[House Hearing, 110 Congress]
[From the U.S. Government Printing Office]


 
                       DO FEDERAL PROGRAMS ENSURE
                    U.S. WORKERS ARE RECRUITED FIRST
                   BEFORE EMPLOYEES HIRE FROM ABROAD?

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

                                HEARING

                               before the

                              COMMITTEE ON
                          EDUCATION AND LABOR

                     U.S. House of Representatives

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

              HEARING HELD IN WASHINGTON, DC, MAY 6, 2008

                               __________

                           Serial No. 110-90

                               __________

      Printed for the use of the Committee on Education and Labor


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                    COMMITTEE ON EDUCATION AND LABOR

                  GEORGE MILLER, California, Chairman

Dale E. Kildee, Michigan, Vice       Howard P. ``Buck'' McKeon, 
    Chairman                             California,
Donald M. Payne, New Jersey            Senior Republican Member
Robert E. Andrews, New Jersey        Thomas E. Petri, Wisconsin
Robert C. ``Bobby'' Scott, Virginia  Peter Hoekstra, Michigan
Lynn C. Woolsey, California          Michael N. Castle, Delaware
Ruben Hinojosa, Texas                Mark E. Souder, Indiana
Carolyn McCarthy, New York           Vernon J. Ehlers, Michigan
John F. Tierney, Massachusetts       Judy Biggert, Illinois
Dennis J. Kucinich, Ohio             Todd Russell Platts, Pennsylvania
David Wu, Oregon                     Ric Keller, Florida
Rush D. Holt, New Jersey             Joe Wilson, South Carolina
Susan A. Davis, California           John Kline, Minnesota
Danny K. Davis, Illinois             Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona            Kenny Marchant, Texas
Timothy H. Bishop, New York          Tom Price, Georgia
Linda T. Sanchez, California         Luis G. Fortuno, Puerto Rico
John P. Sarbanes, Maryland           Charles W. Boustany, Jr., 
Joe Sestak, Pennsylvania                 Louisiana
David Loebsack, Iowa                 Virginia Foxx, North Carolina
Mazie Hirono, Hawaii                 John R. ``Randy'' Kuhl, Jr., New 
Jason Altmire, Pennsylvania              York
John A. Yarmuth, Kentucky            Rob Bishop, Utah
Phil Hare, Illinois                  David Davis, Tennessee
Yvette D. Clarke, New York           Timothy Walberg, Michigan
Joe Courtney, Connecticut            [Vacancy]
Carol Shea-Porter, New Hampshire

                     Mark Zuckerman, Staff Director
                Sally Stroup, Republican Staff Director


                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on May 6, 2008......................................     1

Statement of Members:
    Bishop, Hon. Timothy H., a Representative in Congress from 
      the State of New York, submissions for the record:
        Letter from Save Small Business, dated May 7, 2008.......    92
        Letter from Chesapeake Bay Seafood Industries Association 
          (CBSIA), dated May 6, 2008.............................    94
    McKeon, Hon. Howard P. ``Buck,'' Senior Republican Member, 
      Committee on Education and Labor...........................     4
        Prepared statement of....................................     5
    McMorris-Rodgers, Hon. Cathy, a Representative in Congress 
      from the State of Washington, submission for the record....    98
    Miller, Hon. George, Chairman, Committee on Education and 
      Labor......................................................     1
        Prepared statement of....................................     3
        Letter from the AFL-CIO, dated May 5, 2008...............    88
    Shea-Porter, Hon. Carol, a Representative in Congress from 
      the State of New Hampshire.................................    89
        Additional submissions:
            Letter from Ed Butler, dated May 1, 2008.............    90
            Letter from Michelline Dufort, dated May 5, 2008.....    91
            Statement of Claire Gruenfelder......................    91

Statement of Witnesses:
    Beardall, Bill, director, Equal Justice Center...............    59
        Prepared statement of....................................    61
    Carlson, William L., Ph.D., Administrator, Office of Foreign 
      Labor Certification, U.S. Department of Labor..............    13
        Prepared statement of....................................     8
    Goldstein, Bruce, executive director, Farmworker Justice.....    14
        Prepared statement of....................................    15
    Riojas, Javier, attorney, branch manager, Texas RioGrande 
      Legal Aid, Inc.............................................    20
        Prepared statement of....................................    21
    Sequeira, Hon. Leon R., Assistant Secretary for Policy, U.S. 
      Department of Labor........................................     7
        Prepared statement of....................................     8
        Responses to questions for the record....................   100
    Sum, Andrew, director/professor, Center for Labor Market 
      Studies, Northeastern University...........................    37
        Prepared statement of....................................    40
    Young, John, past executive director, New England Apple 
      Council....................................................    25
        Prepared statement of....................................    27
        Additional submissions:
            Farm Labor and Immigration Reform Economic Impact to 
              New Hampshire State Agriculture....................    32
            Economic Impact to New Jersey State Agriculture......    34
            Farm Labor and Immigration Reform Economic Impact to 
              New York State Agriculture.........................    36


                       DO FEDERAL PROGRAMS ENSURE
                    U.S. WORKERS ARE RECRUITED FIRST
                   BEFORE EMPLOYEES HIRE FROM ABROAD?

                              ----------                              


                          Tuesday, May 6, 2008

                     U.S. House of Representatives

                    Committee on Education and Labor

                             Washington, DC

                              ----------                              

    The committee met, pursuant to call, at 11:03 a.m., in room 
2175, Rayburn House Office Building, Hon. George Miller 
[chairman of the committee] presiding.
    Present: Representatives Miller, Kildee, Payne, Woolsey, 
McCarthy, Tierney, Wu, Holt, Davis of California, Grijalva, 
Bishop of New York, Sanchez, Sarbanes, Sestak, Loebsack, 
Hirono, Altmire, Yarmuth, Courtney, Shea-Porter, McKeon, Petri, 
Castle, Ehlers, Biggert, Keller, Wilson, Kline, Boustany, Foxx, 
and Davis of Tennessee.
    Staff Present: Aaron Albright, Press Secretary; Tylease 
Alli, Hearing Clerk; Tico Almeida, Labor Policy Advisor; Jordan 
Barab, Health/Safety Professional; Jody Calemine, Labor Policy 
Deputy Director; Fran-Victoria Cox, Staff Attorney; Lynn 
Dondis, Policy Advisor, Subcommittee on Workforce Protections; 
Michael Gaffin, Junior Legislative Associate, Labor; Brian 
Kennedy, General Counsel; Thomas Kiley, Communications 
Director; Danielle Lee, Press/Outreach Assistant; Stephanie 
Moore, General Counsel; Alex Nock, Deputy Staff Director; Joe 
Novotny, Chief Clerk; Megan O'Reilly, Labor Policy Advisor; 
Michele Varnhagen, Labor Policy Director; Mark Zuckerman, Staff 
Director; Robert Borden, Minority General Counsel; Jim Paretti, 
Minority Workforce Policy Counsel; Alexa Marrero, Minority 
Communications Director; Cameron Coursen, Minority Assistant 
Communications Director; Loren Sweatt, Minority Professional 
Staff Member; Ed Gilroy, Minority Director of Workforce Policy; 
Rob Gregg, Minority Senior Legislative Assistant; Molly 
McLaughlin Salmi, Minority Deputy Director of Workforce Policy; 
Linda Stevens, Minority Chief Clerk/Assistant to the General 
Counsel.
    Chairman Miller. The Committee on Education and Labor will 
come to order for the purposes of conducting a hearing asking 
the question, Do Federal programs Ensure That U.S. Workers Are 
Recruited First Before Employers Hire From Abroad? First of 
all, let me thank everybody. I know that this hearing's time 
has been adjusted and I appreciate all the cooperation of all 
the members and witnesses for this hour as opposed to when it 
was scheduled earlier.
    Hundreds of thousands of foreign guest workers come to the 
United States each year under various Federal programs. For too 
many years, these programs have been allowed to operate with 
little oversight from the Department of Labor. I am proud to 
say that this Congress has begun the work of examining these 
programs with a critical eye.
    Last June, this committee heard testimony about the need to 
strengthen labor protections for guest workers in order to 
prevent workers from being exploited and abused by their 
employers. To that end, I introduce the Indentured Servitude 
Abolition Act legislation that would discourage employers from 
using disreputable guest worker recruiters. And hold foreign 
labor recruiters and employers accountable for the promises 
they make. Those and other labor protections were explored in a 
recent Immigration Subcommittee hearing conducted by Chairwoman 
Zoe Lofgren on the H2B program.
    As we look at greater protections for guest workers, we 
also have to ask whether the labor protections in these 
programs is sufficient to shield U.S. workers from downward 
pressure on their wages and working conditions, and whether we 
are doing enough to recruit qualified U.S. workers to fill open 
jobs.
    While many honest employers utilize guest worker programs 
to fill labor needs, this hearing will address the curious 
situation. At the same time that unemployment is rising, many 
businesses claim they can not find U.S. workers. The issue is 
particularly important in the face of the weakening economy.
    Today, approximately 7.6 million workers are unemployed and 
this figure does not include millions of others are too 
discouraged to look for work. And it does not include the 5.2 
million who are forced to enter part-time work because of 
cutbacks in hours or because they are unable to find full-time 
jobs.
    At the same time the unemployment has risen, many employers 
say that they can not find available, willing U.S. Workers to 
fill their labor needs. The Congress has been hearing from 
industries like hospitality and landscaping who say they cannot 
find workers for this summer's season, and it is putting their 
businesses in jeopardy.
    This hearing asks the question: In light of these dueling 
crises the workers can't find jobs, and employers who can't 
find workers, what labor shortage can or cannot be solved by 
better matching the available U.S. Workers with the jobs. We 
will hear testimony from an economist on that very issue.
    We will hear testimony from the U.S. Department of Labor. 
The Department plays a central role in filling employer's labor 
needs with non migrant, non U.S. workers. The Department helps 
administer guest worker programs such as the H2A program for 
temporary agriculture workers and the H2B program for temporary 
non agriculture workers. These programs have varying 
requirements for recruiting U.S. workers before utilizing guest 
workers.
    We will explore whether the existing requirements are 
effective and whether they are effectively enforced. We will 
hear about recently proposed regulations from the Department of 
Labor that I believe will have a negative impact on the 
recruitment of U.S. Workers for agriculture jobs.
    We will also hear testimony about a case in which an 
employer was certified to hire H2B workers despite the fact 
that hundreds of U.S. workers had been referred by the Texas 
State Workforce Agency to the very same job. This case raises 
concerns about enforcement. When employers misuse the guest 
worker system, not only do U.S. workers miss out on the jobs, 
but other employers with legitimate temporary labor needs will 
miss out on the Visas.
    Finally, we will hear testimony about how and why some of 
the scrupulous employers prefer to hire undocumented workers 
over U.S. and other legal workers. As we debate reforms on our 
Nation's immigration laws, I hope that this hearing will 
highlight the critical need for Congress to enact stronger 
labor protections that will protect immigrants, guest workers 
and U.S. workers and for the Labor Department to enforce the 
protections already on the books.
    We have an incredibly distinguished panel of witnesses with 
us today. And I am pleased to welcome them to the committee. At 
this time I note the presence of a quorum and yield to Mr. 
McKeon, the senior Republican, for his opening statement. The 
gentleman is recognized for 5 minutes.
    [The statement of Mr. Miller follows:]

   Prepared Statement of Hon. George Miller, Chairman, Committee on 
                          Education and Labor

    Good morning. Welcome to today's hearing examining whether federal 
programs adequately ensure that U.S. workers are recruited first before 
employers hire from abroad.
    Hundreds of thousands of foreign guest workers come to the United 
States each year under various federal programs. For too many years, 
these programs have been allowed to operate with little oversight from 
the Department of Labor. I am proud to say that this Congress has begun 
the work of examining these programs with a critical eye.
    Last June, this Committee heard testimony about the need to 
strengthen labor protections for guest workers in order to prevent 
workers from being exploited and abused by their employers. To that 
end, I introduced the Indentured Servitude Abolition Act, legislation 
that would discourage employers from using disreputable guest worker 
recruiters and hold foreign labor recruiters and employers accountable 
for the promises they make. Those and other labor protections were 
explored at a recent Immigration Subcommittee hearing conducted by 
Chairwoman Zoe Lofgren on the H-2B program.
    As we look at greater protections for guest workers, we also have 
to ask whether labor protections in those programs are sufficient to 
shield U.S. workers from downward pressure on their wages and working 
conditions, and whether we are doing enough to recruit qualified U.S. 
workers to fill open jobs.
    While many honest employers utilize guest worker programs to fill 
actual labor needs, this hearing will address a curious situation: at 
the same time that unemployment is rising, many businesses claim they 
cannot find U.S. workers.
    The issue is particularly important in the face of a weakening 
economy. Today, approximately 7.6 million Americans are unemployed, and 
this figure does not include the millions of others who are too 
discouraged to look for work. And it does not include the 5.2 millions 
who are forced into part-time work because of cutbacks in hours or 
because they were unable to find a full-time job.
    At the same time that unemployment has risen, many employers say 
that they cannot find available and willing U.S. workers to fill their 
labor needs. The Congress has been hearing from industries like 
hospitality and landscaping who say they cannot find workers for this 
summer's season, putting their businesses in jeopardy. This hearing 
asks the question, in light of these dueling crises--of workers who 
can't find jobs and employers who can't find workers--what labor 
shortages can or cannot be solved by better matching available U.S. 
workers with jobs?
    We will hear testimony from an economist on that very issue.
    We will hear testimony from the U.S. Department of Labor. The 
Department plays a central role in filling employers' labor needs with 
nonimmigrant, non-U.S. workers. The Department helps administer guest 
worker programs such as the H-2A program for temporary agricultural 
workers and the H-2B program for temporary non-agricultural workers.
    These programs have varying requirements for recruiting U.S. 
workers before utilizing guest workers. We will explore whether the 
existing requirements are effective and whether they are effectively 
enforced. We will hear about recently proposed regulations from the 
Department of Labor that I believe will have a negative impact on the 
recruitment of U.S. workers for agricultural jobs.
    We will also hear testimony about a case in which an employer was 
certified to hire H-2B guest workers despite the fact that hundreds of 
U.S. workers had been referred by the Texas state workforce agency for 
those same jobs. This case raises concerns about enforcement. When 
employers misuse the guest worker system, not only do U.S. workers miss 
out on jobs, but other employers with legitimate temporary labor needs 
miss out on visas.
    Finally, we will hear testimony about how and why some unscrupulous 
employers prefer to hire undocumented workers over U.S. or other legal 
workers.
    As we debate reforms to our nation's immigration laws, I hope that 
this hearing will highlight the critical need for Congress to enact 
stronger labor protections that will protect immigrants, guest workers, 
and U.S. workers--and for the Labor Department to enforce the 
protections already on the books.
    We have an incredibly distinguished panel of witnesses with us 
today, and I am pleased to welcome them to the Committee.
    Thank you.
                                 ______
                                 
    Mr. McKeon. Thank you, Chairman Miller and good morning. 
For the second time in the 110th Congress, this committee is 
examining immigration policy in the context of our 
responsibility for American workers and workplaces. 
Specifically, the title of this hearing indicates that our 
purpose is to examine whether Federal programs ensure U.S. 
workers are recruited before employers hire from abroad.
    This morning we will be focusing that question more 
narrowly on 2 categories of non-immigrant workers. The H2A 
program through which employers may use unskilled foreign 
workers for agricultural industry and the H2B program which 
provides for unskilled foreign workers in non agricultural 
industries. These are important categories for examination with 
different issues and challenges than those facing other areas 
of immigration policy, including for example skilled foreign 
workers.
    In some ways, this is a timely hearing. On February 6th, 
2008, the U.S. Department of Agriculture announced proposed 
rules to modernize the application process for and the 
enforcement of H2A labor certifications. One of the goals of 
that proposed role is to provide a timely flow of legal workers 
for agricultural jobs for which no U.S. workers can be found. 
That goal is exactly in line with the purpose of today's 
hearing. And I am pleased to see this alignment between the 
administration's goals and its bipartisan intent here in 
Congress. Our goal with this hearing today should be the 
considerable philosophical and practical considerations of 
guest worker programs.
    Conceptually there are those who argue that such programs 
are necessary to reduce illegal immigration while 
simultaneously filling positions that American workers are 
unwilling to take on. There are others who disagree with this 
premise, believing that if the conditions are right, American 
workers can be found to take on any job. And that guest worker 
programs may promote growth in illegal populations by bringing 
in workers who may over stay their visas. Each of these 
viewpoints deserves thorough debate.
    However our discussion must not stop with the theoretical. 
We have a duty to explore the real world impact of temporary 
guest worker programs, particularly their economic impact and 
how they may influence wages and jobs for U.S. workers. Many of 
us learned a great deal about these issues during last year's 
hearing when we benefited from the testimony of Dr. James S. 
Holt, one of the foremost experts on H2A and H2B Visas. Sadly, 
Dr. Holt passed away recently and I want to take this 
opportunity to offer my condolences to his family. His 
contributions to this field were many.
    Looking to the future, it is important that we ask how 
successful the current temporary guest worker programs are in 
meeting their stated goals. Are employers and the U.S. economy 
benefiting? What about you individual U.S. workers? What would 
be the impact on illegal immigration if current guest worker 
programs are expanded or new programs created? These are all 
important questions, and that is why I am pleased to be here 
for today's hearing.
    However, it seem to me that the timing of today's hearing 
is no coincidence. In one committee room after another, the 
democratic majority has been paying noticeably more attention 
to the issue of legal and illegal immigration lately. And while 
I appreciate the long overdue focus on these issues of national 
importance, I feel obligated to point out that hearings are no 
substitute for real action.
    The fact is, Congress has an opportunity to take action on 
immigration reform by allowing a vote on H.R. 4088, the Save 
Act. To date, 187 members have signed a discharge petition to 
bring that bill offered by a member of the majority party to a 
vote by the full house. Still the majority has refused to allow 
an up-or-down vote.
    So while I appreciate the opportunity to examine these 
issues before us today, I would like to state for the record my 
disappointment at the majority's unwillingness to allow real 
action on immigration reform. Talk is not enough. Hearings will 
not divert the attention of the American people. We need real 
action. I yield back.
    [The statement of Mr. McKeon follows:]

Prepared Statement of Hon. Howard P. ``Buck'' McKeon, Senior Republican 
                Member, Committee on Education and Labor

    Thank you Chairman Miller, and good morning. For the second time in 
the 110th Congress, this committee is examining immigration policy in 
the context of our responsibility for American workers and workplaces. 
Specifically, the title of this hearing indicates that our purpose is 
to examine whether federal programs ensure U.S. workers are recruited 
before employers hire from abroad.
    This morning, we'll be focusing that question more narrowly on two 
categories of nonimmigrant workers: the H-2A program--through which 
employers may use unskilled foreign workers for agricultural industry--
and the H-2B program--which provides for unskilled foreign workers in 
non-agricultural industries. These are important categories for 
examination, with different issues and challenges than those facing 
other areas of immigration policy, including, for example, skilled 
foreign workers.
    In some ways, this is a timely hearing. On February 6, 2008, the 
U.S. Department of Labor announced proposed rules to modernize the 
application process for and the enforcement of H-2A labor 
certifications. One of the goals of that proposed rule is to provide a 
timely flow of legal workers for agricultural jobs for which no U.S. 
workers can be found. That goal is exactly in line with the purpose of 
today's hearing, and I'm pleased to see this alignment between the 
Administration's goals and this bipartisan intent here in Congress.
    Our goal with this hearing today should be to consider both the 
philosophical and practical considerations of guestworker programs. 
Conceptually, there are those who argue that such programs are 
necessary to reduce illegal immigration while simultaneously filling 
positions that American workers are unwilling to take on. There are 
others who disagree with this premise, believing that if the conditions 
are right, American workers can be found to take on any job, and that 
guestworker programs may promote growth in illegal populations by 
bringing in workers who may overstay their visas. Each of these 
viewpoints deserves a thorough debate.
    However, our discussion must not stop with the theoretical. We have 
a duty to explore the real-world impact of temporary guestworker 
programs, particularly their economic impact and how they may influence 
wages and jobs for U.S. workers. Many of us learned a great deal about 
these issues during last year's hearing, when we benefited from the 
testimony of Dr. James S. Holt, one of the foremost experts on H2-A and 
H2-B visas. Sadly, Dr. Holt passed away recently, and I want to take 
this opportunity to offer my condolences to his family. His 
contributions to this field were many.
    Looking to the future, it's important that we ask how successful 
the current temporary guestworker programs are in meeting their stated 
goals. Are employers and the U.S. economy benefiting? What about 
individual U.S. workers?
    What would be the impact on illegal immigration if current 
guestworker programs were expanded, or new programs created?
    These are all important questions, and that's why I'm pleased to be 
here for today's hearing. However, it seems to me that the timing of 
today's hearing is no coincidence. In one committee room after another, 
the Democratic majority has been paying noticeably more attention to 
the issue of legal and illegal immigration lately. And while I 
appreciate the long-overdue focus on these issues of national 
importance, I feel obligated to point out that hearings are no 
substitute for real action.
    The fact is, Congress has an opportunity to take action on 
immigration reform by allowing a vote on H.R. 4088, the SAVE Act. To 
date, 187 members have signed a discharge petition to bring that bill--
offered by a member of the majority party--to a vote by the full House. 
Still, the majority has refused to allow an up-or-down vote.
    So, while I appreciate the opportunity to examine these issues 
before us today, I would like to state for the record my disappointment 
at the majority's unwillingness to allow real action on immigration 
reform. Talk is not enough. Hearings will not divert the attention of 
the American people. We need real action.
    I yield back.
                                 ______
                                 
    Chairman Miller. I thank the gentleman.
    Pursuant to committee rule 12(a), any member may submit an 
opening statement in writing which will be made part of the 
permanent record.
    At this point, I would like to introduce our panel. We have 
Assistant Secretary For Policy of the U.S. Department of Labor 
Leon Sequeira, who was nominated by President George Bush in 
late 2006 and confirmed by the U.S. Senate in early 2007. 
Secretary Sequeira is a principal advisor to the Secretary on 
Regulatory Legislative Policy issues affecting the Department 
and the American workforce.
    Dr. William Carlson was appointed administrator for the 
Office of Foreign Labor Certification for the employment and 
training administration of the Department of Labor in 2006. Dr. 
Carlson came to the Department of Labor with over 25 years of 
experience in managing Federal, State and regional and local 
government operations.
    Bruce Goldstein is the executive director of the Farmworker 
Justice in Washington D.C., a national advocacy, litigation, 
education organization for migrant and seasonal farm workers. 
Mr. Goldstein's work has focused on litigation advocacy and 
immigration issues and labor law. And his activities on guest 
worker issues have included litigation against private 
employers and the government.
    Javier Riojas is an attorney and branch manager of the 
Texas Rio Grande Legal Aid in Eagle Pass, Texas, a small town 
on the border with Mexico. He has worked at Texas Rio Grande 
Legal Assistance since 1984, and he has represented thousands 
of U.S. Farm workers, H2A agricultural workers and other low 
income Texans.
    John Young has served as treasurer, vice president and 
president. Now that is a ladder there, Mr. Young. Treasurer, 
Vice President and President of the National Council of 
Agricultural Employers. And he is currently the chairman of 
their immigration committee. He also serves as co-chair of the 
Agricultural Coalition For Immigration Reform. One busy man 
here.
    Andrew M. Sum is a professor of economics and director of 
Center For Labor Market Studies at Northeastern University in 
Boston. He has authored and coauthored numerous articles, books 
on regional, national and State labor markets.
    Bill Beardall is the executive director of the Equal 
Justice Center. He has practiced as a civil rights and 
employment lawyer for low income clients since 1978. Throughout 
his career, he has spearheaded numerous cases and campaigns to 
improve public justice for the poor.
    Secretary Sequeira, we are going to begin with you. As you 
know we have a system of lights here. There will be a green 
light when you start and an orange light when there is a minute 
left in your 5 minutes. At that point, you can think about 
wrapping it up. But again, we want you to convey the thoughts 
that you want to convey and complete your sentences. Again, 
welcome to the committee and thank you for accommodating the 
time change of the committee hearing.

   STATEMENT OF HON. LEON SEQUEIRA, ASSISTANT SECRETARY FOR 
           POLICY, UNITED STATES DEPARTMENT OF LABOR

    Mr. Sequeira. Thank you Mr. Chairman and members of the 
committee. We appreciate the opportunity to be here today to 
talk about the Department of Labor's role in administering 
temporary foreign worker programs.
    I am going to take just a couple of very quick minutes to 
describe the department's recent proposal related to the H2A 
program. And then Dr. Carlson will address specifics regarding 
the operation of the foreign labor certification process.
    The Nation's temporary worker programs, and indeed, our 
entire immigration system in general, is in dire need of 
repair. Comprehensive immigration reform would help secure our 
borders, strengthen our interior enforcement efforts, help meet 
the demands for labor in our economy and ensure America remains 
competitive in the global economy.
    Many farmers and small businesses rely on temporary foreign 
labor when they were unable to find sufficient numbers of 
available U.S. workers to fill temporary or seasonal positions. 
This is not a new phenomenon. After all, Congress designed the 
H2A and H2B programs more than 20 years ago. In the 80's, the 
average unemployment rate in the United States was 7.3 percent, 
which is substantially higher than today's current rate of 5.1. 
In fact, foreign farm workers have been coming to the U.S. to 
work temporarily, to help farmers harvest crops for nearly 100 
years. Clearly, the U.S. economy has a need for temporary 
foreign labor in some occupations and the H2A and H2B programs 
helped meet those needs.
    For years employers, worker advocates, and even Members of 
Congress, have complained about delays, inefficiencies and 
shortcomings in these programs. The H2A program in particular 
has been criticized as so bureaucratic, inefficient and prone 
to delay that many farmers won't even use it. So last summer, 
after Congress again failed to pass comprehensive immigration 
reform, the administration announced more than 2-dozen 
regulatory and administrative initiatives to improve border 
security, work site enforcement, and the modernized worker 
programs.
    As part of that effort, the Department was charged with 
reviewing and proposing reforms to the H2A and H2B programs in 
order to ensure an orderly and timely flow of legal workers 
while protecting the rights of U.S. and foreign workers.
    This past February, the Department released for public 
comment a proposed regulatory reform of the H2A program. Our 
proposal responsded to many of the complaints we have heard 
about the program for both employers and workers advocates over 
the years. In fact, responding to suggestions from some of the 
very organizations represented on this panel, we propose a 
substantially increased recruitment period for employers to 
search for U.S. workers before applying to hire foreign 
workers. We proposed additional regulation over foreign labor 
contractors. We proposed new prohibitions on employers 
regarding the shifting of cost to workers, as well as limits on 
the use of foreign recruiters. Our proposal includes 
substantial new enforcement tools for the Department including 
auditing of applications, revocations of certifications for 
program violations, and expanded authority to debar employers 
who violate program requirements.
    Finally, our proposal includes significant increased and 
new penalties, including a new penalty of $15,000 for 
violations that result in the displacement of a U.S. worker. 
The public comment period on our proposal ended April 14th. The 
Department is currently reviewing the 12,000 public comments we 
received and we expect to issue a final rule later this year.
    For the H2B program, the Department is currently working on 
a proposal to reform that program as well and we expect to have 
that ready for public comment in the coming months.
    [The statement of Mr. Sequeira follows:]

 Prepared Statement of Hon. Leon R. Sequeira, Assistant Secretary for 
  Policy; William L. Carlson, Ph.D., Administrator, Office of Foreign 
             Labor Certification, U.S. Department of Labor

