[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
H-2A VISA PROGRAM: MEETING THE GROWING NEEDS OF AMERICAN AGRICULTURE?
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON
IMMIGRATION POLICY AND ENFORCEMENT
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
APRIL 13, 2011
__________
Serial No. 112-28
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
U.S. GOVERNMENT PRINTING OFFICE
65-744 WASHINGTON : 2011
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing Office,
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Printing Office. Phone 202�09512�091800, or 866�09512�091800 (toll-free). E-mail, [email protected].
COMMITTEE ON THE JUDICIARY
LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina JERROLD NADLER, New York
ELTON GALLEGLY, California ROBERT C. ``BOBBY'' SCOTT,
BOB GOODLATTE, Virginia Virginia
DANIEL E. LUNGREN, California MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana MAXINE WATERS, California
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio MIKE QUIGLEY, Illinois
TED POE, Texas JUDY CHU, California
JASON CHAFFETZ, Utah TED DEUTCH, Florida
TIM GRIFFIN, Arkansas LINDA T. SANCHEZ, California
TOM MARINO, Pennsylvania DEBBIE WASSERMAN SCHULTZ, Florida
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
[Vacant]
Sean McLaughlin, Majority Chief of Staff and General Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel
------
Subcommittee on Immigration Policy and Enforcement
ELTON GALLEGLY, California, Chairman
STEVE KING, Iowa, Vice-Chairman
DANIEL E. LUNGREN, California ZOE LOFGREN, California
LOUIE GOHMERT, Texas SHEILA JACKSON LEE, Texas
TED POE, Texas MAXINE WATERS, California
TREY GOWDY, South Carolina PEDRO R. PIERLUISI, Puerto Rico
DENNIS ROSS, Florida
George Fishman, Chief Counsel
David Shahoulian, Minority Counsel
C O N T E N T S
----------
APRIL 13, 2011
Page
OPENING STATEMENTS
The Honorable Elton Gallegly, a Representative in Congress from
the State of California, and Chairman, Subcommittee on
Immigration Policy and Enforcement............................. 1
The Honorable Zoe Lofgren, a Representative in Congress from the
State of California, and Ranking Member, Subcommittee on
Immigration Policy and Enforcement............................. 2
The Honorable Lamar Smith, a Representative in Congress from the
State of Texas, and Chairman, Committee on the Judiciary....... 4
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 5
WITNESSES
Jane Oates, Assistant Secretary for the Employment and Training
Administration, U.S. Department of Labor
Oral Testimony................................................. 8
Prepared Statement............................................. 10
Leon R. Sequeira, Of Counsel, Seyfarth Shaw LLP
Oral Testimony................................................. 59
Prepared Statement............................................. 61
H. Lee Wicker, Deputy Director, North Carolina Growers
Association
Oral Testimony................................................. 66
Prepared Statement............................................. 69
Bruce Goldstein, President, Farmworker Justice
Oral Testimony................................................. 75
Prepared Statement............................................. 77
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Material submitted by the Honorable Zoe Lofgren, a Representative
in Congress from the State of California, and Ranking Member,
Subcommittee on Immigration Policy and Enforcement............. 19
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Judy Chu, a Representative in
Congress from the State of California, and Member, Committee on
the Judiciary.................................................. 93
Prepared Statement of the American Farm Bureau Federation........ 94
Prepared Statement of Cathleen Caron, Executive Director, Global
Workers Justice Alliance....................................... 122
Prepared Statement of the Most Reverend Jose H. Gomez, Archbishop
of Los Angeles, California, and Chair, U.S. Conference of
Catholic Bishops' Committee on Migration....................... 126
Prepared Statement of the National Immigration Forum............. 130
H-2A VISA PROGRAM:
MEETING THE GROWING NEEDS OF
AMERICAN AGRICULTURE?
----------
WEDNESDAY, APRIL 13, 2011
House of Representatives,
Subcommittee on Immigration
Policy and Enforcement,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to call, at 10:01 a.m., in
room 2141, Rayburn Office Building, the Honorable Elton
Gallegly (Chairman of the Subcommittee) presiding.
Present: Representatives Gallegly, Smith, King, Lungren,
Gohmert, Poe, Gowdy, Lofgren, Conyers, and Jackson Lee.
Staff present: (Majority) George Fishman, Subcommittee
Chief Counsel; Marian White, Clerk; and David Shahoulian,
Minority Counsel.
