normally trigger an investigation, 
often go unreported. Crews work in remote locations and move 
frequently, making them hard to target for random inspections.
    In more than two decades of thinning and planting across the West, 
pinero Santiago Calzada has seen a government safety inspector just 
once.
    ``Contractors do whatever they want,'' said Calzada, who lives in 
Medford. ``And there are hardly no witnesses.''
    The U.S. Forest Service, which spends millions of taxpayer dollars 
on reforestation of public lands every year, says safety, pay and 
immigration violations are not its problem. ``We're the Forest Service. 
We're not the INS or the Department of Labor,'' said Matt Matthes, a 
Forest Service spokesman in California.
    But the INS--known now as U.S. Immigration and Customs 
Enforcement--hasn't inspected a reforestation job in California in 
years. Instead, it has shifted its attention to terrorism and national 
security.
    Twelve years ago, a story in The Bee about the poor conditions 
endured by undocumented forest workers on federal land touched off a 
flurry of media coverage and a critical congressional report titled: 
``Look Who's Minding the Forest: Forest Service Reforestation Program 
Due For a Major Overhaul.''
    ``We cannot tolerate these conditions, or even the perception that 
we allow such conditions to exist,'' wrote the chief of the Forest 
Service in 1993, Dale Robertson. ``Let me state this very clearly: It 
is Forest Service policy to do business only with responsible 
contractors who obey federal, state and local laws.''
    The Forest Service has not walked that talk.
    Despite calling for tougher law enforcement and assembling a 264-
page watch list of troubled contractors, the agency today routinely 
contracts its work out to reforestation companies that violate state 
and federal safety, health and labor laws.
    Matthes says it's only reasonable. ``If somebody gets caught doing 
something wrong and they fix it, they're good,'' he said. ``How can the 
federal government punish them? It's like society. If somebody's done 
their time, they deserve a fair shake again.''
    But others in the Forest Service said the agency has simply lost 
interest--again.
    ``We're not very good at managing things like this anymore,'' said 
Stan Bird, a veteran Forest Service contracting officer in John Day, 
Ore. ``Years ago, it was important. But it's gotten lost in the midst 
of a lot of other priorities.''
    In the Klamath National Forest in California, federal law 
enforcement officer Jeff Brown worked a flurry of cases in the mid-'90s 
involving undocumented workers. Since then, Forest Service 
reforestation officials have not referred a single case to him. ``In my 
opinion, the problem is still out there,'' Brown said. ``It hasn't gone 
away.''
    Doing business through reforestation contractors allows the 
government and private timber companies to duck legal responsibility 
for workers. But the government often pays so little for jobs that 
contractors are forced to cut corners and put workers at risk, some 
industry veterans say.
    ``The forest industry takes reforestation workers for granted,'' 
said Dan Robertson, president of the Northwest Reforestation 
Contractors Association and one of the few insiders calling for reform. 
``They don't have a lot of concern about whether contractors are 
complying with all of the laws. As long as they think they are, they 
pretty much ignore it. And government is by far the worst.''
    Forests have always been risky places to work. Logging, in fact, is 
the most dangerous job in America, with a mortality rate of 92 workers 
per 100,000. Although thinning crowded stands of pine and fir is 
similar to logging, scant figures are available for Latino 
reforestation workers. But they are part of a deadly demographic tide: 
Latino laborers are 33 percent more likely to die on the job than other 
workers, according to the U.S. Bureau of Labor Statistics.
    On the west side of Medford, Ore., statistics are more than numbers 
in a report. They wear blue jeans and baseball caps and go to work in 
the woods. They speak little or no English, pack lunches of tortillas 
and beans and cash their paychecks not at banks but at Latino-owned 
convenience stores.
    For a few weeks in 2004, Medford was home to Ricardo Ponce Leon, 
who had heard about the fistfuls of dollars that could be earned in 
America's forests. The son of a poor brick-maker from Michoacan, the 
18-year-old hungered for prosperity and prestige.
    ``He wanted to be a don,'' said his father, Manuel Ponce. ``He 
wanted the best the U.S. could offer.''
    It didn't work out that way. One morning, spraying brush-killing 
chemicals on private land across the border in California, Ponce hopped 
on a trailer for a ride to a new work site. The dual-axle trailer, 
carrying a heavy tank of liquid brush-killer, bumped and rattled down a 
dirt road. Ponce slipped, fell to the ground and was run over.
    ``I tried to give him mouth-to-mouth resuscitation,'' said one of 
his co-workers, who declined to identify himself out of fear of 
jeopardizing his job with Total Forestry Inc., the company that 
employed Ponce. ``I could hear a sound coming from his chest, like a 
gurgling.''
    Ponce died a few minutes later--at 11:29 a.m. on Aug. 4, 2004. He 
had earned $13 an hour and been on the job 21/2 weeks. On July 31, he 
had wired $310 from his first paycheck to his mother in Mexico. The 
cause of death, according to the Shasta County Office of the Coroner, 
was ``blunt force injuries'' including ``multiple abrasions and 
contusions of the head, torso and extremities.''
    The California Division of Occupational Safety and Health fined 
Total Forestry $9,075. But the company appealed and the fine is still 
pending. Reached by phone in his Redding office, Jeffrey Webster, the 
firm's president, declined to comment, then hung up. He did not respond 
to a written inquiry.
    At Total's cramped office in a dreary industrial section of 
Medford, secretary Daisey Walker was also tight-lipped. ``No comment,'' 
she told a Bee reporter. Pressed to say something, Walker added 
tersely, ``What happened was horrible.''
    From his home in the dry hills outside Morelia, Mexico, Ponce's 
father has plenty to say.
    ``Nobody has given me any answers about what happened,'' he said. 
Growing angry, he exclaimed: ``I want to know who killed my son!''
    Ricardo Ponce Leon was covered by the State Compensation Insurance 
Fund, a quasi-public entity that compensates workers--documented or 
not--and their families for workplace injuries or death. But more than 
a year after the accident, Ponce's family has received no 
compensation--``ni un cinco,''--not even five centavos, Manuel Ponce 
said.
    Until The Bee began looking into Ponce's death this spring, even 
the California Division of Workers Compensation was not aware of it.
    ``Good Lord!'' said Susan Gard, an information officer for the 
agency that monitors claims and resolves disputes between workers and 
insurance companies. ``It just seems like they would have paid it. I 
can't explain why it's taken a year.''
    Now, the State Compensation Insurance Fund is taking a fresh look 
and--prodded by The Bee's reporting--hopes to make a payment to the 
Ponce family, according to the fund's spokesman.
    Just seven months before Ponce's death, a Canadian panel cited 
``unacceptably high rates of deaths and serious injuries'' among 
British Columbia's forest workers and called for sweeping changes to 
reduce them.
    ``Working in the woods involves inherent risks that cannot be 
completely eliminated,'' the Canadian Forest Safety Task Force 
reported. ``This, however, does not justify the acceptance of unsafe 
behaviors and practices and the inevitability of thousands of injuries 
and deaths.''
    The task force's report, which covered reforestation workers as 
well as loggers, cited a litany of reasons for the crisis, including 
poor nutrition, inadequate training, fatigue, unsafe work habits, 
pressure to work quickly and a growing reliance on contractors--all 
factors documented in the detailed diaries of U.S. Forest Service job 
inspectors:
     From the Sierra National Forest, California--June 2003: 
``I noticed the crew was passing the chain saw along to cut brush. None 
of them were wearing chaps.''
     From the Shasta-Trinity National Forest, California--July 
2003: ``2 guys knew how to thin, but the other three were rank 
beginners that did not know much about running a chain saw.''
    Such inexperience can cost workers dearly.
    Stepping through the front door of his home in a backwater town in 
the San Joaquin Valley, Odilio Castro doesn't walk. He hobbles.
    New to forest work, Castro took a job in the Sequoia National 
Forest last year, working for a forest contractor called Patty's Farm 
Labor of Strathmore.
    ``They never told me about the dangers of working around dead 
trees,'' Castro said.
    Cutting through a small tree with a chain saw, he heard a rush of 
air as a larger dead tree, propped up by the small one, crashed to the 
ground, crushing him.
    Face down in the dirt, he cried out for help. As co-workers rushed 
to his side and cut the tree into pieces to free him, he kept thinking: 
``I hope it's not bad. I hope it's not bad.''
    But it was. The calamity, Castro said, did more than crush his 
shoulder and mangle his leg. It shortchanged his future. ``I can't do 
anything,'' he said. ``I can't work. I can't bend over. I can't walk 
very much, not even to the corner.''
    The California Division of Occupational Safety and Health fined 
Patty's Farm Labor $20,845 for six violations of workplace safety law, 
including the failure to develop an injury prevention program.
    Nonetheless, owner Patricia Soto said her company is committed to 
safety. ``We provide training,'' she said. ``We have safety meetings 
once a month.''
    Even a history of safety problems does not bar a company from 
getting government work, state and federal records show. Since 1995, 3 
J Reforestation has been inspected three times by the Oregon 
Occupational Safety and Health Division, cited for more than a dozen 
violations and fined repeatedly. Four workers have been hurt, including 
one in California.
    Over the same period, the company was awarded government 
reforestation contracts worth hundreds of thousands of dollars for work 
across Oregon and California. On one of those jobs, 3 J's owner, Jose 
Quezada, called up the Forest Service, worried about the safety of his 
workers.
    As Chuck Sallander--a contracting officer's representative for the 
Siskiyou National Forest in Oregon--wrote in his work notes in 2004: 
``Contractor called me at home yesterday evening (and) had a concern 
voiced by his foreman. * * * He said cutting material 12 inches (in 
diameter) was too dangerous for his crew. They weren't qualified. I 
agreed that I didn't want anybody hurt.''
    Sallander passed the concerns along to his supervisor, but they 
were rejected. ``Contracting officer's decision is that contractor is 
required to cut trees up to 12 inches,'' Sallander noted.
    Recently, Sallander explained the decision, saying that because the 
company's workers had been certified to work on forest fires--where big 
trees are cut--they could topple foot-thick timber, too. ``It didn't 
wash,'' he said of Quezada's concerns. ``He agreed and finished the 
contract.''
    The greatest dangers for pineros are not always the obvious ones. 
One of the riskiest jobs isn't cutting trees down--it's planting them 
in the ground, another Canadian report found.
    ``Planters typically cover 16 kilometers (9.6 miles) per day over 
difficult terrain,'' said the study published in the Journal of 
Occupational and Environmental Medicine in 2002. ``In the process of 
planting, 20 percent will suffer a debilitating injury, a rate far in 
excess of the all-industry norm of five percent. * * * Long-term 
implications for degeneration of the musculoskeletal system cannot be 
ignored.''
    Eladio Hernandez, a former Oregon tree planter, calls it ``probably 
the hardest job in the world.''
    ``Slopes are slippery,'' he said. ``There's poison oak and ivy. 
Every day, you come back with a fever. It's that difficult. You either 
get used to it or quit.''
    The travails of tree planters are also spelled out in Forest 
Service work notes. ``Very, very rocky. Planters seem to hit rocks with 
every swing,'' wrote one inspector for the Idaho Panhandle National 
Forest in 2003. Last year, weather was a problem. ``It's pouring 
rain,'' the inspector wrote. ``This may affect planting quality as it's 
quite miserable out.''
    Pressure is built into the job. If seedlings get too hot or dry, 
they die. If they're planted improperly, contractors are penalized 
financially, pineros are reprimanded and sometimes fired. Most planting 
is done in the spring when temperature swings are extreme.
    ``Most of the time you are going to be either cold and wet--or 
hot,'' said Larry Dawson, supervisor of the Clearwater National Forest 
in Idaho. ``And you are going to be tired. Very often it's raining. 
Sometimes it's sleeting.''
    One morning in June, Modesto Alvarez, an undocumented tree planter 
from Honduras, pulled on work boots before dawn at the Budget Inn motel 
in Oroville and stepped into a van crowded with 13 other forest 
workers. Their destination: a tree-planting job in part of the Tahoe 
National Forest logged in the 1980s. But Alvarez was also headed for 
trouble.
    Not far from Lake Spaulding, Alvarez strapped a bulging sack of 
seedlings to his hips and trudged across a gray, crumbly slope just 
below the snow line. Every few feet, he would stop, lift a silver-gray 
digging tool called a ``hoedad'' high into the air and slam it to the 
ground. Stooping over, he would take a seedling from his bag, plant it, 
tamp the dirt and move on.
    Lift, slam, stoop, plant. Alvarez worked his way through puddles of 
shade and sun. Lift, slam, stoop, plant. A metallic clinking filled the 
air--the sound of hoedads striking rocks. Thirsty, Alvarez bent down 
and sipped from a snowmelt creek. The work was tough. But a Forest 
Service inspector watching the crew was making it tougher.
    ``She would just start yelling at us,'' Alvarez recounted during an 
interview in his home near Fresno. ``Sometimes we'd pull a tree out of 
our bag--and accidentally drop one--and she would start yelling at 
us.''
    The inspector pressured the crew to plant in areas littered with 
rocks, something Alvarez considered risky. ``To do what they tell us to 
do, that is how we get hurt,'' he said.
    Swinging his hoedad one day around noon, Alvarez felt it come to a 
sudden stop on a rock torpedoed in the soil. The shock ricocheted up 
his arms. Arriving at the motel that evening, ``I couldn't even step 
out of the van, I had to roll out,'' he said. ``It was hard to breathe. 
It's a pain that won't go away.''
    Reached at her office, the Forest Service inspector, Carla Kempen, 
said she was not aware Alvarez had been hurt. She declined further 
comment.
    ``Carla is very demanding,'' said Oscar ``William'' Iraheta, 
foreman for Central Valley Forestry, the Exeter company that contracted 
with the government to plant the trees. ``She insists the job be done 
exactly the way she wants it done. That's good for them. But for us--
it's a lot more work.''
    Since that day, Alvarez has not worked in the woods. Nor has he 
received any compensation for the injury. Indeed he never submitted a 
claim, erroneously believing that because he is undocumented he would 
not qualify. He is now working in pain, his wife said, picking broccoli 
in the San Joaquin Valley.
    ``Up in the mountains, they rush us to do everything,'' Alvarez 
said. ``But when we are hurt, they don't rush to help us.''
    Nowhere is the lack of enforcement more obvious than in the 
laissez-faire attitude toward safety gear on the job--a dramatic 
contrast from most liability conscious American work sites.
    State and federal laws require pineros to wear hard hats, cut-
resistant chaps and boots, earplugs and face protection when they're 
thinning with chain saws. In the woods, the laws of the land are 
optional.
    No one was paying attention to OSHA rules at a thinning job in the 
Bitterroot National Forest in Montana this fall where pineros scrambled 
across rugged mountain slopes, slashing away with chain saws and 
gathering trees and limbs into piles.
    Most wore no eye or face protection, no earplugs. Several struggled 
for solid footing in the cheap boots they brought with them from 
Mexico. On slopes steep enough for skiing, they slipped. They slid. 
They stumbled.
    ``This company is not taking safety equipment seriously,'' said 
Gustavo Ferman Dominguez, one of the workers. ``We have to buy our own 
gloves. They don't give us goggles for the chain saws. They don't give 
us boots.''
    Ferman pulled his own boots off to make a point. ``Look at this!'' 
he said, pointing to the soft toes, traction-free soles and a chain saw 
nick. He had just decided to quit. ``It's not worth breaking a leg.''
    Manuel Burac, Universal's foreman, agreed the workers needed better 
footwear. ``My view is the company should buy them boots,'' he said.
    But safety goggles pose a problem because they fog up. ``I haven't 
been using them myself,'' Burac said.
    What about training? ``There was no training,'' said Luis Andres 
Molina Hernandez, a pinero working for Burac. ``They just asked: `Which 
one of you guys know how to use a chain saw?' ''
    Burac was sympathetic, but added that his company routinely hires 
inexperienced forest workers, making his job more difficult. ``I feel 
the company should be better training all the workers when they get 
here,'' he said.
    Emergency medical gear was missing, too. When Eliseo Dominguez was 
hurt one morning, struck below the eye by a branch while cutting a tree 
without safety goggles, there was no first aid within miles.
    The van used to rush the worker to a hospital was littered with 
empty soda bottles, yogurt cups, a canteen, a deck of cards, a bandana, 
a rain slicker--everything, it seemed, but a first-aid kit. ``Someone 
cleaned the van out one day,'' said Felix Rodriguez, the Universal 
employee who drove to the emergency room that day. ``And they took 
it.''
    The morning Carlos Valdez was blinded in his right eye in the Tahoe 
National Forest in 2002, safety gear was an issue, too. ``He was not 
wearing his goggles,'' said Francisco Acevedo, owner of the company 
doing the work, Redding Tree Growers.
    Valdez, though, remembers it differently. ``They did not have 
goggles,'' he said. ``They were not available to me.''
    Rosie Lopez, who manages safety matters for the company, said 
ensuring workers wear safety gear is the foreman's job. But she added:
    ``Some workers decline to use it. They have their rights, too, you 
know. They have the option and the right to decline what to wear and 
not to wear.''
    By law, all serious injuries must be reported to the California 
Division of Occupational Safety and Health within eight hours. But 
Valdez's wasn't.
    ``We have no record of it,'' said Dean Fryer, a spokesman for the 
agency. ``Without doubt, we should have been notified.''
    In Oregon, Dan Robertson, the reforestation contractor association 
president, said underreporting of injuries is widespread. He sees the 
proof when his own injured workers come to him for advice.
    ``A lot of guys who come here have never been through a workers' 
compensation claim,'' said Robertson, the owner of Professional 
Reforestation Inc. on the Oregon coast. ``And they've been hurt before. 
You have to explain everything.''
    Reforestation contractors ``aren't reporting their injuries,'' he 
said. ``They will report the bad ones, you see, because they don't want 
to pay for it. And they will pay for the minor ones out of their pocket 
to keep their (insurance) rates down.''
    Redding Tree Growers did inform its insurance company about Valdez, 
who is receiving a disability payment of $371 per week from the 
insurer. But Rosie Lopez said she didn't know she was required to tell 
the state. ``I was not aware I was supposed to report it,'' she said.
    Tahoe forest officials weren't notified, either. ``Unless we see it 
or someone informs us, there's not any reason we would know,' said 
Henry Hansen, a contracting officer for the Tahoe National Forest. 
``It's the contractor's worker and the contractor's responsibility.''
    After the accident, Valdez prayed often. ``I'd get down on my knees 
and say, `Please God. I don't want to lose my eye. Please, save my 
eye.' '' At night, asleep, he'd dream he could see.
    Twenty-three when he was hurt--now 26--Valdez said those dreams 
have faded. But the consequences of living with one eye have not. He 
lives by himself in a trailer, working as a janitor for a local church, 
where he also sings in the choir.
    ``I'm scared,'' he said. ``There are things I'd like to do that I 
am not able to. I'd like to work in construction--but I can't. I'd like 
to play ball, but I can't catch the ball the way I used to. Nothing, 
not even $100,000, can replace an eye.''