    Mr. Chairman and Members of the Committee, thank you for extending 
the invitation to us to testify today about the Department of Labor's 
role in temporary foreign worker programs, and the Department's recent 
notice of proposed rulemaking regarding the H-2A program. Dr. William 
L. Carlson is the Administrator of the Office of Foreign Labor 
Certification of the Employment and Training Administration, and a 
career executive overseeing the operations of the Department's 
activities in employment-based immigration programs.
    When there are insufficient numbers of U.S. workers available to 
fill positions in agriculture and other temporary or seasonal jobs, 
temporary foreign workers are important--and in many cases critical--to 
the continued viability of many businesses as well as the strength of 
our economy.
    Under current law, the Labor Department has an important role in a 
number of existing employment-based visa programs. We oversee the labor 
certification process requiring employers to first test the labor 
market, where required by statute, for able, available, and willing 
U.S. workers, before attempting to hire foreign workers. Only if an 
employer's effort to hire U.S. workers proves unsuccessful, can an 
employer apply to hire foreign workers under most temporary work visas. 
The labor certification process is intended to ensure that the 
employment of foreign workers does not adversely affect U.S. workers.
    The Department takes very seriously its statutory responsibility to 
ensure that our workforce, including foreign workers admitted under a 
temporary worker program, are protected by our Nation's labor laws. 
These efforts not only help protect foreign-born workers from 
exploitation, but also help ensure that the wages and working 
conditions of U.S. workers are not adversely affected by the employment 
of foreign workers though a temporary worker program. The Department's 
Wage and Hour Division of the Employment Standards Administration 
enforces the terms and conditions of employment in the H-2A program, 
but Congress has vested the Department of Homeland Security with 
enforcement responsibility for the H-2B program.
    The Nation's temporary worker programs, and indeed our immigration 
system in general, is in dire need of repair. Comprehensive immigration 
reform would help secure our borders, strengthen our interior 
enforcement efforts, help meet the labor demands of our economy, and 
ensure America remains competitive in a global economy. Congress, 
however, has been unsuccessful in efforts to pass comprehensive 
immigration reform legislation.
    Because Congress has failed to address the problem through 
legislative action, last August, the Administration announced a series 
of administrative initiatives to secure our borders more effectively, 
improve interior and worksite enforcement, modernize existing worker 
programs, improve the current immigration system, and help new 
immigrants assimilate into American culture. Among those initiatives 
was a charge to the Department of Labor to review and propose reforms 
to the H-2A agriculture and H-2B non-agriculture temporary worker 
programs to ensure an orderly and timely flow of legal workers, while 
protecting the rights of U.S. and foreign workers.
    The H-2A agriculture and H-2B non-agriculture programs have been 
plagued for years by overly bureaucratic processes, inefficiencies, and 
delays. Even those employers who manage to navigate the bureaucratic 
maze are often unable to hire workers on time. And in the case of 
agriculture, those timing problems can have a devastating effect on the 
ability to harvest crops. Several significant reforms to improve these 
programs can be made through the regulatory process and do not require 
statutory changes. The Department has published proposed rules for the 
H-2A program and will do the same for the H-2B program in the coming 
months.
    On February 13, 2008, the Department published a Notice of Proposed 
Rulemaking to reform the H-2A agricultural worker program. The H-2A 
Program has not been updated through substantial rulemaking in more 
than 20 years. In that time, our economy, the workforce, and the needs 
of our Nation's farmers have changed considerably. U.S. farms must be 
able to hire sufficient numbers of workers in a timely manner in order 
to continue to provide our Nation with a safe and secure domestic food 
supply.
    Farmers who are unable to obtain the U.S. workers they need are 
increasingly being placed at risk of losing their crops and their 
livelihood, and furthering our Nation's dependence upon agricultural 
products produced in foreign countries.
    The public comment period on the Department's H-2A proposal closed 
on April 14. We received about 12,000 comments on the rule. We are 
currently reviewing the public comments and aim to issue a final rule 
later this year.
    The Administration is determined to make the H-2A program work for 
its intended purpose. Agricultural job opportunities continue to be a 
powerful magnet for illegal immigration into the U.S. We cannot let 
archaic aspects of the H-2A program serve as a barrier or disincentive 
to its use--and in the process contribute to the influx of illegal 
labor into the U.S.
    We recognize that proposing changes to policies and practices that 
have been around for decades may be seen as controversial by some. We 
also recognize, however, that unless we make changes to these programs 
to more accurately reflect today's economy, the labor challenges 
confronting U.S. agriculture and businesses will continue to worsen.
The Department of Labor's Role in the H-2A and H-2B Programs
    Under the H-2A and H-2B programs, the Department plays a key role 
in ensuring that U.S. workers are not adversely affected by the hiring 
of temporary foreign guest workers. The H-2A and H-2B programs were 
created by the Immigration Reform and Control Act of 1986 (Pub.L. 99-
603, Title III, 100 Stat. 3359, November 6, 1986). In both of these 
visa categories, the Department requires employers to file a labor 
certification application with the Department if they intend to hire 
foreign temporary workers.
    Under the H-2A and H-2B programs, the labor certification process 
ensures that the hiring of foreign workers does not occur without an 
employer first testing the labor market for able, available, and 
willing domestic workers. An employer must attempt to hire U.S. workers 
for job openings before applying to hire foreign workers with a 
temporary work visa. The labor market test also includes offering a 
specified wage rate for positions that could be filled by a foreign 
guest worker if U.S. workers are not available. Specifying the wage 
rate is part of the Department's effort to ensure the employment of 
guest workers does not adversely affect the wages and working 
conditions of similarly employed U.S. workers. The Department of Labor 
is responsible for verifying that an employer who wishes to hire 
temporary foreign labor has complied with the labor market test.
    The Secretary of Labor has delegated her statutory responsibilities 
for application processing under the temporary foreign labor programs, 
including H-2A and H-2B, to ETA's Office of Foreign Labor Certification 
(OFLC). Under the current regulations in both the H-2A and H-2B 
programs found at 20 CFR 655, Subparts A and B, labor certification 
applications are processed through the State Workforce Agency (SWA) 
having jurisdiction over the area of intended employment and the 
applicable National Processing Center (NPC) within the OFLC.
H-2A
    In the H-2A program, the statute sets out specific time 
requirements that the employer, the Department of Labor, and SWAs must 
meet in the processing of employer applications. Congress has specified 
that the Secretary may not require that an application be filed more 
than 45 days before the employer's date of need 8 U.S.C. 1188(c)(1). 
The Department must approve or deny a certification no later than 30 
days prior to the employer's date of need, provided that all the 
criteria for certification are met 8 U.S.C. 1188(c)(3). And if the 
application fails to meet threshold requirements for certification, 
notice must be provided to the employer within 7 days of the date of 
filing, and a timely opportunity to cure deficiencies must be provided 
to the employer.
    The employer, the Department and the State Workforce Agency have no 
more than 15 total days to complete the processing of employer 
applications. 8 U.S.C. 1188(c). This includes the employer placing a 
job order with the SWA, conducting other recruitment such as placing 
advertisements and contacting prior employees, and interviewing 
candidates; the SWA reviewing the employer's application and 
recruitment efforts; the Department reviewing the employer's 
application and recruitment efforts, and then rendering a decision on 
the application.
    Under the Department's current regulations in 20 CFR part 655, 
subpart B, H-2A labor certification applications are processed 
concurrently through the SWA having jurisdiction over the area of 
intended employment and the applicable NPC. The application includes a 
request for alien employment certification and a job offer to domestic 
workers, which the SWA uses to place a job order for intrastate and 
interstate clearance to locate any available domestic workers for the 
job opportunity. Upon receipt of the employer's application, the SWA 
and the NPC determine whether the application was timely filed and 
review the terms of the job offer for any adverse effect on domestic 
workers.
    To allow the employer to begin the mandatory ``positive 
recruitment'' of domestic workers and provide an opportunity to amend 
the application to address any deficiencies, the Department is 
statutorily required to accept or reject the application within 7 days 
of receipt. If the application is rejected, the employer must submit 
amendments within 5 days. During this timeframe, the SWA may not place 
the job order into the interstate clearance system until the Department 
has officially accepted the application--and confirming the order has 
no restrictive job requirements or other problems that could unfairly 
exclude U.S. workers. Once the application is accepted, the SWA places 
a job order initiating local recruitment in its state job clearance 
system.
    The Department issues a formal letter to the employer and SWA 
authorizing conditional entry of the job order into the interstate 
clearance system, outlining the specific steps the employer must take 
to actively recruit domestic workers (i.e., positive recruitment), and 
specifying the time requirements for the employer to submit any other 
documentation, such as a housing certification and proof of workers' 
compensation insurance, before the certification may be issued.
    Recruitment of domestic workers includes placement of a local job 
order by the SWA serving the area of intended employment and clearance 
of the job order to multiple SWAs within a regional area. In addition, 
employers are required to conduct positive recruitment by placing two 
newspaper advertisements, contacting former employees from the previous 
year to solicit their return to the job, and any other recruitment 
sources identified by the Certifying Officer based on current 
information provided by the SWA. The SWA receives and refers all 
eligible applicants to the employer and tracks their disposition.
    If the application is accepted on the day it is filed, the 
Department has 15 days in which to review the employer's recruitment 
efforts. During the same timeframe, the SWA must inspect the H-2A 
worker housing to ensure it meets the applicable Federal, State, or 
local standards prior to occupancy.
    To provide sufficient time for the employer to petition DHS and 
subsequently obtain visas from the State Department for the foreign 
workers, Congress has required by statute that the Department issue a 
labor certification determination no later than 30 days before the date 
of need, provided that the employer has submitted to the Department all 
required documentation substantiating that it has met the program 
criteria for certification.
    SWAs coordinate all activities regarding the processing of H-2A 
applications directly with the appropriate NPC, including transmittal 
of housing inspection results, prevailing wage surveys, prevailing 
practice surveys, or any other material bearing on an application. 
Because this review must take place within a 15-day timeframe, the 
Department is reviewing employer-generated recruitment reports that may 
take into account only a week of advertising and interstate 
recruitment. This requirement underscores the importance of the 
Department's notification of acceptance, because the employer and SWA 
cannot initiate additional recruitment efforts for domestic workers 
without it. For Fiscal Year 2007, the Department accepted nearly 70% of 
the H-2A applications within the initial 7-day processing window, 
allowing the maximum amount of time possible to initiate recruitment of 
domestic workers.
    As employer utilization of the H-2A program grows, the volume of 
applications which must be processed within the 15-day period 
increases. Frequently, we are forced to transfer staff from another 
foreign labor certification program to the H-2A program to assist with 
processing in order to meet the growing demand in light of the 15-day 
window. This problem is exacerbated because although Congress permits 
the Department to charge a fee for certified applications, Congress 
requires that fee be deposited in the U.S. Treasury, rather than be 
retained by the Department to improve the program. The Department will 
submit legislation to change this arrangement and institute a cost 
recovery fee to fund the program.
    There have been considerable workload increases for both the 
Department and the SWAs in recent years. For example, in FY 2007, the 
Department received 7,740 H-2A employer applications requesting 
certification of 80,413 positions. Of those applications, the 
Department certified 7,491 employer applications for 76,818 positions. 
This was up from 6,717 H-2A employer applications requesting 64,146 
positions in FY 2006. That year the Department certified 6,550 employer 
applications and 59,112 positions.
    Once H-2A workers are in the country, the Wage and Hour Division of 
the Employment Standards Administration within the Department of Labor 
enforces the terms and conditions of the H-2A job order pursuant to 
statutory authority in the Immigration and Nationality Act (INA).
H-2B
    In the H-2B program, like the H-2A program, the Department's role 
is to certify that there are not sufficient numbers of able and 
qualified U.S. workers available for the position sought to be filled 
and that the employment of the foreign worker(s) will not adversely 
affect the wages and working conditions of similarly employed U.S. 
workers. DHS regulations provide that an employer may not file a 
petition with DHS for an H-2B temporary worker unless it has received a 
labor certification from the Department (or the Governor of Guam, as 
appropriate), or received a notice from one of these officials that a 
certification cannot be issued. The Department's role in the H-2B 
process is described in statute and regulation as actually being only 
advisory to DHS. 8 U.S.C. 1184(c)(1); 8 CFR 214.2(h)(6)(iii)(A). That 
is, DHS could, if it chooses, approve an employer's petition even if 
the Department of Labor has denied the employer's labor certification 
application.
    To obtain a temporary labor certification for the H-2B program, the 
employer must demonstrate that its need for the temporary services or 
labor meets one of the regulatory standards of a one-time occurrence, a 
seasonal need, a peakload need, or an intermittent need. As with the H-
2A program, the H-2B program sets filing and processing deadlines 
requiring that the employer cannot submit its application more than 120 
days in advance and fewer than 60 days prior to the date of need. This 
has traditionally allowed the Department and the applicable SWA 60 days 
to review the application, ensure that adequate recruitment of U.S. 
workers is undertaken, and adjudicate the application.
    The H-2B non-agricultural program presents a slightly different 
processing model for employers. H-2B applications that are received by 
the Department are processed first through the SWA having jurisdiction 
over the area of intended employment. To allow sufficient time for the 
recruitment of U.S. workers and sufficient time for processing by the 
states and NPCs, the SWAs advise employers to file requests for 
temporary labor certification at least 60, but no more than 120 days, 
before the worker(s) is needed.
    The SWAs review the application and job offer, compare the wage 
offer against the prevailing wage for the position, supervise U.S. 
worker recruitment, and forward the completed applications to a NPC for 
final review and final determination. Recruitment includes placement of 
a job order with the SWA (or multiple SWAs for multiple locations) for 
10 calendar days, newspaper advertisement for 3 consecutive calendar 
days, and contacting union and other recruitment sources, as 
appropriate for the occupation and custom in the industry. The SWA 
refers all applicants to the employer and tracks their disposition.
    The H-2B program requires that the employer must offer and 
subsequently pay for the entire period of employment a wage that is 
equal to or higher than the prevailing wage for the occupation at the 
skill level and in the area of intended employment. Additionally, the 
employer must provide terms and conditions of employment for the 
position that are not less favorable than those terms and conditions 
the employer otherwise offers to U.S. workers for similar jobs.
    Once the application is reviewed by the SWA, and after the employer 
conducts its required recruitment and submits a recruitment report to 
the SWA of the results of its recruitment of U.S. workers, the SWA 
sends the complete application to the appropriate NPC. The NPC 
Certifying Officer, on behalf of the Secretary, reviews the application 
and all recruitment documentation, and if satisfied that the 
application is complete either issues a labor certification for 
temporary employment under the H-2B Program, denies the certification, 
or issues a notice that such certification cannot be made. If 
additional recruitment is required, the NPC remands the application to 
the SWA to conduct that additional recruitment.
    There have been considerable workload increases for both the 
Department and the SWAs in recent years. For example, in Fiscal Year 
(FY) 2007, there was an approximate 30 percent increase in H-2B 
applications received by the Department as compared to FY 2006.
    In FY 2007, the Department received 14,565 H-2B employer 
applications requesting certification of 360,147 positions. The 
Department certified 10,797 H-2B employer applications for 254,615 
positions. This was up from 11,267 employer applications requesting 
247,218 positions in FY 2006. That year the Department certified 7,532 
H-2B employer applications and 168,471 positions.
    While our approval rate of applications has remained relatively 
constant, the number of H-2B worker positions requested per application 
has increased in recent years. An increasing workload and possible 
processing delays, particularly at the state level, remain of concern 
to the Department. Contrary to expectations of some, the expiration of 
the H-2B returning worker exemption has not resulted in a significant 
decrease in the volume of work of the Department. The Department 
processes all applications received, on a first come, first served 
basis without regard to the status of the cap. We have no information 
about whether the employer is seeking a new or returning worker.
    The INA does not authorize the Department to charge a fee to 
employers for processing an H-2B application. The Department will 
submit proposed legislation to Congress that would amend the INA to 
allow the Department to seek a cost recovery fee from those who use the 
program.
    Unlike the H-2A program, Congress has specifically vested the 
Department of Homeland Security with enforcement of the terms and 
conditions of the H-2B job orders, as specified in the INA. Therefore, 
the Department of Labor currently has no statutory authority to enforce 
the H-2B job orders like we do with other temporary worker programs.
                                 ______
                                 

STATEMENT OF WILLIAM CARLSON, ADMINISTRATOR, OFFICE OF FOREIGN 
  LABOR CERTIFICATION, EMPLOYMENT AND TRAINING, UNITED STATES 
                      DEPARTMENT OF LABOR

    Mr. Carlson. Mr. Chairman, good morning and thank you for 
the opportunity to be here. Very briefly, I was going to speak 
to both the H2A and H2B programs that we currently administer. 
And the Department has several key statutory responsibilities 
that are related to U.S. workers. These include first ensuring 
that there are not sufficient domestic workers ready and 
available for these jobs prior to an employer seeking a foreign 
worker. What we refer to as the labor market test.
    And second, that the employment of a foreign worker will 
not adversely affect the wages and working conditions of 
similarly employed U.S. workers. Again, what we refer to as 
there being no adverse impact. Together, these two standards 
once satisfied constitute the basis for the Department to grant 
a labor certification.
    Very briefly, I wanted to mention a couple of key points 
for your consideration. Under current regulations labor 
certification applications are processed through the State 
Workforce Agency having jurisdiction over the area of intended 
employment in a DOL national processing center. In the H2A 
program the statute sets out very specific time requirements 
that the employer, the Department and the States must meet in 
processing applications. Congress has specified that an H2A 
application may not be filed more than 45 days before the 
employers state a need.
    We must approve or deny certification no later than 30 days 
prior to the date of need. So together, we have 15 days to 
complete the entire process. This tight processing time frame 
in conjunction with a steady growth in the number in complexity 
of applications being filed and declining resources challenges 
our processing capabilities. Frequently we are forced to 
transfer non H2A staff in our centers to assist with processing 
in order to meet the filing demands in light of the 15-day 
window.
    In the H2B program the Department's role is described in 
statute as being advisory to the Department of Homeland 
Security. In other words, DHS can, if it so chooses, approve an 
employer's petition even if the Department of Labor has denied 
labor certification. To obtain H2B certification, employers 
cannot submit applications more than 120 days prior to their 
date of need. Employers may not also file less than 60 days 
prior to their date of need. This window allows the Department 
and the State 60 days to review and completely adjudicate all 
applications we receive.
    Last, there have been considerable workload increases for 
both the Department and the States were trending at 
approximately 30 percent increase over the last fiscal year, 
and in previous fiscal years over fiscal year 2007. The 
Department process is all applications we receive on a strict 
first-in/first-out basis. The H2B program applications, like 
those filed under the H2A program, are processed manually and 
are not part of an automated processing system.
    Thank you again for the opportunity to be here this morning 
and discuss these important matters.

 STATEMENT OF BRUCE GOLDSTEIN, EXECUTIVE DIRECTOR, FARMWORKER 
                            JUSTICE

    Mr. Goldstein. Mr. Chairman and members of the committee, 
thank you for the opportunity to testify.
    Chairman Miller. Is your mike on?
    Mr. Goldstein. Mr. Chairman and members of the committee, 
thank you for the opportunity to testify regarding the H2A 
temporary foreign worker program and the needs of migrant and 
seasonal foreign workers.
    Congress must act now to address the needs of agricultural 
workers, employers and the Nation. The solution is ag jobs, the 
Agricultural Job Opportunities Benefits and Security Act, a 
bipartisan labor management compromise.
    Rather than promote ag jobs, the administration proposed 
changes to the H2A program regulations that would slash H2A 
wage rates down to the level acceptable to undocumented 
workers, minimize recruitment of U.S. Workers, end the 
obligation to provide workers with housing, eliminate most 
oversight of employers applications, and eliminate the 50 
percent job preference for U.S. workers. It also is considering 
eliminating transportation cost reimbursements. Even the 
notorious Bracero Guest Worker program had more protections.
    The majority of farm workers are undocumented. The Bush 
proposal would do nothing to change that reality. Still, 30 
percent to 45 percent of farm workers, roughly 750,000 to 1.1 
million farm workers are U.S. citizens and lawful resident 
immigrants. Under the H2A law, they are entitled to first crack 
at agricultural jobs and to be treated decently. We urge 
Congress to stop the Bush administration from finalizing its 
proposed changes to the H2A program. Ag jobs is a responsible 
solution. It would revise the H2A programs in balanced ways and 
allow undocumented farm workers to earn legal immigration 
status by continuing to work in agriculture for 3 to 5 more 
years. Congress should pass it immediately.
    The Department of Labor routinely violates its obligations 
under the H2A program now. I will highlight just a few examples 
of problems U.S. Workers face when trying to get jobs at H2A 
employers. Many employers prefer guest workers because they 
will work for less than U.S. workers and can be controlled more 
easily, because they can not switch employers and they depend 
on their employers for a visa in the following season.
    Sabrina Steele is a farmer in Blount County, Tennessee. She 
recently decided to seek work off her farm. She applied for 
jobs at farms listed at her State workforce agency. These farms 
participate in the H2A program. She was amazed in her inability 
to get hired. Employers refused to give her a job application, 
told her the job was filled despite her entitlement to be hired 
during the first half of the season, told her that she'd have 
to work 80 hours a week, and didn't accept her assertion that 
she could do the hard work of farming. As the newspaper 
coverage pointed out, she was astonished at the H2A employers 
stereotyping and discrimination against American workers as 
lazy and incompetent. The H2A program is it supposed to prevent 
these things but did not.
    Recently, a large California company called Tanimura & 
Antle received approval to employ H2A lettuce harvesters. The 
company laid off 15 people in December 2007, even as there were 
H2A workers employed by the company. Two laid off U.S. workers 
filed a complaint with the help of the United Farm Workers 
stating that they inquired about the other job upon being laid 
off, but were told there were no positions. Tanimura then said 
it would allow the laid off workers to apply for jobs in its 
fields. But one laid off worker was told by a company official 
that he could not have a job because he had been quoted in a 
newspaper story about the discriminatory conduct. The company 
also offered the laid-off workers a lower wage rate than 
required. The DOL should prevent such abuses instead of waiting 
for workers to file complaints.
    When DOL plays a role, it often is to workers' detriment. 
Last year, the Hawaiian Queen Company applied for H2A workers 
to raise queen bees. The company's H2A application described a 
workweek of 50 hours based on a 9-hour day, 5 days a week and 5 
hours on Saturday. A U.S. DOL official in an e-mail asked the 
company's agent, ``Is there some particular reason the employer 
wants to promise the worker an extra 10 hours of work per pay 
period?'' The \3/4\ guarantee more difficult to achieve at 50 
hours per week required than 40 hours per week. The company 
said, okay, change it.
    So the DOL official changed the employer's application to 
state that the job was for 8 hours of work Monday through 
Friday, no work on the weekend. An employer is supposed to 
honestly state the workweek's hours. That helps U.S. Workers 
and foreign workers know how much work there will be, how much 
they can earn and what their schedule will be. What was going 
on here? DOL persuaded the employer to evade the potential for 
having to pay compensation to U.S. And foreign workers under 
the \3/4\ minimum work guarantee.
    Rather than guaranteeing workers over the course of the 
season that they would have the opportunity to work at least 
37\1/2\ hours a week, the employer would only be guaranteeing 
30 hours a week. DOL should stop telling employers to misstate 
the numbers of hours of work.
    To conclude, the Department of Labor knows that there are 
rampant violations of workers modest rights under H2A program. 
Instead of enforcing worker protections however, DOL is now 
proposing to eliminate most of the worker protections. Congress 
needs to stop DOL from moving forward on these H2A regulations 
that are ill-advised, and anti worker, and needs to pass Ag 
jobs. Thank you.
    Chairman Miller. Thank you.
    [The statement of Mr. Goldstein follows:]

 Prepared Statement of Bruce Goldstein, Executive Director, Farmworker 
                                Justice

    Mr. Chairman and Members of the Committee: thank you for the 
opportunity to testify regarding the access of United States 
farmworkers to jobs at employers that use the H-2A temporary foreign 
agricultural guestworker program. My organization, Farmworker Justice, 
is a national advocacy organization for migrant and seasonal 
farmworkers that has sought to protect guestworkers and U.S. workers 
from abuses under the H-2A program and its predecessor since our 
founding in 1981.
    My two main points are these: First, the Department of Labor is 
violating its obligations under the H-2A program and has announced 
plans that would harm workers still further. Second, there is an urgent 
need by agricultural workers and employers for Congress to act now to 
address immigration and labor issues in the agricultural sector by 
passing the AgJOBS compromise. Until Congress takes such action, it 
should stop the Department of Labor from finalizing its plans to change 
the H-2A regulations in ways that would be devastating to workers.
    Here is the situation on the ground:
     There are about 2.5 million farmworkers on ranches and 
farms in the United States.
     The majority of farmworkers--55% to 70%--are undocumented. 
(The National Agricultural Workers Survey of the Department of Labor 
estimated that 53% of workers in fruits, vegetables and other crops 
were undocumented, but some say it is higher.)
     That means 30% to 45% of farmworkers--roughly 750,000 to 
1,125,000--are U.S. citizens and lawful-resident immigrants performing 
farm work.
     The H-2A program is used by an increasing, but still 
small, number of employers. Perhaps 75,000 or 3% of the nation's 
farmworkers are now H-2A guestworkers.
    Only Congress can resolve these urgent issues for several reasons:
     There is no immigration law program that allows the 
hundreds of thousands of hard-working undocumented farmworkers to 
obtain a legal immigration status. Agricultural employers have no way 
to help their undocumented farmworkers convert to legal status.
     Our immigration law bars an undocumented worker in the 
U.S. from obtaining an H-2A visa to work in the United States, even if 
the worker returns to his or home country first.
     Both agricultural employer trade associations and 
farmworker advocacy organizations agree that the H-2A guestworker 
program reform cannot be the sole solution to this current problem. 
Immigration policy must be changed.
     The Bush Administration has proposed changes to the H-2A 
program regulations that would decimate labor protections for U.S. and 
foreign workers and return us to an era of abuses we thought had ended 
long ago by removing protections that existed even under the old 
Bracero guestworker program. Congress needs to stop this from 
happening.
Congress Should Enact the AgJOBS Compromise
    There is a compromise between labor and management, Republicans and 
Democrats, called AgJOBS, the Agricultural Job Opportunities, Benefits 
and Security Act, H.R. 341, S. 370. Congress should pass it 
immediately. It has broad support resulting from years of tough 
negotiations between the United Farm Workers and major agribusiness 
groups, as well as numerous members of Congress. It contains many 
concessions we never thought we could accept, but it's time for action. 
AgJOBS is fair to workers, fair to employers and would benefit the 
nation. AgJOBS has two parts: (1) an earned legalization program and 
(2) a set of changes to the H-2A program. We urge Congress to pass 
AgJOBS.
    We also urge Congress to stop the Bush Administration from moving 
forwarded on the ill-advised, one-sided changes it has proposed to the 
H-2A program's regulations. These changes would only worsen conditions 
under the H-2A program for workers and poison the atmosphere for the 
kind of compromise that was reached in AgJOBS between farmworker 
advocates and agricultural employers.
The Department of Labor Fails to Enforce H-2A Program Protections
    It would take too long to catalogue all the problems that U.S. 
workers and foreign workers face under the H-2A program. I will 
highlight just a few examples related to the problem of U.S. workers 
getting jobs at employers that want to use the H-2A program. This 
problem, however, is only one of many, and these examples are 
emblematic of widespread abuses.
    The H-2A program inherently contains risks of abuses.
     First, the H-2A visa effectively restricts the foreign 
worker's ability to demand better, or even legal, wages and working 
conditions from their employers for fear of being deported or not being 
invited back in a following season. The H-2A worker may only work for 
the one employer that obtained the visa for them and must leave the 
country when the job ends. The worker has no right to a visa in a 
future year; the employer (absent a union contract) decides for whom it 
will request a visa. See 8 C.F.R. Sec.  214.2(h)(v).
     Second, the poor economic circumstances of most H-2A 
workers cause them to be willing to accept less than what a U.S. worker 
will accept and less than what the law allows. Most H-2A workers are 
poor and come from poor nations, particularly Mexico, Guatemala, 
Jamaica, and Thailand.
     Third, the legal structure of the program deprives U.S. 
workers and foreign workers of economic power to demand better wages 
and working conditions. Under the H-2A program, an employer must offer 
at least the special minimum wage rate and benefits required by the 
program, but need not offer any more. 20 C.F.R. Sec.  655.101. A U.S. 
or foreign worker who offers to work for 25 cents an hour above the 
minimum required wage can be deemed to be ``unavailable'' for work and 
substituted for a guestworker who accepts the minimum.
    For these reasons, the H-2A program contains two basic protections. 
8 U.S.C. Sec.  1188(a)(1).
     The H-2A employers must seek approval from the DOL for a 
recruitment plan. 20 CFR Sec.  655.102(d). They must recruit U.S. 
workers meaningfully through several methods, using both private-market 
mechanisms and the interstate job service offices. They must engage in 
the same kind and degree of recruitment inside the U.S. that they 
engage in to find foreign workers abroad. Sec.  655.105(a), 655.103(f). 
Qualified U.S. workers who apply through the first half of the season 
must be hired under what is called the ``50% rule.'' Sec.  655.103(e).
     Second, the H-2A employer's job offer must contain certain 
minimum wages and working conditions to prevent employers from creating 
an artificial labor shortage. No amount of recruiting will succeed at 
attracting or retaining U.S. workers if the wages and working 
conditions are substandard or illegal.
    Unfortunately, H-2A employers routinely discriminate against U.S. 
workers and the Department of Labor allows systematic discrimination. 
In fact, because the Department of Labor refuses to regulate the hiring 
process in the foreign countries, U.S. employers routinely discriminate 
on the basis of gender, age and disability. H-2A employers almost never 
hire women as guestworkers because they prefer young men. When 
employers can select foreign workers based on stereotypes and other 
prejudices to achieve the workforce they desire, they are less likely 
to be willing to hire U.S. workers who fall outside those stereotypes 
and prejudices.
    Occasionally, H-2A employers admit that they engage in the very 
harm the law is intended to prevent. A Georgia grower of Vidalia onions 
told a newspaper reporter a few years ago:
    If we had a bunch of American workers, we would have to hire 
someone like a personnel director to deal with all the problems * * * 
The [migrants] we have now, they come and work. They do not have kids 
to pick up from school or take to the doctor. They do not have child 
support issues. They do not ask to leave early for this and that. They 
do not call in sick. If you say to them, today we need to work ten 
hours, they do not say anything. The problems with American workers are 
endless.\1\
---------------------------------------------------------------------------
    \1\ Chicago Tribune, ``Immigration Clash Leaves Vidalia Onion 
Farmers Bitter,'' May 28, 1998.
---------------------------------------------------------------------------
    Yes, the ``problem'' with American workers is that that they are 
human beings who have some economic freedom, must pay the cost of 
living in the United States, and even may have children to take care 
of. That ``problem'' should not disqualify them.
    There are many ways employers can carry out their preference for 
guestworkers. The most obvious is a simple refusal to hire a US worker 
who manages to apply. The Department of Labor has permitted H-2A 
employers to hire guestworkers without requiring any meaningful 
recruitment. We have been reviewing H-2A applications and the 
recruitment plans are often limited to a phrase promising to comply 
with DOL's instructions or just placing an ad in a newspaper that few 
farmworkers read.
    More subtle methods of avoiding or deterring U.S. workers include 
giving workers the ``run around'' when they try to apply for a job 
(e.g. by requiring a job application at inconvenient times or 
exhibiting a lack of willingness to hire a qualified U.S. worker who 
applies), imposing unusual or onerous job qualifications that deny jobs 
to US workers or cause them to avoid pursuing the job (like submitting 
a resume, requiring extensive experience in a particular job, demanding 
unrealistic productivity), or unnecessarily changing the length of the 
season so that it no longer meshes with a migrant worker's itinerary 
along the migrant stream.
    We offer here a few recent examples of how the Department of Labor 
and H-2A employers obstruct recruitment of United States workers deny 
jobs to U.S. workers.
The Hawaiian Queen Company: DOL Encourages Employers to Evade the Law
    Recently, the US Department of Labor suggested (and persuaded) a 
company to alter its application to misstate the number of hours per 
week for several H-2A jobs. The understating of actual hours is 
illegal. Another impact is avoidance of the H-2A minimum work 
guarantee.
    An H-2A employer must file with its H-2A application a ``job 
order'' that states the hours it expects employees to work each week. 
The job order is used to recruit U.S. workers.\2\
---------------------------------------------------------------------------
    \2\ 20 CFR Sec. 653.501(d)(2)(iii)-(iv); 20 CFR Sec.  655.103(d), 
655.104(a), 655.106(a).
---------------------------------------------------------------------------
    The accurate statement of hours of work is a simple but important 
requirement. If the employer falsely advertises a job as having 
relatively few hours per week, U.S. workers may not choose to apply 
because they may seek full-time work that will yield greater weekly 
earnings. Further, workers who apply and are hired based on the false 
description of hours may quit because they were misled by the employer 
and the job's schedule may conflict with family obligations.
    The statement of hours is also important to the three-fourths 
minimum work guarantee. An H-2A employer must offer workers at least 
three-fourths of the hours stated in the job offer or pay compensation 
for the shortfall. This longstanding obligation ensures workers a 
reasonable earnings opportunity. It also discourages employers from 
over-recruiting and then lowering their wage offers to the desperate 
people who came looking for work. If an employer's job is 40 hours per 
week for 10 weeks, or 400 hours, then the three-fourths guarantee would 
ordinarily entitle the worker to the opportunity to work at least 300 
hours (absent an Act of God). An employer should not understate the 
actual number of hours the job requires in an effort to reduce the 
three-fourths minimum work guarantee. 20 C.F.R. Sec.  655.102(b)(6).
    In August 2007, the Hawaiian Queen Company, which raises and sells 
queen bees for agricultural purposes, applied for several H-2A workers 
for jobs on the big island of Hawaii. The company's application to the 
Department of Labor and the Hawaii job service stated that the workers 
would be employed for 50 hours per week, based on a 9-hour day, 5 days 
per week, and 5 hours on Saturday. On the form, it listed 40 hours per 
week as the basic hours and 10 hours a week of ``overtime'' (however, 
farmworkers are excluded from federal overtime pay so the wage rate was 
not time-and-one-half). At the H-2A minimum wage in Hawaii of $10.32 
per hour, a 50-hour week would yield $516 per week. For the full 
season, October 1, 2007 through July 31, 2008, about 44 weeks, a worker 
could expect to earn $22,704.
    Through a request under the Freedom of Information Act, and a 
lawsuit to force responses from the Department of Labor, we obtained 
the application and the correspondence between the company and the 
Department of Labor regarding the approval of the H-2A application and 
the job terms. (Excerpts of the application and correspondence are in 
Exhibit 1.)
    On August 10, 2007, a US DOL official wrote to the consulting firm 
that handled the H-2A application for the Hawaiian Queen Co. and 
suggested that she be permitted to change the company's stated number 
of hours for the job. She wrote, referring to the H-2A application:
    Item 10 of the ETA 750 states that 40 hours in [sic] the norm with 
10 hours OT. Item 8 of the ETA 750 states 50 hours. Is there some 
particular reason the employer wants ``to promise'' the worker an extra 
10 hour of work per pay period? The \3/4\ guarantee is more difficult 
to achieve at 50 hours per week required than 40 hour [sic] per week. 
If the employer requires 40 hours per week but offers the workers 50 
hours per week, the extra 10 hours each pay period goes toward the \3/
4\ guarantee.
    The agent for the company responded by email on August 13 at 7:37 
am, ``please base on 40 hour work week.'' (See p. 29 of Exhibit 1.) The 
DOL official replied, ``Do you want to remove the mandatory 10 hours 
per week OT?'' The agent answered, ``Please and thank you.'' Apparently 
realizing that another form (the Job Order) had to be consistent with 
the change made to the H-2A application, and that the 10 hours per week 
difference had to be accounted for by changing more than the Saturday 
hours, the DOL official wrote another email to the company at 8:50 am 
saying the following: ``Hello again. It [sic] order to make Item 8 of 
the ETA 790 compute correctly the 9 hours should be changed to 8 with 
no hours showing on Sat. and Sun.'' The company's agent replied, 
``Please go ahead and make the necessary changes to the ETA 790.''
    The DOL official made changes on the forms submitted by the 
employer but did not do so consistently. Consequently the application 
contains contradictions. The H-2A application form (Form 750) in item 
11, on the first page, was not altered and remained 7am to 4 pm, which 
would be 9 hours per day or 45 hours per week (not 40). The job order 
(Form 790) contains changes to the hours in handwriting and a pen that 
differs from those submitted on the original form by the employer. The 
number of hours per week is changed from 50 to 40 hours. The ``9'' for 
each weekday is changed to an unusual-looking ``8'' and the ``5'' hours 
per day on the weekends are crossed out. Item 8 in the Attachment to 
Form 790, was not changed and continued to state 9 hours per day, 5 
days per week with 5 additional hours on the Sabbath or holidays.
    Several U.S. workers expressed interest in the job. As far as they 
knew, the job opportunity only paid $412.80 per week, or $18,163 over 
the 44 weeks, which is 20% less than what the company admitted is the 
reality.
    The H-2A official's suggestion was intended to undermine workers' 
right to the \3/4\ minimum work guarantee. Suppose the H-2A workers who 
were hired averaged only 36 hours per week. DOL would take the position 
that the employer had offered 90% of the promised work (of 40 hours a 
week), which is more than the required three-fourths (75%) minimum work 
guarantee. If the stated work week were 50 hours, then the minimum 
guarantee would be 37.5 hours per week on average, and the workers 
would be owed compensation for 1.5 hours of work per week. DOL should 
reverse its action and ensure that workers receive any three-fourths 
guarantee compensation under the proper analysis. DOL should stop 
telling employers to misstate the number of hours of work.
A Tennessee Farmer/Farmworker Can't Get a Job at Local H-2A Employers
    Sabrina Steele lives in Blount County, Tennessee, population 
118,000; it is south of Knoxville. She has been a farmer for several 
years. She decided to seek work off her farm by contacting the 
Tennessee Career Center. She obtained information on several firms that 
were seeking work and had advertised with the state job service because 
they participate in the H-2A program or the H-2B program. She was 
amazed at her inability to get hired. Employers sought to dissuade her 
from applying for a job, refused to give her a job application, told 
her the job was filled despite the 50% rule that requires employers to 
offer qualified U.S. workers the job until half the season has elapsed, 
told her she'd have to work 80 hours a week, didn't accept her 
assertion that she could do the hard work of farming, and otherwise 
simply wouldn't hire her.
    Her statement (Exhibit 2) and a local newspaper article, (Exhibit 
3), about her unsuccessful efforts to gain a job at these employers, 
demonstrate that once a company decides to hire guestworkers, it often 
loses interest in hiring a U.S. citizen or permanent resident 
immigrants.
    Ms. Steele was astonished at the stereotypical, discriminatory 
attitudes about ``American workers'' that she confronted. Her statement 
is consistent with the local newspaper's report about her efforts. The 
owner of a foreign labor contracting service that supplies H-2A workers 
in Kentucky and Tennessee said to the newspaper, ``American farmers are 
frustrated * * * by American workers who takes [sic] jobs and then quit 
after a few days. This [the H-2A program] is the only way our farmers 
can know that they'll have a crew the next morning when they wake up.'' 
Treating all ``American workers'' as worthless is discriminatory, and 
contrary to the reality of hundreds of thousands of American 
farmworkers who work hard to put food on our tables for little money. 
That attitude also serves the interests of the labor contractors who 
make their money by recruiting foreign workers and make less money if a 
U.S. worker fills the job.
Tanimura & Antle; Laying Off U.S. Workers and Hiring H-2A Guestworkers
    A large California company applied for and received approval to 
employ H-2A guestworkers in the lettuce harvest from November 2, 2007 
to March 31, 2008. The company, Tanimura & Antle, laid off about 15 
people on December 15, 2007 but gave the workers no opportunity to fill 
the positions that had been offered to H-2A workers. Under the H-2A 
program, an employer is obligated to recruit U.S. workers actively and 
is expected to offer the position to former employees. Qualified U.S. 
workers are entitled to the job as long as they apply during the first 
half of the season (which would have been mid-January). Two such 
workers filed a complaint through the United Farm Workers stating that 
they inquired about other jobs at Tanimura & Antle upon being laid off 
in December, but were told that there were no positions. (Exh. 4, p. 
2.)
    After receiving notice of the complaint to the Department of Labor, 
Tanimura & Antle notified workers who had been laid off that they would 
be hired for the last month of work under the H-2A labor certification, 
in its fields near Yuma, Arizona and Bard, California. After the Fresno 
Bee ran a story about the layoff and the hiring of H-2A workers, the 
company agreed to offer work to the-laid off employees. However, one of 
the workers who was interviewed by the newspaper was told by a company 
official that he could not have a job due to publicly raising the 
issue. (Robert Rodriguez, ``Laid-off worker says Salinas firm didn't 
try to rehire him,'' Fresno Bee, March 14, 2008). The United Farm 
Workers has filed a complaint on the worker's behalf with the U.S. 
Department of Labor.
    The company said that any re-hired workers in Arizona would be paid 
$9.20 per hour and that any that were assigned to nearby Bard, 
California would be paid $9.72 per hour. The United Farm Workers 
supplemented its complaint on behalf of the workers because the wage in 
Arizona should have been $9.72 per hour, as the company had promised as 
part of the H-2A application to pay all the workers in the lettuce 
harvest at the applicable higher California H-2A rate. (Exh. 5 at p. 3 
of H-2A application.)
    The Department of Labor seemed to play no role in these 
developments despite its obligation to oversee the operation of the H-
2A program. There are several complaints that the United Farm Workers 
has filed which the DOL is investigating.
Conclusion
    DOL has before it ample evidence that the recruitment requirements 
in the H-2A program should be enforced more vigorously to reverse 
widespread violations of U.S. workers' rights to be recruited 
effectively for jobs by H-2A employers. Instead of proposing regulatory 
changes to weaken recruitment and enforcement, DOL should enforce the 
law. Congress needs to act to stop the DOL from changing the H-2A 
regulations. Congress also needs to pass the bipartisan labor-
management compromise called AgJOBS to address the legitimate needs of 
workers, employers and the nation.
                                 ______
                                 