Mr. Gallegly. I call the Subcommittee to order, and good
morning to everyone.
This morning we are going to talk about seasonal
agricultural labor. As we know, seasonal agricultural labor is
a class by itself. Unlike almost all other occupations, there
are simply not enough Americans willing to take the jobs of a
migrant farm worker. In fact, our Government's policy for
generations has been to remove Americans from such labor.
The labor-intensive branch of agriculture, fruits,
vegetables, and horticultural specialties hires over 1.2
million individual farm workers every year. The U.S. Department
of Labor's National Agricultural Workers Survey annually
surveys hired crop farm workers. It reveals that over the
period between 2007 and 2009, 48 percent admitted being in our
country illegally. The actual figure may be higher. In fact,
quite frankly, I am sure it is. NAWS shows that 85 percent of
first-time hired farm workers admit to being here illegally.
What legal labor force option do growers really have? Since
1986, the H-2A program has made available visas for temporary
agricultural workers. However, 16 years ago, American
agricultural representatives told this Subcommittee that the H-
2A program was ``characterized by extensive complex regulations
that hamstring employers who tried to use it and by costly
litigation challenging it use when admissions of an alien
worker are sought.'' They alleged that the Department of Labor
was ``opposed to the program.''
Front and center in the growers' minds was ensuring the
availability of sufficient labor to meet the crucial needs like
harvesting, whose timing varies with the weather.
Unfortunately, timeliness has never been the H-2A's strong
suit. Neither has realism about the availability of domestic
labor.
We are here 16 years later and apparently little has
changed. The president of the Virginia Agricultural Growers
Association, an apple grower, has testified that ``were it not
for the H-2A program, broken, costly, and perilously
litigation-prone as it is, we would be unable to farm at all .
. . One of the most frequently cited reasons for our region's
farmers to go out of business is that simply they cannot
continue under the burdens of the H-2A program.''
The Bush administration's Labor Department initiated a bold
plan to revamp the H-2A program. The plan remade the program
into an attestation-based system designed to ``eliminate
cumbersome regulatory practices'' and speed the guest workers
to growers in need. It was also designed to make the costs of
the program more manageable for the growers. Although it did
not resolve all the agricultural needs, the regulations
received generally positive reviews from the grower community.
Unfortunately, one of the first actions of the Labor Department
under the Obama administration was to rescind those
regulations.
We will receive testimony today from the Labor Department
and also from one of the architects of the Bush Labor
Department regulations. We will hear from the growers who
utilize the H-2A program and try to make the best of it. We
will hear from an advocate for farm workers who believes the
program harms both American workers and the guest workers
themselves. We hope that this hearing will plant the seed for
needed reform.
And with that, I would yield to my friend, the Ranking
Member, Zoe Lofgren.
Ms. Lofgren. Thank you, Mr. Chairman.
There is no question that our immigration system is broken,
and nowhere is that more evident than in our agricultural
sector.
Of the 2 million jobs on Americans' farms and ranches, more
than half are held by undocumented workers. The Department of
Labor estimates that over 50 percent of all seasonal
agricultural workers are undocumented, and experts believe that
due to under-reporting, that number may actually be closer to
75 percent. Either way, it doesn't get much more broken than
that.
Our Ag sector has long suffered from the lack of available
U.S. workers to grow and pick America's fruit and vegetables.
And even in today's tough economic climate, an insufficient
number of U.S. workers are filling manual seasonal and migrant
Ag jobs.
One reason for this is that Americans are better educated
today than they were before. In the 1950's, some 50 percent of
the U.S. workforce did not have a high school diploma. By 2009,
that number had plummeted to 5.7 percent. We as a country are
simply training our workers to do things other than farm work.
I could go on and on about the many large-scale attempts to
recruit U.S. workers over the years. I could even mention the
recent Take Our Jobs campaign by the United Farm Workers which
we explored in a Subcommittee hearing last year with the
president of the United Farm Workers and another witness whose
name escapes me now. But we all know this. We already know that
while there are U.S. workers in the fields now, whom we have a
duty to protect, their numbers are shrinking, and we know that
if we somehow deported the 1 million to 1.5 million
undocumented workers on our farms and ranches right now, there
are too few Americans jumping at the chance to fill those jobs.
And I suspect that is why we are having this hearing.