                           Part 3: Going Home

Forest workers endure miserable conditions and wage exploitation. They 
 return to their native countries with hopes of riches dashed; and too 
    often, they return in coffins. The leading killer: Van crashes.

    In the impoverished Guatemala border town of La Mesilla, 15-year 
old Santa Pablo Bautista failed to heed her father's pleas to stay home 
on their tiny hillside farm.
    Juan Carlos Rios, 22, was equally dismissive when his mother begged 
him not to leave Jerez, Mexico.
    Born into poverty, both felt the tug of money to be made in El 
Norte.
    Two months after arriving to harvest brush in Washington state, 
Santa Pablo lay in a hospital with a fractured arm, broken jaw and cuts 
across her face. Days after taking a job as a tree planter in Oregon, 
Juan Carlos Rios returned home in a casket.
    Forest work has always been dangerous. But Juan Carlos was not 
killed, nor Santa Pablo injured, in the woods. Instead, disaster struck 
on the highway--on long-distance, pre-dawn commutes in unsafe, unstable 
vans that tumbled and veered out-of-control on windy mountain roads.
    The number one cause of death among pineros--Latino forest 
workers--is not the slip of a chain saw or the falling trees known as 
widow-makers. It is van accidents. And unlike most highway tragedies, 
the crashes that claim migrant lives are not born of chance alone.
    They are the byproducts of fatigue, poorly maintained vehicles, 
ineffective state and federal laws, inexperienced drivers and poverty-
stricken workers hungry for jobs.
    ``When you add everything up, it's a formula for disaster,'' said 
Robert Perez, a Fresno lawyer who has represented scores of Latino 
laborers hurt and killed in van accidents.
    All told, 21 pineros are known to have died in van accidents over 
just the last three years: 14 in Maine, five in Washington and two in 
Oregon. But those numbers don't begin to measure the pain: across 
Guatemala and Honduras, at least 15 women have lost their partners and 
69 children no longer have their fathers.
    Six years ago, the deaths of 13 San Joaquin Valley farmworkers in a 
van crash prompted California legislators to pass the nation's toughest 
migrant vehicle safety law. The law made seat belts compulsory for 
everyone riding in vans carrying nine or more passengers and required 
that bench seats be bolted to the floor. It mandated that vans be 
inspected and certified safe yearly and that drivers pass a driver-
training course for multi-passenger vans.
    Other states have not been so vigilant. In Oregon and Washington, 
for example, migrant labor law does not require annual vehicle 
inspections or a special test for drivers who transport migrant workers 
in vans.
    ``California has done it,'' said Matthew Geyman, a Seattle attorney 
representing the families of four forest workers from Guatemala who 
died in the 2004 van crash in Washington. ``We could use California as 
a model. It would save lives.''
    But even California's tough law goes only so far. Last year, 1,300 
migrant worker vans were pulled over by the California Highway Patrol 
and 2,882 citations were issued, up 150 percent from 2002. And many 
violations go undetected.
    ``I don't want to put the finger on nobody because I'm in this 
business. But I see a lot of contractors with vans with no 
certification, nothing,'' said Raul Acevedo, a supervisor for Central 
Valley Forestry, a reforestation contractor based in Exeter.
    ``Why do I have to spend so much money myself fixing my vans * * * 
and why don't (other) guys?'' Acevedo asked. ``It's not fair. I wish 
somebody could do something.''
    At the federal level, the Migrant and Seasonal Agricultural Worker 
Protection Act requires that vans pass a safety test for such things as 
brakes, wipers and mirrors. But unlike California's law, it does not 
mandate that every passenger have a seat belt. And inspections are 
rare.
    ``This is a national problem and one which calls for a national 
solution,'' said Sen. Dianne Feinstein, D-Calif., who plans to 
reintroduce legislation, modeled on California's law, requiring seat 
belts for all migrant workers riding in vans.
    ``Migrant workers should not have to put their lives at risk just 
to travel to their job site,'' she said.
    Feinstein first tried to pass such a law in 2000, following the San 
Joaquin Valley tragedy, but her effort failed after farm interests 
objected to the cost of retrofitting older vans with seat belts.
    Unlike California's law, the existing federal migrant worker 
statute does not require drivers to take and pass a special safe-
driving course for multi-passenger vans. Instead, it requires only that 
they pass a physical exam.
    ``A physical is fine and well and dandy. But it doesn't have 
anything to do with safety,'' said Martin Desmond, former executive 
director of the Northwest Reforestation Contractors Association. ``It 
is just sort of a meaningless exercise.''
    The road has long been a risky place for farmworkers. But over the 
past two decades, as Latinos have moved rapidly into the forest work 
force, timber country highways have turned deadly, too.
    ``Most of the liability in our industry is on the transportation 
side,'' said Robert ``Wade'' Zaharie, an Idaho reforestation contractor 
who employs Latino crews and requires all workers--not just drivers--to 
attend a defensive driving class.
    ``We're telling (employees) if they ever observe that a foreman is 
not driving safely, let the office know immediately,'' Zaharie said. 
``You just can't afford that liability.''
    Zaharie blamed the problem on bad habits learned south of the 
border. ``Unfortunately, we're dying for people that have more common 
sense in our industry,'' he said ``If you follow this back into Mexico, 
or any of your Latin countries, there are tons of accidents down there. 
They don't have as dear a respect for life, in general.''
    The life of Alberto Martin Calmo is remembered every day in his 
parents' adobe home in the hardscrabble hills outside the village of 
Todos Santos in northern Guatemala. His grave is a mile or so away--on 
a scenic knoll in a neighborhood of pines. A picture of his body in a 
casket hangs near the front door.
    ``I look at that picture and I cry,'' said his mother, 60-year-old 
Luisa Calmo Ramirez. ``All I do is cry.''
    Her 31-year-old son died in the van accident in Washington in March 
2004. Today, Luisa and her 70-year-old husband, Macario Martin Ordonez, 
are raising three of their son's children--ages 8, 10 and 12. In the 
months after their father's death, the children seemed not to 
comprehend the loss.
    ``They would ask me, `When is papa coming home?' '' said Luisa. As 
she spoke, she hovered over a wood fire on the dirt floor of her living 
room, cooking tortillas for the family.
    ``I would tell them: `Please be quiet. He'll come back someday.' 
But of course he won't,'' she said, speaking in her native Mam language 
and struggling to hold back tears.
    Her dead son's wife stayed in the United States with two younger 
children--leaving the rest to her and Macario.
    ``I am old and it is hard to work,'' Macario said one windy 
afternoon this spring. ``My son used to send home money. He was taking 
care of us. Now there is nothing.''
    All highway travel is dangerous. But for the pineros, it is a 
roller-coaster ride. Mountain roads twist, dip, climb and corkscrew. 
Often the weather is hostile.
    Fatigue compounds the risk. Crews routinely work six days a week, 
sometimes seven. Just getting to work is an ordeal. Commutes of 100 
miles are not unusual, beginning before dawn and dragging on for hours. 
The three fatal forest labor crashes all happened in the early morning: 
at 6:08 a.m. in Oregon, 6:45 a.m. in Washington and 7:55 a.m. in Maine.
    Forest Service work notes reflect that peril, too: ``Contractor 
arrived at 7 a.m. They still haven't found a place to stay. * * * It 
takes them four hours driving time each way,'' wrote Karen Bell, a 
contract inspector on the Sierra National Forest in 2003.
    ``Reforestation workers don't get paid for travel time,'' said Dan 
Robertson, president of the Northwest Reforestation Contractors 
Association. ``So in order to get in an eight-hour day, they get up at 
four in the morning.''
    In many cases, the biggest safety hazard is the vehicle itself. 
Just ask Rose Marie Ramey, the owner of Ramey's Broken Arrow Cabins and 
RVs in north-central Idaho.
    This summer and fall, Ramey rented cabins to a crew of 17 pineros 
thinning trees under a government contract on the Salmon-Challis 
National Forest.
    Their clothes were ragged. Their tools were worn. But it was the 
vans that Ramey found frightening. They were cluttered with gas cans, 
chain saws, machetes, oil and cooking gear. And there were so few seats 
some workers sat on the floor.
    Residents of the scenic mountain town of Gibbonsville sprang into 
action. Some contributed clothes. Mike McLain, a river guide, built a 
metal roof rack for the gear. And Ramey's son got workers up off the 
floor. ``He went down to the junkyard and bought seats for them,'' 
Ramey said.
    ``To me, it was unnerving,'' she said. ``And dangerous.''
    And it can be deadly.
    Around 3 a.m. on Monday, Jan. 3, 2005, a van pulled up at an 
apartment complex in Salem, Ore. Inside, Francisco Sanchez Rios and his 
cousin Juan Carlos were waiting--eager to begin new jobs as tree 
planters. They stepped out into the darkness and hopped in the vehicle: 
a silver 2002 Ford E350 with a bald left rear tire.
    Three hours and 150 miles later, on an icy stretch of road near the 
coast, Francisco felt the van veer to the right. ``We were skidding,'' 
he said. As the van plunged off the road, the driver screamed.
    Pinned beneath the overturned vehicle, Francisco remembers crying 
out: ``Juan! Where are you?'' In the darkness, Francisco said he heard 
a reply from his cousin: ``Please help me.'' Then, on the wet ground 
along the right side of the vehicle, Rios died of massive chest and 
abdominal injuries, just three days shy of his 23rd birthday.
    An Oregon State Police investigator later found that three factors 
had contributed to the crash: poor driving, icy conditions and the bald 
tire that failed to grip the road.
    The tire ``was worn down to the cords in areas throughout the 
circumference. * * * The spare tire was located and found to be 
inflated, having more than adequate tread depth,'' the inspector wrote 
in his report.
    ``The night before we had dinner together,'' said Juan Carlos' 
sister, Lorena Rodarte Rios, of Salem, choked by grief a week after the 
accident. ``He was very happy because the job was going to pay well, 
around $10 an hour. It was his dream to provide for his mother in 
Mexico. He was his mother's right hand.''
    In a dry, dusty neighborhood in Jerez, Mexico--southwest of 
Zacatecas--Rios' mother, Nicolasa, took the news hard. For days, she 
cried. When her son's body arrived on Saturday, Jan. 15, Nicolasa was 
stricken with anguish--too stunned to even attend a wake in the carport 
outside her home.
    Finally, as mourners wailed and a hearse arrived Sunday to take 
Juan Carlos' body to church for a funeral Mass, Nicolasa stepped 
outside to say goodbye. She leaned over the coffin and rubbed her son's 
face, gently at first, then more forcefully.
    ``Please let me go with him,'' she sobbed, inconsolably.