    Chairman Miller. Mr. Riojas.

STATEMENT OF JAVIER RIOJAS, ATTORNEY/BRANCH MANAGER, TEXAS RIO 
                        GRANDE LEGAL AID

    Mr. Riojas. I work for Texas RioGrande Legal Aid and one of 
the program's missions is to represent Texas migrant and 
seasonal farm workers who are displaced by guest workers. And 
today, I have the privilege of conveying to the committee the 
experience of 22 of 720 Texas workers that applied for a job 
with a major watermelon grower.
    This grower strives to have year round produce by planting 
its crops in various locations in Mexico and in Texas. And it 
succeeded in getting foreign guest workers basically by 
misclassifying its jobs as non agriculture. This grower uses 2 
farm labor contractors basically to plant, grow, harvest and 
package its produce within its own facilities. Yet, by using 
the H2B program it was able to obtain foreign guest workers 
without offering those jobs to the Texas workers that sought 
those jobs. Here is how they did it. Basically, from 2001 
through 2004 they represented to the Department of Labor that 
they were doing agricultural produce packing and it was going 
to start in Arkansas. They disclosed that the produce packing 
in Arkansas was harvesting and packing sweet corn in Newport, 
Arkansas in early February. At that time of the year, there is 
no sweet corn to harvest in Arkansas. But by disclosing that 
they were able to take advantage of the 10-hour window that the 
Department provides for recruiting U.S. workers.
    Under that 10-hour window they basically advertised the 
jobs in the local area for 3 days in a local newspaper and keep 
a job order open. Obviously no workers are going to respond to 
that work opportunity that does not exist.
    In the meantime, when the work actually started in Texas, 
they did no recruitment where the work actually was in 
Edinburg, Quemado and Plains. So no Texas workers were getting 
a shot at those jobs. My clients who were seasonal workers who 
were doing these work for years would go to the job sites. And 
were told no, there is no work. We already have a complete crew 
and that crew was H2B workers that were coming in.
    From 2004 to 2007 once the Department caught on to that 
fictitious first leg in the itinerary, they started disclosing 
the work involved in produce packing at a fixed site in 
Edinburg, which is in the Rio Grande Valley. By doing this they 
only had to recruit for those 10 days in the Edinburg area and 
they didn't disclose to subsequent sites where the harvesting 
moved to Quemado, the area of Eagle Pass and further on up into 
west Texas.
    What was happening to the workers, my clients were applying 
for the job, those that were from the Rio Grande Valley and 
they were getting the runaround. They applied, called the 
employers and they weren't returning calls. If they answered, 
they were telling the workers, no, the work doesn't pay 8.62 an 
hour, as was disclosed in the job order, we pay 5.59. No, it is 
not just working in Edinburg at the warehouse, it will actually 
be harvesting watermelons in the field. And you will have to go 
to Quemado and Plains and you will have to pay for your own 
housing and transportation. But the workers still wanted those 
jobs because the pay was good, it was 8.82.
    The employer kept changing the dates of need, call back 
later, call back later. Eventually they sent a mass mailing to 
the workers. We haven't heard from you, if we don't hear from 
you in 10 days we will assume you are not interested type 
stuff. And the workers responded to those letters. They kept 
insisting I want that job, I want that job. Well, it is going 
to start at a later date, we will give you a call. That call 
never came. The jobs came and went and my clients didn't get to 
work.
    The workers moved from the valley to Eagle Pass where I 
work. I have clients who are seasonal workers there and they 
had been doing these jobs for years. They would go to the 
packing shed and apply for the job, I want work. And they were 
told there is no work. We have already got a complete crew. And 
there they had the H2B workers who were allegedly working in 
warehouse packing harvesting crops out in the fields.
    And this continued until this year when a worker at the 
Texas Workforce Commission finally went and discovered that the 
site where the packing shed was actually a vacant lot. They 
discovered that the work actually was agricultural work and 
that the packing sheds were in the field that belonged to 
farmer. And so they were forced to apply for H2A workers. The 
workers responded and again they were not hired. Instead the 
employer went through the applications and basically the 
opportunity disappeared for the Texas workers. Thank you.
    [The statement of Mr. Riojas follows:]

 Prepared Statement of Javier Riojas, Attorney, Branch Manager, Texas 
                       RioGrande Legal Aid, Inc.

    Thank you for inviting me to discuss our lawsuit, Riojas, et al. v. 
Chao, et al.,\1\ involving the U.S. Department of Labor's (``DOL'') 
unlawful administration of the H-2A and H-2B guestworker programs. In 
the case, we represent 22 of the hundreds of U.S. workers who were 
rejected on H-2 job orders from 2001 to 2007. Unfortunately, our 
clients could not testify in person because of work conflicts.
    My name is Javier Riojas. I am a 1981 graduate of Brown University 
and a 1983 graduate of the University of Texas School of Law in Austin. 
I am an attorney and branch manager for Texas RioGrande Legal Aid, Inc. 
(TRLA) in Eagle Pass, Texas, a small town on the border with Mexico. I 
have worked for TRLA since 1984 and have represented thousands of U.S. 
farmworkers, H-2A agricultural guestworkers and other low-income 
Texans. I grew up as a migrant worker and traveled north every year 
with my family from our home in Eagle Pass.
I. Summary of Riojas, et al. v. Chao, et al.
    We represent 22 U.S. citizens and legal permanent residents, who 
are migrant and seasonal farmworkers that tried to obtain and hold H-2 
jobs. We sued three south Texas agricultural employers--a watermelon 
grower, two farm labor contractors, their shared immigration attorney 
and DOL. We alleged that the employers falsely misclassified their jobs 
as nonagricultural in order to qualify for H-2B workers and avoid the 
H-2A program's relatively more stringent recruitment requirements for 
U.S. workers, free housing and transportation, Adverse Effect Wage 
Rate, fifty percent rule, three-fourths guarantee, and other 
benefits.\2\ The employers acquired over 400 Mexican H-2B workers from 
2001 to 2007 to work mainly harvesting watermelons and onions in their 
fields in Edinburg, Quemado, and other areas in Texas. The Texas and 
Arkansas workforce agencies referred about 720 U.S. workers for the H-2 
jobs. See Exhibit 3 for a partial list of Texas referrals. Almost all 
of them were rejected outright or received the ``run-around.'' Exhibits 
1, 5 and 6. The few U.S. workers who were hired suffered abusive 
treatment and received lower pay and fewer benefits than the H-2 
workers. Year after year, DOL continued to approve the employers' 
fraudulent applications despite mounting evidence of visa fraud and 
U.S. worker discrimination.

II. H-2 Programs' Adverse Effects on Our Clients: U.S. Workers
    Maria R. and her daughter Romelia R. are legal permanent residents. 
They worked for the companies for several years until their employers 
began to use H-2B workers. In 2005, Maria R. and Romelia R. contacted 
the companies several times and went to the packing shed for a job as 
they had each year for several years. They were told to wait and there 
might be work later. They waited all day. When Maria R. picked up a 
broom and began to sweep, the supervisor shouted at her to leave 
because all the jobs were filled.
    Bladimir G. is a U.S. citizen. He is one of four adult children in 
a family of migrant farmworkers. They travel and work together. His 
family applied at TWC for several of the H-2 jobs for the 2005 and 2007 
seasons. They never got the jobs. Instead, they got the H-2 ``run-
around.'' The 2005 job advertisement attracted the family because of a 
wage of $8.75 per hour, full-time local work indoors in a packing shed 
in nearby Edinburg, Texas for eleven months. The ad stated no minimum 
requirements and sixty positions available. The family called the 
company five times in the two months leading up to the job's starting 
date. The company always told them to await a return call. When the 
family called, the company gave them different information than that 
stated in the job ad. The company said the work was outdoors, in the 
fields cutting onions and watermelons. The work would start in Edinburg 
and then move to west Texas, where the family would need to find its 
own housing. Although disappointed by the changed job terms, the family 
was still willing to accept the job. The family called two days before 
the job was supposed to begin in January 2005 and was told that the 
work would start in March, and to wait for a call then. Bladimir G.'s 
father called the company in February and the company told him for the 
first time that they were not going to hire the family.
    Benigna and Eustaquio L. have been married for 26 years. They are 
legal permanent residents. They have performed farm work together for 
eleven years. They too got the H-2 ``run-around.'' Benigna L. tells her 
story in an affidavit, attached as Exhibit 1. The couple called the 
company several times over two months and was told to expect return 
calls. The couple quit calling about the job when they learned from a 
TWC official that the company had mockingly told another U.S. applicant 
to quit trying. The company never overtly refused to hire the pair, and 
like many workers they just quit trying.

III. Current Status of the Case
    We settled our case with the employers, who acknowledged the work 
was agricultural and agreed to hire U.S. workers first, and if they 
cannot find enough, then they will apply for H-2A workers. Our suit 
against DOL is ongoing. DOL filed a motion to dismiss for failure to 
state a claim. We responded and reasserted our allegations that DOL 
specifically violated the law several times in our case, and that the 
agency's general administration of the H-2 programs violates the 
Administrative Procedures Act (APA).

IV. DOL Knowingly Approved Employers' Fraudulent H-2B Applications
    In our case, DOL knowingly approved the employers' fraudulent H-2B 
applications. In 2005, DOL's Wage and Hour Division conducted a field 
inspection of one of the employers and reported H-2B workers in the 
field. Exhibit 4. DOL continued to certify the employer for H-2B 
workers for two more years.
    In 2002, one of the farm labor contractors applied for H-2B workers 
to pack sweet corn in Newport, Arkansas starting in February 2003, and 
then other work in the Rio Grande Valley and west Texas the rest of the 
year. Because of the H-2B program's fewer U.S. worker recruitment 
requirements, the employer only needed to recruit U.S. workers for ten 
days in Newport in the fall, and avoided recruiting farmworkers in 
Texas in the spring and summer. Still, at least twelve U.S. workers 
applied and the farm labor contractor hired zero because they lacked 
``experience.'' DOL certified the application even though sweet corn is 
not ready to harvest or pack in Arkansas in February.
    Each year from 2005 to 2007, the Texas Workforce Commission sent 
numerous warnings to DOL that the employers were discriminating against 
U.S. referrals. Exhibit 5. Finally in 2007, DOL required one of the 
three employers to submit an H-2A application, which the agency 
approved despite multiple unlawful rejections of U.S. workers. Exhibit 
6.

V. DOL's Administration of the H-2 Programs Is Unlawful
    DOL unlawfully administers the H-2 programs. DOL has never 
promulgated substantive rules for the H-2B program. Its operative H-2B 
rule states that the H-2A policies should be followed in certifying H-
2B applications.\3\ Instead, DOL has issued a series of substantive 
memos\4\ that were never subjected to notice and comment rulemaking as 
required by the APA.\5\ These guidance letters prescribe the 
procedures, benefits and protections of the H-2B program, which are far 
fewer than its H-2A counterpart. As a result, many U.S. workers are 
harmed, violating the two-part statutory mandate that U.S. must be 
recruited first, and their wages and working conditions must not be 
adversely affected by the employment of foreign guestworkers.\6\
VI. DOL Argues that Congressional Silence Allows it Broad Discretion 
        over the H-2B Program
    DOL's main argument in its motion to dismiss is that Congress was 
silent about the H-2B program when it passed the Immigration Reform and 
Control Act (IRCA) of 1986. IRCA bifurcated the H-2 visa category into 
the H-2A agricultural and H-2B nonagricultural programs. In contrast, 
Congress codified the then existing regulations for H-2 agricultural 
workers, which were fairly detailed, into the H-2A provisions now in 
the statute.\7\ Therefore, argues the agency, because Congress did not 
issue any similar H-2B provisions, Congress intended fewer benefits and 
protections for American and foreign workers in the H-2B program, or at 
least allowed DOL to prescribe fewer. In 1996, a federal court agreed 
with DOL on this interpretation.\8\ Ironically, DOL uses its discretion 
to prescribe fewer procedures for the H-2B program while claiming that 
it lacks authority to enforce the H-2B contracts.

VII. Our Response to DOL Lists Nine Ways the Agency Should Comply with 
        its Statutory Mandate to Protect U.S. Workers
    In our response to DOL's motion to dismiss, we stated nine ways DOL 
should comply with the statute so that U.S. workers are hired first, 
and their wages and working conditions are not adversely affected by 
foreign guestworkers.\9\ First, the agency should incorporate the H-2A 
program's benefits and protections into the H-2B program according to 
20 C.F.R. Sec.  655.3(b). Second, DOL should cease its practice of 
``one-to-one'' labor certifications which allows employers to over-
apply for H-2 workers and then unlawfully reject any U.S. workers that 
apply.\10\ For example, in our case, an employer applied for 40 H-2A 
workers. The employer unlawfully rejected 37 U.S. applicants. DOL sent 
a letter that denied certification for 37 openings and approved three. 
DOL's letter even detailed the unlawful rejections of the U.S. workers. 
Exhibit 6. Third DOL should use its expertise and data to set an 
objective threshold like 8 percent local unemployment, above which H-2 
workers will only be certified during an extraordinary, bona fide labor 
shortage. In our case, the agency approved hundreds of H-2 workers in 
areas of south and west Texas with double-digit unemployment rates. 
Fourth, DOL should enforce H-2B rules. Fifth, the agency should use a 
standard like ``reasonable suspicion'' to bar, suspend, reject, revoke 
noncompliant employer applications and job orders before harm occurs to 
U.S. workers. DOL currently requires the results of a completed 
investigation before ceasing service to an employer, and will often 
force state workforce agencies like the Texas Workforce Commission to 
circulate job orders that state officials suspect to be fraudulent. 
Many Texas farmworkers and SWA officials no longer trust job orders 
with H-2A job terms after years of rejection and the H-2 ``run-around'' 
when they try to contact the employer. Sixth, DOL should reinstate the 
coordinated enforcement activities at 29 C.F.R. Part 42, which the 
agency has suspended.
    Finally, we stated three ways that DOL should comply with the law 
in the context of large grower operations with packing sheds and food 
processing areas, like our in our case. Packing sheds are a gray area 
in between the H-2A and H-2B programs. Sometimes the work is 
agricultural, and sometimes it is nonagricultural depending on various 
factors like the source of the produce. Thus, many employers have 
learned to manipulate the job description to qualify for H-2B workers, 
or they are confused. DOL should classify all packing shed work as 
agricultural, and thus make it subject to the H-2A program. 
Alternatively, the agency should prescribe special H-2B procedures for 
packing sheds similar to the H-2B special procedures for tree planters 
and entertainers.\11\ Third, DOL should require special assurances from 
registered farm labor contractors who seek H-2B nonagricultural 
workers.

VIII. Employers Fraudulently Apply for Misclassified H-2B Workers to 
        Avoid the Benefits, Protections and Costs of the H-2A Program
    Because of the disparities between the benefits and protections in 
the H-2A and H-2B programs, employers like the defendants, prefer H-2B 
workers because there are much fewer requirements for recruiting U.S. 
workers and because it is cheaper to employ them. Therefore, the 
differences between the H-2A and H-2B programs provide an incentive for 
unscrupulous employers to abuse the guestworker programs and commit 
visa fraud.
    One historical limitation on employers' preference for H-2B workers 
was the statutory cap of 66,000 annual visas.\12\ The Save Our Seasonal 
Businesses Act of 2005\13\ increased the cap for three years and led to 
a huge expansion of the H-2B program. The cap increase expired in fall 
of 2007 and Congress is currently debating whether to extend it.
    The H-2A program better tests the availability of American workers. 
H-2A employers must actively recruit U.S. workers for 45 days in 
comparison to the ten day recruitment period for the H-2B program.\14\ 
In addition, whereas the 45-day H-2A recruitment period directly 
precedes the start of the work, the 10-day H-2B recruitment period 
occurs several months before the start of the work thereby discouraging 
U.S. applicants who need immediate employment.\15\ An H-2A employer 
must hire U.S. applicants for the job until 50 percent of the visa 
period has elapsed, even if the employer must displace H-2A 
workers.\16\ The H-2B program has no such requirement as currently 
administered.
    The H-2A program requires employers to submit a work itinerary that 
lists the location and dates of all job sites.\17\ The H-2A employer 
must cooperate with the State Workforce Agency (SWA) to locally recruit 
U.S. workers at each location on the itinerary.\18\ An H-2B employer, 
however, is not required to recruit U.S. workers locally for each job 
site on the itinerary.\19\ Also, the H-2B employer need only pay the 
prevailing wage from the first job site at subsequent job sites.\20\
    The H-2A program provides more benefits and protections for U.S. 
and foreign workers than does the H-2B program as administered by DOL. 
For example, an H-2A employer must pay the ``Adverse Effect Wage 
Rate,'' and provide free housing and transportation, meals or a kitchen 
facility, tools, workers compensation insurance and a three-fourths 
work guarantee during the visa period.\21\ H-2B workers receive a lower 
``prevailing wage,'' or the minimum wage, and none of the foregoing 
benefits.\22\ In our case in 2007, the H-2B prevailing wage for packers 
was $6.53 per hour whereas the H-2A Adverse Effect Wage Rate was $8.66. 
The company was offering the U.S. workers $5.59. Exhibit 5.

IX. Because of Legal Services Corporation Restrictions, TRLA could not 
        Represent 400 Ineligible H-2B Workers who should have been 
        Eligible H-2A Agricultural Workers
    One unfortunate irony about our case is that TRLA could not offer 
representation to the 400 H-2B guestworkers because of Legal Services 
Corporation restrictions imposed by Congress.\23\ We are authorized, 
however, to represent H-2A workers with matters related to their H-2A 
contract.\24\ Here, because the employers misclassified the workers as 
H-2B workers, we could not offer them representation even though they 
were employed in agricultural and should have received H-2A visas.
    During outreach in 2005, we located twenty of the H-2B workers in a 
run-down apartment building in Eagle Pass. Twelve workers shared a 
vacant unit with air mattresses on the floor. Only one H-2B worker, 
Isidro A., had the guts to speak up. Exhibit 2. We were lucky to get 
him a local private attorney, with knowledge of immigration law, who 
was generous enough to co-counsel on the case for the prospect of 
``peanuts'' in compensation. Isidro A. patiently waited in his small 
village in central Mexico for three years as the private attorney 
investigated, filed and then settled his case, in conjunction with 
workers represented by TRLA.
    The farm labor contractor always recruited crews of young men from 
Isidro A.'s village. When the employer learned about the lawsuit, he 
intimidated Isidro A.'s sister in Texas to get Isidro A. to drop the 
suit. The employer also blamed Isidro A. for not getting any more H-2B 
visas for the villagers. As a result, Isidro A. has been ostracized 
locally in Mexico for exercising his rights in the United States. If 
TRLA had been able to offer representation to the twenty H-2B workers 
that night in 2005, maybe Isidro A.'s coworkers would have joined the 
suit and Isidro would not have been isolated and ostracized.

X. Conclusion
    Thank you for inviting me to testify about our case. I welcome your 
questions.

                               EXHIBITS*

    1. Affidavit of U.S. Worker, 2008
---------------------------------------------------------------------------
    *Exhibits 1-6, submitted by Mr. Riojas, are available for public 
review in our Committee's main office, 2181 Rayburn House Office 
Building.
---------------------------------------------------------------------------
    2. Affidavit of H-2B Worker, 2008
    3. TWC print-outs of U.S. job referrals, 2006-2007
    4. DOL Wage & Hour Division Field Inspection Report, 2005
    5. TWC Emails to DOL, 2007
    6. DOL H-2A Certification Letter, 2007

                                ENDNOTES

    \1\ Riojas, et al. v. Chao, et al., No. DR-07-CV-058 (W.D.Tex. 
filed Oct. 9, 2007).
    \2\ See infra VIII.
    \3\ 20 C.F.R. Sec.  655.3(b).
    \4\ General Administration Letter (GAL) No. 10-84, 49 Fed. Reg. 
25,837 (June 25, 1984); General Administration Letter No. 1-95, 60 Fed. 
Reg. 7216 (Feb. 7, 1995); Training and Employment Guidance Letter No. 
21-06, Change 1, 72 Fed. Reg. 38621 (July 13, 2007).
    \5\ 5 U.S.C. Sec. Sec.  553 et seq.
    \6\ 8 U.S.C. Sec.  1188(a); 20 C.F.R. Sec.  655.0(a)(1).
    \7\ 8 U.S.C. Sec.  1188.
    \8\ Martinez v. Reich, 934 F.Supp. 232, 237-38 (S.D.Tex. 1996).
    \9\ 8 U.S.C. Sec.  1188(a); 20 C.F.R. Sec.  655.0(a)(1).
    \10\ DOL actually articulated this practice of ``one-to-one'' 
partial certification in the H-2B program with TEGL 21-06, Change 1 
(V)(E): ``If one or more U.S. workers * * * were unlawfully rejected by 
the employer * * * the NPC Certifying Officer has the authority to 
issue a partial certification for only those job opportunities that 
remain unfilled by qualified U.S. workers * * * *''
    \11\ See Training and Employment Guidance Letters No. 27-07 (June 
12, 2007) and No. 31-05 (May 31, 2006).
    \12\ 8 U.S.C. Sec.  1184(g)(1)(b).
    \13\ Save Our Small and Seasonal Business Act of 2005, Pub. L. No. 
109-13, 119 Stat. 231 (codified in 8 U.S.C. Sec.  1184(g)(9)).
    \14\ Compare DOL H-2A Handbook I-50, 20 C.F.R. Sec. Sec.  
655.100(b), 655.101(c), 655.103(d) and 655.105 with TEGL 21-06, Change 
1 (IV)(C).
    \15\ TEGL 21-06, Change 1 (III)(E) and (F).
    \16\ 20 C.F.R. Sec.  655.103(e).
    \17\ ETA H-2A Handbook No. 398 (I)(A)(2)(C).
    \18\ Id.
    \19\ TEGL 21-06, Change 1 (IV)(C) and (D).
    \20\ TEGL 21-06, Change 1 (IV)(A).
    \21\ See e.g. 20 C.F.R. Sec. Sec.  655.90(a)(2), 655.100(b), 
655.102(b)(1), 655.102(b)(5)(i), (ii) and (iii), and 655.102(b)(6).
    \22\ TEGL 21-06, Change 1 (IV)(A).
    \23\ 45 C.F.R. Sec.  1626.5 implementing Omnibus Consol. 
Rescissions & Approps. Act of 1996, Pub. L. No. 104-134, Sec.  
504(a)(11), 110 Stat. 1321, 1321-53 to -56, and subsequent 
appropriation bills.
    \24\ 45 C.F.R. Sec.  1625.11.
                                 ______
                                 
    Chairman Miller. Thank you, Mr. Young.