My colleagues on the other side of the aisle want people to
play by the rules, as well they should. And we are trying to
find a way for farmers and ranchers to do just that. I expect
we will see increasing pressure in this Congress to find a
solution in this area, especially as enforcement efforts
continue to grow and this Congress considers whether to mandate
the use of e-Verify by all employers.
As I see it, this hearing is really an admission. It is an
admission that not only do we have a problem, but the solution
to that problem involves immigrants. This hearing is proof that
our country has a need it desperately needs to meet, and it
desperately needs immigrants to meet that need.
Discussing the H-2A program is definitely part of finding a
solution, but surely we know it is not enough. I hope we can
agree that the solution to our problem is not to deport 1.5
million farm workers now in our country only to replace them
with 1 million to 1.5 million new temporary workers on a yearly
basis. I don't think that is a viable option. On its face, the
solution would be inefficient, wasteful, and incredibly
expensive.
How many times have we heard my colleagues on the other
side of the aisle question the ability of the Federal
Government to manage even the smallest tasks? I join them now
in questioning the wisdom of putting an entire industry in the
hands of Government bureaucrats tasked with the responsibility
of moving over a million workers in and out of the country
every year and ensuring that the right workers are in the right
location at the right time.
Indeed, one of the majority's witnesses will testify today
that the biggest problem he now faces in getting H-2A workers
is getting enough consular appointments for visa interviews and
background checks. Knowing the Chair of the full Committee, as
I do, I know those requirements won't be going away anytime
soon. Just imagine how much more difficult it will get when we
as a country need not the 150,000 H-2A workers who were
admitted in fiscal year 2009, but 10 times that many.
We need to be honest with ourselves and put ideology aside.
We have over a million undocumented farm workers in this
country and we need them. Yes, they violated our immigration
laws, but we as a country also share some of the blame here.
For decades, our immigration system has not been designed to
meet the needs of our economy. Dr. Richard Land, president of
the Southern Baptist Convention, testified at a Subcommittee
hearing last year, and we may recall his comment. He said we
have two signs at the border. One says ``no trespassing,'' and
the other says, ``help wanted.''
Our employers, by hiring these workers, and our Government,
by failing to fix the broken system and looking the other way
for years, are both complicit here, and to some extent so is
the entire Nation. These farm workers have filled an important
need, and each of us has literally benefitted from the fruits
of their labor. Not only have they fed this country, but they
have also kept a critically important American industry alive.
That industry ensures that we don't have to rely on other
countries for food as we do oil. And it keeps millions of U.S.
workers employed. We must remember that every farm workers
supports 3.1 upstream and downstream jobs in manufacturing,
seed production, processing, packaging, transportation,
accounting, advertising. Those jobs go to Americans, and if we
don't get this right, those jobs go away too.
I look forward to hearing from our witnesses today, and I
yield back the balance of my time.
Mr. Gallegly. I thank the gentlelady.
At this time, I will yield to the gentleman from Texas, the
Chairman of the full Committee, Mr. Smith.
Mr. Smith. Thank you, Mr. Chairman.
Mr. Chairman, there are no jobs Americans will not do, but
there is one job that neither Americans nor immigrants seem to
choose if they have other options: seasonal agricultural work.
That is why many illegal immigrant farm workers who received
amnesty in 1986 soon left the fields for better jobs in the
city. As the president of the American Farm Bureau has stated,
any new amnesty such as AgJOBS would have the same result.
Because of this, U.S. employers often face a shortage of
available American workers to fill seasonal agricultural jobs.
There is no numerical limit to the H-2A temporary
agricultural work visas. And yet, usage of the program has
always been below expectations. Why is that? That is the focus
of today's hearing. Why don't more growers who have heavy
demands for seasonal agricultural labor make better use of the
program?
In addition to the concerns that Chairman Gallegly has
mentioned, growers are troubled by the great cost of using the
H-2A program, especially the ``adverse effect wage rate'' that
they must pay guest workers. Growers also have to provide free
housing for guest workers and free transportation from the
guest workers' home countries. And they are concerned about the
``50 percent rule''--under which they have to offer jobs to all
American workers who apply even after their guest worker
application has been approved and the guest worker has actually
arrived.
In 2008, the Department of Labor concluded that the vast
majority of growers, ``find the H-2A program so plagued with
problems that they avoid using it altogether.'' In response,
the Labor Department issued new regulations to address the
concerns of growers. The new Bush administration regulations
attempted to streamline the application process for growers by
moving to an attestation-based system in which growers made
commitments backed up by Department of Labor audits. The
regulations sunsetted the 50 percent rule and restricted grower
responsibility for transportation expenses only to guest
workers who fulfilled at least half of their work contract.