    ``I am going crazy!'' she screamed. ``Let me go with him!''
    As her older son, Javier, struggled to pull her away, Nicolasa 
tugged desperately at the coffin, then let go, wobbled a few steps and 
fainted.
    Juan Carlos Rios was hired to plant trees on property owned by 
Menasha Forest Products Corp., a major U.S. timber firm. But Menasha 
maintains it bears no responsibility for the death because it, in turn, 
hired a labor contractor to plant the trees and transport the workers.
    ``It was not our vehicle. They were not our employees. They were 
contract employees,'' said Barbara Bauder, director of human resources 
and community relations for Menasha in the Oregon coastal community of 
North Bend.
    ``It was a tragedy,'' Bauder added. ``But since it wasn't people we 
knew and they really weren't from our area, it didn't hit quite so 
close to home.''
    In August, the U.S. Department of Labor agreed with Menasha's 
assessment of blame. It fined the timber company's contractor--BP 
Reforestation--$3,000, saying it failed to provide safe transportation. 
The contracting company has appealed the fine and did not return calls 
from The Bee.
    At Menasha, Bauder said she was not aware the tree-planting 
contractor had been fined. ``They had worked for us for about 12 years, 
and we expect they will bid on jobs again this winter,'' she said. But, 
she added, ``It certainly doesn't make us happy they were driving with 
a bald tire.''
    Federal law requires that any drivers who transport workers be 
designated as foremen by the contractor and be authorized to drive by 
the Department of Labor. But that law is routinely ignored.
    The driver of the Oregon van--who also died in the crash--was not 
authorized. Nor were two van drivers on a job visited by The Bee last 
month on the Bitterroot National Forest in Montana. One had only a 
Mexican driver's license.
    The older van being used on that job was a nightmarish sight. 
Electrical wires snaked out from inside the passenger door. The 
driver's door and window were lashed together with rope. Across the 
West, forest worker vans often are in such sorry shape they are known 
throughout the industry as ``crummies.''
    The gray-and-white crummy in Montana was owned by Universal 
Forestry of Orofino, Idaho. And its passengers were worried. ``You've 
got to do like the Flintstones to make the brakes work,'' said Tomas 
Quezada, lifting his knees and slamming both feet down to mimic the 
braking style of Fred Flintstone, the cartoon character.
    Forest Service documents show federal officials are aware of 
migrant worker transportation hazards--and sometimes take steps to 
shield themselves from responsibility.
    ``(Driver) was back from town but did not get parts he needed to 
repair the van,'' wrote Jerry Branning, a Forest Service contract 
inspector on a Universal Forestry job in the mountains of Idaho in 
2002.
    ``He needs brake pads for front,'' Branning added. ``He will drive 
it to (town) slowly and carefully with minimum brake use.''
    A year later, when Branning gave Universal workers a short ride to 
a hard-to-reach job site in his government truck, he was reprimanded by 
Forest Service contracting officer Terri Ott. ``We cannot assume 
responsibility and liability for transporting contractor personnel,'' 
Ott wrote in a memo obtained through the federal Freedom of Information 
Act. ``This behavior * * * is unacceptable.''
    Ott declined to elaborate. But her boss--Larry Dawson, supervisor 
of the Clearwater National Forest--said she made the right call.
    ``I couldn't say it any better,'' Dawson said. ``Ms. Ott was 
ensuring that (Branning) was not providing any more assistance or any 
less assistance than is required in the contract. That's the way we 
operate.''
    But migrant advocates say such a hands-off approach to 
transportation only serves to compound the already substantial dangers 
pineros face.
    ``It is worse than tragic that so many of them lose their lives 
just getting to these jobs--it is shameful,'' said Rebecca Smith, an 
attorney with the National Employment Law Project in Olympia, Wash. 
``We need to do everything that we can to ensure their transportation 
and workplace safety.''
    Even well-maintained forest worker vans can be risky, especially 
when they're fully loaded. This year, the National Highway 
Transportation Safety Board put out a safety advisory, warning drivers 
that a fully loaded 15-passenger van is far more likely to roll over 
than a lightly loaded one because of its higher center of gravity.
    The advisory does not mention the added factor of big metal roof 
racks--popular on many forest worker vans--that when loaded with gas 
cans, water coolers, jugs of oil, chain saws and hand tools can make 
the vans rock like ships at sea.
    ``With the rack, you can feel the van leaning one way, and then 
another, even at a safe speed,'' said Manuel Burac, a foreman and 
driver for Universal Forestry. ``Personally, I prefer trailers because 
you have more stability on curves.''
    And no study has examined the most common factor in forest worker 
van accidents: exhaustion.
    In the pre-dawn darkness, a Dodge van crowded with forest workers 
crept south out of Shelton, Wash., in March 2004. Its destination: a 
brush-picking job in the Gifford Pinchot National Forest 100 miles 
away.
    Inside, 15-year-old Santa Pablo Bautista--thin as a marsh reed and 
saddled with debt--sat behind the driver, sleeping. Like all 10 
passengers, she was not wearing a seat belt. In the back, three co-
workers huddled together on a bench seat that had no seat belts and was 
not even bolted to the floor.
    The brush they all were harvesting that Saturday, known as salal, 
is the mainstay of Washington's $236 million floral greens industry. 
Waxy and wilt-resistant, salal branches--or ``tips,'' as they are 
known--are bunched around orchids, roses and other flowers in bouquets 
and floral arrangements sold around the world.
    The van climbed east on Highway 12, winding through the Cascades 
between Mount Rainer and Mount St. Helens. Outside, the sky was turning 
gray. Like Santa Pablo, most of the passengers were asleep. And as the 
wheels hummed on the pavement, the driver also was weary from long 
hours in the woods and behind the wheel.
    It was Saturday. But Santa Pablo had little choice but to work. In 
Guatemala, her family had paid a smuggler 16,000 quetzales--$2,031 U.S. 
dollars--to sneak her into Mexico and transport her to the U.S. border. 
In Washington, Alberto Martin Calmo--who was sitting one seat away from 
Santa in the van--had paid $2,500 to another coyote to get her across 
the U.S. border and to the Pacific Northwest.
    Santa's motivation was simple. ``She was a little girl, but she 
made a decision to help me,'' said her father, Cipriano Pablo Jeronimo, 
a coffee farmer who earns about $40 a month and volunteers for a nearby 
Catholic church. ``She said: `Look Dad, I want to go so I can help you 
support the church.' ''
    Near the small town of Morton, the van drifted into the westbound 
lane. Up ahead, a Ford pickup was approaching fast. In the chaos of 
mangled metal and shattered glass that followed, three brush-pickers 
died almost immediately, including one riding on the unbolted bench 
seat. Two more succumbed later at the hospital. Santa Pablo--all 4 feet 
4 inches and 100 pounds of her--was thrown from the van and lay in a 
bloody heap along the road.
    She was flown to Emanuel Children's Hospital in Portland, treated 
for lacerations to her face and head, a broken jaw, fractured arm and 
nose. One year later, she sat on a rumpled couch in a rundown apartment 
in a rundown section of Shelton.
    ``This was a big tragedy for us,'' she said. ``Everybody in that 
van was from the same village.''
    Santa Pablo knew she was going back to work, even though she 
remained in pain and faced the prospect of more cosmetic surgery. 
``Before I used to feel good. And nothing hurt,'' she said. ``I was 
happy. Now everything has changed.''
    In April, two investigators for the Washington Department of Labor 
and Industries sat down with Pablo, trying to sort out who was 
responsible for the crash--the driver or a floral greens packing 
company?
    ``Did you have to sign some kind of paper before you started 
working?'' they asked.
    ``No, none,'' Pablo replied.
    ``Did they explain to you how to do your job?''
    ``Well, no.''
    ``You gave the brush daily to the driver?''
    ``Yes, daily.''
    ``Whom did the driver turn the brush over to?''
    ``Well, that I don't know.''
    Unable to find a paper or human trail to a company, the agency 
determined that the driver, Cornelio Matias-Pablo, was in business for 
himself. But Cornelio--who died in the crash, too--had no workers' 
compensation insurance. So the state of Washington is paying death 
benefits to five children in Guatemala and two in the United States, 
and medical bills for Santa Pablo and four other survivors, all still 
in the United States. The tab has reached around $1 million.
    ``It's unrealistic to expect someone like Cornelio, who was an 
undocumented Guatemalan, to comply with minimum wage laws, worker 
safety laws, worker compensation insurance laws and vehicle safety 
laws,'' said Matthew Geyman, the Seattle lawyer representing the 
families of dead crash victims.
    ``To me, it seems like we should say to this (floral greens) 
industry that is making millions of dollars off these workers: `Why 
don't you do something to make this a safer industry?' '' Geyman said.
    The Washington Department of Labor and Industries is moving in that 
direction. Since 2003, as part of a stepped-up enforcement campaign, it 
has audited 25 floral greens packing companies. In 17 cases, the 
department determined the packing companies were, in fact, employers of 
pickers and other workers--and it assessed them $86,261 in workers' 
compensation insurance premiums.
    But while the department goes about its work, the pickers are still 
riding to remote job sites in rickety, unsafe vans. Last spring, Santa 
Pablo was once again among them.
    After commuting an hour or so to work, she cut brush from 8:30 to 
around 4:30, thrashing through thick, wet stands of salal, stopping 
here and there to slice off the nicest-looking branches with a clawlike 
cutting tool known as a ring. She gathered the branches into bundles, 
bound them together with rope, hoisted them on her back, stooped over 
and trudged down a hill to a dirt road and the van.
    At the end of the day, a foreman gathered up her brush--and that of 
other pickers--to sell to a packing company. The pickers were paid by 
the bundle. The only woman on the crew and not as strong or as quick as 
other workers, Santa Pablo's cut was just $23--the equivalent of $2.87 
an hour. That's well below both the federal minimum wage ($5.15 an 
hour) and the Washington state minimum wage ($7.35 an hour)--and a 
violation of federal and state law.
    Santa Pablo would like to go home, to return to her parents' small 
ranch outside the indigenous Mam village of Todos Santos in the deep 
green hills of Guatemala. But she can't. She is a prisoner to debt as 
well as danger.
    ``I think about the accident,'' she said. ``I don't understand why 
this happened to me. And it makes me sad.''
                                 ______
                                 