 STATEMENT OF JOHN YOUNG, PAST EXECUTIVE DIRECTOR, NEW ENGLAND 
                         APPLE COUNCIL

    Mr. Young. Mr. Chairman and members of the committee, I am 
a fourth generation apple farmer from New Hampshire. I have 
used H2A workers on my farm for 46 years. I have been an 
officer in several regional and national employer associations. 
I consult with employers from other parts of the country, who 
have used both H2A and H2B workers.
    I am testifying today on behalf of the New England Apple 
Council. Apple council members have employed H2B or H2A workers 
every year since 1943. We have an agricultural labor crisis. 
And to address it I was involved from the beginning in the 
negotiations with the farm worker advocates, which resulted in 
the ag jobs legislation. It is a pleasure to be working 
together with Congressman Berman and Mr. Goldstein and his 
associates to pass Ag jobs.
    It was only after a careful examination of the current H2A 
program that the Ag jobs legislation was drafted. We tried to 
improve the existing H2A program and allow an orderly 
transition of the present workforce to a legal status. 
Enforcement alone without reliable guest worker programs is 
doomed for failure. Without passage of a comprehensive 
immigration reform legislation in the near future, the safety, 
quality and quantity of domestically produced food will be at 
risk because of the of labor.
    As an employer, it makes sense to hire available local 
workers, because it is simply more cost effective. Yet my 
experience in New England and elsewhere demonstrates that very 
few unemployed accept agricultural or H2B work. Despite 
advertising, contacts with former employees, placing a job 
order in local, as well as interstate, recruitment and now also 
electronic placement, few and usually no workers are interested 
in employment.
    Our job offers are cleared to Puerto Rico and even from 
there, which is a traditional supply state for agricultural 
labor, few people are interested. Those who are interested 
often do not show and many leave before the season's end.
    Over the last 3 years, the New England's Apple Council has 
arranged 233 H2A referrals yearly from Puerto Rico. About half 
of them are not really interested in work, but they have been 
encouraged by the employment service to apply. Less than 25 
percent of those referred actually start work. And of those who 
do start work, less than half of them complete the season.
    One of our largest Connecticut growers has over the last 4 
years had 103 referrals from Puerto Rico, 16 percent started 
work and 11 percent finished the season. More than 60 percent 
of this employer's workforce is made up of local workers. And 
nationally, it must be noted that less than 2 percent of the 
agricultural workforce are H2A workers. The overwhelming 
proportion, 98 percent, are hired as U.S. workers.
    My written comments give several examples of major 
recruitment efforts undertaken giantly by employers in the 
government. In New England, California, Washington State, each 
effort has failed. Unemployment rates have had very little 
impact on the number of referrals. I have also attached to my 
written comments 3 studies done by the first pioneer farm 
credit done in New York, New Jersey and New Hampshire. The 
studies show what the economic impact will be of a farm labor 
shortage resulting from significantly enhanced immigration 
enforcement actions without new guest workers provisions. In 
New Hampshire as much as 40 percent of the agricultural 
production will be lost, 58 million. In New Jersey, 475 
million. And in New York, a whopping 700 million. The total 
loss in agricultural production in only 3 northeast States will 
be $1.23 billion.
    It has been suggested that a longer recruitment period 
would produce more workers. It is my experience that in both 
H2A and H2B jobs, recruiting closer to the date of need 
produces more applicants. Most people who fill these jobs in 
both H2A and H2B work do not look for work 120 days or 45 days 
in advance. They look for work when their current employment 
ends and they are not sitting around waiting for a job to start 
in the future.
    The most productive tool for recruiting workers is 
contacting former employees. Even if they are not available, 
the word gets out to family and friends. The National 
Agricultural Workers survey study has confirmed the fact that 
most agricultural workers find jobs through word of mouth. 
Additional advertising will not produce additional workers.
    The Department of Labor's recently issued guidance letter 
requiring State agencies to verify employment eligibility of 
referrals was issued and this is a welcomed and a positive 
step. My experience of other H2A users demonstrates that 
unauthorized workers are often referred to employment. It is 
very important that employers can be assured that referrals are 
legally authorized to work.
    In conclusion, the best solution to domestic recruitment is 
a solution which has achieved the support of farm employers and 
worker advocates. That solution is Ag jobs, as authored by 
Representative Berman, Senator Feinstein and many Republican 
colleagues. Ag jobs provides balanced protections for workers, 
as well as improvements to the H2A program. These improvements 
include recruitment. Ag jobs must be enacted this year. Thank 
you.
    Chairman Miller. Thank you very much.
    [The statement of Mr. Young follows:]

Prepared Statement of John Young, Past Executive Director, New England 
                             Apple Council

    Chairman Miller, Ranking Member McKeon, Distinguished Members of 
the Committee: I appreciate the opportunity to testify today. I am a 
fourth generation apple farmer and have farmed in NH for the last 46 
years. I am testifying today on behalf of the New England Apple 
Council, for which I have been Treasurer and Executive Director. I have 
used H2 or H2A labor for all of the 46 years that I have been in 
business. In fact there have been H2 or H2A workers employed by Apple 
Council members every year since 1943. As Executive Director of the 
Apple Council I have been responsible for filing the paper work at 
USDOL and USCIS, and the recruiting, and hiring more than 2000 workers 
annually in both H2A and H2B jobs, for the Apple Council's 200 members. 
My son and I also have a consulting business, HELP, and we consult for 
both H2A and H2B employers in areas outside of New England--VA, NY, MO, 
MI, OK, to name a few.
    I am a past president of the National Council of Agricultural 
Employers and serve as co-chair of the Agriculture Coalition for 
Immigration Reform. I was chairman of NCAE H2A and Immigration 
committee whose members include the largest associations and employers 
using H2A workers. In that respect, I have for years interacted with H-
2A users across the country. The New England experiences I will 
describe in detail are similar to the experiences others share.
    I also was involved from the beginning in the negotiations with the 
farm worker advocates which resulted in the AgJOBS legislation. It is a 
pleasure to be working together with Congressman Berman, and Mr. 
Goldstein and farmworker advocates to pass AgJOBS. A comprehensive 
approach to immigration reform is necessary to achieve a program that 
works for all of us, employers and workers. It was only after careful 
examination of the current H2A program that the AgJOBS legislation was 
drafted. AgJOBS would improve the existing H2A program, allow an 
orderly transition of the present workforce into legal status, and 
enable greater long-term reliance on H2A. Enforcement alone, without 
reliable guest worker programs won't work. The reason the 1986 
immigration reform failed was the lack of reliable legal channels, 
including guest worker programs. Without passage of immigration reform 
legislation in the near future the safety, quantity, and quality of 
domestically produced food will be at risk.
Current Domestic Worker Recruitment Efforts Are Substantial
    My experience in New England and other areas of the country 
demonstrates that there are very few unemployed who will accept 
agricultural work or seasonal H2B work. Despite advertising, contacts 
with any former employees, placing a job offer in local as well as 
interstate recruitment and now also electronic placement, few and 
usually no workers are interested in employment. Our job offers are 
cleared to Puerto Rico and even from there, a traditional ``supply 
state'' for agricultural labor, few people are interested. Those who 
are interested often do not show and many leave before the end of the 
season.
    New England Apple Council members try their very best to recruit US 
workers. The first reason is to meet their obligations under the H2A 
regulations, but also because U.S. workers are less costly than foreign 
workers. The costs of transportation and housing add at least $2.00 per 
hour to the employer's costs, and for short term jobs the number can be 
in the neighborhood of $4.00 per hour. In an industry with very close 
profit margins employers do not bring in foreign workers unless they 
absolutely need to.
    Some examples of experiences encountered in recruitment areas 
follows. Over the last three years NEAC has averaged 233 H2A referrals 
from Puerto Rico, through the interstate recruitment service, about 
half of them are not really interested in the work but have been 
encouraged by the employment service to apply. Less than 25% of the 
referrals start work, and of those who do start less than (12.5%) 
complete the season. One of our larger Connecticut growers has over the 
last four years had 103 referrals from Puerto Rico; 16 (16%) started 
work and 11 (11%) finished the season. More than 60% of this employer's 
seasonal workforce is made up of local workers. Nationally it must be 
noted that less than 2% of the agricultural workforce are H2A workers, 
the overwhelming proportion, 98% are domestic workers (whether legally 
authorized to work or in reality falsely documented).
    A recent personal example of local recruitment: last year a young 
fellow from Manchester NH applied for work at my farm, at the beginning 
of the season. He was a newly arrived immigrant who had some farm 
experience in his home country. He was hired, he came daily as agreed, 
and was a good worker, but after two weeks, on Friday, stated that the 
work was too hard and he wouldn't be back on Monday. I had put an H2A 
worker on hold and was short handed for the week it took for him to 
arrive.
    In both of the above cases the employers are trying to meet their 
obligations under the law but also to save money. In these examples, 
employers can save more than $1500 per worker when using local US 
workers. Some of the recruitment efforts beyond those required by law 
taken by our members over the years have included:
     actually going to Florida and visiting local employment 
services offices;
     doing a pilot program with youth from inner cities;
     employing prison inmates;
     recruiting SAW workers (who legalized under IRCA) from 
Texas;
     employing foreign J visa workers.
    None of these recruitment efforts turned out to be successful or 
sustainable.
    We currently contact all former workers, file job orders and 
cooperate with the employment service in local and interstate 
recruitment, place local advertising, and many employers place posters 
in their retail operations and other local locations.
    Two recent examples of exceptional recruitment efforts in both 
California and Washington State produced results similar to those that 
we have had in the northeast. One was undertaken in 1998 in 
California's Central Valley at the urging of Senator Dianne Feinstein, 
after Congressional passage of landmark welfare reform legislation. 
Sen. Feinstein was concerned about high unemployment in the region. 
Growers and grower associations cooperated with county welfare and 
employment agencies to identify employment needs and to plan training 
and outreach efforts. Of roughly 140,000 individuals identified and 
targeted for placement in the workforce, only 503 applied for available 
positions, and only three were successfully placed. The study showed 
that welfare agencies were training the unemployed for year-round jobs, 
not seasonal jobs in agriculture and many of the unemployed were single 
women with children, for whom child care was a problem. A number were 
physically unable to perform farm jobs.
    In 2006, Washington State apple growers and their associations 
partnered with the administration of Gov. Christine Gregoire and county 
agencies to conduct an intense advertising and training program that 
sought to attract domestic workers for the apple harvest. Roughly 1700 
positions needed to be filled. About 40 workers were successfully 
recruited. Washington State agriculture director Valoria Loveland 
documented the effort in a letter last year sent to the Senate 
Judiciary Committee.
Are Changes to the Recruitment Process Needed and Justified?
    In order to meaningfully answer this question, one must consider 
the demographics and employment dynamics in agricultural and seasonal 
employment. The data are richest in agriculture, due to the initiation 
of the National Agricultural Worker Survey, or NAWS, shortly after the 
passage of the Immigration Reform and Control Act in the fall of 1986.
    The first NAWS asked seasonal agricultural workers whether they 
were authorized to work in the United States. In the FY 1989 survey 7% 
of U.S. seasonal agricultural workers said they were unauthorized. By 
the FY 1990-91 survey the figure was 16%. By FY 1992-93 it was 28%. By 
FY 1994-95 it was 37%. By the FY 1997-98 survey it was 52%. A straight 
line extrapolation to 2005 of the statistics from 1989 through 1998 
suggests the percentage of U.S. farm workers who are unauthorized to 
work in 2005 was 76%. Most observers believe that percentage is about 
right.
    More astonishing still is the legal status of new agricultural 
labor force entrants--seasonal agricultural workers who had newly 
entered U.S. agriculture in the year of the survey. By the FY 1994-95 
survey, 70 % of new entrants into the U.S. agricultural work force were 
unauthorized to work. The USDOL did not publish these figures for the 
1997-98 survey, but a special tabulation for the eastern half of the 
U.S. by Dr. Dan Carroll of the USDOL, who then directed the survey, 
revealed that an astounding 99% of new labor force entrants into the 
agricultural work force in the eastern states were unauthorized to work 
in the United States.
    The late Dr. James Holt, a former professor of agricultural 
economics at Penn State University and later an agricultural labor and 
H-2 program expert for the balance of his career, said the following in 
a 2005 speech to the California Board of Food and Agriculture:
    ``Some commentators suggest that U.S. agriculture is at ``fault'' 
for not retaining its U.S. work force. I believe that is misplaced 
blame. The decade of the 1990's was a period of unprecedented economic 
growth and job creation in the U.S. But it was also a decade when the 
rate of growth in the native-born U.S. work force continued to slow, 
and the number of legally admitted foreign workers was far below the 
rate of new job creation. At the beginning of the decade of the 1990's 
31 % of the U.S. seasonal agricultural work force was still U.S. born. 
By the end of the decade, only 19 % was U.S. born. During the decade of 
the 1990's the real hourly wage rate in agriculture increased at a more 
rapid rate than for the non-agricultural work force. But the lure of 
year round work, easier jobs and more pleasant working conditions in 
most non-agricultural employment was obviously enough to attract many 
U.S. workers out of agriculture even into jobs in which the nominal 
hourly wage was lower than in agriculture.''
    By the FY1997-98 NAWS survey, 81% of U.S. seasonal agricultural 
workers were foreign born and 77% were born in Mexico. More than one-
third were under the age of 25, and two-thirds were under the age of 
35, reflecting the fact that many agricultural jobs are relatively 
entry level, and arduous. Meanwhile, USA Today just published a report 
based on U.S. Census data showing that the number of Americans aged 25 
to 44 has dropped 1.5% since 2000, thus shrinking the pool of young 
workers. The starkest decline in young workers occurred in the 
Northeast and New England, frankly in the same states in which we 
operate: Vermont saw a 10.4% decline in younger workers. Connecticut 
saw a 9.9% decline; Massachusetts, a 9.6% decline; Rhode Island, an 
8.8% decline; Maine, an 8.7% decline, New Hampshire, a 7.5% decline.
    As I discuss, the existing H-2 programs hold users accountable to 
positive actions to recruit any and all available and interested 
domestic workers. And, as it stands, these programs fill a tiny 
fraction of jobs in the affected industries. In the case of H-2A, DOL 
certified about 60,000 job opportunities in 2006. That represents 
literally 1.9% of the roughly 3 million job opportunities available 
annually in American agriculture. I can attest, as an H-2A user myself 
and through my work with the New England Apple Council, that the 
program's bureaucracy, unresponsiveness, and cost are major deterrents 
to wider usage.
    In the case of H-2B, DOL certified almost 255,000 job opportunities 
in 2007. Employers had requested over 360,000 workers, so DOL certified 
the positions for only slightly over two-thirds of seasonal workers 
requested. Certainly the DOL, in overseeing the labor certification 
process and in rejecting a third of applications, is not rubber-
stamping employers' requests. Further the time and costs associated 
with applying for H-2B workers and the uncertainty associated with 
whether or not the employer will actually be able to receive workers 
before the arbitrarily low cap of 33,000 for each half of the fiscal 
year is reached, makes the program truly an option of last resort when 
no American workers can be found. If American workers could be found, 
employers would gladly hire them.
    The realities I just described, especially the shrinking younger 
workforce which would be the same workforce most likely to seek 
agricultural and seasonal jobs, beg the question: just who would we be 
protecting if new recruitment burdens were layered on top of existing 
H-2 program requirements, when faced with a dwindling pool of American 
workers, for whom agricultural jobs and seasonal jobs are generally 
going to be the least attractive, the jobs of last resort?
    While in our experience recruitment by state workforce agencies has 
not resulted in many referrals, those who are referred are, in a number 
of instances, unauthorized to work in the U.S. At a time when the 
Department of Homeland Security's Immigration and Customs Enforcement 
bureau is increasing worksite enforcement, it is concerning that we 
could lose our workforce after an audit. This could be very disruptive 
of a workforce through loss of workers during key harvest times. We 
commend the Department of Labor for its recently issued Training and 
Employment Guidance Letter (TEGL) that strongly encourages state 
workforce agencies to verify the work authorization of workers they 
refer.
    It has been suggested that a longer recruitment period would 
produce more workers. It is my experience that in both H2A and H2B jobs 
the closer to the date of need that you recruit, the more applicants 
the recruitment produces. Most people who fill these jobs do not look 
for work 120 or even 45 days in advance. They look when their current 
employment ends, and they won't sit and wait for a job to start 45-120 
days in the future.
    Additional advertising would not produce more workers. The 
effectiveness of advertising has proven to be very unproductive. Ads 
seldom produce any applicants, and the use of expensive-to-purchase 
papers, such as Sunday major dailies, is simply an additional price 
employers pay which produces no results. The most productive tool for 
recruiting workers is contacting former employees. Even if they are not 
available the word gets out through the underground. The National 
Agricultural Worker Survey has confirmed this.
    It is no secret that the H-2A program has significantly greater 
recruitment and other program obligations. At a recent hearing held by 
the House Judiciary Subcommittee on Immigration, Citizenship, Refugees, 
Border Security, and International Law, at least one Member suggested 
that perhaps some of the additional requirements associated with H-2A 
should be considered for the H-2B program. Practically speaking, H-2A 
supplies only 1.9% of the workforce precisely because the program is so 
burdensome and unresponsive. H-2A needs major reform, and should not be 
looked to as a model.
Changing Workforce Underscores Need for H2A, H2B
    As stated earlier, the population of 25-44 year old males in the 
New England states has declined by anywhere from 7.5 to 10.5% since 
2000. According to the USDA research report Demographic and Employment 
Profile of US Farm Workers this is the age bracket that most 
agricultural workers come from. The decline in younger workers despite 
an increase in the country's overall population leaves a smaller and 
smaller pool of workers to draw from. Of course seasonal and 
agricultural jobs are the first to go unfilled.
    Why does the effort to recruit end up finding so few workers? I 
believe most who want farm work go back to the same employer year after 
year. As stated above the pool of workers available is aging and the 
quality committed farm workers have employment, leaving a very small 
pool to draw from. While some people would say anyone can do farm work, 
in reality the work is strenuous, the weather is often uncomfortable 
and at peak times of the year the hours long.
    In my experience with the use of H2B workers, the same reasons that 
sufficient workers can not be recruited to fill needs apply. A 
shrinking younger workforce leaves a smaller pool to draw from. In the 
Northeast any job that is not year-round is very difficult to fill. The 
shortage in visas for H2B workers combined with enhanced immigration 
enforcement will cause severe economic damage to many Northeast 
industries. Recreation, hotels, restaurants, landscapers, and 
processors, to name a few will be forced to severely cut back. Some 
will go out of business. This will have a serious effect on the economy 
and the future in the affected States.
    Similar to agriculture, seasonal industries like tourism are 
already at a significant risk of seeing domestic and international 
visitors avoid traveling to or vacationing within the United States, 
effectively diminishing our national tourism industry. An example of 
why it is difficult to find sufficient local workers can be found in 
Branson, MO. A town with a population of 6,000, they expect to see 
7,000,000 tourists this year in the 10 month tourist season. There are 
23,000 motel rooms in Branson that need cleaning daily at peak times, 
there just are not enough people residing in the Branson area to fill 
the employers' needs.
    Without the nearly 500 certified H-2B job opportunities in the 
Branson, MO area during the FY2007 fiscal year, there is little chance 
that the expected 7 million visitors to Branson would be eager to 
return given either a diminished level of service, or inflated costs 
resulting from desperate employers bidding up wages in a zero-sum 
effort to steal employees from others. The Missouri Division of Tourism 
reported that in FY2007, Taney County, in which Branson is located, 
generated nearly $500 million in tourism-related revenue, producing 
$9.4 million in local tax revenue, while supporting over 10,000 
tourism-related jobs in the county. The failure to extend the H-2B 
returning guest worker exemption, or the detrimental effects of 
applying ill-conceived recruitment policies to the program, would have 
a significant negative impact on Branson and Taney County, as it would 
in tourist destinations across the country.
Jobs and Economy at Risk without Stable, Legal Agricultural and 
        Seasonal Workforce
    As one considers the impact of these programs, one must consider 
the economic sectors at risk, the positive ripple effects of the 
agricultural and seasonal workforce, and the role of the H-2A and H-2B 
programs now and into the future. I have attached to my testimony three 
studies done by First Pioneer Farm Credit in NY, NJ, and NH. The three 
studies show what the economic impact will be of a farm labor shortage 
resulting from significantly enhanced immigration enforcement actions 
without new guest worker provisions. In NH as much as 40% of the 
agricultural production worth $58 million annually will be lost and 
22,000 acres of land will likely leave agricultural production. In NJ 
at risk is annual agricultural production worth $475 million and NY 
could lose production valued at $700 million annually. In total the 
loss in agricultural production in only these three northeast States 
could reach $1,233,000,000.
    In agriculture, economists who have studied the relationship 
between production and jobs in the surrounding economy conclude that at 
least three jobs in the general economy exist for each farmworker job. 
These upstream and downstream jobs in packing, processing, equipment, 
supplies and inputs, and so forth are vulnerable to moving to wherever 
the production takes place. So if through an enforcement-only approach 
to immigration enforcement our government hastens the off-shoring of 
labor-intensive agricultural sectors, literally hundreds of thousands 
or even millions of American jobs will move too. Here is the projected 
job loss in terms of on-farm jobs, and off-farm jobs supported because 
the production is here, that would result from an enforcement-only 
approach including a failure to improve the existing but meager legal 
channels for seasonal workers:

    NEW YORK: On-farm jobs at risk: 6984; Off-farm jobs at risk: 
15,833.
    NEW JERSEY: On-farm jobs at risk: 6198; Off-farm jobs at risk: 
19,438.
    NEW HAMPSHIRE: On-farm jobs at risk: 632; Off-farm jobs at risk: 
4385.

    Again, in order to fully frame the choices before us relating to 
agricultural labor, I quote from labor expert Dr. Holt's earlier-
referenced speech:
    ``Some suggest that agricultural employers should be left to 
complete in the labor market just like other employers have to do. 
Under this scenario, there would be strict workplace enforcement and no 
guest workers. To secure legal workers and remain in business, 
agricultural employers would have to attract sufficient workers away 
from competing non-agricultural employers by raising wages and 
benefits. Those who were unwilling or unable to do so would have to go 
out of business or move their production outside the United States. 
Meanwhile, according to this scenario, the domestic workers remaining 
in farm work would enjoy higher wages and improved working 
conditions.''
    Holt continued:
    ``No informed person seriously contends that wages, benefits and 
working conditions in seasonal agricultural jobs can be raised 
sufficiently to attract 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. U.S. growers are in competition with actual and 
potential growers around the globe. Hired labor constitutes 
approximately 35 percent of total production costs of labor intensive 
agricultural commodities, and 1 in 8 dollars of production costs for 
agricultural commodities generally.
    Substantial increases in wage and/or benefit costs will have a 
substantial impact on growers' over-all production costs. U.S. growers 
are economically competitive with foreign producers at approximately 
current production costs. If U.S. producers' production costs are 
forced up by, for example, restricting the supply of labor, U.S. 
production will become uncompetitive in foreign and domestic markets in 
which foreign producers compete. U.S. producers will be forced out of 
business until the competition for domestic farm workers has diminished 
to the point where the remaining U.S. producers' production costs are 
approximately at current global equilibrium levels.
    The end result of this process will be that domestic farm worker 
wages and working conditions (and the production costs of surviving 
producers) will be at approximately current levels, while the volume of 
domestic production has declined sufficiently that there is no longer 
upward pressure on domestic worker wages. Given the large proportion of 
illegal workers in the current farm labor market, that reduction in 
domestic production is likely to have to be very substantial. 
Consumers, however, will feel little impact, because the market share 
abandoned by domestic producers will be quickly filled by foreign 
production.''
    Regarding seasonal employment and H-2B, a look at just one economic 
sector reliant on H-2B is revealing. Many landscaping-related jobs are 
inherently seasonal. In 2007, DOL certified just under 65,000 
landscape-related job opportunities for H-2B. Of course, in FY08, only 
a fraction of these positions could be filled by H-2B workers because 
of the failure of Congress to renew the cap exemption which allows 
experience and law-abiding workers to return to their cyclical 
employment opportunities. Congress urgently needs to extend the H-2B 
returning worker exemption that expired at the end of fiscal 2007 to 
allow seasonal employers access to the workers they so desperately 
need. These employers have already undertaken extensive recruitment 
efforts and cannot find legal domestic workers to fill these jobs. 
Further, the stability of employers' year round American workforce is 
dependent on access to seasonal workers during their busiest times of 
the year.
    Total employment in the landscape sector, according to DOL's Bureau 
of Labor Statistics, was 681,000 in 2006. This means that less than 10% 
of total job opportunities in a highly seasonal economic sector were 
certified for H-2B. Yet a look at the American employment supported by 
these workers shows that over 15,000 Americans were employed in 
landscape-related management occupations, with a mean annual salary of 
$82,150. Over 5000 were employed in business and financial support 
functions, with a mean annual salary of about $50,000. Over 55,000 
first-line supervisors are employed in the sector, with a mean annual 
salary of about $40,000. Over 14,000 sales-related positions exist, 
with mean annual salary over $40,000. These and many other categories 
in the sector provide Americans good jobs. All are at risk if seasonal, 
labor-intensive production jobs go unfilled.
    In conclusion, what is the solution to any concerns about domestic 
recruitment? I believe it is AgJOBS, H.R.371 and cosponsored by many 
others of both parties including Members of this committee, as well as 
its companion, S.340, sponsored by Senator Feinstein. My colleague 
Bruce Goldstein and his associates in the farmworker advocacy community 
support this legislation. It is the result of years of discussion 
between farm worker and grower representatives which we believe has 
balanced protections for workers as well as improvements to the H2A 
program, including in the area of recruitment. AgJOBS must be enacted 
this year!
                                 ______
                                 
    [Additional submissions from Mr. Young follow:]

             First Pioneer Farm Credit--Yankee Farm Credit

  Farm Labor and Immigration Reform Economic Impact to New Hampshire 
                           State Agriculture

    Farm businesses throughout the state of New Hampshire depend on a 
stable workforce to produce a safe and reliable food supply as well as 
other horticultural products. Immigrant workers have been and continue 
to be part of that workforce.
    First Pioneer Farm Credit and Yankee Farm Credit serve farmers and 
farm-related businesses in New Hampshire and have undertaken the 
following analysis to better understand the economic impact of a farm 
labor shortage resulting from significantly enhanced immigration 
enforcement actions and no new guest worker provisions. Without 
immigrant labor, many farm businesses in New Hampshire and nationwide 
will face critical labor shortages.
    New Hampshire agriculture includes significant production in dairy, 
greenhouse-nursery, fruit and vegetables. These sectors of New 
Hampshire agriculture can be most vulnerable to shortages of labor. The 
fact is that labor disruptions can quickly result in severe financial 
problems on many farms. Most farms simply do not have the financial 
resources to survive if they can not produce and market their products. 
With the increasing consumer demand for quality products, a delay in 
harvesting can also have a dramatic negative impact.
    New Hampshire agriculture has come to rely on immigrant workers who 
present the necessary identity documents and are then employed on the 
same Federal and New Hampshire terms as American workers. This includes 
deducting and remitting the appropriate fiduciary payroll obligations 
on behalf of these workers. These hard-working individuals are filling 
jobs that Americans just do not want under any circumstances--whether 
their location outside of major urban areas, working out of doors in 
variable weather conditions, and/or the substantial physical stamina 
required for them. Quite simply, there are not American workers 
available to fill these jobs in either the numbers or at the wage rates 
that will allow New Hampshire farm employers to profitably sustain 
their businesses.
    Although difficult and costly to utilize, some New Hampshire fruit 
operations utilize the H-2A agricultural guest worker program for 
seasonal workers. Some agricultural sectors are unable to utilize this 
program and significant reforms are necessary to make it a viable 
program for all farms.
    This following analysis is based on Census of Agriculture data for 
New Hampshire as of 2002 (http://www.agcensus.usda.gov/Publications/
2002/index.asp), and considers the number of workers employed on farms, 
farm types (some farm types have more hired labor than others), and the 
value of agricultural production.
    This report is prepared by the First Pioneer Farm Credit Knowledge 
Exchange Program with assistance from the First Pioneer Bedford Office 
and Yankee Farm Credit. First Pioneer Farm Credit, ACA serves 
approximately 8,500 customers in the states of New Jersey, Connecticut, 
Massachusetts, Rhode Island and major parts of New York and New 
Hampshire. Yankee Farm Credit serves 1,200 customers in the State of 
Vermont and parts of New Hampshire and New York. Part of the nationwide 
Farm Credit System, First Pioneer and Yankee are customer-owned lenders 
dedicated to serving farmers, commercial fishermen and the forest 
products sector.
Farm Credit Analysis on Labor Shortages
    As part of the analysis, farms are segmented based on the amount of 
wages for hired labor and subjectively assessed a degree of 
vulnerability to an immigration enforcement-only scenario (as 
determined by Farm Credit based on knowledge of New Hampshire 
agriculture). Consideration was also given to the impact of a reduction 
in the state's agricultural output on total agricultural sector 
business employment, i.e., both upstream and downstream jobs in 
addition to on-farm jobs.
    The Farm Credit analysis indicates that a prolonged severe 
disruption in labor availability as a result of enhanced immigration 
enforcement actions without new worker programs would have the 
estimated following impacts:
     Farm Numbers: Approximately 35 to 45 New Hampshire farm 
operations are highly vulnerable to going out of business or being 
forced to severely cut back their farm operations. The primary impact 
would be on greenhouse-nursery and vegetable sectors, but the fruit and 
dairy sectors would also be impacted. Farm businesses can not survive 
if they can not fully plant, cultivate, prune and harvest their 
production at the times required. Farm businesses operate with very 
narrow profit margins and can not withstand losing part of their income 
due to labor disruptions and shortages.
     Market Value of Agricultural Production: These vulnerable 
farms have total sales estimated to be in excess of $58 million. Based 
on the 2002 Census of Agriculture, this constitutes nearly 40% of the 
value of farm production in New Hampshire.
     Farm Employment: Realistically, as many as 630 FTE 
positions (Full Time Equivalents) would be impacted. This is in 
addition to the farm owner-operators.
     Farmland: These farms operate in excess of 22,000 acres. 
If these farm businesses were to cease operating, some of this acreage 
would switch into less intensive agriculture, but thousands of acres 
would be vulnerable to being discontinued from crop production and 
converted to non-farm uses.
   new hampshire: highly vulnerable farms and farm related jobs from 
                         severe labor shortages

                   (Estimated Impact--February 2008)

    Number of Farms: Approximately 35-45 farm operations
    Value of NH Ag Production: $58 million in reduced farm production
    Farmland: 22,000 acres operated by farms that are highly vulnerable
    Loss of Employment (NH); Number of Jobs (Full Time Equivalents)
    Farm 632 Agricultural Services and Input 1,703 Agricultural 
Processing and Marketing 2,682
    Total Farm Sector Employment Vulnerable: 5,017
    Farm-Related Economic Impact: The economic impact goes well beyond 
the farm-gate and could undermine, in part, the state's agricultural 
infrastructure that all farms depend on. In addition to the loss of 
farm employment, jobs would decline in the farm service.
Farm Credit Analysis on Labor Shortages
     Input, processing and marketing sectors. It is estimated 
that 4,385 jobs in farm-related businesses in New Hampshire could be 
impacted.
     Economic Activity in Local Communities: Farm owners, farm 
employees and farm related business employees expend millions of 
dollars in New Hampshire which flows through the economy as local 
purchases and downstream jobs. This economic multiplier impact creates 
economic activity outside of the farm economy and supports the local 
tax base. As local farms go out of business or cut back production and 
layoff employees, local communities will have less economic activity.
     Less Locally Grown Farm Products and More Imported Foods: 
Without the necessary labor force, we will see a significant decrease 
in local production, which will require the importation of more food 
and horticultural products from other countries. Consumers will have 
fewer opportunities to buy locally-grown farm products.
     Planning for the Future: This issue weighs heavy on the 
minds of virtually all New Hampshire farmers who employ labor. The 
tremendous uncertainty of their labor supply has a profound impact on 
their outlook for the future and their planning horizon. This can 
affect everything from whether to build a new greenhouse, to buying the 
farm next door, to encouraging the 22-year old son or daughter to come 
home to the family farm business. New Hampshire farmers need and 
deserve the opportunity to plan and invest for their farms and their 
industry knowing that a source of willing labor will be available.
For More Information
    Robert A. Smith First Pioneer Farm Credit, ACA Yankee Farm Credit, 
ACA 2668 State Route 7, Suite 21 Cobleskill, NY 12043-9707 518.296.8188
                                 ______
                                 