That makes common sense. The regulations did not do away with
the adverse effect wage rate but altered its calculation to
more reliably mirror local labor cost.
When the new Administration took office in 2009, it almost
immediately sought to suspend the Bush administration's
regulations, and that is regrettable because the
Administration's actions made the situation worse. When told by
a Federal court that it had to adhere to the processes of the
Administrative Procedures Act, the Obama administration Labor
Department proposed and then implemented yet more regulations,
making the situation yet worse. These Obama administration
regulations, as noted by the Farm Bureau, rolled back common-
sense improvements and bring us back to the old, problematic
system.
The H-2A program needs to be fair to everyone it impacts,
especially American farm workers, guest workers, growers, and
American consumers. It must provide growers who want to do the
right thing with a reliable source of legal labor. It must
protect the livelihoods of American workers. It must protect
the rights of guest workers, and it must keep in mind the
pocketbooks of American families.
Just like tilling the land, accomplishing all of these
goals will be a lot of work. At today's hearing, we will
examine how to improve the H-2A program. U.S. farmers need to
be able to keep growing our crops and our economy.
Mr. Chairman, let me finally say that I think any solution
we come up with has to be a bipartisan solution, and for that
reason, I am sorry to have heard the Ranking Member's comments
a minute ago. I thought she was particularly and unnecessarily
partisan, and that is not conducive to getting to a bipartisan
solution.
I will yield back.
Mr. Gallegly. At this time, we will yield to the gentleman
from Michigan, the Ranking Member of the full Committee, Mr.
Conyers.
Mr. Conyers. Thank you, Chairman Elton Gallegly. I am
starting off here trying to sort out these arguments here. My
friend, the distinguished Chairman of the full Committee, Mr.
Smith, said there are no jobs Americans won't do. I think he
went on to explain that there were some jobs Americans won't
do.
But we have had four hearings, starting on January 26
through February 10, March 1--this is this Subcommittee--March
10, March 31, all immigration hearings. And if I didn't hear it
once, I heard it a dozen times from my dear friend from Iowa,
Steve King, who said essentially let's deport all immigrants.
If he didn't say that at least 10 times, we will go get the
record.
And yes, I will yield to you. Didn't you say it 10 times?
Mr. King. Mr. Ranking Member----
Mr. Conyers. Yes or no?
Mr. King. No.
Mr. Conyers. Oh, okay.
Mr. King. I can expand on that if you would yield.
Mr. Conyers. No, I am not going to yield. I just wanted to
make sure that we were in agreement.
Now, I will look up the record for you. Fortunately,
everything that we say in Committees is taken down by a court
stenographer and transcribed. So I will be prepared to
apologize to you real soon because I am asking my staff to go
start checking that statement right now.
Now, the thrust of all the four hearings I thought--and I
stand to be corrected again--is that we have got to get rid of
immigrants, especially illegal immigrants. As a matter of fact,
somebody that I mistakenly apparently thought was Steve King
has said we ought to take them all out of the country, all 11
million. There were 12 million. Now it is down to 11 million.
They all ought to be taken out of the country. I guess nobody
ever said that on the other side. I was hearing that. That was
a mistake too.
Well, I am sure you are getting your stories straightened
out now, my friends, because today's hearing is about how
desperately our country needs immigrant workers because we
don't have enough Americans to do the job. And so if we don't
get more immigrants into the country, these farms are just
going to have to close up.
In the first four hearings, the witnesses for the majority
and the Members on the majority side said that if we just got
rid of the immigrants supposedly who were taking our jobs,
employers would then increase wages to Americans to take those
jobs.
But in today's hearings, the majority witnesses will be
explaining to us that we are paying foreign agricultural
workers too much as it is. There is going to be testimony,
unless somebody changes it, that $9 an hour is too much to pay
a farm worker, and they want to drop the wages to $8 an hour.
Not only that, the growers say that even $8 is too much for a
seasonal migrant farm worker. Under current law, growers have
to pay for farm workers to travel to and from their home
country, usually of Mexico. But now the growers think that the
poor Mexican farm worker is better able to pay for these travel
costs.
Now, you will remember the hearings that Chairwoman Zoe
Lofgren had on this same Committee in which my friend, Stephen
Colbert, came in here to testify, and I was one of the few that
didn't want him to testify. He is an entertainer and he is as
smart as the devil, and he didn't come in here to give a
serious discussion about immigration.