    [Letter submitted by the U.S. Chamber of Commerce follows:]

          Chamber of Commerce of the United States,
                                        1615 H. Street, NW,
                                     Washington, DC, July 28, 2006.
Hon. Howard P. ``Buck'' McKeon,
Chairman, Committee on Education and the Workforce, Washington, DC.
Hon. George Miller,
Ranking Member, Committee on Education and the Workforce, Washington, 
        DC.
    Dear Chairman McKeon and Ranking Member Miller: On behalf of the 
U.S. Chamber of Commerce, the world's largest business federation 
representing more than three million businesses and organizations of 
every size, sector, and region, I would like to thank you for holding a 
hearing on guestworker programs on July 19, 2006 and for allowing the 
Chamber to testify. I would also like to take the liberty of requesting 
that this letter be included in the hearing record.
    After the hearing, I feel it is necessary to point out an 
inaccurate portrayal of the number of temporary workers that currently 
come into the U.S. The representative from Federation of Americans for 
Immigration Reform (FAIR) presented a chart during the hearing, and 
also in his written testimony, that misrepresents the number of 
temporary workers that come into the United States each year under the 
various programs, including the H-1B high-skilled and the H-2B seasonal 
programs.
    In his testimony, Jack Martin of FAIR said, ``temporary foreign 
workers and trainees (H visas) numbered 74,869 in FY-85. They rose to 
152,460 in FY-95 and to 506,337 in FY-04. Those represented increases 
of 104% and 232% respectively--overall a 576% increase.'' These numbers 
represent admissions to the United States, not the actual number of 
workers that come into the country each year. Every time a temporary 
worker leaves and comes back into the U.S., he or she would be counted 
as a separate admission, so many workers are double and possibly even 
triple counted, particularly in today's mobile economy. In addition, 
many types of H visas can be renewed, and so the number FAIR used 
includes workers that were counted under previous admission years. The 
number FAIR used also includes spouses and dependents, who are not 
permitted to work while in the U.S.
    A better way to count the actual number of temporary workers would 
be to see how many H visa applications were approved by the Department 
of Homeland Security--not every single time a temporary worker or their 
dependent crosses into the U.S.
    I have also attached a study to this letter on how H-1B workers are 
paid the same as U.S. workers and how they do not drive down the wages 
of Americans, and request that this also be included in the record.
    Thank you again for allowing the U.S. Chamber of Commerce to 
testify on guestworker programs last week. We look forward to working 
with you and the rest of the House Education and the Workforce 
Committee as the immigration debate continues.
            Sincerely,
                                         Randel K. Johnson,
            Vice President, Labor, Immigration & Employee Benefits.