                   Farm Labor and Immigration Reform

            Economic Impact to New Jersey State Agriculture

    Farm businesses throughout the state of New Jersey depend on a 
stable workforce to produce a safe and reliable food supply as well as 
other horticultural products. Immigrant and guest workers have been and 
continue to be part of the workforce on farms throughout our nation.
    First Pioneer Farm Credit serves farmers and farm-related 
businesses in New Jersey and has undertaken the following analysis to 
better understand the economic impact of a farm labor shortage 
resulting from significantly enhanced immigration enforcement actions 
and no new guest workers provisions. It is estimated that nationwide 
approximately 75% of the hired farm work is unauthorized (Dr. James 
Holt statement before House Agriculture Committee, October 2007). 
Without immigrant and guest labor many farm businesses will face 
critical labor shortages.
    New Jersey agriculture includes significant production in 
vegetable, fruit, greenhouse-nursery and dairy sectors. These sectors 
can be most vulnerable to shortages of labor. The fact is that labor 
disruptions can quickly result in severe financial problems on many 
farms. Most farms simply do not have the financial resources to survive 
if they can not produce and market their products. With the increasing 
consumer demand for quality products, a delay in harvesting can also 
have a dramatic negative impact.
    New Jersey agriculture has come to rely heavily on immigrant 
workers who present the necessary identity documents and are then 
employed on the same Federal and New Jersey terms as American workers. 
This includes deducting and remitting the appropriate fiduciary payroll 
obligations on behalf of these workers. These hard-working individuals 
are filling jobs that Americans just do not want under any 
circumstances--whether their location outside of major urban areas, 
working out of doors in variable weather conditions, and/or the 
substantial physical stamina required for them. Quite simply, there are 
not American workers available to fill these jobs in either the numbers 
or at the wage rates that will allow New Jersey farm employers to 
profitably sustain their businesses.
    This following analysis is based on Census of Agriculture data for 
New Jersey as of 2002 (http://www.agcensus.usda.gov/Publications/2002/
index.asp), and considers the number of workers employed on farms, farm 
types (some farm types have more hired labor than others), and the 
value of agricultural production.
    As part of the analysis, farms are segmented based on the amount of 
wages for hired labor and subjectively assessed a degree of 
vulnerability to an immigration enforcement-only scenario (as 
determined by Farm Credit based on knowledge of New Jersey 
agriculture). Consideration was also given to the impact of a reduction 
in the state's agricultural output on total agricultural sector 
business employment, i.e., both upstream and downstream jobs in 
addition to on-farm jobs.
First Pioneer Farm Credit, ACA Your First Choice for Financial 
        Solutions
            Farm Credit Analysis on Labor Shortages
    The Farm Credit analysis indicates that a prolonged severe 
disruption in labor availability as a result of enhanced immigration 
enforcement actions without new worker programs would have the 
estimated following impacts:
     Farm Numbers: Over 500 New Jersey farms are highly 
vulnerable to going out of business or being forced to severely cut 
back their farm operations. The primary impact would be on greenhouse-
nursery and vegetable sectors, but the fruit and dairy sectors would 
also be severely impacted. Farm businesses can not survive if they can 
not fully plant, cultivate, prune and harvest their production at the 
times required. Farm businesses operate with very narrow profit margins 
and can not withstand losing part of their income due to labor 
disruptions and shortages.
     Market Value of Agricultural Production: These 500 
vulnerable farms have total sales estimated to be in excess of up to 
$475 million.
     Farm Employment: Realistically, as many as 6,200 FTE 
positions (Full Time Equivalents) would be impacted. This is in 
addition to the farm owner-operators.
     Farmland: These farms operate approximately 155,554 acres. 
If these farm businesses were to cease operating, some of this acreage 
would switch into less intensive agriculture, but thousands of acres 
would be vulnerable to being discontinued from crop production and 
converted to non-farm uses. This would be at strong cross purposes to 
the State of New Jersey's long-standing efforts to maintain farmland in 
productive agriculture.
     Farm-Related Economic Impact: The economic impact goes 
well beyond the farm-gate and could undermine, in part, the state's 
agricultural infrastructure that all farms depend on. In addition to 
the loss of farm employment, jobs would decline in the farm service, 
input, processing and marketing sectors. It is estimated that 19,500 
jobs in farm-related businesses in New Jersey could be impacted.
    New Jersey: Highly Vulnerable Farms and Farm Related Jobs From 
Severe Labor Shortages (Estimated Impact--February 2008)
    Farm Type: Vegetable 161; Fruit 89; Dairy 21; Greenhouse/Nursery 
236.
    Number of Farms--Total Farms: 508
    Value of NJ Ag Production: $475 million in reduced farm production
    Farmland: 155,554 acres operated by farms that are vulnerable
    Loss of Employment (NJ) Number of Jobs (Full Time Equivalents): 
Farm--6,198; Agricultural Services and Input--8,792; Agricultural 
Processing and Marketing--10,646
    Total Farm Sector Employment Vulnerable--25,636
Farm Credit Analysis on Labor Shortages
    Economic Activity in Local Communities: Farm owners, farm employees 
and farm related business employees expend millions of dollars in New 
Jersey which flows through the economy as local purchases and 
downstream jobs. This economic multiplier impact creates economic 
activity outside of the farm economy and supports the local tax base. 
As local farms go out of business or cut back production and layoff 
employees, local communities will have less economic activity.
    Less Locally Grown Farm Products and More Imported Foods: Without 
the necessary labor force, we will see a significant decrease in local 
production, which will require the importation of more food and 
horticultural products from other countries. Consumers will have fewer 
opportunities to buy locally-grown farm products.
    Planning for the Future: This issue weighs heavy on the minds of 
virtually all New Jersey farmers who employ labor. The tremendous 
uncertainty of their labor supply has a profound impact on their 
outlook for the future and their planning horizon. This can affect 
everything from whether to build a new greenhouse, to buying the farm 
next door, to encouraging the 22-year old son or daughter to come home 
to the family farm business. New Jersey farmers need and deserve the 
opportunity to plan and invest for their farms and their industry 
knowing that a source of willing labor will be available.
For More Information
    Robert A. Smith, First Pioneer Farm Credit, 2668 State Route 7, 
Cobleskill, NY 12043-9707; 518.296.8188. David W. Boone, ACA First 
Pioneer Farm Credit, ACA Suite 21, 9 County Road, 618 Lebanon, NJ 
08833-3028; 908.782.5215
    First Pioneer Farm Credit, ACA serves approximately 8,500 customers 
in the states of New Jersey, Connecticut, Massachusetts, Rhode Island 
and major parts of New York and New Hampshire. Part of the nationwide 
Farm Credit System, First Pioneer is a customer-owned lender dedicated 
to serving farmers, commercial fishermen and the forest products 
sector. First Pioneer Farm Credit is the leading lender to agriculture 
in the Northeast with $2.6 billion in loans.
                                 ______
                                 
                                 
                                 
                                 
                                 
                                ------                                

    Chairman Miller. Professor Sum.

 STATEMENT OF ANDREW SUM, DIRECTOR/PROFESSOR, CENTER FOR LABOR 
            MARKET STUDIES, NORTHEASTERN UNIVERSITY

    Mr. Sum. Thank you. My testimony today is predicated on the 
notion that public policy debates over guest worker programs 
and immigrant labor policy in general ought to be based on 3 
fundamental considerations, one of which is what is happening 
in overall labor markets across the country.
    Secondly, what is going on in the local labor markets in 
which H2A and H2B programs operate. To let me paraphrase the 
old Tip O'Neill remark, all labor markets are local.
    And third, what are the impacts of these programs on 
teenagers, young adults, both native born and established 
immigrants here in the United States? Who benefits and who 
loses from the operation of these programs?
    I will focus on four basis key points: First, what has 
happened in the United States to labor markets for our 
teenagers and young adults over the last 7 years? There has not 
been much said here so far by the presenters so far. The facts 
that I have indicated to you in 2 papers I provided the 
committee are as follows over the last 7 years in the United 
States we have not hired one single net knew 16 to 24-year old 
adult, not one. There are fewer people under 25 working today 
than was true in 2000. Yet at the same time, we hired 2\1/2\ 
million new immigrant workers in the United States.
    Second the teen labor market in this country reached a new 
historical low last year. Only 34 percent of teenagers across 
the country held a job at any time during the year. That was 11 
points lower than what it was in 2000. It is 15 points lower 
than what it was in 1989. And it represents as I said the 
lowest employment rate since 1948 since this data has been 
collected.
    I indicated that we also, last summer, hit a new record low 
for teenagers last summer. And our papers suggest that that 
summer will represent a new historical low for Nation's 
teenagers. The job loss has not only been confined to teens. 
Among young adults 20 to 24, employment rates have also fallen 
considerably below those in 2000. When you look at who has lost 
the most it is primarily those groups that are most competitive 
in the labor market for young immigrant workers. They are 
native born and established immigrant males, workers with no 
post secondary schooling, minority groups, second generation 
immigrants, established immigrants and minority dropouts.
    We estimate last year there would have been 2\1/2\ million 
more Americans under 25 working if we had only maintained the 
employment rates that we had back in 2000. About 6 years ago 
Secretary Chao said we will leave no worker behind. We have 
leave millions behind in this country.
    Now you might ask how are these results affected by new 
immigrants inflows? There is a growing body of evidence in the 
United States on the impact of immigrants in general on 
workers, wages, earnings and physical impacts. One of these 
issues is how the immigrant inflows affects employment 
opportunities.
    I would argue that in recent years, including the work by 
Chris Smith, an MIT and economist, George Boathouse at Harvard, 
Jeff Grogger at NBR, and staff at my center indicates that 
there is significant displacement of new immigrants on young 
U.S. workers, including established immigrants and second 
generation immigrants.
    Two main points on this. Between 2000 and 2007, there were 
3 million fewer young Americans under age 30 who held a job. 
While at the same time the Nation's employers hired 2\1/2\ 
million new immigrant workers. There is nearly a 1-for-1 trade 
off, every new immigrant worker is accompanied by one less new 
native born and established immigrant worker. Results of 
empirical analysis suggests that the greatest displacement has 
been on teens, young adults, males without post secondary 
schooling, black workers and second generation Hispanics.
    Third, having said this you might ask is there a need for 
H1B and H2B programs? My argument is there clearly is. One 
could legitimately argue that we should operate some version of 
an H2B program in a number of labor markets. Cape Cod as one 
example has a very unique set of characteristics in which 
seasonal employment dominates. Summer employment is 30 percent 
higher than what it is during the rest of the year.
    At the same time a number of our communities have been 
simply become retirement communities, with very few young 
families, few teenagers and young adults to fill the jobs. So 
on a case-by-case basis, we could argue that H2B program can 
make some contributions.
    Let me conclude in the following way, rather than cursing 
the darkness, let me light a candle. There are six things that 
I think the U.S. Congress should consider doing to help make 
immigration policy and workforce development policy more 
compatible. One, let's set a multi year limited goal for H2B 
permits. And let's have every H2B permit be accompanied by a 
fee similar to H1B. $1500 per worker to be used for youth 
training and recruitment.
    Two, all Social Security taxes and unemployment insurance 
taxes paid by employers and workers be set aside to put into a 
training fund to help recruit young and older workers to help 
fill the jobs in the future.
    Three, Federal Government must make sure that the value of 
wages, salaries, housing allowances and food allowances be set 
at market wage that are offered to every native born worker. We 
offer them a wage package equal to that.
    Four, we developed a coordinated program using cooperative 
education at the secondary and post secondary level with 
academic credit for work and summer learning. Summer should be 
a time for learning and earning in which we recruit larger 
numbers of young people to hold those jobs.
    Five, last, what we need to do as a country that cares 
about youth is set up what I call an earned income employment 
and training tax credit in which we would provide 25 percent 
bonus for all workers for every dollar they earned. It could be 
set aside for education and training to help finance a college 
education. Work and schooling should go together. Thank you.
    Chairman Miller. Thank you.
    [The statement of Mr. Sum follows:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
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    Chairman Miller. Mr. Beardall.

   STATEMENT OF BILL BEARDALL, DIRECTOR, EQUAL JUSTICE CENTER

    Mr. Beardall. My name is Bill Beardall, I am the executive 
director of the Equal Justice Center. I have represented low 
income working people for more than 30 years. And I am a 
clinical professor of law at the University of Texas Law School 
where I direct the trends national worker rights clinic. 
Through these organizations and for the last three decades, I 
have provided representation to U.S. citizens, to work 
authorized immigrants and to undocumented immigrants, primarily 
on recovery of unpaid wages and enforcement of other 
fundamental labor laws.
    Today I would like to focus on three key points about an 
additional way in which Federal programs have failed to support 
the job opportunities, wages and working conditions for U.S. 
workers, not only in guest worker programs, but in the broader 
labor market.
    First, our Federal Government's failure to enforce wage 
laws and other employment protections for all workers has had 
the effect of increasing the exploitation of undocumented 
workers and thereby depressing the wages, working conditions 
and job opportunities for U.S. workers.
    Second, the best and most immediately available method we 
have to sustain job opportunities and wages for U.S. workers is 
to ensure that the wage laws and other labor protections are 
fully enforced for all workers regardless of their immigration 
status.
    Third, future immigration reform legislation and guest 
worker policies are doomed to fail U.S. workers if they don't 
include full labor protections and full ability to enforce 
those labor protections for all workers, regardless of their 
immigration status.
    The failure to enforce our labor and employment laws has 
created an ironic incentive for unscrupulous employers to 
actually prefer hiring undocumented workers over U.S. workers. 
The main reason so many employers prefer hiring undocumented 
workers is because in the absence of effective Federal 
enforcement of worker protection employers know their 
undocumented workers are easier to exploit and easier to 
intimidate into silence.
    I provided the committee with a graphic illustration of the 
way that this exploitation an intimidation work in the form of 
an audio recording. A transcript is attached to my written 
testimony and the committee has the audio recording. The 
recording is a voice message left by an employer for a worker 
whose name is Gabriel. The employer had failed to pay Gabriel 
for his labor on a home construction job. The worker had merely 
returned to the work site looking for the employer hoping to 
get paid the money he was owed. I just want to read this brief 
message, but I want to apologize in advance for the foul 
language used by the employer, though it does capture the 
menacing nature of the recording and this type of intimidation.
    I am quoting from the recording now, ``Gabriel, it is''--
employer name--``I just got a call from the homeowners of the 
house that you all did work at and they said you went by 
looking for money? Gabriel, if you ever f'ing do that again, I 
will turn your f'ing brown A into INS and I will personally 
escort you to the GD border. F with me anymore and I am going 
to ruin you, Gabriel. Don't F with my anymore. You go back to 
that house and I swear to God I will take this to the next 
level and I will turn you into the sheriff's department. Good 
luck on getting any more money.'' That is the end of the 
message.
    The recording helps to illustrate how some employers use 
the workers undocumented status to exploit them. It illustrates 
why so many employers hire undocumented workers over U.S. 
workers who would not be so subject to this kind of 
intimidation and exploitation. And it illustrates the grave 
need for more vigorous enforcement of our wage laws and 
employment protections for all workers, documented and 
undocumented. And that is essential if we ever hope to uphold 
the basic employment rights and opportunities for U.S. workers. 
Thank you.
    [The statement of Mr. Beardall follows:]

  Prepared Statement of Bill Beardall, Director, Equal Justice Center

    Mr. Chairman, members of the Committee, thank you for the 
opportunity to address the critical issue of whether federal programs 
adequately protect the jobs and working conditions of U.S. workers in a 
labor market that includes high numbers of documented and undocumented 
immigration.
    I am the Executive Director of the Equal Justice Center and have 
practiced as an employment lawyer for low-income working people for 30 
years. I also serve as a clinical professor of law at the University of 
Texas Law School, where I direct the Transnational Worker Rights 
Clinic.
    The Equal Justice Center (EJC) is a privately-funded, non-profit 
employment justice organization based in Texas which helps low-income 
working men and women enforce their employment rights, especially when 
they have not been paid for their labor. In the Transnational Worker 
Rights Clinic at the University of Texas School of Law, our law 
students represent low-wage workers in cases to recover their unpaid 
wages, while pioneering new methods for protecting the wage rights of 
all workers in our transnational labor economy. Both programs represent 
low-income working people regardless of their immigration status and 
many of our clients are U.S. citizens and legal immigrants.
Summary
    In my testimony before this Committee, I would like to focus on 
three key points which I hope will assist the Committee in devising 
wise and realistic policies related to immigrant labor and protection 
of U.S. workers:
    1) Our federal government's failure to enforce wage laws and other 
employment protections for all workers has increased the exploitation 
of undocumented workers and thereby depressed the wages, working 
conditions, and job opportunities of U.S. workers.
    2) The best and most immediately available means to sustain job 
opportunities and wages for U.S. workers is to ensure that wage laws 
and other labor protections are fully enforced for all workers 
regardless of their immigration status.
    3) Future immigration reform legislation and guestworker policies 
are doomed to fail U.S. workers, if they do not include full labor 
protections and full ability to enforce these protections for all 
workers regardless of their immigration status
    The Federal Government's Failure to Enforce Wage Laws and Other 
Employment Protections for All Workers Has Increased the Exploitation 
of Undocumented Workers and Thereby Depressed the Wages, Working 
Conditions, and Job Opportunities of U.S. Workers
    This Committee has heard testimony today, and on many previous 
occasions, about the failure in our federal guestworker programs to 
ensure that U.S. workers are given full and fair opportunity to secure 
those jobs at fair wages and decent working conditions. Serious as the 
failure has been in these guestworker programs, there is another 
federal program failure that has an even larger adverse effect on job 
opportunities, wages and working conditions of U.S. citizens and legal 
work-authorized immigrants--and that is the federal government's 
failure in the broader low-wage labor market to enforce our most basic 
labor, employment, and civil rights laws. I am speaking here of the 
federal government's failure to fully and effectively enforce the 
minimum wage and overtime laws, our workplace safety laws, union and 
collective bargaining rights, and laws forbidding discrimination on the 
basis of race, national origin, and gender.
    This failure to enforce workplace protections has had the effect of 
depressing wages and working conditions for all workers--especially for 
U.S. citizens and legal work-authorized immigrants. Moreover, the 
failure to enforce our labor, employment, and civil rights laws has 
created an ironic incentive for unscrupulous employers to actually 
prefer hiring undocumented immigrants over U.S. workers. The main 
reason so many employers prefer hiring undocumented workers is 
because--in the absence of effective federal enforcement of worker 
protection laws--employers know their undocumented workers are easier 
to exploit and easier to intimidate into silence.
A Graphic Illustration of How Some Employers Use Immigration Status to 
        Exploit Workers
    I would like to illustrate how I see this harsh reality play out 
every day with a graphic example, which comes from my own practice: I 
have provided the Committee with an audio recording of a voice mail 
message that was left on the cell-phone voice mail of one of my 
clients, by his employer.
    Background to the recorded message: My client, whose name was 
Gabriel, had performed some basic landscaping labor on a home 
construction project. Gabriel came to our office because his employer 
had failed to pay Gabriel approximately $600.00 owed to him for a 
couple of weeks of work. Gabriel explained that, in his continuing 
effort to collect the wages he had earned, he had gone back to the 
worksite to look for the employer. The employer was not there, but the 
homeowner was and the homeowner asked Gabriel why he was looking for 
the employer. Upon hearing Gabriel's explanation, the homeowner, 
wanting to be helpful, said he would try to get a message to the 
employer on Gabriel's behalf. The employer apparently got the message 
and then called Gabriel on his cell phone leaving the voice message 
that is transcribed in Attachment A to this statement.
    In the voice message (Attachment A), the employer, in language that 
is both explicit and menacing, threatens to turn Gabriel over to both 
immigration authorities and local enforcement and to use Gabriel's 
perceived immigration status to ``ruin'' him. At the end of the 
message, the employer makes it clear he will continue to refuse to pay 
the worker his earnings.
    What is remarkable about this audio recording is not that the 
employer sought to intimidate the employee in this fashion; such 
threats are made, in one form or another, probably thousands of times a 
day across our nation. The only thing that makes this message unique is 
that it was captured on an audio recording and that it is so 
disturbingly explicit.
    This recording helps illustrates (1) how some employers use their 
workers' undocumented status to exploit them; (2) why it is many 
employers prefer to hire undocumented workers over U.S. workers who 
would not be so subject to intimidation and exploitation of this type; 
and (3) how more vigorous enforcement of wage laws and other employment 
protections for all workers--documented and undocumented--is essential 
if we ever hope to uphold basic employment rights and opportunities for 
U.S. workers.
    Federal Government Enforcement of Wage Rights and Other Employment 
Protections for All Workers is Vital to Sustaining Wages, Working 
Conditions, and Job Opportunities for U.S. Workers.
    It should be noted here, that under our system of employment laws, 
all workers have historically been protected by the same wage, safety, 
and labor protections--regardless of their immigration status.\1\ We 
have always observed this principle as a nation for the very sound 
reason that, if we allow one group of workers to be treated as second-
class employees with second-class employment rights, this would 
inescapably lead many employers to prefer those second-class workers 
and would thereby undermine the employment rights of all other working 
people.
    But just as important as ensuring that all workers are nominally 
covered by the same wage and other employment protections, it is vital 
to that we effectively enforce those wage and employment protections 
fully for all workers--and equally regardless of the workers' 
immigration status. So long as we continue failing to effectively 
enforce the wage laws and other employment protections for any workers, 
the special vulnerability and exploitability of undocumented workers 
will cause them to be, in effect, second class workers with second 
class employment rights and will perversely make them more attractive 
to many employers. Easy exploitation of such second-class workers 
undermines the wages and working conditions of all workers because it 
stimulates a ``race to the bottom'' competition and reduces 
opportunities for workers to protect their wages and working conditions 
through collective action.\2\
    If we are successful in returning the federal government to its 
historic role of protecting the rights of working men and women, it 
will be crucial that the responsible federal agencies enforce the laws 
vigorously for all workers, regardless of their immigration status. 
Otherwise, the differential enforcement would continue to consign 
undocumented workers and guestworkers to the status of second-class 
workers with second-class rights status and would perpetuate the 
exploitative preference for undocumented workers and the self-defeating 
adverse impact on employment opportunities and employment protections 
for U.S. workers that have been noted above.
    Future Immigration Reform Legislation and Guestworker Policies are 
Doomed to Fail U.S. Workers, if They do not Include Full Labor 
Protections and Full Ability to Enforce these Protections for All 
Workers Regardless of their Immigration Status
    Immigration reform measures and guestworker policies that do not 
have as a central element the full enforcement of full labor 
protections for all workers--documented and undocumented--will 
inevitably be self-defeating. As outlined above, the lack of wage and 
other labor protections--or equally important the ability to enforce 
these protections--gives many employers a powerful incentive to prefer 
these more tractable and exploitable employees. History teaches us that 
a willing and desperate workforce will find employers willing to take 
advantage of their availability, reduced-cost, and exploitability. This 
preference for undocumented workers is not theory. It is exactly what 
happened in the late 1980's and 1990's in response to the imposition of 
a ban on hiring unauthorized immigrants (so-called ``employer 
sanctions'') in the 1986 Immigration Reform and Control Act.\3\
    Moreover, as illustrated by the audio recording discussed above, 
without vigorous and affirmative enforcement of wage laws and other 
labor protections, many employers twist immigration law into a tool to 
intimidate or punish workers seeking to enforce their labor rights. 
Many of them knowingly violate IRCA's employment verification 
provisions to hire undocumented workers whom they know will then be 
reluctant to hold them accountable for labor law violations. As in the 
audio recording, it is common practice for these same employers to use 
the existence of the employer sanctions scheme to threaten undocumented 
workers with deportation if they do indeed complain about non-payment 
of wages or other deplorable working conditions. In other examples, an 
employer may not verify a worker's employment authorization at the time 
of hire but will conveniently remember the requirements under IRCA only 
after the worker complains of some labor violation or attempts to 
organize a union to improve their working conditions. Implementation of 
a system that only enforces hiring sanctions without increased 
enforcement and improvement of existing labor and employment 
protections will further exacerbate these problems, and create 
additional incentives for unscrupulous employers to recruit, hire and 
exploit even more unauthorized workers. This exploitation of course not 
only harms the undocumented worker, it just as surely harms U.S. born 
workers who find their job opportunities, wages and working conditions 
undermined by the incentives thus created for employers to hire and 
take advantage of vulnerable undocumented workers.
    These same dynamics are true for guestworker programs. If 
guestworkers are not protected by the full set of labor and employment 
protections, or if they are not afforded fully effective and 
affirmative government and private enforcement measures, then employers 
have a strong incentive to prefer hiring the guestworkers over U.S. 
workers--and an equally strong incentive to exploit them in ways that 
undermine job opportunities, wages and working conditions of U.S. 
citizens and permanent resident immigrants.
    In addition to increasing the opportunity for exploitation of 
vulnerable workers, an immigration policy that relies on employer 
sanctions and lacks strong labor rights enforcement will be counter-
productive for three other important reasons: First, it will create an 
economic incentive for even more employers to hire workers ``off-the-
books'' in unreported, cash-based employment relationships.\4\ Second, 
it will encourage more employers to evade employer sanctions by 
misclassifying their employees as ``independent contractors.'' Third it 
will encourage companies to interpose substandard, middleman labor 
contractors between themselves and their employees, pretending the 
workers are employees of these sham contractors and exposing the 
workers to marginal fly-by-night employment practices by the middlemen. 
All of these practices in fact increased dramatically following the 
imposition of employer sanctions in the 1986 IRCA. And all of these 
practices have harmful economic and social impacts beyond the increased 
exploitation of workers. For example, they increase our reliance on an 
unregulated cash economy; reduce the collection of payroll and income 
taxes; reduce participation in the unemployment insurance, workers 
compensation and social security safety net programs; reduce the 
ability of government regulators and workers to monitor and enforce 
basic labor protections; and reduce employers' general respect for 
operating legally and above-board. These substandard practices have an 
adverse effect on everyone in our society, but they are especially--and 
ironically--harmful for U.S. workers, whose employers will be forced to 
compete with a growing sector of businesses that are unconstrained by 
the regulatory apparatus that is supposed to protect us all and is 
designed to underpin our basic standard of living.
    Indeed it is not just unscrupulous employers who respond to the 
negative incentives created by the lack of vigorous enforcement of wage 
and employment rights. Even legitimate employers end up being compelled 
to rely more on low-cost undocumented labor and substandard employment 
practices or to contract their work out to exploitative contractors or 
suffer a competitive disadvantage and risk going out of business.
    Stronger Enforcement of Wage and other Employment Protections for 
All Workers is the Single Most Promising Strategy that is Immediately 
Available to Manage our Immigration Challenge and Support U.S. Workers
    As a practical matter, the only law enforcement approach that is 
very likely to succeed in addressing the problems associated with 
unauthorized employment in our economy is the comprehensive enforcement 
of labor and employment protections for all working people without 
regard to their immigration status. This would be by far the most 
effective way to remove employers' incentive to hire and exploit 
unauthorized workers, while also removing employers' incentive to adopt 
substandard employment practices that evade our core tax, social 
benefit, and regulatory systems. On the other hand, ramping up 
enforcement of employer hiring sanctions alone will surely do more harm 
than good, at least without vastly increased enforcement of employment 
protections for both undocumented and documented workers.
    If immigrants enjoy the same workplace protections and economic 
mobility as others, they will be less subject to exploitation at the 
hands of employers whose practices will then undermine the wages and 
working conditions of other workers. In addition, there is evidence 
that raising the wages and working conditions of low-wage workers will 
actually reduce immigration by making the existing workforce of U.S. 
workers more attractive to employers relative to undocumented 
workers.\5\ Therefore, it is imperative, for the benefit of all 
workers, to eliminate the vulnerabilities and marginalization inherent 
in the existence of a large, economically vulnerable undocumented 
workforce. In the long run the only practical way to do this is to 
enact comprehensive immigration reforms that (1) provides a 
comprehensive path to earned legal status for currently undocumented 
immigrants; and (2) provides an orderly and realistic means for the 
future flow of immigrant workers to be employed in our economy while 
upholding U.S. labor standards for all workers. But in both the short- 
and long-terms the most important step we must take is to ensure that 
all immigrants--current and future, documented and undocumented--are 
protected by full labor and employment rights and by fully effective 
status-blind enforcement of those rights.
    The U.S. Department of Labor Should Attend to Three Special Aspects 
of Its Enforcement of Wage and Hour Laws to Effectively Uphold the 
Rights of Both U.S. Workers and Immigrant Workers
    Three special points should be emphasized regarding enforcement of 
the wage and hour laws by the U.S. Department of Labor (USDOL). First, 
it is not enough for the Department of Labor to enforce wage and hour 
laws based mainly on complaints by made by employees. As noted, 
undocumented workers are particularly vulnerable to intimidation and 
have reason to be particularly reticent about enforcing their 
employment rights or otherwise making themselves visible--particularly 
to an agency of the federal government. For that reason the USDOL must 
return to aggressively exercising its traditional authority to 
undertake investigations and enforcement actions on its own initiative, 
especially in those industries where exploitation of undocumented 
workers is widespread.
    Second, it is critical that USDOL enforcement of wage and hour laws 
be carefully separated from enforcement of immigration laws by the 
Department of Homeland Security (DHS). Under a now long-standing 
Memorandum of Understanding between the USDOL and the former 
Immigration and Naturalization Service (and now with the DHS), the 
USDOL is not to undertake enforcement of immigration laws in connection 
with investigations driven by complaints from workers. That is not 
currently true however for investigations of wage violations that are 
undertaken by the USDOL on its own initiative. Nevertheless separation 
of wage and hour enforcement from immigration enforcement should be 
maintained in both types of USDOL investigation. Otherwise, workers, 
who are normally key witnesses in such cases will not make themselves 
available to assist the USDOL investigation and USDOL enforcement 
capability will be dramatically undermined, to the detriment of U.S. 
workers who depend on such investigations to uphold wage and hour 
standards for all employees. USDOL should reaffirm, update and refine 
its policies on separation wage and hours enforcement from immigration 
enforcement.
    Third, the USDOL should revise and strengthen its policies with 
respect to workers' ability to make anonymous complaints and with 
respect to keeping the identity of complaining workers confidential in 
appropriate cases. Workers' organizations and employee advocates would 
gladly cooperate with the USDOL to devise new policies that 
appropriately balance employees' need to be protected from retaliation 
by their employers against the need to properly verify the authenticity 
of complaints and ensure due process for employers. Strengthened 
policies in this area are especially vital to ensure that employers are 
not able to underpay undocumented workers to the detriment of all 
workers, including citizens and lawful work-authorized immigrants.
    The Private Right of Action is a Vital Form of Federal Enforcement 
and Should be Preserved and Strengthened in Future Labor and 
Immigration Legislation
    Since the establishment seventy years ago of the federal wage and 
hour laws, a critical component of the federal enforcement policy has 
been enforcement of the law by employees themselves, through their 
ability to enforce their rights through private actions in the courts. 
This has proven to be an indispensible aspect of enforcement which 
complements agency enforcement by the USDOL. Indeed in recent years as 
agency enforcement efforts by the USDOL have flagged, this private 
right of action has had to shoulder most of the burden of sustaining 
enforcement of the wage and hour laws and has served as the most 
effective on-going check against employer abuses of all workers, 
including U.S. workers. Moreover, the private right of action is an 
especially cost-effective enforcement tool in that it imposes very 
little direct expense on the federal government and the ordinary 
taxpayer; instead it shifts the cost of enforcement onto those 
employers who are proven to have violated the law and harnesses free 
market incentives to encourage compliance with the law.
    As the Congress considers future legislation related to guestworker 
programs and immigration reform, it should make optimum use of the 
private right of action approach, supporting the right of all working 
people to full and equal access to the courts and equal ability to 
enforce their wage rights and other employment protections regardless 
of their immigration status. This is an area in which it is 
particularly important to avoid consigning guestworkers, transitional 
immigrant workers, and undocumented workers to a second-class set of 
rights, with a consequent adverse impact on U.S. citizen employees and 
other lawful immigrant workers.
    Restrictions on the Federal Legal Services Program have Resulted in 
a Failure to Ensure that Job Opportunities, Wages, and Working 
Conditions of U.S. Workers are Protected
    The private right of action is one of the most effective, cost-
efficient, and available remedies through which working people can 
enforce their wage and hour rights. However, for most low-income 
working people the only viable avenue for obtaining legal 
representation to help them enforce their wage and hour rights or other 
labor protections, is through legal aid programs funded through the 
federal Legal Services Corporation. Yet for the last decade, these 
federally funded legal services programs have been prohibited from 
providing legal assistance to immigrant workers who are undocumented, 
or to immigrants lawfully present in the U.S. under the H-2B 
guestworker program, or to lawful immigrants residing in the U.S. under 
several other forms of immigration status. The fact that these workers 
do not have an effective means to enforce their wage and other 
employment rights has made them especially attractive to many employers 
and has fed these employers' preference for hiring these workers over 
U.S. citizens and other documented workers. This restriction on the 
federal Legal Services Corporation and its grantees turns out to be one 
of the principal mechanisms that has turned undocumented workers and 
hundreds of thousands of legally-documented into a huge underclass of 
second-class workers with second-class employment rights. And as noted 
above, the resulting exploitability of this huge underclass of workers 
has severely undermined the job opportunities, wages, and working 
conditions of all U.S. workers.
    Congress Should Enact Legislation to Eliminate the Adverse Impact 
of the Hoffman Plastic Decision on Enforcement of Labor Protections for 
All Workers, but in the Meantime Agencies Such as the USDOL Should Not 
Be Deterred from Enforcing Wage Laws and Other Labor Protections
    While it has been noted above that all workers, regardless of 
immigration status, continue to be covered under labor and employment 
protective laws, a 2002 Supreme Court decision, Hoffman Plastic 
Compounds, Inc. v. NLRB,\6\ has had a dampening effect on immigrant 
workers' ability to exercise some of their rights. The Hoffman decision 
found that undocumented workers who are illegally fired for engaging in 
union organizing activities are not entitled to receive back pay wages, 
the only really effective remedy available under the National Labor 
Relations Act (NLRA). The Hoffman decision was limited to undocumented 
workers' right to back pay under the NLRA, but employers have attempted 
to extend the scope of the decision to workers who have filed 
complaints of discrimination, minimum wage and overtime violations, 
health and safety violations, and even personal injury cases.\7\ A 2004 
Human Rights Watch report noted that ``[e]mployment law in the wake of 
Hoffman Plastic remains in flux, and immigrant workers' rights remain 
highly at risk.''\8\
    The Hoffman decision has actually undermined the employer sanctions 
system by creating a new economic incentive to hire undocumented 
workers: companies benefit if they hire undocumented workers because 
they perceive such workers as carrying reduced liability for labor law 
violations.\9\ The decision also weakens the position of authorized 
workers confronting abuse or exploitation because their undocumented 
coworkers have fewer legal avenues for redress of labor violations, 
including unlawful retaliation, and therefore they have far less 
incentive to participate in efforts to improve conditions, such as by 
serving as a witness in a sexual harassment, discrimination, or wage 
claim. Businesses that take advantage of this situation can cut legal 
corners and thereby gain a competitive advantage over law-abiding 
employers.
    Strong labor law protections for all workers can be meaningfully 
realized only if the law prohibits employers from using a worker's 
immigration status to interfere with these rights. The fear and 
division resulting from the Hoffman decision has had an adverse impact 
on all workers' rights, including the right to organize and bargain 
collectively.\10\ Hoffman also has resulted in limiting workers' access 
to the legal system, particularly since many of the cases being 
litigated arise from defendants seeking discovery into the plaintiffs' 
immigration status, which serves to chill and intimidate immigrants 
from pursuing legal claims.\11\
    For these reasons, the Congress should act to restore the 
fundamental employment rights that were diminished by the Hoffman 
Plastic ruling, rejecting the Supreme Court's supposition that our 
immigration laws ``trump'' our employment laws. As long as the Hoffman 
Plastic is the law of the land, it will undermine job opportunities and 
employment protections for U.S. workers as much or more than for 
undocumented immigrants.
    In the meantime, however, courts have continued to emphasize that 
the Hoffman Plastic ruling does not diminish the rights of any worker 
under the Fair Labor Standards Act to recover unpaid wages for labor 
they have already performed.\12\ It is especially important for the 
USDOL to vigorously enforce the wage and hour laws and workplace safety 
laws under its jurisdiction without regard both to immigration status, 
both to protect the rights of U.S. workers and immigrant workers and to 
dispel the widespread mistaken impression among many employers that 
somehow the Hoffman Plastic decision gives them a free hand to hire and 
then exploit undocumented immigrants without fear of enforcement by 
these immigrant workers.
    Expanding Sanctions on Employers for Hiring Unauthorized Workers 
and Requiring an Electronic Employment Verification System as Currently 
Proposed Would Do More Harm than Good for U.S. Workers
    The solution to our current immigration challenge lies in (1) 
reforming our immigration laws in a comprehensive and realistic way--
one that also includes strengthening our labor, employment, and civil 
rights laws, and (2) vigorously enforcing these laws. The Equal Justice 
Center does not support an expansion of the employer sanctions scheme, 
including the pending legislation that would mandate an Electronic 
Employment Verification System (EEVS), because of the way in which such 
schemes have been used to circumvent and weaken workers' rights. The 
currently pending EEVS proposals would result in negative consequences 
for workers who are U.S. citizens and work-authorized immigrants and 
they do not include basic safeguards that are necessary to deter 
employers from knowingly hiring and exploiting undocumented workers.
    As Congress considers creating a mandatory EEVS, this Committee 
must understand that an approach that relies only on enforcement of 
hiring sanctions will not solve the problems associated with 
unauthorized employment. In fact it is doomed to fail--again--as it did 
after 1986. An employment verification system has no real chance of 
succeeding unless it is also accompanied by (1) a comprehensive 
opportunity for currently undocumented immigrants to earn legal status; 
(2) a realistic opportunity for the future flow of immigrant workers to 
work in our economy with fully effective employment rights; (3) 
vigorous, status-blind enforcement of our nation's labor and employment 
laws for U.S. workers, documented immigrant workers and undocumented 
immigrant workers alike.
    It is in this context that we ask Congress to consider an approach 
to immigration worksite enforcement that doesn't rely only on 
enforcement of hiring sanctions, but also addresses the way in which 
immigration law often ``trumps'' labor law. Without addressing this 
problem, an enforcement-only policy will be counter-productive because 
it will not address the economic incentive that employers have to hire 
undocumented workers through subterfuges that entirely bypass out 
system of basic wage and employment protections, including moving into 
the underground economy, misclassifying workers as independent 
contractors, and using sham subcontracting arrangements.\13\
    This last point is critical: the main effect of the EEVS proposals 
currently pending in the Congress will likely be to encourage many 
employers to evade the EEVS system by misclassifying their employees as 
independent contractors or by pretending that their employees are 
employed by some fly-by-night, sham entity. Since and employer would 
only be responsible for verifying its own employees under the EEVS, 
this simple evasion, based on sham mischaracterization of the workers' 
employment status, would sidestep the intended purpose of the EEVS. 
This has already been one of the primary consequences of the IRCA 
employer sanctions and the current EEVS proposals would merely 
intensify this effect. Moreover, when we induce employers to 
mischaracterize the true employer-employee status of their workers, we 
deny the working men and women of our nation the basic employment 
protections which apply to employees but not to independent 
contractors--protections like the minimum wage, overtime compensation, 
unemployment insurance, workers compensation.
    There is also another simple device many employers would be given 
an incentive to use to avoid the pending EEVS proposals. Just as the 
IRCA employer sanctions have done, the pending EEVS proposals would 
encourage many employers to simply conduct their employment 
relationships entirely off-the-books in an underground cash economy, 
often without even bothering to characterize the worker as an 
independent contractor since no payroll records or reporting are done 
anyway.
    The ease with which the simple evasions can be accomplished serves 
to point out again how no scheme of immigration control--even the most 
carefully crafted--can be successfully and constructively implemented 
unless they are accompanied by comprehensive and vigorous enforcement 
of labor and employment laws as an integral component of the scheme.
    In addition, to protect U.S. workers and authorized immigrants, who 
will all be required to comply with any mandatory EEVS system, any EEVS 
legislation should include safeguards--not found in the current 
proposals--to ensuring that: (1) The EEVS requirements are phased in at 
a realistic rate after meeting objective benchmarks for database 
accuracy, privacy, and employer compliance with system requirements; 
(2) The EEVS requirements will apply only to new hires; (3) Enforceable 
measures are in place to prevent employer misuse of the electronic 
database to discriminate or retaliate against workers; (4) Workers have 
due process protections against erroneous determinations; (5) Strict 
privacy and identity theft protections are in place; (6) There will be 
independent monitoring and reporting on the accuracy and integrity of 
the system and on any employer misuse of the system; (6) Employees will 
have realistic flexibility in the documents they can provide to 
demonstrate that they are work-authorized; (7) Newly legalized 
immigrant employees will show up in the verification system; and (8) 
The Social Security Administration and apparatus will not be diverted 
from its core function of providing a social safety net for workers who 
retire or become disabled.
Conclusion
    In our legitimate efforts to uphold job opportunities and 
employment protections for U.S. workers in our now thoroughly global 
economy and labor market, it is critical to remember that enforcement 
measures intended to control undocumented immigration may instead have 
the unintended and counter-productive effect of encouraging many 
employers to hire and exploit of undocumented immigrants. Moreover, in 
the real world labor market, the unchecked exploitation of undocumented 
immigrants depresses the wages and working conditions of U.S. workers 
and undermines the integrity of our system of employment laws. The only 
effective method for upholding job opportunities and employment 
protections for U.S. workers is to vigorously and comprehensively 
enforce our wage laws and other employment protections for all workers, 
regardless of their immigration status. While comprehensive enforcement 
of employment laws is not a magic bullet that will solve the entire 
immigration challenge, it is the most effective method currently 
available for dealing with that challenge--and no approach to the 
immigration dilemma can succeed without comprehensive enforcement of 
the employment rights of all workers in our economy.\14\