But Steve King--well, I won't say Steve King anymore.
Somebody on the other side and the majority witnesses argued
then at that hearing that if we deported the undocumented farm
workers, Americans would fill their jobs.
But at today's hearing, my same colleagues on the other
side and some more new majority witnesses will say exactly the
opposite. Today the growers that are here today will testify
that we need immigrants to fill jobs on Americans' farms. And
in today's hearings, you are going to hear an interesting
solution to the problem. Rather than do something with the
million undocumented farm workers who have been living here for
years, who have raised families, who have paid taxes and are
now filling the jobs that we need, there are some that want to
deport these workers and replace them with a million new
temporary farm workers under the H-2A program where they can
only stay for--get this--10 months, and then they must go back
home and then come back if they want to come again.
And so for this hearing, we have called one of the
witnesses, a former official of the Department of Labor. As
Labor is charged with protecting American workers, one would
expect him to have a pretty good sense of the best ways to
ensure good wages and working conditions for such workers. But
he, this witness, was the main drafter of the H-2A rules that
were issued by former President Bush just before he left
office. These rules sought to lower wages for farm workers and
eliminated worker protections. In that rule, the Department of
Labor said that it was necessary to lower the wages of foreign
workers in order to better protect the wages of U.S. workers.
And I am going to introduce this for the record.*
---------------------------------------------------------------------------
*The information referred to was not available for this hearing
record.
---------------------------------------------------------------------------
Mr. Gallegly. I thank the gentleman.
Mr. Conyers. With that, Mr. Chairman, I thank you for
allowing me to exceed the time, and I will end my statement
there.
Mr. Gallegly. I would like to just take a brief moment and
respond to a couple things and what my intent is as Chairman of
this Committee.
All too often, we have a habit of mixing illegal and legal
when we talk about immigration. We are a country of immigrants.
We are also a Nation of laws. And in the previous hearings that
we have had in this Committee, I have never heard anyone
advocate the deportation of someone that is legally in this
country. And I think that we need to be very careful, when we
talk about deportation and the issue of immigration, not to mix
illegal immigration when we talk about a person being an anti-
immigrant or opposing immigrants being in this country. The
reference should be very careful. Sometimes these things are
mixed for reasons, and I understand the politics of that.
But we are working today on this issue to look at the
issues of unmet domestic needs and see if there is a way to do
this legally through the immigration laws, as we have for 200
years. So let's all try to be sensitive, when we talk about
immigrants and deportation, that we refer to legal and illegal
and not mix the two.
We are fortunate today to have two panels of very
distinguished witnesses, all with very impressive credentials.
Each of the witnesses' statements today will be entered into
the record in its entirety, and I would ask that the witnesses
please be sensitive to the 5-minute rule because we have a
limited amount of time, unfortunately, as is always the case.
But it will give every Member of this Committee an opportunity
to ask questions and get them on the record. And of course, as
I said, your written statement will be made a part of the
record of the hearing in its entirety.
Our first witness on panel I--in fact, we have only one
witness on panel I--is Ms. Jane Oates. Ms. Oates served as
Assistant Secretary for Employment and Training at the U.S.
Department of Labor and now leads the Employment and Training
Administration. Prior to her appointment, Ms. Oates served as
executive director of the New Jersey Commission on Higher
Education and senior advisor to Governor Corzine. She also
served for nearly a decade as senior policy advisor to Senator
Edward Kennedy. Ms. Oates began her career as a teacher and she
received her bachelor's degree from Boston College.
Welcome, Ms. Oates. And as this time, I will yield to you 5
minutes for your testimony.
TESTIMONY OF JANE OATES, ASSISTANT SECRETARY FOR THE EMPLOYMENT
AND TRAINING ADMINISTRATION, U.S. DEPARTMENT OF LABOR
Ms. Oates. Chairman Gallegly, Ranking Member Lofgren, and
Members of the Committee, thank you for the invitation to
appear to discuss the Department of Labor's role and
administration of the H-2A temporary agricultural guest worker
program, a program designed to serve a critical workforce need
for agricultural employers.
As the Chairman said, I am the Assistant Secretary of
Employment and Training, and the Office of Foreign Labor
Certification is in ETA and we have the responsibility for the
nonenforcement H-2A duties. Our friends at Wage and Hour do the
enforcement.