                                 ______
                                 
    [Letter submitted by the construction industry follows:]

                                     Washington, DC, July 19, 2006.
Hon. Howard P. ``Buck'' McKeon,
Chairman, Committee on Education and the Workforce, 2181 Rayburn House 
        Office Building, Washington, DC.
    Dear Chairman McKeon: On behalf of the undersigned organizations, 
representing over 300,000 construction and construction related firms 
across the country, we are writing to commend you for holding this 
hearing today on ``Guest Worker Programs: Impact on the American 
Workforce and U.S. Immigration Policy.'' Our industry remains steadfast 
in its belief that a comprehensive approach to immigration reform is 
needed. This includes addressing the current and future labor needs of 
our economy, in addition to strengthening our national security.
    The construction industry has made, and will continue to make, 
overwhelming contributions to the U.S. economy. In 2005 alone, the 
industry's annual put-in-place volume of projects was worth more than 
$1.1 trillion. According to the Bureau of Labor Statistics, the 
construction industry will create 792,000 new jobs between 2004 and 
2014. As such, the construction industry continues to outpace other 
industry sectors in employment growth over the last 12 years. In 1993, 
construction firms employed more than 4 million people; today, there 
are over 7 million employees in the industry, representing an increase 
of more than 50 percent in just over 10 years. By comparison, the 
overall American economy produced job growth of 20 percent during the 
same period.
    An industry of this size demands significant human resources both 
now and in the future. As such, any approach to immigration reform must 
include a process which:
     allows employers to hire from abroad when they are not 
able to find US workers,
     puts in place a reasonable and workable system for 
employers to check the work authorization of their employees, and,
     allows screened, qualified undocumented immigrants to earn 
lawful permanent status.
    Again we thank you for holding this hearing to address guest worker 
programs in the U.S. economy and ask you to remain steadfast in 
supporting the security of our nation's borders, while also protecting 
the health of our economy.
            Respectfully submitted,
                   Air Conditioning Contractors of America,
                       Associated Builders and Contractors,
                 Associated General Contractors of America,
                  Mason Contractors Association of America,
                     National Association of Home Builders,
                  National Roofing Contractors Association,
                   National Utility Contractors of America,
          National Association of Plumbing Heating Cooling 
                                               Contractors.

                                 ______
                                 
    [The prepared statement of Associated Builders and 
Contractors follows:]

       Prepared Statement of Associated Builders and Contractors

    Associated Builders and Contractors (ABC) appreciates the 
opportunity to submit the following statement for the official record. 
We would like to thank Chairman McKeon, Ranking Member Miller and 
members of the House Committee on Education and the Workforce for 
holding today's hearing on ``Guest Worker Programs: Impact on the 
American Workforce and U.S. Immigration Policy.''
    ABC is a national trade association representing more than 23,000 
merit shop contractors, subcontractors, materials suppliers and 
construction-related firms within a network of 79 chapters throughout 
the United States and Guam. Our diverse membership is bound by a shared 
commitment to the construction industry's merit shop philosophy. This 
philosophy is based upon the principles of full and open competition 
unfettered by the government, nondiscrimination with regard to labor 
affiliation, and the award of construction contracts to the lowest 
responsible bidder through open and competitive bidding. This process 
assures that taxpayers and consumers receive the most for their 
construction dollar.
    The construction industry is a vital part of the American economy. 
According to the U.S. Census Bureau, construction growth significantly 
outpaced national gross domestic productivity growth over the last 12 
years, increasing 137 percent while the Gross Domestic Product (GDP) 
increased about 88 percent in the same period. Today, the annual value 
of construction is worth more than $1.16 trillion, representing more 
than 9 percent of the national GDP.
    Of the nation's 5.6 million employer firms, more than 12 percent 
are construction firms, according to the U.S. Small Business 
Administration. Over the past 12 years construction continues to 
outpace the nation's other industry sectors in employment growth. In 
1993, construction firms employed 4,779,000 people and today, the 
industry employs 7,227,000. The growth of 2,498,000 represents a 52.27 
percent increase, based on numbers from the Bureau of Labor Statistics 
(BLS). The construction employment increase far outpaces overall U.S. 
employment growth, which was only 20 percent during the same period.
    However, construction growth is not projected to slow. The BLS 
reports that another 792,000 new construction jobs will be created 
between 2004 and 2014. Therefore, ABC's member companies continue 
facing an ever-growing worker shortage problem. Despite, ABC's 
continued efforts promoting workforce recruitment, education and 
training in the construction industry through school-to-work programs, 
college and university outreach, professional development of training 
staff and the building of a strong chapter delivery system, the 
industry still faces difficulty in filling jobs. Combined with an aging 
domestic workforce and historically low American birthrates, the 
construction industry's future labor needs are especially acute unless 
additional labor sources are identified. An industry of this size 
demands significant human resources both now and in the future.
    While today's hearing specifically focuses on guest worker programs 
and the impact on the American workforce, ABC has remained steadfast in 
its belief that this is one element in a comprehensive approach 
required to effectively reform our immigration policies. Any successful 
immigration reform measure must work to ensure the enforcement of our 
laws, the security of our borders, interior enforcement and the 
prosperity of our economy.
    As one of the nation's largest employers, the construction industry 
needs to be able to employ foreign workers when it is unable to find 
U.S. workers to fill jobs. Yet, the current immigration system today 
does not provide sufficient opportunity for workers to enter the 
country legally. While some have suggested relying on H-2B visas, 
bureaucratic red tape combined with limited availability of H-2B visas 
render that option unavailable. Furthermore, in most cases that 
category is not an option for ABC member firms as it is only useful to 
those employers with seasonal or one-time occurrence needs. The 
construction industry works year-round and employees must attend many 
job training and safety courses before setting foot on a jobsite. While 
some employees can learn their job in a few days, the skills required 
for many of the construction trades often take years to learn and are 
usually taught through a combination of classroom instruction and on-
the-job training. It is vital to the industry that any guest worker 
program takes into account both the length of time which may be 
required to properly train our employees and that a project may not 
necessarily be completed within a few years.
    While ABC is very supportive of a guest worker program, we are 
troubled by a Senate bill provision that would greatly expand the 
Davis-Bacon Act (DBA) (40 U.S.C. Sec. 3141 et seq.). Specifically, the 
provision would require DBA prevailing wage rates for guest workers 
employed on private construction projects, despite well documented 
problems with the DBA wage determination process. Currently, the DBA 
only applies to federal construction projects and some federally 
supported projects. According to the U.S. Census Bureau the vast 
majority of construction work in the United States is done privately 
and includes most homebuilding. Already, any foreign workers currently 
in construction are covered by prevailing wage protections under the 
U.S. Department of Labor (DOL) foreign labor certification regulations, 
and a citation to the flawed and fraud-prone DBA wage determinations is 
ineffective. Thus, the bill would greatly expand reliance on the flawed 
Davis-Bacon wage surveys.
    The DBA requires federal contractors and their subcontractors 
working on contracts for construction, alteration, and/or repair in 
excess of $2000 to pay employees the local prevailing wage rates and 
benefits for each class of worker. Over the years, the DBA requirements 
have been extended to other laws which provide federal assistance for 
construction through grants, loans, loan guarantees and insurance. 
These are known as Davis-Bacon Related Acts (DBRAs). Some estimates the 
DBA and DBRAs covers as much as 25 percent of the nation's construction 
work, according to the Office of Management and Budget, Prevailing Wage 
Determination Program Assessment.
    The DBA requires the Secretary of Labor to determine the prevailing 
wage rate for each locality. Under current regulations, DOL's Wage and 
Hour Division sets the wage for each class of worker in each locality 
by conducting its own voluntary wage surveys of contractors and other 
interested parties.
    By the Wage and Hour Division's own admission in its Prevailing 
Wage Resource Book, the accuracy of its wage determinations is 
completely dependent upon identifying the correct interested party and 
successfully securing their participation. Not surprisingly, there have 
been consistent problems with the accuracy of the DBA wage 
determinations.
    In fact, a series of audits by outside agencies as well as the 
DOL's own Office of Inspector General (OIG) have revealed substantial 
inaccuracies in Davis-Bacon wage determinations and suggested that they 
are vulnerable to fraud. The Government Accountability Office (GAO) has 
issued multiple reports dating from the late 1970s to the late 1990s 
detailing problems with the determinations. In addition, DOL's OIG 
released three reports highly critical of the wage determination 
program.
    In an effort to address these concerns, the Wage and Hour Division 
made some modifications to the wage determination program in the late 
1990s and early this century. These modifications, however, have 
resulted in little improvement. In 2004, the OIG released a report 
stating that the $22 million the Wage and Hour Division spent to modify 
the program had yielded limited improvement and that the problems with 
inaccuracies identified in past reports remain. In fact, the OIG found 
one or more errors in 100 percent of the wage surveys they reviewed. It 
also concluded that because response to the survey is voluntary, 
employers and third parties with a stake in the outcome of wage 
determinations are more likely to participate. As a result of GAO and 
OIG audits and its own research, OMB concluded in a 2003 assessment 
report that the DB wage determination program is not performing.
    Despite the DBA's inclusion in the Senate immigration measure, ABC 
applauds the Senate's efforts which have resulted in a comprehensive 
immigration reform bill that includes the need for a guest worker 
program and to deal with the nation's undocumented workers. To address 
the concerns created by the ongoing influx of undocumented workers, and 
to keep our nation's economy growing, Congress must deal with the need 
for a guest worker program that can serve as a legal vehicle to help 
meet our economy's labor demands.
    Again, thank you for your commitment and leadership on this 
essential issue. ABC looks forward to working with your committee to 
ensure comprehensive immigration reform is reached.