                              ATTACHMENT A

Transcript
    Voice message left by an employer on the cell phone of an employee 
who was seeking to be paid for his labor, Austin, Texas--June 2004, 
(see background following the transcript)

          ``Gabriel, its _____. I just got a call from the homeowners 
        of the house that y'all did work at and they said that y'all 
        went--that you went by looking for money. Gabriel, if you ever 
        f __ing do that again, I will turn your f __ing brown ass into 
        INS and I will personally escort you to the g __d __ border. F 
        __ with me anymore, and I'm gonna ruin you, Gabriel. Don't f __ 
        with me anymore. You go back to that house, and I swear to God 
        I will take this to the next level and I will turn you in to 
        the Sheriff's department. Good luck on any--on getting--on 
        getting any more money.'' [end of message]
Background
    Employee, Gabriel, had performed some basic landscaping labor on a 
home construction project in Austin, Texas. Gabriel came to the Equal 
Justice Center, office because his employer had failed to pay Gabriel 
approximately $600.00 owed to him for a couple of weeks of work. 
Gabriel explained that, in his continuing effort to collect the wages 
he had earned, he had gone back to the worksite to look for the 
employer. The employer was not there, but the homeowner was and the 
homeowner asked Gabriel why he was looking for the employer. The 
homeowner, wanting to be helpful, said he would try to get a message to 
the employer on Gabriel's behalf. The employer apparently got the 
message and then called Gabriel on his cell phone leaving the voice 
message that is transcribed above.

                                ENDNOTES

    \1\ An important, but still-limited, recent exception to this 
principle is the U.S. Supreme Courts holding in Hoffman Plastic 
Compounds v. NLRB, 535 U.S. 137, 122 S.Ct. 1275 (2002). See further 
discussion of this ruling and its consequences below.
    \2\ See, for example., Amy M. Traub, PRINCIPLES FOR AN IMMIGRATION 
POLICY TO STRENGTHEN & EXPAND THE AMERICAN MIDDLE CLASS: 2007 EDITION 
(Drum Major Institute for Public Policy, 2007), available at http://
drummajorinstitute.org/immigration/; Jennifer Gordon, TESTIMONY BEFORE 
THE SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY, AND CLAIMS, COMMITTEE 
ON THE JUDICIARY, U.S. HOUSE OF REPRESENTATIVES (Fordham University 
School of Law, June 21, 2005), available at http://judiciary.house.gov/
OversightTestimony.aspx?ID=431.
    \3\ Donato, K. M., J. Durand and D. S. Massey. 1992. Stemming the 
Tide? Assessing the Deterrent Effects of the Immigration Reform and 
Control Act, Demography 29: 139-158.
    \4\ See Jim McTague, ``The Underground Economy: Illegal Immigrants 
and Others Working Off the Books Cost the U.S. Hundreds of Billions of 
Dollars in Unpaid Taxes,'' THE WALL STREET JOURNAL CLASSROOM EDITION, 
April 2005, http://wsjclassroom.com/archive/05apr/econ--
underground.htm; Lora Jo Foo, ``The Vulnerable and Exploitable 
Immigrant Workforce and the Need for Strengthening Worker Protective 
Legislation,'' YALE LAW JOURNAL, 103 Yale L.J. 2179, May 1994, 
available at www.wiego.org/papers/FooImmigrantWorkers.pdf.
    \5\ ``How L.A. kept out a million migrants'' Ivan Light, Los 
Angeles Times, April 16, 2006.
    \6\ 535 U.S. 137, 122 S.Ct. 1275 (2002).
    \7\ See, e.g., cases where Hoffman has been expanded to deny 
immigrant workers basic employment and labor rights: Crespo v. Evergo 
Corp., N.J. Super. Ct. App. Div. No. A-3687-02T5 (Feb. 9, 2004) 
(denying victim of pregnancy discrimination back pay, economic damages 
for emotional distress); Renteria v. Italia Foods Inc., N.D. Ill., No. 
092-C-495 (Aug. 21, 2003) (workers fired for filing an overtime pay), 
see www.nilc.org/immsemplymnt/emprights/emprights067.htm; Majlinger v. 
Casino Contracting, et al., 2003 N.Y. Misc. LEXIS 1248 (Oct. 1, 2003) 
(workers' compensation denied to injured worker), see www.nilc.org/
immsemplymnt/emprights/emprights072.htm.
    \8\ BLOOD, SWEAT, AND FEAR: WORKERS' RIGHTS IN U.S. MEAT AND 
POULTRY PLANTS (Human Rights Watch, 2004), www.hrw.org/reports/2005/
usa0105/.
    \9\ See, for example, Christopher Ho and Jennifer C. Chang, 
``Drawing the Line After Hoffman Plastic Compounds, Inc. v. NLRB: 
Strategies For Protecting Undocumented Workers in the Title VII Context 
and Beyond,'' HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL, Vol. 22:473, 
2005, available at http://www.hofstra.edu/pdf/law--labor--Ho--Chang--
vol22no2.pdf.
    \10\ id.
    \11\ See Rivera et al., v. Nibco, Inc., 364 F.3d 1057 (9th Cir. 
2004) (upholding a protective order prohibiting the disclosure of 
plaintiffs' immigration status noting that ``while documented workers 
face the possibility of retaliatory discharge for an assertion of their 
labor and civil rights, undocumented workers confront the harsher 
reality that, in addition to possible discharge, their employer will 
likely report them to the INS and they will be subjected to deportation 
proceedings or criminal prosecution'').
    \12\ E.g., Ponce v. Tim's Time Inc., 2006 WL 941963 (N.D. Ill., 
2006); Galaviz-Zamora v. Brady Farms, 230 F.R.D. 499 (W.D. Mich. 2005); 
Bernal v. A.D. Willis Company, Inc., No. SA-03-CA-196-OG (W.D. Tex., 
San Antonio Div., April 1, 2004, unpublished order denying motion to 
compel); Renteria v. Italia Foods, Inc., 2003 WL 21995190 (N.D. Ill. 
Aug. 2, 2003); Flores v. Amigon, 233 F.Supp.2d 462 (E.D.N.Y. 2002); 
Zeng Liu v. Donna Karan International, Inc., 207 F.Supp.2d 191 
(S.D.N.Y. 2002);, citing In Re Reyes, 814 F. 2d 168 (5th Cir. 1987); 
Flores v. Albertsons, Inc. 2002 WL 1163623 (C.D. Cal. April 9, 2002); 
Singh v. Jutla, 214 F.Supp.2d 1056 (N.D. Cal. 2002); Cortez v. Medina's 
Landscaping, No. 00 C 6320, 2002 U.S. Dist. LEXIS 18831 (N.D.IL. Sept. 
30, 2002).
    \13\ See fn. 4 supra.
    \14\ I wish to acknowledge the National Immigration Law Center for 
its contribution to much of the analysis, content, and research 
included in this statement.
                                 ______
                                 