I would like to just spend a few minutes highlighting some
of the points from my written testimony.
The Department of Labor has two primary concerns with
regard to its statutory mandate for the H-2A program. First is
maintaining a fair and reliable process for employers with a
real need for temporary foreign agricultural workers. Second is
establishing necessary protections for both U.S. workers and
those temporary foreign workers.
Within the statutory mandate is the important
responsibility of ensuring that U.S. workers have first access
to these jobs. To ensure these mandates are met, the Department
implements the H-2A regulation and accepts and processes
employer-filed H-2A applications for labor certifications.
For the last 20 years preceding 2008, the Department's H-2A
regulations remained largely unchanged. In 2008, new
regulations were promulgated which significantly revised the
program. A comprehensive review of these changes as the
Department changed hands demonstrated that these new
regulations did not adequately satisfy our Department's mandate
to protect U.S. workers. It also found that the regulation
failed to allow for sufficient, robust, and meaningful
enforcement.
To address shortcomings identified in the review, the
Department published a final rule which became effective in
March 2010. As I note in my written testimony, the 2010 final
rule in many ways reflects a return to the processes and
procedures which were in place for all but 13 months over a 23-
year period. As examples, we returned to the documentation of
compliance as opposed to self-attestation. We continue to use
the USDA Farm Labor Survey as the basis for determining the
wage rate and we reinstituted the role of the State workforce
agencies in the housing inspection and approval process.
The Department believes that the provisions in the 2010
final rule achieve a reasonable balance between meeting the
seasonal workforce needs of growers, who are very important to
us, while still protecting the rights of agricultural workers
who are also important to us. The regulation protects the
integrity of the program, protects workers from potential abuse
by employers who fail to meet the requirements of the program,
and quite frankly, levels the playing field for those employers
who are and always have played by the rules.
The underlying statutory requirement which governs
development and implementation of the regulation, that the
employment of temporary foreign workers does not adversely
affect the wages and working conditions of U.S. workers who are
similarly employed, has never been more important.
Many of you on this Committee are still witnessing
persistently double digit unemployment. The Department takes
very seriously its obligation to ensure that U.S. workers have
first access to these jobs. In these difficult economic times,
we need to do all that we can to make sure that American
workers are aware of these opportunities and have the choice to
take advantage of them. So in addition to enhancing
recruitment, the 2010 final rule created an online job registry
so U.S. workers could more easily access information about and
apply for these jobs if they so chose.
The Department planned and implemented a number of
stakeholder meetings and briefings to reintroduce users,
growers, of the program and many of the features that had been
in place prior to the 13-month period. Activities included
public briefings across the country, national webinars, and a
question and answer process through a dedicated public email
box.
I hope that I will hear lots of questions, and please, I
would like all the Members of this Committee to know ETA and
the Department of Labor are anxious and enthusiastic about
working with you on all projects related to H-2A regulations.
Thank you very much.
[The prepared statement of Ms. Oates follows:]
__________
Mr. Gallegly. Thank you, Ms. Oates.
Ms. Oates, when the H-2A program was originally created,
the expectations were that applications would be close to or
more than 200,000 guest worker requests per year. However, in
the year 2010, there were less than 56,000 visas to H-2A
workers. Why do you believe that the H-2A program was not used
more by the growers?
Ms. Oates. Congressman, that is a question that we have no
data. So I can't give you anything but an opinion, and opinions
are limiting. So I am open to other opinions.
I think it is a mix of American workers not understanding
what these jobs are about and not knowing how to access them. I
think it is also a mix of folks that have been here before
through other means taking those jobs with employers. But I
have no data to support either of those, and I would feel that
I would rather not give you a stronger opinion as opposed to
undocumented workers or the American workers' willingness or
unwillingness to take these jobs.
Mr. Gallegly. Don't you believe that it would be reasonable
that someone should be asking the question, why are we having
only one-fourth of what the expectations are? Or do we need to
maybe downgrade and say that we have maybe four times the
number of people or do we have one-fourth the number of people
we actually need? I could see if it was within a 5 or 10
percent margin, but when it is 300 percent or 400 percent
different, I think that certainly would justify someone
reviewing whether the numbers are correct or whether it is a
problem with the process. Is that reasonable?
Ms. Oates. Congressman, I not only think it is reasonable,
I think it is a responsible question and I think it is one that
we should all be asking and seeking an answer to. Let me tell
you a little bit about what we are doing to try to get a better
answer to that.