                                SOURCES

Government Accounting Office Reports HRD-79-18 4/27/79, HEHS-96-177R, 
        http://archive.gao.gov/paprpdf1/157164.pdf, HEHS-99-21 1/11/99, 
        http://www.gao.gov/archive/1999/he99021.pdf, and HEHS-99-97 5/
        12/99, http://www.gao.gov/archive/1999/he99097.pdf.
Office of Management and Budget, Prevailing Wage Determination Program 
        Assessment http://www.whitehouse.gov/omb/expectmore/
        summary.10001099. 2005.html and http://www.whitehouse.gov/omb/
        expectmore/detail.10001099.2005.html.
U.S. Census Bureau, Construction Spending http://www.census.gov/const/
        C30/total.pdf
U.S. Census Bureau, Annual Value of Construction Put in Place http://
        www.census.gov/const/www/c30index.html
U.S. Department of Commerce. Current-dollar and Real Gross Domestic 
        Product http://www.bea.gov/bea/dn/gdplev.xls
U.S. Department of Labor, Bureau of Labor Statistics, Employees on 
        nonfarm payrolls by major industry sector historical. ftp://
        ftp.bls.gov/pub/suppl/empsit. ceseeb1.txt
U.S. Department of Labor, Bureau of Labor Statistics, Office of 
        Occupational Statistics and Employment Projections, 
        ``Employment by major industry division, 1994, 2004, and 
        projected 2014,'' http://www.bls.gov/emp/empmajor industry.pdf
U.S. Department of Labor, Bureau of Labor Statistics, Occupational 
        Projections and Training Data, 2004-05 Edition, http://
        www.bls.gov/emp/optd/home.htm
U.S. Department of Labor, Bureau of Labor Statistics, Job Openings and 
        Labor Turnover Survey. Obtain data from 2001 to 2005 by 
        selection ``Total separations rate, construction 
        JTS230000000TSR'' on http://data.bls.gov/cgi-bin/survey most?jt
U.S. Department of Labor Prevailing Wage Resource Book, November, 2002, 
        page 3 of Section 15 ``Davis-Bacon Surveys.''
U.S. Department of Labor, Office of Inspector General, Inaccurate data 
        were Frequently Used in Wage Determinations made under the 
        Davis-Bacon Act Report No. 04-97-013-04-420 (March 10, 1997) 
        http://www.oig.dol.gov/public/reports/oa/pre--1998/04-97-013-
        04-420.pdf; Review of Davis-Bacon Modernization Funding Report 
        No. 04-98-003-04-420 (February 19, 1998) http://
        www.oig.dol.gov/public/reports/oa/1998/04-98-003-04-420r.htm; 
        and Concerns Persist With the Integrity of Davis-Bacon 
        Prevailing Wage Determination Report No. 04-04-003-04-420 
        (March 30, 2004) http://www.oig.dol.gov/public/reports/oa/2004/
        04-04-003-04-420.pdf.
U.S. Department of Labor, Title 20, Code of Federal Regulation, Part 
        656.40
U.S. Small Business Administration, ``Major Industries by NAICs Codes: 
        Private Employer Firms, Establishments, Employment, and Annual 
        Payroll by Firm Size, 1998-2001,'' http://www.sba.gov/advo/
        research/us--tot--mi--n.pdf
U.S. Small Business Administration, Office of Advocacy, from data 
        provided by U.S. Census Bureau, Nonemployer Statistics, 
        Nonemployers Firms and Receipts by Industry, 2002, 2003, ftp://
        ftp.bls.gov/pub/suppl/empsit.ceseeb1.txt
                                 ______
                                 
    [The prepared statement of the Textile Rental Services 
Association of America follows:]

Prepared Statement of the Textile Rental Service Association of America 
                                 (TRSA)

    Mr. Chairman and Members of the Committee, I appreciate the 
opportunity to submit this Statement as President & CEO of the Textile 
Rental Service Association of America (TRSA). Since 1913, TRSA members 
have provided textile maintenance and rental services to commercial, 
industrial and institutional accounts--more than 90 percent of TRSA 
member companies are small businesses. TRSA members serve hygienically 
clean textile items to millions of customers in commerce, industry, and 
other professions. Customers of uniform and linen supply companies and 
commercial launderers include: automobile service and repair 
facilities; food processing companies; pharmaceutical manufacturers and 
other manufacturing facilities; hotels, restaurants, hospitals, nursing 
homes, doctors' and dentists' offices and clinics; retail stores and 
supermarkets; and a variety of other industrial and service companies. 
The combined linen supply and industrial laundering industry generates 
revenues of approximately $12 billion annually while employing nearly 
132,000 workers nationwide.
Why is Immigrant Labor Important to our Industry
    The pool of available American workers is dwindling. The United 
States' population is aging and growth rates are decreasing. According 
to the U.S. Bureau of Labor Statistics, employees aged 45 or older will 
comprise over 50 percent of the workforce by 2012, and one in every 
five Americans will be a senior citizen by 2030.
    In addition, Americans are also better educated than ever before in 
our history. The number of 25 year olds with a high school diploma has 
grown from less than 50 percent in the mid-1960's to more than 85 
percent in recent years. As a result, American employers are finding it 
increasingly difficult to fill many low- or semi-skilled positions with 
American workers.
    Notwithstanding wages averaging $3.00 over the federal minimum 
wage, companies of all sizes in our industry are faced with the 
challenge of worker shortages. Throughout the United States, the 
immigrant workforce is essential to the textile services industry to 
fill these positions. Even with the influx of new technology, the 
textile service industry remains a highly labor intensive industry. On 
average, each plant has 120 employees. Approximately 60 percent of 
these industry employees work on the production floor. Increasingly 
over the past 20 years, these jobs have been filled by immigrant labor.
Industry is Growing
    In the coming years, our worker shortage issues will only 
intensify. TRSA surveys indicate that the industry grew by 7.4 percent 
in 2004 and has outpaced GDP growth for more than a decade. The 
healthcare textile services sector is growing even faster--enjoying 
double-digit expansion. The Bureau of Labor Statistics predicts a 7.9% 
growth rate in dry cleaning and laundry jobs by 2014. Immigrant labor 
is essential to sustain the growing demand in our industry.
Need for a Guest Worker Program
    TRSA supports federal legislation that would create an expanded 
guest worker program that allows additional citizens from other 
countries to fill jobs that Americans don't want to do. TRSA advocates 
a program that truly addresses the need for low and semi-skilled 
workers. A recent speaker at a TRSA Washington event, Dan Griswold of 
the Cato Institute sums it up this way: ``Demand for low-skilled labor 
continues to grow in the United States while the domestic supply of 
suitable workers inexorably declines--yet U.S. immigration law contains 
virtually no legal channel through which low-skilled immigrant workers 
can enter the country to fill that gap. The result is an illegal flow 
of workers characterized by more permanent and less circular migration, 
smuggling, document fraud, deaths at the border, artificially depressed 
wages, and threats to civil liberties.'' He adds, ``American 
immigration laws are colliding with reality, and reality is winning.''
TRSA Supports Measures to Address Adequate Workforce Demands
    TRSA supports language in the Comprehensive Immigration Act of 
2006, S. 2611, that recognizes that need to strengthen our national 
security while addressing the demand of an adequate workforce to 
maintain our economic growth. We believe this is not an either or 
proposition. We can have strong border security along with a legal 
method for a substantial number of workers to come into the U.S. and 
help American businesses meet it labor demands.
    In addition to substantial measures and resources to help secure 
our nation's borders, S. 2611 would provide a path for undocumented 
workers to gain legal status. The bill would also significantly 
increase the number of foreign-born workers that would be allowed in 
the U.S. annually. TRSA is a strong supporter of these provisions in 
the immigration reform bill that allows those who want to contribute to 
the U.S. economy to do so legally.
    S. 2611 recognizes the economic and social contributions that hard-
working immigrants have made in every local community throughout the 
nation. It also offers a fix to our immigration system that respects 
the vast contributions these individuals have made to our economy.
Serious Concerns with H.R. 4437
    TRSA has serious concerns with H.R. 4437 because of its focus on an 
``enforcement-only'' approach to immigration reform that has proven to 
be ineffectual in addressing our immigration challenges. The House 
measure is counterproductive because it lacks a rational immigration 
policy to provide adequate legal channels for immigrants to enter the 
country to work, pay taxes, and contribute to society. Additionally, 
the bill does not provide a viable system for those who are already 
here the opportunity to earn their way to legal status.
    TRSA also has concerns with the worker verification system mandated 
by the bill. The current voluntary ``Basic Pilot Program'' on which it 
is based has proven to be very unreliable. Also, this new employment 
eligibility verification program requirement would be an additional 
regulatory layer on top of the current I-9 program requirements.
    Additionally, we have serious concerns about the practicability of 
all the employers in the country having to verify both current and 
prospective workers within six years under a system that has yet to be 
proven reliable. Not to mention, the huge potential costs to employers 
associated with paperwork, civil and criminal penalties resulting from 
errors from a flawed verification system.
    Furthermore, in an age of counterfeit documents, employer 
verification is a daunting task. Employers must be given some safe 
harbor if they are trying in good faith to comply. The primary burden 
of enforcing U.S. immigration laws should not fall on employers.
Conclusion
    The textile services industry has a strong desire to comply with I-
9 requirements. TRSA member companies have an excellent track record of 
verifying worker eligibility. TRSA further assists our members by 
providing guidance on ensuring worker eligibility in our newsletters 
and magazine.
    TRSA members take the appropriate steps to ensure they utilize 
legal sources of immigrant labor. Many member companies have even used 
the existing guest worker programs already established under the 
Department of Homeland Security.
    The time is now for the House and Senate to reach agreement on a 
strong bipartisan immigration compromise that deals compassionately and 
realistically with the existing large number of undocumented workers 
and future immigration levels in the United States.
    Thank you for your consideration.
                                 ______
                                 
    [The prepared statement of the AFL-CIO follows:]

Prepared Statement of the Building and Construction Trades Department, 
                                AFL-CIO