    Chairman Miller. Thank you very much to you all of you for 
your testimony. Part of the discussion has been on proposed 
regs. I would like to raise an issue and I would like to see if 
Secretary Sequeira, whether you want to testify or Dr. Carlson 
and Mr. Goldstein back and forth. And that is this question 
about changing the calculation of the wages. It appears to me 
that an employer would be allowed to pick one of four 
categories of wages, but the bottom category, the lowest wage 
would reflect what local farm workers are paid in the area. I 
hope I am phrasing this correctly, correct me if I am not, but 
it would seem to me that allows for the inclusion of illegals, 
undocumented workers in that pool in calculating the wages. My 
sense tells me that that is somewhat of a depressed wage. And 
if you pick that, any idea that you are going to get American 
workers in any numbers to come to those jobs would be farm 
workers or others, they will go look somewhere else for a 
different wage. Can you comment on this?
    Mr. Sequeira. Mr. Chairman, the Department's proposal 
related to the wage is simply a change, we have proposed to 
change the methodology by which those wages are calculated.
    Chairman Miller. I got that much.
    Mr. Sequeira. And we would rely on the Bureau of Labor 
Statistics, Occupational Employment Statistics Program, which 
is the most comprehensive survey the Federal Government does 
outside of the U.S. census. It provides very robust data on 
wages at very precise geographic localities as well as by skill 
level and occupation. It is much more precise than the current 
survey data that is done by the Department of Agriculture.
    Chairman Miller. But it would include the wages paid to 
those with undocumented workers who are working in that area?
    Mr. Sequeira. I think the Bureau of Labor Statistics data 
there is a possibility that it could include data from 
undocumented workers just as the current survey used by the 
Agriculture Department could capture wage data from 
undocumented workers.
    Chairman Miller. Mr. Goldstein?
    Mr. Goldstein. The wage proposal is actually very, very 
complicated. It took us 30 pages in consultations with economic 
experts and other outside help to figure out what the proposal 
really would mean. The current H2A wage rate, the adverse 
effect wage rate, is based on a survey that the U.S. Department 
of Agriculture has been doing for years. They survey basically 
all non supervisory farm workers. It includes undocumented 
workers. And so the wage required by the H2A program currently 
is depressed by the presence of undocumented workers.
    The Department of Labor is proposing to switch the survey 
from the U.S.D.A. farm labor survey, which is very highly 
regard for what it does, to the Bureau of Labor Statistics 
occupational employment survey. It does not survey farms. So 
the idea that this is a more precise survey to us really is 
very, very inaccurate. It only surveys companies that support 
agricultural production. It does not survey farms. What does 
that mean? Well, mostly it is surveying farm labor contractors 
who are known to be hiring undocumented workers in much higher 
percentages than the farmers. And so you are focusing on 
undocumented workers. So the results of the wage survey will be 
even lower than they are now for that reason and about five 
others.
    Chairman Miller. Before I will run out of time here, if you 
both respond, how do you square that with the history of making 
sure you do not adversely affect the wages of U.S. farm 
workers?
    Mr. Goldstein. Well, it has always been understood that you 
are not supposed to allow H2A employers to offer wages at 
levels that only undocumented workers and guest workers will 
accept. We have gotten away from that a little bit. What they 
are proposing would be a fundamental change that would slash 
the wage rates to basically what undocumented workers are 
willing to accept.
    Chairman Miller. Secretary Sequeira?
    Mr. Sequeira. The Department's proposal to use OES data 
from the Bureau of Labor Statistics is much more precise, much 
more accurate at providing market based wages at the local 
level to specific occupations.
    Chairman Miller. If that market has a heavy reliance on 
undocumented workers, are we are going to translate that into 
the wages of other farm workers?
    Mr. Sequeira. Well, Mr. Goldstein seems to be suggesting 
that farm worker contractors are more likely to violate the law 
by hiring U.S. Workers, but then when contacted by the Bureau 
of Labor and Statistics, they are willing it provide truthful 
data that they are supplying a substandard wage for those 
undocumented workers. I am not sure that that necessarily 
follows. The OES data is reliable and statistically valid. It 
is certainly better at getting accurate wages at a local level, 
more accurate than the U.S. Department of Agriculture survey, 
which Mr. Goldstein readily admits probably includes illegal 
farm labor.
    Chairman Miller. Thirty seconds.
    Mr. Goldstein. There would have to be a lot more 
information provided in the Federal Register notice than DOL 
provided to figure out whether this a statistically valid 
methodology, it is not explained.
    Chairman Miller. Mr. McKeon.
    Mr. McKeon. Thank you Mr. Chairman. This has been, I think, 
very enlightening and it gives me a little reason to know why 
we haven't passed legislation. You see it is emotional, it is 
adversarial and we just don't seem to want to come together to 
really get a grip on this.
    Mr. Secretary, how many people, bodies do you have in the 
Department to oversee some of the cases that we have heard 
about? How many people do you have investigating claims of 
taking advantage of people?
    Mr. Sequeira. I will have to defer to Dr. Carlson who 
oversees the office, the processes of these applications.
    Mr. McKeon. Approximately.
    Mr. Sequeira. Although--is your question with regard to 
overseeing applications?
    Mr. McKeon. How many people.
    Mr. Sequeira. Overseeing applications or subsequently when 
workers are in the country, how many people are involved in 
enforcement?
    Mr. McKeon. Let's say the number of people investigating 
complaints to see if laws are being violated.
    Mr. Sequeira. The wage-an-hour division within the 
Department of Labor investigates compliance with the H2A. There 
are about 750 wage-an-hour investigators.
    Mr. McKeon. 750?
    Mr. Sequeira. Yes.
    Mr. McKeon. Mr. Young, you represent a national 
association, a lot of the growers. Do you have an idea how many 
growers, farmers around the country we have that are employing 
people to bring in the crops, plant the crops?
    Mr. Young. How many employers?
    Mr. McKeon. No, how many growers. I understand there are 
employers that employ workers and bring them to the fields, but 
how many growers do we have, farmers?
    Mr. Young. I don't know on a national basis how many there 
are. I mean, our association has 200 farmers that are involved 
in using the H2A program.
    Mr. McKeon. Two hundred farmers?
    Mr. Young. That is just in the New England area, And it is 
not a 100 percent usage. There are some growers in the Vermont 
area that are not a member of our association.
    Mr. McKeon. Do you visit with other associations? Do you 
have an idea how many there are, say, in California?
    Mr. Young. The H2A program has been historically located 
pretty much on the east coast: New York, New England, Virginia, 
and Florida. It is only in the last 10 years that it has 
expanded to the west coast, and that pretty much has coincided 
with the shortage of agricultural workers that is developing in 
the country.
    The question that was asked about the wage and hour----
    Mr. McKeon. I kind of got the feeling from some of the 
testimony that all growers are corrupt and that they are trying 
to take advantage of people. I really doubt that that is the 
case. But if that were the case, and we have got 700 people 
trying to ferret out these cases and trying to solve this 
problem, it seems to me that it is impossible.
    Professor Sum, you indicate that basically young people 
aren't working anymore in these jobs, and almost that they are 
not working anymore, period. Is that true?
    Mr. Sum. That they are working less than ever before, but--
--
    Mr. McKeon. Do you know why?
    Mr. Sum. Well, sir, a number of our surveys suggest that 
large numbers of young people do in fact look for work and 
can't find work, and, shortly after not being able to find 
work, withdraw from active participation. But when they are 
asked whether they look for work, many young people themselves 
report much higher unemployment than is true, that we will find 
from our BLS Labor Report Surveys which I, by the way, have 
many of my statistics from.
    But one thing I would say, Mr. McKeon, though, is this. If 
you look across the country at the likelihood that young people 
work during the given year, including teenagers, that you will 
find--if I take you to Iowa, North Dakota, South Dakota, 
Montana, Minnesota, Wisconsin, you will find 55 to 60 percent 
of the young people in those States working. If I take you to 
California and New York and New Jersey, you will find 20 to 15 
percent of its young people working.
    What I find is a strong correlation between the work rate 
of teenagers in the State and the fraction of that State's 
population that consists of new immigrants. The lower the share 
of new immigrant workers in the State, the consistently higher 
the share of young people working, and the effects are 
consistently high. So this is only one factor. But immigration 
has played one role in driving down the rates of work, because 
employers have largely substituted immigrant workers, including 
older immigrant workers, for teenagers, whether they are first- 
or second-generation.
    Mr. McKeon. The country is changing.
    I see my time is up, Mr. Chairman. Thank you very much.
    Chairman Miller. Thank you.
    Ms. Woolsey. Thank you, Mr. Chairman.
    There is this big question, in my mind anyway, and maybe 
you have the answer to it, before we get into H2A visas or H2B 
programs. Is there a need for immigration in this country as 
workers, because we don't have enough U.S. workers? Question 
one. Or, is it because we want to have a lower wage workforce? 
Or, if wages were higher, if housing was improved, if 
relocation was at least provided, if not paid, to move work 
seasonal workers from one area to another, would we not then 
have our teens working and would we not have our legal 
immigrants doing--and our own people working as well? Not that 
legal immigrants aren't our own people. That was not correct. 
But what is the need here? Mr. Goldstein.
    Mr. Goldstein. Look, we are in the situation we are in; 50 
to 70 percent of farm workers are undocumented. We have got to 
do something now to address the need. But getting a little more 
directly to your point, if you look at the history of objective 
analysis of agriculture from the time of the Commission on 
Country Life--which made recommendations to President Teddy 
Roosevelt--to the President's Commission on Migratory Labor in 
1951, to the Commission on Agriculture Workers in 1982, they 
all say the same thing and they all say they are saying the 
same thing as the last report. And that is, agribusiness has to 
stop relying on new waves of foreign workers. It needs to 
improve wages and working conditions and modernize labor 
relations to make workers more productive, to make agriculture 
more productive, and to stabilize the workforce. And we are not 
doing that.
    But having said that, we are in the situation we are in. We 
need to do something to address the current needs. Employers 
are hiring undocumented workers; they are working hard, they 
are doing these jobs. They are often paying taxes. We need to 
legalize them. We need to give them a chance to earn legal 
immigration status, and we need to come up with a balanced 
solution to the issue of these H2A program regulations.
    And John Young and I are both saying--we don't agree on 
almost anything else--we are both saying we have a solution for 
you. It is ag jobs.
    Ms. Woolsey. Mr. Young.
    Mr. Young. I think the thing we have to be careful of is 
that if we increase costs of growing and harvesting our food in 
this country to a higher level, we will not be producing the 
food here. We are in a global economy. I am not an economist 
and Mr. Holt is not here to testify today; I believe he has 
testified many times that there is a level at which production 
ceases, and the apples are brought in from Chile or South 
Africa, and we will just shift our production. Too much 
enforcement will drive employers over the border into Mexico. 
And that is happening right now. There are several large 
agricultural employers that have shifted large pieces of their 
production from California and Arizona into Mexico.
    So, it is a very, very tight rope that we walk here. But, 
as Mr. Goldstein said, we believe that ag jobs are the answer 
because it is a three-pronged method of solving the immigration 
problem.
    Ms. Woolsey. Well, you don't think that new influx of ag 
workers will then become the next group of illegal farm 
workers? I mean, that they will go underground. They are not 
going to go home.
    Mr. Young. The H2A workers do not traditionally go AWOL. We 
have 2,000 workers that come in every year, and over the last 
10 years, our average is less than 20 workers that go AWOL a 
year, and in most years it is in the numbers of 10.
    If we have a working program and a program that people can 
be assured that they will have a chance to come back year after 
year, they do not go AWOL and go into the underground.
    Ms. Woolsey. Anybody else want to respond to that?
    Mr. Riojas. I come from Texas, and it is known as the labor 
surplus State. It is the home base for a lot of migrant 
workers. And I see that the employers who really want to get 
the Texas workers advanced transportation, the employers who 
want to get foreign guest workers want the workers to bear that 
cost. And so if the employers truly want those U.S. workers, we 
should think about amending the regulations to require advanced 
transportation. They are required to reimburse them at the end 
of the season anyway. Why not just give it to them up front?
    Ms. Woolsey. Thank you, Mr. Chairman.
    Chairman Miller. Thank you. Mrs. Biggert.
    Mrs. Biggert. Thank you, Mr. Chairman.
    My first question would be for Mr. Young. Do you use the E-
Verify program at all to check the legal status of workers?
    Mr. Young. There are two answers to that. The Association 
of New England Apple Council does not. Some of our members do, 
but most of them do not.
    Mrs. Biggert. Is there a reason for that?
    Mr. Young. The major reason is that the program is not 
going to produce the intended results at this point. We would 
know that, for instance, all of our H2A workers are not in the 
database. And if we were to have employers enter into use of 
the system without doing the verifying on their H2A employees, 
it would open them up to possible litigation and 
discrimination.
    Mrs. Biggert. The E-Verify program, I think, is going to go 
mandatory, or that is what has been proposed. So how could we 
improve the program?
    Mr. Young. The database has to be not only accurate but it 
has to be immediate. We have to know who comes through the 
border that day, and it has to be in the system so that by the 
time the worker gets from the Mexican border or from the entry 
in Miami to Hartford, Connecticut, we can tell just like that. 
That does not exist today.
    Mrs. Biggert. Mr. Secretary, I would pronounce your last 
name but I don't think I can. When an employer wants to use the 
H2A or the H2B workers, they are required to certify that there 
are an insufficient number of U.S. Workers available for the 
work. So if I am an employer, what do I have to do to certify 
that there is an insufficient number?
    Mr. Sequeira. I believe Dr. Carlson could probably provide 
the most comprehensive explanation.
    Mr. Carlson. Yes. Certainly before an employer can apply 
for guest workers under either program, they have to satisfy 
the labor market test. And the two programs are slightly 
different in their requirements; and that documentation is 
something that is reviewed by the applicable State workforce 
agency, and then Federal staff through one of our centers.
    Mrs. Biggert. As a business owner, what would I do to out--
how would I do that?
    Mr. Carlson. It begins with advertisements, typically 
newspaper ads. We have a national public workforce system, a 
one-stop system where job orders are placed both intra, within 
the State, and interstate job clearance systems. So anyone 
going into an employment service, a one-stop center across our 
country, would be apprised of these job openings and make them 
available to workers.
    We do newspaper ads. It depends in part--on the H2B 
program, for example, if the work is customary to the industry, 
that there is a labor union, jobs, there are notification 
requirements there. The H2A program, we may use radio spots. 
The traditional labor supply States of which there are four, we 
will refer employers there to post and recruit. With the 
different programs, they are sort of structured slightly 
different, depending on statute and regulations.
    But the intent is certainly--and we take it very 
seriously--that employers duly consider U.S. workers and 
legitimately recruit them prior to moving on in the immigration 
process.
    Mrs. Biggert. So if there is an investigation, you go in 
and you look at the documentation that an employer has made on 
each worker to certify that?
    Mr. Carlson. I wish we had both the resources and the time 
to be able to literally go in. It is typically, given the 
volume and the national focus, information is provided to 
either the State and then us, shipped in for our review. So we 
are relying on the veracity of the information that we 
typically receive, unless we have some reason to question, for 
which we will request additional information, initiate an 
audit, those kinds of things where we have concerns about an 
application.
    Mrs. Biggert. So are there any incentives for me as an 
employer to adequately search out American workers when I could 
just apply for a guest worker?
    Mr. Carlson. I think there are. The H2A program, and, 
clearly, Congress has been dealing with that, and you all with 
the H2B, with no returning workers. You need talented workers, 
the domestic labor market of testing workers there. Some of the 
other presenters have mentioned that it is cheaper to have 
domestic workers in your area of intended employment as opposed 
to getting into what may be international recruitment costs, 
transportation costs, other issues like that.
    So, yes, certainly I would suggest from an employer's 
perspective, a number of reasons why I would want to fully 
consider U.S. workers first.
    Mrs. Biggert. Thank you. I yield back.
    Chairman Miller. Mrs. McCarthy.
    Mrs. McCarthy. Thank you, Mr. Chairman.
    Let me first say that I happen to think that we should be 
doing whatever we can to make sure that American workers fill 
the jobs that are there. But I am going to change the 
conversation a little bit. My concern is the shortage of nurses 
in this country. And I think any statistic, it doesn't matter 
where you are in this country, we have a shortage. And yet, and 
I know working with the State Department but also the 
Department of Labor has a hand in this, that it takes a 
hospital--and I will talk about South National Community 
Hospital. They are waiting now over 2 years to have 200 nurses 
come in. And it is not just for their hospital. They actually 
spend the time and the money with the resources from other 
hospitals to train them, make sure they pass the State boards 
to fill these needs throughout Long Island, and throughout the 
country, to be honest with you.
    We need to do something a little bit better. They have gone 
through the pipeline. We hopefully, through the Higher 
Education Act, we have solutions in that legislation to train 
more nurses in this country with our citizens. But up to that 
time, I would like to know through Mr. Sequeira on why we are 
having such a problem on bringing trained nurses into this 
country. They have to pass the State boards, they have to go 
through the clinical. The hospitals pay them the same pay as 
any of our other nurses do, but yet we can't. If you don't have 
a healthy Nation, you are not going to have basically a healthy 
county, and we need this right now.
    Mr. Carlson. A very good question. One of the programs that 
we administer, the Permanent Labor Certification Program, the 
Green Card Program, the Department of Labor has very much 
recognized the point you made; in addition to nurses, physical 
therapists, we have in essence declared that there is a 
national workforce shortage. And those applications filled by 
hospitals and others immediately skip the Department of Labor 
and go to the Department of Homeland Security for filing. We 
have recognized that there is indeed a labor market shortage 
and it is national in nature.
    Mrs. McCarthy. With that being said, I know it goes through 
the Department of Homeland Security also. But with the 
background checks and everything else, when we have, in my 
opinion it is a crisis in this country right now on all health 
care workers, that there has got to be a faster way of having 
them go through security, having them go through the background 
checks. Obviously, this is something that the Department of 
Labor and the State Department and Homeland Security should be 
putting as far as a priority until we pass legislation and can 
get more nurses through our own universities to graduate. We 
have plenty of people, Americans, that want to be nurses; 
unfortunately, it is a two-pronged problem: We don't have 
enough professors to teach the nurses.
    So I am hoping, what do you suggest that we as this 
committee could do to try and clarify this so that we can start 
getting these particular nurses from the foreign countries to 
come into work so that we can have this crisis at least 
manageable?
    From what I understand from my hospitals, if we started 
tomorrow, it is a 2-year process to get the nurses in, go 
through the training that they need to have to get on to the 
floor. That is a real problem. And you wonder why there are so 
many mistakes being made in our hospitals; because our nurses 
can't handle the work anymore, because they are working double 
shifts, they are asked to come in on their day off. This is not 
healthy.
    Mr. Sequeira. Let me just say, I understand certainly your 
concerns. And as Dr. Carlson said, the Department of Labor is 
really, with regard to nurses, out of the process. We have 
declared that there is a national shortage so they skip that 
step. I think your concerns about processing times are shared 
among many, and it is a problem in various visa programs with 
the Department of Homeland Security and with the Department of 
State. Unfortunately, I am not prepared to comment on their 
processes because I am not familiar.
    Mrs. McCarthy. I understand that. But being that you know 
it is a national crisis, we know we have a problem with 
departments talking to other departments, isn't there a 
possibility being that there is a national crisis here in this 
country on that, that you could all get together and come up 
with a solution or come to us and ask us what can we do to have 
a solution come forward?
    Mr. Sequeira. I am certainly happy to speak with my 
counterparts at Homeland Security and State about that. I am 
not sure. They may have emergency procedures that they could 
institute. Again, I am just not familiar enough with internally 
how they process these; but that might be something worth 
looking at.
    Mrs. McCarthy. I would appreciate if you would follow up 
with me on any correspondence you have with them and what I 
need to do to follow up. Because we write letters; even in 
January wrote a letter, and we just got a response now. And the 
same thing that 2 years ago when we started talking about that, 
nothing is being done. But it is a health care crisis in this 
country. You all know it. And I think it is up to the 
Department of Labor to push to say the shortage is only getting 
worse.
    I yield back the balance of my time.
    Chairman Miller. Mr. Ehlers.
    Mr. Ehlers. Thank you, Mr. Chairman. First of all, I just 
want to register my agreement with the comments of Mrs. 
McCarthy. It is a national problem. We face the same difficulty 
in our area, and I believe it is everywhere within the country.
    In regard to the issue before us, I just want to offer a 
slightly different perspective from the apple growers in my 
district. And I have quite a few of them, not as many as Mr. 
Young represents, but I think they grow better apples than are 
grown in New England. But the problem they have is getting 
anyone to come and pick their apples, and it has become a major 
problem to them.
    Last year, they showed me pictures of bushels and bushels 
of apples strewn around the grounds simply because they hadn't 
been able to get anyone to pick them. Their normal crews had 
always come up from Texas. They were on a regular cycle. They 
come up and pick the apples and move on and deal with other 
crops elsewhere, and that seems to have stopped. And I suspect 
it may be because we have cracked down on the number of people 
coming across the border improperly, so there is just a general 
shortage. So they did what everyone says we should do: They 
tried to hire students. They advertised; they didn't get enough 
response, and the ones they got were not nearly as good as the 
pickers who normally did it. They would drop apples, they would 
bruise them and so forth.
    They went through the Michigan Unemployment Security 
Commission trying to get unemployed people to come out. The 
same problem. They didn't work very well, they didn't do the 
job right, and they generally only worked a day or two and 
left.
    So I just wanted to mention that. I am not asking you to 
solve that problem here, but I wanted you to be aware of that 
in another section of the country there is a very substantial 
problem and no obvious solution to it. It is hard for them. 
These are generally smaller farmers, and it is hard for them to 
prove that they can't get employees, because they can. They 
hire them; they work for 2 days, at most a week, and they just 
don't come back. And it is hard to prove that there is no labor 
available because if they advertise, they do get laborers, but 
they don't work out. So it is just a different dimension.
    I am not asking for any responses. I just wanted you to 
hear that from the best apple growers in the country. Thank 
you.
    Chairman Miller. Thank you. Mr. Grijalva.
    Mr. Grijalva. Thank you, Mr. Chairman, and thank you for 
this hearing.
    As the son of a brassero that came to this country under 
that--some call it notorious program, which it was--I hope that 
as we look at these proposed regulations, that we are not 
sliding back into those dark ages; and, that the Department of 
Labor considers not only the proposed regulation but the 
history of abuse and the history of exploitation of workers 
across the pages of the history of this Nation.
    But if I may, Mr. Beardall, let me ask you. In the past, I 
think you testified before Congress about the failures or the 
narrowness of talking only about enforcement only when it comes 
to the issue of immigration. You spoke about your concerns of 
the mandating of E-Verify and the homeland no match. I come 
from the State of Arizona that is on the, I consider, 
potentially very dangerous experiment with this. But can you 
just quickly talk about those concerns of enforcement only and 
the legislation that is being talked about in Congress which 
would mandate E-Verify for the entire Nation as a Federal 
mandate.
    Mr. Beardall. I believe that ramping up the existing 
employer sanctions and requiring tighter verification, at least 
in the form that is proposed in E-Verify, will do more harm 
than good for U.S. workers. And the biggest reason for that is, 
just as happened over the last 20 years with the employer 
sanctions generally, E-Verify would only push more and more 
employers to take their workers outside the whole scope of our 
employment protections. More and more employers would be 
encouraged to just evade the E-Verify system by hiring their 
workers off the books in a cash underground employment 
transaction, or misclassify their workers as independent 
contractors, or create these sham independent contractors to 
make them these ``pretend'' employer of the workers.
    The reason that is so dangerous is when that happens, those 
workers are removed entirely from our social safety net scheme 
and our employment protection schemes, whether it is minimum 
wage, overtime, unemployment insurance, workers comp, and so 
on.
    Mr. Grijalva. Let me follow up with you, if I may. The 
ability to pay low wages is put as the reason employers turn to 
undocumented workers. There are other motivations. Maybe you 
can outline some of those other motivations other than the 
lower pay.
    Mr. Beardall. I think it has a lot to do with the 
controllability of those workers through the kinds of tactics, 
intimidation tactics of the kind I cited in my testimony. I do 
want to say, graphic as that particular example that I provided 
the committee with is--and it does happen all the time in that 
graphic and direct a way. In most cases, the intimidation is 
much more subtle. Workers know that they shouldn't become 
visible, they shouldn't enforce their rights. And, if they try 
to, they are in deep difficulty. And that ends up undermining 
the rights of all workers.
    Mr. Grijalva. Thank you.
    Mr. Goldstein, I understand Farm Worker Justice and United 
Farm Workers are suing the Department of Labor over unfilled 
Freedom of Information requests. Can you give the committee 
some information on that?
    Mr. Goldstein. Yes. Part of our job and the United Farm 
Workers Union, is to obtain the H2A applications filed by 
employers, to take a look at them and distribute them so that 
U.S. workers who are looking for jobs can learn about them. 
Because the information that is posted on line very often isn't 
very detailed. In fact, in a lot of places the H2A employers' 
names are not even on the Web site where the job is posted. And 
so we get this information and we distribute it, and we also 
check to make sure that the job terms in the application for 
H2A workers, that the job terms are legal.
    Well, the Department of Labor was not responding within the 
20 days required by the Freedom of Information Act, in fact 
they were taking months and months to give us these 
application. By the time we would get them, it would be too 
late to help any workers. So we filed a lawsuit under the 
Freedom of Information Act, and we are now getting the 
documents. They were also charging us fees when these documents 
should be exempt from fees, and they seem to be waiving those 
fees now.
    Mr. Grijalva. Thank you. Thank you, Mr. Chairman.
    Mr. Sum. Mr. Congressman, could I just make one quick 
comment? What Mr. Beardall said about his fears about if you 
would go to E-Verify, whether there would be an increase in the 
use of unauthorized and off-the-books workers. But in our 
paper, we try to show that in the last 7 years, of the 7.5 
million new workers in this country who claim that they are 
working were not working 7 years ago, we find that only 55 
percent of them have ended up on the official formal payrolls 
of any private sector employer or any government agency. So the 
growth of the informal labor market in the United States off 
the books, black market, independent contractors has been huge 
so far. Whether this would make that more intense is a separate 
empirical issue. But I don't think we should underestimate how 
far our labor markets have become unstructured and away from 
the old New Deal worker rights policy in the last 7 years in 
this country.
    Chairman Miller. Thank you. Mr. Boustany.
    Mr. Boustany. Thank you, Mr. Chairman.
    Mr. Sequeira, you noted in your testimony that the 
Department of Labor will publish proposed rules to the H2B 
program in upcoming months. Can you elaborate on what the 
Department hopes to accomplish in this whole area with H2B 
visas?
    Mr. Sequeira. Unfortunately, I am afraid I can't provide 
much information about that. The proposal is still being 
developed. It is currently at the Office of Management and 
Budget, undergoing review. And once that is concluded, and we 
are ready to publicly release it, I would be happy to come back 
and speak with the committee here, or individually with members 
about what is contained in there.
    Mr. Boustany. Do you have a timeline on that?
    Mr. Sequeira. Before the summer.
    Mr. Boustany. The second question for you: Are there other 
changes to the H2A program which the Department cannot address 
by way of regulation at this time? For example, are there 
statutory changes that would help the Department achieve its 
goal of ensuring an orderly and timely flow of legal workers 
while protecting rights of U.S. and foreign workers as well?
    Mr. Sequeira. Our proposal is--of course, a regulatory 
proposal contains changes that we thought were warranted that 
we have heard a lot of discussion about. There are certainly 
other structural elements to the program, I think, that could 
be considered by Congress. I am not prepared to discuss those 
today, but we would certainly be willing to provide technical 
assistance and provide advice to offices if they are interested 
in statutory changes to the program.
    Mr. Boustany. I guess one last question. With regard to 
businesses and companies that do the recruiting of H2B workers, 
can you talk a little bit about--I know what employers have to 
do to demonstrate the need and so forth. There is a process 
that they follow. But can you talk a little bit about the 
companies and the Department's oversight of those companies? Is 
that something that you are actively engaged with? Do you keep 
track of the number of groups that do this recruiting activity?
    Mr. Sequeira. Recruitment of workers really would fall 
under two categories. There is domestic recruitment, companies 
that operate in the U.S. And they recruit workers; and then 
there are recruiters abroad. Labor recruiters abroad are a 
particularly difficult problem, involves numerous legal issues 
and extraterritorial jurisdiction, and how can the U.S. 
Government control the action of private parties in foreign 
countries.
    We know this has been a problem and a concern to many 
people. Our proposal, regulatory proposal, contains a proposed 
restriction on U.S. employers who use foreign labor recruiters 
abroad, that they prohibit those recruiters from charging fees 
to workers in foreign countries. So we have tried to go at the 
problem with the U.S. employers who are actually using the 
recruiters rather than the foreign recruiters themselves.
    Mr. Boustany. Do you see the need for perhaps some kind of 
licensure program under, I guess, the umbrella of the 
Department of Labor with regard to these, say, even these U.S. 
recruiters so as to have a better handle on this?
    Mr. Sequeira. That specifically wasn't contained in our 
proposal. That is something worth looking at. Our proposal did 
require foreign labor contractors, those contractors working in 
the U.S. who put together a work crew made up of H2A workers. 
We did institute a new requirement that those people register 
with the Department so that we can track them, we know who they 
are. We also require in our proposal that they post a surety 
bond so that in the event they don't pay workers the wages that 
are due, we can claim against the bond if we are not able to 
find the contractor.
    Mr. Boustany. In looking at this from a broader standpoint, 
I know when workers come in under the H2B program, and let's 
say they have an accident or they get sick, they go to a U.S. 
hospital in the location where they happen to be and they get 
emergency treatment under the Medicaid program at U.S. taxpayer 
expense.
    I am just wondering if there is a way, as we look at the 
H2B visa program, to work out something perhaps with the 
Mexican Government so that there would be maybe some sort of 
temporary insurance program for these workers when they are in 
the U.S.? Because that way, we take the burden off the 
taxpayer. Given the fact that Mexico, for instance, gets $26 
billion back in remittances, it seems we have a leverage point 
with the Mexican Government as we work to try to restructure 
this program, that that may be something we want to look at. Do 
you have any thoughts on that?
    Mr. Sequeira. I think that is certainly worth exploring. Of 
course, the State Department would have a great deal to say 
about that. But I certainly would be happy to mention that to 
them and see.
    Mr. Boustany. I would hope to stimulate a little 
interagency discussion on that to see if that is something we 
might be able to do to make the whole system better. Thank you. 
I appreciate the answers.
    I yield back.
    Chairman Miller. Mr. Altmire.
    Mr. Altmire. Secretary Sequeira, in your opening statement 
you chided Congress for what you termed our failure to pass 
comprehensive immigration reform. I was wondering if you could 
outline how you are defining ``comprehensive,'' and in 
particular what that would mean to the 12 million undocumented 
workers that are currently in this country.
    Mr. Sequeira. Well, let me apologize if I came across as 
chiding Congress. I certainly would never want to do that. The 
administration I think, as you know. Is----
    Chairman Miller. You are the only American that wouldn't. 
But go ahead.
    Mr. Sequeira. The administration, as you know, was 
intensely involved in negotiations for the last couple of 
years, leading up to last summer, over comprehensive 
immigration reform. I don't want to rehash all the particulars 
of that today, but by ``comprehensive'' we crafted a plan, we 
worked with both Members of the House and the Senate on both 
sides of the aisle on a plan that would comprehensively address 
the issues, including undocumented in this country.
    Mr. Altmire. So would it be safe to assume that were the 
House to bring to the floor an immigration bill similar to what 
Mr. McKeon and others have described here today, that the 
administration would play an active role in pursuing 
comprehensive immigration reform and adding to it a path to 
citizenship?
    Mr. Sequeira. The administration is interested in working 
with Congress on a comprehensive solution if Congress wants to 
take up a bill that, rather than narrowly fixes particular 
problems in particular areas, then, yes, we are prepared to 
engage with the Congress in that effort.
    Mr. Altmire. Okay. Thank you. And Chairman Miller asked you 
about the OES survey and whether undocumented workers were 
included in that, and you have answered that question.
    And I guess what I am trying to get a handle on with regard 
to the four levels, level one being the one with the lowest 
salaried workers, the lowest paid workers, why wouldn't level 
one wages be set by what employers pay undocumented immigrants 
in particular? And then doesn't that lead to essentially 
allowing undocumented workers rather than U.S. workers to set 
the market wage rate for those industries?
    Mr. Sequeira. The four skill levels in the occupational 
employment data is actually something that was mandated by 
Congress. We borrowed that from the H1B program; it is utilized 
in the other temporary programs, both the use of BLS data as 
the source for determining market-based wages as well as the 
skill levels. Again, I can't--I left home without my labor 
economist, but I can't tell you precisely what estimate of 
undocumented workers would make up the sample size.
    Again, our point is the Bureau of Labor Statistics data is, 
by virtually any measure, more accurate at providing market-
based wages than the current survey. So what we have proposed 
is just to use a different mechanism to determine those wages 
that is more accurate.
    Mr. Altmire. I will wrap up so someone else can ask a 
question.
    Chairman Miller. Ms. Clarke.
    Ms. Clarke. Thank you very much, Mr. Chairman.
    To Dr. Sum, I have a question about what you believe is the 
impact that H2B and undocumented workers have in the 
construction industry on the availability of apprenticeship 
programs for young Americans.
    Mr. Sum. I don't claim to have an easy answer to that. What 
I would say, though, is the following. Our analysis shows that 
in the construction industry in the last 10 years that there 
has been a disproportionate share of new hires that have not 
appeared on the formal payrolls of construction companies; that 
there has been known in specific State studies to be a high 
degree of violation of independent contractor laws, as well as 
we find a strong correlation between the influx of new illegal 
immigrants and the number of workers that are appearing off the 
books on those industries' payroll. And we have documented that 
in several, several papers.
    When you take hiring off the books and when you take hiring 
and independent contractor basis, it then becomes removed of 
all of the use of apprenticeships in construction. The number 
of apprenticeships in construction to share of total employment 
has declined. There are fewer apprenticeships in that area 
today than there have been in a long time.
    So the answer is, is once you restructure the work in the 
industry so that it does not become part of the formalized 
process of referral and training, whether union or nonunion, 
then you basically reduce the amount of training that takes 
place in the industry. And the construction industry has gone 
in that direction. Native-born U.S. Workers as well as 
established immigrant workers who have been here more than 10 
years received a less-than-expected increase in the share of 
all construction jobs over the last 7 years. And we attribute 
that low share of their employment to the fact that these jobs 
have gone off the books and been removed from a formal referral 
and training network, which I believe is not in the long-term 
interests of this country, because apprenticeship training has 
a strong effect on the supply of skilled labor, on the wages of 
workers, and is one of the few options that young adults 
without college degrees have had to try to achieve an adequate 
standard of living in the United States, which has again gone 
down in the last 7 years for young workers.
    We are losing large numbers of our families. It is not a 
trivial issue. We are forming far fewer families with married 
couples today than any time in our history. There has been a 
decline in the earnings of young families, a rise in share of 
the children raised in poverty. At the same time, we are 
finding these developments in our labor markets.
    I would hope that the committee would give this serious 
consideration in the rest of this year that we go back on, and 
we make a commitment to young families, young workers in the 
United States. We have lost a lot of ground.
    Ms. Clarke. Thank you, Professor Sum.
    Mr. Beardall, in your testimony, you point out that 
unscrupulous employers are using the status of undocumented 
workers to exploit them. You also note that effective 
immigration policies must not only assure that there is no 
built-in advantage to hiring undocumented workers, but also 
must include effective labor laws and strict enforcement of 
those laws.
    If you were drafting immigration policy, how would you 
address these issues in your immigration policy?
    Mr. Beardall. First of all, I think it is extremely 
important that whatever program might be created eventually to 
legalize some of the current undocumented workers through an 
earned legalization program, that that be structured so that 
they have all the full employment rights and all the full 
enforcement rights that U.S. workers have.
    Secondly, any new guest worker programs that are created, 
or modifications to current guest worker programs, really need 
to pay a lot of attention to ensuring full protections and full 
enforcement, not a second-class set of protections and a more 
limited kind of enforcement.
    And, thirdly, a piece of the package really needs to be, in 
my opinion, a dramatically improved enforcement mechanism for 
all workers, whether they are citizens, work-authorized 
immigrants, or undocumented immigrants. Otherwise, we will 
still continue to replicate the problem.
    Ms. Clarke. Thank you, Mr. Chairman.
    Chairman Miller. Mr. Sestak.
    Mr. Sestak. Thank you, Mr. Chairman. I just had three quick 
questions, more for my edification and understanding.
    I was quite taken, Professor Sum, by your testimony. There 
were some interesting statistics, and the intangible impacts 
upon them are something that I think needs to be thought about. 
So when I look at the H2B, and in my district it impacts, let's 
say, landscapers a lot. We are coming into that season when 
high schoolers kind of come out of school. Why, Mr. Secretary, 
is it good for us, then, to say that 4 months before these kids 
come out of school is when we go give the announcement? And if 
within 10 days nobody applies--because, boy, when I was in high 
school I sure didn't pay attention to summer jobs 4 months 
before I graduated. Why don't we make it like the H2A, where 
they can do it right up through 50 percent, but at least up to 
the day it begins, if the importance of this is to protect 
American jobs if the workers are available?
    Mr. Carlson. If I may, I think the H2A program, as I 
mentioned in my comments, the processing window and the time 
frame is very short but prescribed in statute. The statute is 
silent on that with respect to the H2B program.
    In the 120 days that you mentioned--I apologize if I wasn't 
clear in my comments--that is the outside that we don't let 
them file any----
    Mr. Sestak. Correct. But the point is, then why only 10 
days? Why not the 45 days that the H2A has? Are you saying it 
is Congress' fault because the statute doesn't say anything?
    Mr. Carlson. No, I am not. I am not saying it is fault. I 
am just saying that this statute is silent.
    Mr. Sestak. Why don't you then--since your memo sets some 
of this up, why don't you make it like the H2A? Wouldn't this 
help this problem over here with teenagers getting jobs?
    Mr. Carlson. The 120- and the 60-day process we have, given 
how the program is currently structured with applications being 
filed first with the State to start the recruitment process, 
what we have allowed for both the State--between the State and 
the Federal Government, is a grand total of 60 days to process 
applications from start to finish. Whether we have to request 
new information, we go back to the employee, they weren't clear 
about something.
    Mr. Sestak. Why not just make it up to the day that the job 
begins, like the H2A?
    Mr. Carlson. If we did that, we would not allow an employer 
time to recruit and send that information to us so that we 
could verify that indeed actual bona fide labor market test had 
occurred.
    Mr. Sestak. Mr. Sum, do you have a recommendation on this? 
I know you have grander recommendations. But would this help at 
all? Would it be more fair to the American worker?
    Mr. Sum. I would say this, sir. The programs that I have 
been involved with, and youth programs for more than 30 years--
and one of my colleagues is here in the back of the room--we 
have always shown that substantial lead time to help develop 
jobs for young people is a crucial part of this process. We 
spend 5 to 6 months before the summer in many of our programs 
lining up employers and jobs to do this. The more lead time you 
have in announcements, the more time you have for schools and 
CBOs and employment and training agencies and colleges to 
prepare young people to fill these jobs. I believe we could 
fill a large number of these jobs.
    Mr. Sestak. So, should we have 120 days, whenever you want 
to begin that, start whenever you want, but keep the window 
open as long as possible?
    Mr. Sum. What I would say is, we provide as long a lead 
time as possible. But not only that, we know for a number of 
these jobs the amount of lead time that is necessary, that the 
work is going to be there next year, and that we begin to 
engage in programs with all these agencies to organize young 
people to be given a sufficient release time to be available to 
fill those jobs. It can be done. It can be done, sir. A large 
number.
    Mr. Sestak. The last question. Why? Is it because the 
statute is silent on it? Is that also the reason why for H2As 
and H2Bs? One example: Housing is given for one, but not the 
other.
    Mr. Carlson. Yes. Certainly in H2A, housing and a variety 
of other benefits are authorized in the statute, and in H2B the 
statute is silent.
    Mr. Sestak. Do you think that is right?
    Mr. Carlson. I don't think that is for me to speak to 
today.
    Mr. Sestak. Thanks very much.
    Chairman Miller. Mr. Payne.
    Mr. Payne. Let me just ask a quick question. Maybe 
Representatives from the Department of Labor. What is the 
current unemployment rate, do you know, more or less, in the 
U.S.?
    Mr. Sequeira. In April, it was 5.1 percent.
    Mr. Payne. What do you think the real unemployment rate is?
    Mr. Sequeira. You mean an unemployment rate different than 
what was reported by the Bureau of Labor Statistics?
    Mr. Payne. Yes. Do you think it is 5.1? They say it is 5.1, 
so it is 5.1.
    Mr. Sequeira. Yes.
    Mr. Payne. Do they count people who have not been in the 
employment system?
    Mr. Sequeira. The unemployment rate is determined based 
upon those who are actively seeking work.
    Mr. Payne. So anyone seeking work is counted. Okay. So 
those who aren't seeking work, you couldn't count those because 
they are not seeking work.
    Mr. Sequeira. Those not actively seeking work are not 
considered to be in the labor force and therefore aren't 
calculated in determining the unemployment rate.
    Mr. Payne. What are they called? I mean, they are not 
unemployed, they are not employed. Is there a terminology for 
them? Because I am trying to figure out how many of them are 
around.
    Mr. Sequeira. They are not actively seeking work.
    Mr. Payne. But what do you think that number is?
    Mr. Sequeira. I don't have an estimate. I would be happy to 
consult with the Department's economist and get back with you; 
but off the top of my head, I don't know.
    Mr. Payne. Because that is really, I think the whole crux, 
H1B, H2A, all the rest is really a way out of us shucking the 
responsibility of really trying to prepare a workforce that is 
going to seek work. That is not in your purview, but it is in 
the whole purview of education, of people seeking employment. 
You try to figure out why wouldn't a person not seek 
employment.
    So I think, first of all, we get a distorted number of the 
unemployment rate. It is probably about 15 percent, probably 
even higher, of those who are not working. We use these visa 
programs to say that we can't find enough workers. And the 
other things that we throw around terms is that it does not 
adversely affect the wages or working condition of U.S. 
workers. That is not true. Because if in a supply-and-demand 
when you can take on migrant workers, you are indirectly 
reducing the supply and demand, and therefore it is an 
advantage for the employer.
    So, we really don't have time. But I would like some time 
for us to really talk about employment in this country, 
unemployment, those seeking employment, those not seeking 
employment; these programs that give us the opportunity not to 
work with potential employees, because if we can just bring in 
people from somewhere else so we don't have to worry about 
trying to educate people or train people so that they can be 
employable, because we have got another industry for that, just 
put them into prison because we need to--that keeps employment 
up in another area.
    So these programs are mere shams. They are really not 
necessary. If we did the job right, if the Department of Labor 
did what it was supposed to do, if the Department of Education 
did what it was supposed to do, that we have enough Americans 
and people who can do it. I am not opposed to immigration. I 
have always been for people coming into this country, no 
question about it. But I think that these programs are shams. 
They give us the way to just have to not worry about tough 
things that do and just let people come in so that we take 
advantage of it. And all this gobbledegook about it doesn't 
impact wages and doesn't have any impact on American workers I 
think is a lot of malarkey.
    I yield back.
    Chairman Miller. Secretary Sequeira, you say there are 750 
wage-and-hour investigators. That is not just for these 
programs.
    Mr. Sequeira. That is total.
    Chairman Miller. That is the total for the whole Nation.
    Mr. Sequeira. Correct. The wage-and-hour investigation does 
not allocate their investigators by specific statute. They 
investigate all the applicable statutes, Fair Labor Standards 
Act, Family Medical Leave Act.
    Chairman Miller. Some of my colleagues thought that this 
was for this program. I just wanted to develop that for the 
record. I am going to let you go here in a minute because we 
are going to have a series of votes, and at the rate this vote 
is going it could be an hour and a half before we are back 
here.
    Mr. Riojas, you described the movement of these workers by 
employers from what probably would have been an H2A workers to 
H2B, which didn't sound legal to me at the outset. Forget all 
the deception by which they got there. But that simple decision 
in and of itself, is that not a violation of the law?
    Mr. Riojas. It is in violation of the law. Basically, the 
employers were engaging in visa fraud, disclosing that they 
were seeking non-ag workers, when in reality it was ag work. 
And by doing this, they saved tremendously in terms of denying 
the workers certain benefits that are required by the H2A 
program, such as workers comp, the three-quarter guarantee, 
free tools, free housing, and they were shifting all those 
costs to the workers that were being hired including the H2B 
and the situation.
    Chairman Miller. But Mr. Young has to absorb all these and 
his growers when they employ people under H2A. Do you not?
    Mr. Young. Yes, that is correct.
    Chairman Miller. So what is the problem with the other? 
Just chooses not to incur those costs by the subterfuge of 
putting people into H2B. That is what you are saying, right, 
Mr. Riojas?
    Mr. Riojas. That is correct.
    Chairman Miller. What is the rationale for the continuation 
of the H2B program?
    Mr. Riojas. In certain, I guess, situations there probably 
are legitimate shortages and so there is a need for the 
program. But everybodyhas got to work.
    Chairman Miller. I understand there are shortages. But you 
can meet shortages with the program. There obviously is a 
disincentive now, and some people are working the groove 
between these two programs to appear to be using what would be 
H2A workers, but getting the savings by using the H2B program.
    Mr. Riojas. Correct. And, unfortunately, in my case, the 
H2B workers were actually paid lower than what was required by 
the job offer. And the Department of Labor knew all this was 
going on because they did field checks, and they found that 
these workers were harvesting crops in the field and these 
workers were not getting paid the prevailing wage, they were 
getting paid by the piece, and they knowingly allowed it to 
continue. There needs to be better coordinated enforcement. We 
have got one branch of the Department not communicating with 
the other branch and basically letting this happen.
    Chairman Miller. Mr. Young.
    Mr. Young. Well, there is a very, very fine line at times 
between H2A and H2B workers.
    Chairman Miller. Some people can't see the line, it is so 
fine.
    Mr. Young. If I have workers that come to an orchard in 
Central Massachusetts and pack only fruit that is grown by that 
grower, they are an H2A person. If that same grower brings in 
fruit of a sufficient quantity and packs it for other growers 
in the area, it becomes an H2B worker. We have had instances 
where the Labor Department decided that pressing cider was not 
an agricultural job and we had to bring in H2B workers to press 
cider on the same farm.
    There is a very fine line in between the two. And in a lot 
of cases it isn't that a grower is trying to get around the 
issue, it is the fact that the way that the jobs are classified 
drives them in one direction or another.
    Chairman Miller. This is in contention, but there are two 
story lines about what will happen if these H2A regulations are 
adopted or not. If the story line is accurate that this is 
going to continue to put a downward pressure on wages, why 
would we have an H2B program? If you bring people in for the 
hospitality industry, you bring people in for the amusement 
parks, fine, just go through and provide travel and provide 
this and all of the rest of it. Why do you keep an underclass 
here that sort of keeps dragging down the people above them? I 
don't understand.
    Mr. Goldstein. I think this country needs to revisit this 
whole idea of guest worker programs. If we need people to work 
in this country, we are a Nation of immigrants, not a Nation of 
guest workers. They should be brought in as immigrants. The 
guest workers, by definition, hold a non-immigrant temporary 
work visa; they can only work for the one employer that got 
them the visa. That means that if they are fired or quit, they 
have to go home. If they want to come back in the following 
season, they have to hope that that one employer will request a 
visa for them. So they are really under the thumb of the 
employer.
    Also, under these guest worker programs, once an employer 
offers the minimum required wage rate and other benefits of the 
program, if a farm worker or a hotel worker says to the 
employer, you are offering that low minimum wage required by 
the H2B or H2A program, but I will work for 25 cents an hour 
more because I am the fastest farm worker in the United States, 
and I want 25 cents an hour more, the employer is legally 
allowed to say, look, I only have to offer the legal minimum. 
If you don't take the 25 cents, I am allowed to replace you 
with another guest worker from abroad who will accept the wage. 
And it is true. That is the way these guest worker programs are 
structured. I think immigration is a much better model for this 
country.
    Having said that, I will say that ag jobs is the best 
solution given----
    Chairman Miller. I understand that. And you and Mr. Young 
and a lot of other people agree. Everybodyis for it, but we 
somehow can't get it moving.
    I go back to when I was doing this years ago in Belle 
Glade, Florida. We had this huge labor pool of Haitian cane 
cutters, but no grower would use them because they wanted to 
bring in Jamaicans, because obviously the Jamaicans were 
essentially without status. So you had some of the most 
efficient cane cutters in the entire Caribbean who couldn't get 
a job in the town in which they were living. So this program 
obviously leads to huge distortions in that fashion. We bring 
these people here that came as refugees. We welcomed them to 
open shores, and we wouldn't let them work because people 
wanted to use Jamaicans who they could send back.
    Mr. Goldstein. Right. And also for the Jamaicans, under 
H2A, the employers don't have to pay to the Social Security 
trust fund or unemployment tax fund, and so they are saving 
money there that they would have had to have paid on the 
Haitian workers' Social Security taxes and unemployment taxes. 
So there are lots of reasons.
    Chairman Miller. I think you can hear from--I will just 
speak for the members on our side of the aisle here, on the 
Democratic side of the aisle. I think there is a growing 
concern about these programs, the administration of these 
programs, incentives built into these programs. They are 
starting now, we have always believed we had this adverse 
effect wage rate and this was enforced, starting to work 
against the interests of certainly U.S. farm workers. But I 
suspect it all--that this is showing up in terms of whether or 
not other individuals are available to take those jobs or want 
those jobs. And this is a matter I think that the committee is 
going to continue to give serious concern to because it is this 
displacement of those workers, forget all the shenanigans, just 
on the natural, that displacement worries me. And I do--and I 
appreciate the explanation by the Department. I do worry that 
this new wage arrangement under H2As is also putting downward 
pressure on wages and more likely to exclude U.S. farm workers. 
So we will continue this effort.
    I want to thank all of you for your time and your 
testimony. And my apologies about changing the time, and now 
the votes. But this has been very helpful. And I think you can 
see the interest from the members of the committee, and we 
appreciate that.
    And members will have 14 days to submit additional 
materials on this hearing record. And I would also hope that, 
if members do have follow-up questions, that you would be 
available to answer those if they submit them to you in 
writing.
    Thank you again for your time and your testimony.
    [The information follows:]
    [Letter from the AFL-CIO, submitted by Mr. Miller, 
follows:]

