[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?
EDUCATION AND LABOR
U.S. House of Representatives
ONE HUNDRED TENTH CONGRESS
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,
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
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
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
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
Prepared statement of.................................... 27
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
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
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
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
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
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
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.
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
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
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
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
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
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
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
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
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
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
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.
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
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
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
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
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).
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
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
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
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
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
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
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
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
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
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
\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
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
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),
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
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/
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
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
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.
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.
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
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
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
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
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
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
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.
Thank you for inviting me to testify about our case. I welcome your
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
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
\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
\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).
\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
\24\ 45 C.F.R. Sec. 1625.11.
Chairman Miller. Thank you, Mr. Young.
STATEMENT OF JOHN YOUNG, PAST EXECUTIVE DIRECTOR, NEW ENGLAND
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
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
Chairman Miller. Thank you very much.
[The statement of Mr. Young follows:]
Prepared Statement of John Young, Past Executive Director, New England
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
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
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
doing a pilot program with youth from inner cities;
employing prison inmates;
recruiting SAW workers (who legalized under IRCA) from
employing foreign J visa workers.
None of these recruitment efforts turned out to be successful or
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
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
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
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
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:
NEW JERSEY: On-farm jobs at risk: 6198; Off-farm jobs at risk:
NEW HAMPSHIRE: On-farm jobs at risk: 632; Off-farm jobs at risk:
Again, in order to fully frame the choices before us relating to
agricultural labor, I quote from labor expert Dr. Holt's earlier-
``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
``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
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
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
[Additional submissions from Mr. Young follow:]
First Pioneer Farm Credit--Yankee Farm Credit
Farm Labor and Immigration Reform Economic Impact to New Hampshire
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
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
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
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
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
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
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
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
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
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
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
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:]
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
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
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
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
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.
[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
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
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.
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
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
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
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
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
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
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
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
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
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.
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\
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]
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.
\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/
\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/
\8\ BLOOD, SWEAT, AND FEAR: WORKERS' RIGHTS IN U.S. MEAT AND
POULTRY PLANTS (Human Rights Watch, 2004), www.hrw.org/reports/2005/
\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--
\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.
\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
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
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
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
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
Mr. McKeon. How many people.
Mr. Sequeira. Overseeing applications or subsequently when
workers are in the country, how many people are involved in
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 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-
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
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
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
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
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
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
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
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
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
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
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
Chairman Miller. Thank you. Mr. Grijalva.
Mr. Grijalva. Thank you, Mr. Chairman, and thank you for
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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. 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
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
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
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
Having said that, I will say that ag jobs is the best
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
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
Thank you again for your time and your testimony.
[The information follows:]
[Letter from the AFL-CIO, submitted by Mr. Miller,
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
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
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
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,
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.
Ed Butler, NH Representative and Innkeeper,
Carroll County District 1, The Notchland Inn, Hart's Location.
[Letter from Michelline Dufort, submitted by Ms. Shea-
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
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.
Michelline Dufort, President & CEO,
New Hampshire Lodging & Restaurant Association.
[Statement of Claire Gruenfelder, submitted by Ms. Shea-
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
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
[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
[Inclusion of Mrs. McMorris-Rodgers follows:]
[Questions for the record and responses received from Mr.
Committee on Education and Labor,
U.S. House of Representatives,
Washington, DC, May 9, 2008.
Hon. Leon R. Sequeira, Assistant Secretary for Policy,
U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington,
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
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
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/
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.
Member of Congress.
Committee on Education and Labor,
U.S. House of Representatives,
Washington, DC, May 8, 2008.
Hon. Leon R. Sequeira, Assistant Secretary for Policy,
U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington,
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
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.
[Whereupon, at 1:00 p.m., the committee was adjourned.]