    Witnesses testifying before this Committee and other committees of 
the House of Representatives and the Senate, as well as members of 
Congress, have made numerous comments and statements concerning 
application of a prevailing wage requirement to the temporary foreign 
guest worker program described in S. 2611, the Comprehensive 
Immigration Reform Act of 2006, which was passed by the Senate in May 
2006. These comments and statements generally reflect misunderstanding 
and confusion concerning the intended purpose and effect of the 
prevailing wage requirement in S. 2611 that requires clarification and 
explanation.
    The Senate bill creates a new temporary foreign guest worker 
program called the ``H-2C visa program.'' The bill includes numerous 
labor protections intended to assure that admission of H-2C guest 
workers does not adversely affect American workers wages and living 
standards while at the same time preventing exploitation of the foreign 
guest workers. S. 2611 prohibits employers from hiring temporary 
foreign guest workers under the ``H-2C visa program'' unless they have 
first tried to recruit American workers for a job vacancy. In 
attempting to recruit American workers, employers must offer to pay not 
less than the wage rate they actually pay comparable employees in their 
incumbent workforce or the prevailing wage for the occupation, 
whichever is higher. Then, in the event an employer is unable to 
recruit a qualified American to fill the job vacancy, the employer must 
submit an application to the U.S. Department of Labor for a 
determination and certification to the Secretary of Homeland Security 
and the Secretary of State, which confirms that American workers who 
are qualified and willing to fill the vacancy are not available, and 
that employment of a foreign guest worker will not adversely affect the 
wages and living standards of American workers similarly employed.
    The Senate bill contains additional provisions intended to ensure 
that employers do not hire temporary foreign guest workers to replace 
American workers who are on lay off, on strike, or are being locked out 
in the course of a labor dispute. In addition, the Senate bill requires 
employers to provide the same benefits and working conditions to 
temporary foreign guest workers that they provide to their American 
employees in similar jobs. Furthermore, employers would be required 
under the Senate bill to provide workers compensation insurance to 
temporary foreign guest workers they hire.
    Most of the criticism of the prevailing wage requirement applicable 
to foreign guest workers under the ``H-2C visa program'' in S. 2611 is 
that it entitles them to payment of a higher wage rate than American 
workers similarly employed. This is a misperception of the prevailing 
wage requirement in S. 2611 based on a misunderstanding of its purpose 
and intent.
    The perceived impact of foreign workers on our labor market has 
been a major issue throughout the history of U.S. immigration policy 
and law, because such workers can present a threat of unfair wage 
competition. This perception is because foreign workers whose 
desperation for jobs, low cost of living in their countries of origin, 
and restricted status in the United States can cause them to accept 
wages and living standards far below U.S. standards. Thus, Congress 
enacted the Foran Act in 1885, which made it unlawful to import foreign 
workers to perform labor or service of any kind in the United States.
    This bar on employment-based immigration lasted until 1952, when 
Congress enacted the Immigration and Nationality Act, which brought 
together many disparate immigration and citizenship statutes and made 
significant revisions in the existing laws. The 1952 Act authorized 
visas for foreigners who would perform needed services because of their 
high educational attainment, technical training, specialized 
experience, or exceptional ability. Prior to admission of these 
employment-based immigrants, however, Section 212 of the 1952 Act 
required the Secretary of Labor to certify to the Attorney General of 
the United States and the Secretary of State that there were not 
sufficient American workers ``able, willing and qualified'' to perform 
this work and that the employment of such foreign workers would not 
``adversely affect the wages and living standards'' of similarly 
employed American workers. Under this procedure, the Secretary of Labor 
was responsible for making a labor certification. In 1965, Congress 
substantially changed the labor certification procedure by placing the 
responsibility on prospective employers of intended immigrants to file 
labor certification applications with the Secretary of Labor prior to 
issuance of a visa.
    The current statutory authority that conditions admission of 
employment-based immigrants on labor market tests is set forth in the 
exclusion portion of the Immigration and Nationality Act, which denies 
entry to the United States of immigrants and nonimmigrants seeking to 
work without proper labor certifications. The labor certification 
ground for exclusion covers both foreigners coming to live as legal 
permanent residents and as temporarily admitted nonimmigrants. Section 
212(a)(5) of the Immigration and Nationality Act, 8 U.S.C. 
Sec. 1182(a)(5), states:
    Any alien who seeks to enter the United States for the purpose of 
performing skilled or unskilled labor is inadmissible, unless the 
Secretary of Labor has determined and certified to the Secretary of 
State and the Attorney General that-(I) there are not sufficient 
workers who are able, willing, qualified (or equally qualified in the 
case of an alien described in clause (ii)) and available at the time of 
application for a visa and admission to the United States and at the 
place where the alien is to perform such skilled or unskilled labor, 
and (II) the employment of such alien will not adversely affect the 
wages and working conditions of workers in the United States similarly 
employed.
    For many years beginning in 1967, DOL's labor certification 
regulations implementing Section 212(a)(14) (since recodified as 
Sec. 212(a)(5)) have provided that, in order to determine whether 
prospective employment of both immigrant and nonimmigrants seeking to 
perform skilled or unskilled labor in the United States will adversely 
affect ``wages'' or ``working conditions'' of American workers, the 
Secretary of Labor must determine whether such employment will be for 
wages and fringe benefits no less than those prevailing for American 
workers similarly employed in the area of intended employment of the 
foreign worker. For many years until March 28, 2005, the minimum wage 
rate that the Secretary of Labor would accept as not adversely 
affecting the wages of American workers similarly employed were, where 
available, the wage rates prescribed by the Secretary pursuant to the 
Davis-Bacon Act and the McNamara-O'Hara Service Contract Act.
    Thus, the DOL regulations implementing the labor certification 
requirement in Section 212(a)(5) of the Immigration and Nationality Act 
provided that, where available, the prevailing wages shall be the rates 
determined to be prevailing for the occupations and in the localities 
involved pursuant to the provisions of the Davis-Bacon Act or the 
McNamara-O'Hara Service Contract Act. See e.g., 32 Fed. Reg. 10932 
(July 26, 1967) (codified as 29 C.F.R. Sec. 60.6). Reference to wage 
rates determined to be prevailing pursuant to the Davis-Bacon Act and 
the McNamara-O'Hara Service Contract Act as the minimum rates that will 
not adversely affect the wages of American workers similarly employed 
continued until March 28, 2005. See 20 C.F.R. Sec. 656.40 (2004). These 
prevailing wage rates were applied to job openings for which employers 
sought DOL labor certifications without regard to whether they were 
otherwise covered by the Davis-Bacon Act or the McNamara-O'Hara Service 
Contract Act. Thus, the idea of using prevailing wage rates determined 
pursuant to the Davis-Bacon Act and the McNamara-O'Hara Service 
Contract Act is not new or expansionary.
    In fact, until the 1990's, the only time DOL's regulations 
permitted use of a prevailing wage rate other than one issued under the 
Davis-Bacon Act or the McNamara-O'Hara Service Contract Act for alien 
labor certification purposes was when there was no such rate available. 
See 20 C.F.R. Sec. 656.40(a)(2) (2004). In that case, DOL guidelines, 
which were initially adopted in October 1997 and modified in April 
1999, provide that prevailing wage rates for labor certification 
purposes can be based on wage surveys conducted under the wage 
component of the Bureau of Labor Statistics' expanded Occupational 
Employment Statistics (``OES'') program or an employer-provided wage 
survey. DOL's guidelines further provide that alternative sources of 
wage data can be used where neither the OES survey nor the employer 
provides wage data upon which a prevailing wage determination can be 
established for an occupation for which an employer is seeking a labor 
certification, so long as the data meets the criteria set forth therein 
regarding the adequacy of employer-provided wage data
    On May 6, 2002, the Secretary of Labor published proposed changes 
in the labor certification regulations, which essentially codified 
DOL's guidelines permitting use of prevailing wage rates based on the 
wage component of the OES wage survey or employer-provided wage survey 
data that meets the requirements described in the DOL guidelines. 67 
Fed. Reg. 30466 et seq., 30478-79 (May 6, 2002). In addition, the 
Secretary's proposed regulations eliminated mandatory use of prevailing 
wages determined pursuant to the Davis-Bacon Act and the McNamara-
O'Hara Service Contract Act where otherwise applicable. Id. at 30478.
    The Secretary of Labor's May 6, 2002 Notice of Proposed Rulemaking 
explained that she had decided that it is inappropriate to use 
prevailing wage rates determined pursuant to the Davis-Bacon Act and 
the McNamara-O'Hara Service Contract Act as the minimum rates that will 
not adversely affect the wages of American workers similarly employed. 
The reason offered in the Notice of Proposed Rulemaking for this 
conclusion was that the procedures used to determine Davis-Bacon Act 
and McNamara-O'Hara Service Contract Act prevailing wage rates are 
significantly different from those set forth in DOL's guidelines for 
determining prevailing wage rates for labor certification purposes in 
occupations for which a prevailing wage rate under one of these laws is 
not available. Id. at 30479. Hence, the Secretary's reason for 
eliminating mandatory use of prevailing wage rates determined pursuant 
to these two federal prevailing wage laws was not that they were less 
accurate than the wage component of the OES program, but merely because 
their respective methodology is different. Id. Eventually, the 
Secretary of Labor adopted the changes proposed in the 2002 Notice of 
Proposed Rulemaking on December 27, 2004, which became effective on 
March 28, 2005. 69 Fed. Reg. 77326 et seq., 77365-66 (December 27, 
2004).
    Notwithstanding, the Republican Policy Committee's July 11, 2006 
report and many conservative pundits have argued recently that audits 
of the Davis-Bacon wage survey process demonstrate that it is less 
accurate than the wage component of the OES program. It is doubtful, 
however, that the OES program or any other wage survey process could 
withstand the kind of scrutiny applied to the Davis-Bacon wage survey 
process. After all, both the OES program and the Davis-Bacon wage 
survey program depend entirely on the voluntary participation of 
employers to submit wage data, and the Davis-Bacon wage survey process 
now includes a nationwide employer payroll-auditing component, which 
better assures the accuracy of the wage data submitted by participating 
employers. The OES program does not include an auditing component.
    In any event, this recitation demonstrates that use of prevailing 
wage rates determined pursuant to the Davis-Bacon Act and the McNamara-
O'Hara Service Contract Act as the minimum rates that will not 
adversely affect the wages of American workers similarly employed is 
not a concept introduced for the first time in S. 2611. On the 
contrary, use of prevailing wage rates determined pursuant to the 
Davis-Bacon Act and the McNamara-O'Hara Service Contract Act as the 
minimum rates that will not adversely affect the wages of American 
workers similarly employed was integrally intertwined for nearly 40 
years in the labor certification process. Use of prevailing wage rates 
based on these federal prevailing wage laws were regarded as best 
serving the intended purpose of the labor certification process, which 
is to protect American workers from unfair wage competition by foreign 
workers seeking permanent and temporary employment opportunities in the 
United States.
    It was understood that, in rare instances, this process might 
result in payment of higher wages to newly hired foreign workers than 
to an employer's incumbent workforce. The possibility that mandatory 
use of prevailing wage rates determined pursuant to the Davis-Bacon Act 
and the McNamara-O'Hara Service Contract Act might create such a wage 
disparity is minimal inasmuch as it is highly unlikely that an employer 
will opt to hire a foreign worker if it upsets the employer's wage 
structure, unless the employer truly has no other choice. In that case, 
the employer is more likely than not to raise the incumbent workforce's 
wage rate. In any event, this dynamic provides the greatest assurance 
that employers cannot take advantage of a pool of foreign workers 
willing to accept employment at a depressed wage rate because they are 
desperate for jobs, come from countries that have low costs of living, 
and have restricted status in the United States.
    In addition, Congress recently enacted the Consolidated 
Appropriations Act of 2005 that added Section 212(p)(4) to the 
Immigration and Nationality Act, 8 U.S.C. Sec. 1182(p)(4), which 
provides:
    Where the Secretary of Labor uses, or makes available to employers, 
a governmental survey to determine the prevailing wage, such survey 
shall provide at least 4 levels of wages commensurate with experience, 
education, and the level of supervision. Where an existing government 
survey has only 2 levels, 2 intermediate levels may be created by 
dividing by 3, the difference between the 2 levels offered, adding the 
quotient thus obtained to the first level and subtracting that quotient 
from the second level.
    The Secretary of Labor's recent adoption of new regulations that 
eliminated mandatory use of prevailing wage rates determined pursuant 
to the Davis-Bacon Act and the McNamara-O'Hara Service Contract Act, 
coupled with enactment of Section 212(p)(4) of the Immigration and 
Nationality Act, has undoubtedly reduced the prevailing wage rates used 
in the foreign worker labor certification process. These actions have 
adversely affected the wages of American workers similarly employed, 
because the minimum wages employers are now required to pay foreign 
workers issued permanent and temporary employment-related visas are 
more likely to be lower. This is exactly the opposite effect intended 
by Congress when it incorporated the labor certification process in the 
Immigration and Nationality Act in 1952 and amended it in 1965.
    It was precisely because of these changes that the Senate decided 
to codify the prevailing wage provision applicable to the new ``H-2C 
guest worker visa program'' created by S. 2611, so that American 
workers' wages would not be further adversely effected. Thus, contrary 
to the assertions of some, use of prevailing wage rates determined 
pursuant to the Davis-Bacon Act and the McNamara-O'Hara Service 
Contract Act as the minimum wage rates that will not adversely affect 
the wages of American workers similarly employed is entirely in harmony 
with the intended purpose and intent of the labor certification process 
that has been consistently applied to applicants for employment-based 
permanent and temporary visas seeking to perform skilled and unskilled 
labor since 1952. As such, codification of such a requirement in the 
new ``H-2C guest worker visa program'' created by S. 2611 in no way 
represents an expansion of the Davis-Bacon Act, nor will it provide 
greater wage protection to foreign guest workers than to American 
workers similarly employed.
                                 ______
                                 