                                       Washington, DC, May 5, 2008.
Hon. George Miller, Chairman,
House Committee on Education and Labor, 2181 Rayburn House Office 
        Building, Washington, DC.
    Dear Chairman Miller: The AFL-CIO strongly supports your efforts to 
examine existing statutory requirements placed on employers to recruit 
U.S. workers before hiring guest workers from abroad.
    By their very nature, temporary guest worker programs place foreign 
workers in a vulnerable position with very little bargaining power 
relative to their employers. Without regulation, unscrupulous employers 
exploit this vulnerability to subject guest workers to substandard 
working conditions and drive down wages and benefits for U.S. workers. 
In recognition of this reality, guest worker programs in the U.S. have 
always included provisions to accord additional labor protections to 
guest workers and to prevent harm to domestic labor markets, including 
obligations to recruit domestic workers.
    The employer-driven demand for the growth of guest worker programs 
must be tempered with controls to ensure that adequate recruitment of 
U.S. workers is taking place. Unfortunately, a review of the original 
laws that established the H-2A, H-2B and H-IB programs and recent 
proposed regulatory changes reveals an erosion of legal standards for 
recruitment and a troubling pattern of relaxing, rather than enhancing, 
federal agency enforcement.
    Recently we have seen essential safeguards under attack through 
proposed regulatory changes to the H-2A agricultural guest worker 
program. The original H-2A law requires the Department of Labor (DOL) 
to ensure that employers who claim that they need to hire guest workers 
from abroad in order to fill alleged labor shortages first engage in a 
series of labor market tests to demonstrate a meaningful effort to 
recruit job applicants from among U.S. workers. DOL has recently 
proposed changes that would systematically eliminate or significantly 
weaken many of these recruitment requirements and would, if enacted, 
create impediments to the referral of domestic workers to H-2A 
employers, inevitably leading to the replacement of U.S. farm workers 
with foreign temporary workers.
    Similarly, the H-2B guest worker program must be reformed to 
prevent unscrupulous employers from lowering wages and weakening 
workplace protections for all workers in affected industries. 
Tragically, many of the fundamental legal protections afforded to H-2A 
workers do not apply to guest workers under the H-2B program. DOL never 
promulgated regulations to implement these substantive labor 
protections. For example, even though the H-2B program requires that 
employers pay a prevailing wage to H-2B workers, DOL has on several 
occasions testified before Congress that they have no legal authority 
to enforce this requirement.
    H-2B workers are inherently more vulnerable than their U.S. 
counterparts. The H-2B program must be reformed to ensure that 
employers are not being encouraged to seek out guest workers even when 
U.S. workers are available. We must ensure that workers within the H-2B 
program are offered and truly paid prevailing wages so that employers 
are not encouraged to keep labor costs down by hiring guest workers, 
thereby discouraging U.S. workers from seeking these jobs.
    As evidenced by the witnesses featured at the hearing tomorrow, H-
2A workers are often intentionally misclassified as H-2B workers, which 
suggests employers understand that workers are paid substantially less 
than the accurate wage rate and are denied substantially greater legal 
protections in the H-2B program, with very little federal agency 
oversight or enforcement. The result is downward pressure on wages and 
workplace protections in H-2B industries.
    The H-IB high-skilled guest worker program has perhaps the weakest 
standard on U.S. worker recruitment and displacement. Perhaps the 
Department of Labor states this fundamental flaw best in its own 
Strategic Plan for Fiscal Years 2006-2011: ``an H-IB worker may be 
hired even when a qualified U.S. worker wants the job, and a U.S. 
worker can be displaced from the job in favor of the foreign worker.'' 
The legal standard of labor certification within the H-IB program has 
deteriorated and been replaced with a labor attestation, essentially a 
promise by the employer that it has sought U.S. workers to fill job 
vacancies prior to importing workers. The validity of this promise is 
even more compromised given that, as found by the Government 
Accountability Office (GAO) in a recent investigation of the H-IB 
program, ``DOL has no authority to verify the authenticity or 
truthfulness of the information (provided on H-IB applications) * * * 
DOL can only review applications for obvious omissions and obvious 
inaccuracies.''
    The AFL-CIO has joined with many other organizations in recognizing 
that our immigration system is broken. However, we differ with those 
who suggest that guest worker programs are the solution. Clearly, 
tomorrow's hearing will reveal that the strategy of over-reliance and 
expansion of flawed federally-sponsored temporary guest worker programs 
will harm all workers rather than mitigate the tragic consequences of 
our broken system.
    Instead, we must search for comprehensive solutions that will both 
provide relief for the millions of undocumented workers who work every 
day yet are afforded no legal protections and also ensure that we are 
safeguarding quality jobs with fair wages for all who labor within our 
borders.
                                  William Samuel, Director,
                                     Government Affairs Department.
                                 ______
                                 
    [The statement of Ms. Shea-Porter follows:]

   Prepared Statement of Hon. Carol Shea-Porter, a Representative in 
                Congress From the State of New Hampshire

    Thank you, Chairman Miller for holding this hearing today. As the 
Representative of the First District of New Hampshire, I am pleased to 
be here today on behalf of my constituents and the small businesses and 
farmers that I represent. I would like to ask unanimous consent that 
along with the full text of my statement, letters from the New 
Hampshire Lodging and Restaurant Association, the Mount Washington 
Resort and NH State Representative Ed Butler, owner of the Notchland 
Inn be entered for the record as well.
    In our Seacoast towns, northern mountain resorts, and across the 
state, the tourism industry thrives in New Hampshire. Because of the 
seasonal nature of our businesses such as ski resorts, summer 
landscaping, restaurants and hotels, many employers have trouble 
filling vital staff positions. This is due partly to the temporary 
nature of the work, the long commutes that may be required and, in some 
cases, the lack of a labor pool. The H-2B program plays a large part in 
providing the workforce that sustains these businesses. That is why it 
is vitally important that this hearing be held today and that we work 
quickly to address the current regulatory issues, ensure compliance 
with worker's rights protections, and relieve the current strains that 
small businesses, like many in New Hampshire, are suffering.
    It is also important that, as we consider the H-2 programs, we take 
into consideration some of the testimony that we received during our 
June 7, 2007 hearing entitled, ``Protecting U.S. and Guest Workers: the 
Recruitment and Employment of Temporary Foreign Labor.'' During that 
hearing, we heard about a March 12, 2007 report from the Southern 
Poverty Law Center, criticizing the program for reported abuses of 
guest workers, accusing employers of abuse and exploitation.
    While these accounts must be considered and the well-being of 
workers enrolled in these programs protected, I have met and spoken 
with many of the business owners in New Hampshire who use the H-2 
program to find seasonal workers. They are good employers who care 
about their staff. I have also heard from guest workers, who have only 
good things to say about their employers and their work experiences. 
So, as the larger issue of reforming these programs is discussed, it is 
important that we extend the exemptions to the cap on the H-2B program.
    Without the exemption in place, the 66,000-visa cap on the program 
does not allow for a sufficient number of seasonal employees to sustain 
the many industries that rely on this source of labor. In New Hampshire 
alone, we see over 1,000 applicants a year for H-2B workers and over 
300 applications for H-2A. For 2008, we have already had 640 H-2B 
applicants.
    Last year, with the H-2B exemption in place, an additional 69,000 
workers were granted permits to work in this country. Without similar 
relief this year, many businesses may be forced to have their year-
round, full-time staff take on additional responsibilities, putting 
extra strain on employees and distracting them from essential duties. 
In short, our small seasonal businesses will suffer. Some may have to 
scale back the services they offer to guests and customers, and some 
may even have to close their doors.
    It is incredibly important to the New Hampshire economy that we act 
quickly to resolve this issue. And it is also important that this 
Committee, and Congress as a whole, work to ensure that worker's rights 
are protected, that American workers have access to good-paying jobs 
and that our business owners have access to the employees they need to 
run successful businesses. Thank you again, Mr. Chairman, for holding 
this hearing, and I look forward to working with all of my colleagues 
on this issue.
                                 ______
                                 
    [Letter from Ed Butler, submitted by Ms. Shea-Porter, 
follows:]

                                     Notchland Inn,
                                 Carroll County District 1,
                                                       May 1, 2008.
Hon. Carol Shea-Porter,
1508 Longworth HOB, Washington, DC
    Dear Congresswoman Shea-Porter: I realize that it's a bit silly to 
head this letter with two logos but I do it to emphasize that I am 
writing to you about the H2B Visa issue from my two roles: as small 
business owner and NH Representative for District 1 in Carroll County.
    As one of the owner/managers of our inn, we have hired two H2B 
workers for the summer and fall seasons over the past several years. 
This year we are, of course, unable to bring them back and are at a 
loss to how we will manage without them. We are networked with many 
other hospitality businesses throughout our district & New England and 
I have heard from many of them that they are very worried that they 
will not have the needed staff to operate their businesses effectively 
without the H2B workers they have come to rely on.
    Did you know that we are required, by law, to advertise locally for 
all positions that we will try to fill with H2B workers? In our 
applications, we must include tear sheets from the papers in which we 
advertise and report on what, if any, response we've had. Of course you 
know that the minimum rates of pay are set by the Department of Labor 
and must be the industry standard for the work category. Why then would 
any of us be spending the time and money (both of which are not 
insignificant) to bring in H2B workers if we were able to find 
qualified and willing local New Hampshire workers? For many of us 
looking for housekeepers; restaurant workers of various kinds; 
landscapers and other laborers, there are simply no other alternatives.
    To my mind there can be no reason for preventing those businesses 
who need H2B workers from hiring them. From our experience and that of 
many other businesses that we know and have heard from, the H2B workers 
do not, in any way, threaten the access of local workers to our jobs.
    Please do all in your power to increase the caps, or do whatever is 
necessary, for qualified employers to hire H2B workers when local 
American workers are not available to fill the need.
            Thank you,
                Ed Butler, NH Representative and Innkeeper,
     Carroll County District 1, The Notchland Inn, Hart's Location.
                                 ______
                                 
    [Letter from Michelline Dufort, submitted by Ms. Shea-
Porter, follows:]

                                                       May 5, 2008.
Hon. Carol Shea-Porter,
1508 Longworth HOB, Washington, DC
    Dear Congresswoman Shea-Porter: As a representative of the tourism 
industry, I strongly urge for your continued support of the H2B workers 
program.
    As a representative of New Hampshire, you are well aware of the 
importance tourism plays to our entire state's economy. The ability to 
keep hospitality doors open and retain full-time employees is 
contingent on making enough money during our peak seasons to sustain 
most operations during the `shoulder seasons'. During the peak tourism 
seasons, operators must supplement permanent staff with temporary 
seasonal employees. In order to fill these positions, thousands of 
dollars and hundreds of hours are spent in aggressive recruitment. 
Unfortunately, enough workers for these positions cannot be found 
despite the generous pay and benefits offered. The levels of 
compensation vary across the state, but are consistently well above 
minimum wage, and in fact, at a competitive market value. Despite all 
of these factors, even job fairs are not bringing about the domestic 
workers so now vitally needed to cover these now void positions
    As a result of the lack of local labor available, both past and 
present, many have counted on the federal H-2B program which allows the 
hire of temporary seasonal labor to support our industry. As you are 
aware, not only do they allow us to maintain our level of service, they 
abide by all terms of the program, have taxes deducted from their pay, 
do not burden any social services, and go back home after their work 
period has expired. As they only work for three to four months, this is 
not an immigration issue but a small business issue.
    I continue to hear from owners and operators about the crucial 
state of business in not being able to secure these workers. Stories 
range from cutting back on services, such as lunch service, to 
escalating marketing costs as businesses step up their efforts to 
secure alternative employment.
    Therefore, despite the cumbersome, lengthy and expensive process in 
applying for H-2B workers, we still desperately need the program. 
Without this program, many will be forced to keep part of the property 
closed, cut back services, cancel events, or possibly lay off many of 
full-time employees. Decreased service results in decreased and 
compromised service, which results in a lackluster tourism season; a 
factor New Hampshire cannot afford to take.
    Thank you for your attention to this matter. I have enclosed a 
synopsis of the state of H2B's in New Hampshire for your information.
            Sincerely,
                        Michelline Dufort, President & CEO,
                    New Hampshire Lodging & Restaurant Association.
                                 ______
                                 
    [Statement of Claire Gruenfelder, submitted by Ms. Shea-
Porter, follows:]

  Prepared Statement of Claire Gruenfelder, Human Resource Director, 
                        Mount Washington Resort

    We very much rely upon the seasonal work of our H2B's. We are a 
year round resort with two defined seasons; summer and winter. In both 
seasons our workforce spikes significantly, as do our business levels 
and we depend on our H2B workforce to assist us through those two 
seasons. We manage to hire highly skilled individuals on the H2B visa, 
many whom have been in U.S prior working on a J-1 visa. The employees 
we have on the H2B visa possess exceptional English abilities, which 
have an impact on the exceptional level of service we provide to our 
guests.
    We make every possible effort to recruit local candidates, although 
our remote location (especially with today's gas prices) makes us an 
unattractive employer. We participate in local job fairs, including 
ones at local high schools and universities. We have done a road show 
of job fairs at local New Hampshire Employment Security Offices, which 
have allowed us to use their office space to recruit. Twice a year we 
host our own in house job fairs (May and October) and use every media 
possible to advertise our job fairs, including the use of radio 
advertising. We have also done a tremendous amount of out reach with 
local agencies that work with veterans, people with disabilities, 
recovering addicts and former prisoners on furlough recognizing that 
anybody who is willing to learn and wants to be part of this industry, 
we shall invest the time to train them.
    We pay our H2B workers the prevailing wage, as determined by our 
state. Many of our H2B workers are in positions where they receive cash 
tips as well as their hourly wage, which contribute greatly to their 
incomes. An average Housekeeper on the H2B program can make $10 per 
hour (including tips), Food Service Professional $12--$15 per hour 
(including tips) and Cooks $11 per hour. We provide housing at very low 
cost to our H2B workers, offer three meals a day in our cafeteria, 
organize trips to local towns so our H2B workers can do their banking, 
shopping and participate in other recreational activities. Our H2B 
workers have the opportunity to receive the same benefits as our U.S 
workers, including complimentary access to all the activities and 
amenities we have at our resort, including free ski passes, golfing 
privileges, horse riding, swimming, tennis, full gym facilities, 
racquetball, mountain biking, hiking, and much more.
    Some of our H2B workers live in housing we provide, others choose 
to move off property, opting to purchase their own vehicles for more 
independence. Our housing is separated by gender and most employees who 
live in our housing have a room to themselves, in larger rooms some 
share with one or two other employees.
    We have many H2B workers that we have come back to us seasonally we 
welcome their return to us. We offer our H2B workers a great place to 
work, good incomes, and the opportunity to advance themselves as we 
have promoted several of our H2B workers. Our H2B workers are treated 
the same as our native workforce, just last month one of our food 
service professionals was awarded the Golden Star of the Month Award 
for March 2008 for her exceptional service. For that award, that H2B 
worker received an overnight stay at another hotel in New Hampshire and 
$100 in spending money.
    Without our H2B workforce two repercussions would happen; we would 
either have to reduce our operations, forced to close certain services 
on our property or we would be forced to back fill the seasonal 
positions that our H2B workers fill with far less skilled workers which 
would ultimately affect the guest experience we highly pride ourselves 
on.
                                 ______
                                 
    [Letter from Save Small Business, dated May 7, 2008, 
submitted by Mr. Bishop of New York, follows:]



                                ------                                

    [Letter from Chesapeake Bay Seafood Industries Association 
(CBSIA), dated May 6, 2008, submitted by Mr. Bishop of New 
York, follows:]









                                ------                                

    [Inclusion of Mrs. McMorris-Rodgers follows:]

    
    
    
    
    
    
                                ------                                

    [Questions for the record and responses received from Mr. 
Sequeira follow:]

                  Committee on Education and Labor,
                             U.S. House of Representatives,
                                       Washington, DC, May 9, 2008.
[VIA FACSIMILE]
Hon. Leon R. Sequeira, Assistant Secretary for Policy,
U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, 
        DC.
    Dear Assistant Secretary Sequeira: Thank you for testifying before 
the May 6, 2008, Committee on Education and Labor hearing entitled ``Do 
Federal Programs Ensure U.S. Workers Are Recruited First Before 
Employers Hire From Abroad?'' We write to ask follow-up questions from 
that hearing. We are deeply concerned that recent proposals by the U.S. 
Department of Labor (DOL) will drag down the wages paid to U.S. workers 
to the lower wage levels currently paid to undocumented immigrant 
workers. The proposed regulations announced by the DOL on February 13, 
2008, appear to use undocumented workers, earning below-market wages, 
to set the market rate for much of the wages in the agricultural 
industry.
    At the hearing, we each asked you questions about the DOL's 
proposed new methodology for calculating wages in the H-2A agricultural 
guest worker program. As you know, Congress has placed upon DOL a 
statutory obligation to ensure that the H-2A program ``will not 
adversely affect the wages and working conditions of workers in the 
United States similarly employed.'' 8 U.S.C. Sec.  1188(a)(1)(B). 
However, your answers failed to provide us with sufficient assurances 
that the wages of U.S. workers would be protected from downward 
pressure, and therefore we ask you to provide answers to the following 
questions in bold:
1. Wage Survey Calculations
    You testified that the DOL plans to revise the H-2A program wage 
calculation so that it will be determined by the Bureau of Labor 
Statistics' Occupational and Employment Statistics (OES) survey. The 
OES calculation would replace the Adverse Effect Wage Rate (AEWR) 
currently used in the program, which requires employers utilizing H-2A 
guest workers to pay at least the average market wage for agricultural 
work in a particular region. The proposed use of the OES calculation 
would appear to be designed to generally lower the wage requirements 
for the H-2A program, to something below the average market rate. We 
understand that, under the Department's proposal, the OES survey for 
any given occupational category in any given geographic area would be 
broken down into four wage levels. It is our understanding that the DOL 
first estimates Level I and IV wages directly from OES wage data by 
setting OES Level I wage as the average wage for the bottom third of 
the earnings distribution, and the Level IV wage as the average of the 
top two-thirds of the earnings distribution. The two intermediate 
levels are created by dividing the difference between Level I and Level 
IV by 3, and adding the quotient to the first level and subtracting 
that same quotient from the fourth level. Please confirm how the DOL 
calculates the four wage levels in the proposed methodology.
2. Using the Four Wage Levels
    It is our understanding that the four wage levels would then be 
used as the prevailing rates for agricultural jobs based on the skill 
and experience level required by the employer. For example, if an 
employer applying for H-2A workers says a job requires low skills and 
little experience, then the employer would be allowed to pay Level I 
wages for that job. If the above explanation of the OES survey 
calculation is correct, however, the four wage levels themselves do not 
reflect skills and experience. In other words, Level I does not 
necessarily reflect the wages of workers in the jobs that require the 
least skills or experience but merely the wages of the lowest paid 
workers.
    If the DOL adopts the four level OES wage system for the 
agricultural industry, we are concerned that the DOL will allow 
employers to choose Level I when hiring guest workers and recruiting 
U.S. workers in virtually all instances and regardless of the actual 
job requirements for the job. Indeed, this fear was heightened by 
comments that you made in a public meeting with the California Farm 
Bureau on March 12, 2008. (See notes from 3/12/08 public meeting on DOL 
webpage, available at: http://www.regulations.gov/fdmspublic/component/
main?main=DocumentDetail&o=0900006480408221.
    According to the notes for this meeting, a participant asked you: 
``Will the majority of H-2A employers be seeking certification for 
Level 1 jobs?'' The notes provide the following record of your answer:
    Mr. Sequeira replied that the job skill level for which to seek 
certification is up to the employer. An employer would not be expected 
to seek certification for a job as a Level 2 or higher job, regardless 
of how many years of experience a given employee might have, if the job 
is in fact a Level 1 job. (Emphasis added.) These notes seem to confirm 
the fears of the many critics of the DOL's proposed regulations. 
Therefore we ask that you confirm approximately what percentage of H-2A 
applications you foresee that will be approved by the DOL at the Level 
1 wage level, and whether such determinations will be made ``regardless 
of how many years of experience a given employee might have.''
3. Undocumented Workers in the OES Wage Survey
    At the hearing yesterday, the Committee heard testimony that there 
are approximately 2.5 million farm workers on ranches and farms in the 
United States, and that somewhere between 55% to 70% of those workers 
are undocumented immigrants. We also heard testimony that the lowest 
paid farm workers tend to be undocumented immigrants, whereas farm 
workers who are U.S. citizens or legal permanent residents tend to be 
paid at the top end of the wage distribution in the agricultural 
industry. It was also noted that the OES survey, like the current USDA 
Farm Labor Survey, does not account for workers' immigration status and 
therefore includes undocumented worker wages. This testimony strongly 
suggests that those farm workers in the bottom one third of the earning 
distribution--which is the data set for calculating the OES Level I 
wage--are comprised mostly and perhaps overwhelmingly of undocumented 
immigrants. Please confirm whether you agree with this analysis and 
whether there are any assurances that Level I wages (i.e., the average 
of the bottom third of wages) will not overwhelmingly reflect the wages 
paid to undocumented workers.
    The issues presented above suggest that DOL's proposed changes 
would have the effect of bringing the wages paid to H-2A workers--and 
consequently to U.S. workers who apply for jobs set at those same 
wages--down to the level of wages currently paid to undocumented 
immigrants. The DOL's own Notice of Proposed Rule Making admits that 
``U.S. workers cannot fairly compete against undocumented workers, who 
may accept work at below-market wages * * *'' (73 Fed. Reg. at 8549). 
It would appear that the DOL's proposed rule seeks to use undocumented 
workers' ``below-market wages'' as the benchmark for most agricultural 
jobs. Employers seeking guest workers could use undocumented workers' 
low wage rates when recruiting U.S. workers. Such an outcome strikes us 
as a violation of the statutory obligation that Congress placed on the 
DOL to prevent such adverse effects for U.S. workers, and therefore we 
seek your written response to this concern.
    Please send your written response to the Committee staff by COB on 
Tuesday, May 20, 2008--the date on which the hearing record will close. 
If you have any questions, please contact the Committee.
    Thank you for your testimony before our Committee, as well as for 
your prompt response to the points raised in this letter.
            Sincerely,
                                             George Miller,
                                                          Chairman.
                                             Jason Altmire,
                                                Member of Congress.
                                 ______
                                 
                  Committee on Education and Labor,
                             U.S. House of Representatives,
                                       Washington, DC, May 8, 2008.
[VIA FACSIMILE]
Hon. Leon R. Sequeira, Assistant Secretary for Policy,
U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, 
        DC.
    Dear Assistant Secretary Sequeira: Thank you for testifying at the 
May 6, 2008, Full Committee hearing on ``Do Federal Programs Ensure 
U.S. Workers Are Recruited First Before Employers Hire From Abroad?''
    Congressman Ruben Hinojosa has submitted the following questions 
for a response from you for the hearing record:
    1. The Department's proposed rules for the H2A program seem to 
place the convenience and ease of use for employers above the interests 
of the workers--both domestic and foreign. Please explain how allowing 
employers to provide housing vouchers rather than requiring them to 
arrange for and provide adequate housing will result in workers 
actually having an adequate place to live during their period of 
employment in the United States? What steps has the Department been 
taking to enforce the current regulation? How would enforcement be 
different under the proposed regulation?
    2. The Department's proposed regulations would further reduce 
government oversight of H2-A applications. Given the long and continued 
history of abuse in this program, what is the rationale for less 
oversight?
    Please send your written response to the Committee staff at by COB 
on Tuesday, May 20, 2008--the date on which the hearing record will 
close. If you have any questions, please contact the Committee. Once 
again, we greatly appreciate your testimony at this hearing.
            Sincerely,
                                             George Miller,
                                                          Chairman.
                                 ______
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                ------                                

    [Whereupon, at 1:00 p.m., the committee was adjourned.]