    [The prepared statement of the Coalition for Immigration 
Security follows:]

      Prepared Statement of the Coalition for Immigration Security

    The undersigned each have held high-ranking positions in the 
Executive Branch with responsibilities for enforcing our immigration 
laws and securing our borders from those who would seek to harm the 
United States or violate its laws. We are proud to have been part of 
the effort since September 11, 2001, to secure our borders and bring 
integrity back to our immigration system.
    As the Congress considers immigration legislation, some have 
portrayed the debate as one between those who advocate secure borders 
and those who advocate liberalized employment opportunities. This is a 
false dichotomy. The reality is that stronger enforcement and a more 
sensible approach to the 10-12 million illegal aliens in the country 
today are inextricably interrelated. One cannot succeed without the 
other. Without reform of laws affecting the ability of temporary, 
migrant workers to cross our borders legally, our borders cannot and 
will not be secure.
    Since 9/11, the Executive Branch and Congress have worked together 
to make significant but incomplete efforts to secure our borders. Among 
the many accomplishments achieved are:
     Spending: Overall border enforcement spending is up 58% to 
$7.3 billion in 2005;
     Creation of CBP and ICE: The Department of Homeland 
Security (DHS) created a single agency, U.S. Customs and Border 
Protection (CBP), devoted to securing our borders and with a priority 
mission of keeping terrorists and terrorist weapons out of the country, 
and we created a single agency, U.S. Immigration and Customs 
Enforcement (ICE), devoted to enforcing our immigration laws in the 
interior of our country.
     US-VISIT: DHS deployed an integrated entry-exit 
immigration enforcement system, enrolling over 50 million travelers and 
identifying over 1000 criminals and inadmissible aliens.
     A Single, Consolidated Terrorist Watchlist: At the 
President's direction, the Terrorist Screening Center now maintains the 
nation's single, consolidated watchlist of known and suspected 
terrorists against which all applicants for entry into the country and 
all detained illegal entrants are now checked.
     SEVIS: DHS developed a student tracking system confirming 
over 870,000 students in the 2004-05 academic year and removing over 
60,000 questionable schools from the program.
     Border Patrol: We have increased the number of agents by 
over 40% and deployed sophisticated equipment, including UAVs and 
sensors, to secure our borders.
     Expedited Removal: ER is now operational at all Southern 
Border sectors to deter illegal entry by non-Mexicans and to maximize 
use of available detention bedspace.
     Detention and Removal: ICE achieved a record number of 
approximately 160,000 deportations, including a historic number of 
13,000 fugitives with outstanding orders of removal in FY04.
     Database Integration: DHS has integrated legacy databases 
such as IDENT and IAFIS to identify tens of thousands of persons 
arrested or wanted by federal or local law enforcement to be detained 
by CBP inspectors and Border Patrol agents.
     Application Backlog Reduction: U.S. Citizenship and 
Immigration Services has reduced the backlog of benefit applications 
from a high of over 3.8M in January of 2004 to under 700,000 in January 
of 2006, a reduction of 83%.
    These accomplishments and others have significantly improved the 
security to our international travel systems and laid the groundwork to 
achieve operational control of our land borders with Canada and Mexico.
    Clearly, more must be done to strengthen enforcement, and we 
support additional programs and spending, such as increasing the 
numbers of Border Patrol agents, deploying more sophisticated 
technology through the Secure Border Initiative and additional 
infrastructure to build a ``virtual'' fence along the Southern Border; 
ending the ``catch and release'' policy, deportation procedures that 
allow for more streamlined litigation to deport illegal aliens, further 
build-out of entry-exit tracking and facilities, and strengthening our 
interior enforcement capabilities, such as fugitive operations teams at 
ICE.
    But enforcement alone will not do the job of securing our borders. 
Enforcement at the border will only be successful in the long-term if 
it is coupled with a more sensible approach to the 10-12 million 
illegal aliens in the country today and the many more who will attempt 
to migrate into the United States for economic reasons. Accordingly, we 
support the creation of a robust employment verification system and a 
temporary worker program in the context of an overall reform of our 
border security and immigration laws.
    With each year that passes, our country's shifting demographics 
mean we face a larger and larger shortage of workers, especially at the 
low-skilled end of the economy. Entire segments of the economy in a 
growing number of urban and rural areas depend on large illegal 
populations. Existing law allows only a small fraction of these workers 
even to attempt to enter the United States legally, even though our 
unemployment rate has fallen below 5 percent.
    Thus, each week our labor market entices thousands of individuals, 
most from Mexico but many from numerous other countries, to sneak 
across our border, or to refuse to leave when a temporary visa expires. 
These numbers add up: DHS apprehends over 1 million migrants illegally 
entering the United States each year, but perhaps as many as 500,000 
get through our defenses every year and add to our already staggering 
illegal immigrant population. As believers in the free market and the 
laws of supply and demand, we believe border enforcement will fail so 
long as we refuse to allow these willing workers a chance to work 
legally for a willing employer.
    Most such migrants are gainfully employed here, pay taxes, and many 
have started families and developed roots in our society. And an 
attempt to locate and deport these 10 to 12 million people is sure to 
fail and would be extraordinarily divisive to our country.
    But others seeking to cross our borders illegally do present a 
threat--including potential terrorists and criminals. The current flow 
of illegal immigrants and people overstaying their visas has made it 
extremely difficult for our border and interior enforcement agencies to 
be able to focus on the terrorists, organized criminals, and violent 
felons who use the cloak of anonymity that the current chaotic 
situation offers.
    An appropriately designed temporary worker program should relieve 
this pressure on the border. We need to accept the reality that our 
strong economy will continue to draw impoverished job seekers, some of 
whom will inevitably find a way to enter the country to fill jobs that 
are available. A successful temporary worker program should bring these 
economic migrants through lawful channels. Instead of crossing the Rio 
Grande or trekking through the deserts, these economic migrants would 
be interviewed, undergo background checks, be given tamper-proof 
identity cards, and only then be allowed in our country. And the Border 
Patrol would be able to focus on the real threats coming across our 
border. This will only happen, however, if Congress passes a 
comprehensive reform of our border security and immigration laws.
    Moreover, current law neither deters employers who are willing to 
flout the law by hiring illegal workers, nor rewards employers who are 
trying to obey the law. Bogus documents abound, and there is currently 
no comprehensive and mandatory mechanism for employers to check the 
legality of a worker's status. An effective temporary worker program 
would include a universal employment verification system based on the 
issuance of secure, biometrically-based employment eligibility 
documents and an ``insta-check'' system for employers to confirm 
eligibility. We recognize the cost of such programs but believe the 
cost of the current morass is much greater.
    Lastly, individuals who have maintained employment in the United 
States for many years without evidence of ties to criminal or terrorist 
behavior should be granted the opportunity to make in essence a plea 
bargain with law enforcement. By paying a stiff fine and undergoing a 
robust security check, these individuals can make amends for their 
mistake without crippling our economy and social structures by being 
part of a mass deportation. Each day that we fail to bring these people 
out of the shadows is another day of amnesty by default.
    In conclusion, we encourage the Congress and Administration to work 
together to enact legislation that takes a comprehensive approach to 
immigration reform. We support strong immigration enforcement but it 
will only be successful when coupled with realistic policies related to 
our labor markets and economic needs.

                                           Victor X. Cerda,
Partner, Tew Cardenas LLP; Former Acting Director of Detention and 
      Removal Operations, U.S. Immigration and Customs Enforcement,
                              U.S. Department of Homeland Security.
                                 Dr. Richard A. Falkenrath,
  Senior Fellow, The Brookings Institution; Former Deputy Homeland 
            Security Advisor and Deputy Assistant to the President.
                                             Pancho Kinney,
       Former Director of Strategy, White House Office of Homeland 
                                                          Security.
                                            Jason Klitenic,
   Partner, McKenna Long & Aldridge; Former Deputy General Counsel,
                              U.S. Department of Homeland Security.
                                          ADM James M. Loy,
        Senior Counselor, The Cohen Group; Former Deputy Secretary,
                              U.S. Department of Homeland Security.
                                     Michael J. Petrucelli,
 GridPoint, Inc.; Former Deputy Director and Acting Director, U.S. 
 Citizenship and Immigration Services, U.S. Department of Homeland 
                                                          Security.
                                        Seth M. M. Stodder,
       Senior Counsel, Akin Gump Strauss Hauer & Feld, LLP; Former 
          Director of Policy and Planning, U.S. Customs and Border 
                                                        Protection,
                              U.S. Department of Homeland Security.
                                   C. Stewart Verdery, Jr.,
Principal, Mehlman Vogel Castagnetti, Inc.; Adjunct Fellow, Center 
for Strategic and International Studies; Former Assistant Secretary 
for Border and Transportation Security, U.S. Department of Homeland 
                                                          Security.
                                         Joseph D. Whitley,
                    Partner, Alston & Bird; Former General Counsel,
                              U.S. Department of Homeland Security.

                                 
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