As you know, my agency also operates the Unemployment
Insurance program and the Workforce Investment System programs
so that we have a close relationship with the States. We are
having ongoing and frequent conversations with States about
making sure these jobs are advertised and trying to get better
data about who these workers are. Unfortunately, we have
limited statutory mandated responsibilities. Those are our
first priority, making sure the protection piece is there and
making sure that we are making these jobs available. But I
think you and many of the Governors share the same concern
about figuring out who these workers are, and you have our
partnership in trying to come up with those answers.
Mr. Gallegly. Do you think it is possible that the need is
actually closer to 200,000 than 50,000? And if so, do you think
it is also possible that the regulations or the bureaucracy may
be more cumbersome than the benefits of the worker would
ultimately be?
Ms. Oates. Well, I trust employers, so I think that
employers are giving us accurate information about who they are
employing and not employing people, you know, in quotes, under
the table. So I basically have a trust of employers.
But I would say to you we are open to putting everything on
the table in terms of investigating what the best next moves
are to keep the agricultural industry vibrant and to also
ensure the rights of the workers in those jobs regardless of
their documentation status or not. That is not the Department
of Labor's job. We don't decide documentation. We ensure safety
and protection of all workers on a job site.
Mr. Gallegly. Can you give me your assessment of the wage
you believe American workers would inquire that would fill the
1.2 million hired farm worker positions, fruit, vegetable,
horticultural specialists, growers seek to fill each year? What
do you see as what the wage rate should be?
Ms. Oates. Congressman, I see that the wage rate in
agricultural jobs just like in any other jobs, as States have
the right to set minimum wage above the Federal minimum wage. I
see that as best determined at a local level. That is why I
think the AEWR is so important. It is a survey done so that--
for instance, this year some States' wages went up and other
States' stayed the same and some States' wages went down. I
think like many decisions this is a decision that needs to be
made at the State level. And the agricultural survey allows us
to do that.
Mr. Gallegly. I recently talked to some growers in my area.
Many know I have a very large agricultural area. We would like
to think of ourselves as the strawberry capital of the world.
Ms. Oates. We like to use your products.
Mr. Gallegly. A lot of citrus and so on. But celery happens
to be a crop that I have had my local Farm Bureau folks tell me
that they have a pretty good documented record that the average
pay for celery packers, the folks that are cutting the celery
in the field and packaging them, is between $28 and $30 an hour
because they work really on a piecework basis. They are not
paid that much per hour, but when you count the number of
boxes--it is so much per box--that it does, and obviously they
are working very hard to do that. But are you aware of numbers
like this?
Ms. Oates. I'm not aware of that and would love to work
with your growers.
I will tell you quite frankly in personal experience I have
picked--I haven't picked celery or packaged it, but I picked
strawberries, and after about 2 hours, I am ready to go home
and take a long hot bath. These are tough jobs.
And I don't think we want to pick out sectors. There are
people in other sectors that do very difficult, tedious jobs,
and they get paid for it. So if the local area--if that is the
going rate in your district, Congressman, I would have to
respect it. But again, I am more than willing to talk to your
growers about whether $28 an hour is a fair wage in that area.
Mr. Gallegly. Well, when you were picking strawberries,
were you picking strawberries as an----
Ms. Oates. As a mother.
Mr. Gallegly [continuing]. Occupation and as a mother----
Ms. Oates. Yes.
Mr. Gallegly [continuing]. Or as an experiment?
Ms. Oates. Not as an occupation. As you know, so generously
reading my bio, I was a teacher and, in my teaching
responsibilities, often would take my own family out to learn
about different things. And we lived in Philadelphia and south
Jersey is not a strawberry capital like your congressional
district is, but they do have a few plants. And let me tell you
it is tedious work.
Mr. Gallegly. But it wasn't for the wages for the day. It
was an experiment.
Ms. Oates. I never earned a wage, purely a volunteer.
Mr. Gallegly. We take a lot of volunteers.
The gentlelady from California, the Ranking Member, Ms.
Lofgren?
Ms. Lofgren. Thank you. Before asking my questions, I would
like to ask unanimous consent to enter into the record
statements prepared for today's hearing. The statements are
from our colleague, Representative Raul Grijalva, from Arturo
Rodriguez, President of the United Farm Workers, from the
Agricultural Coalition for Immigration Reform, a coalition of
growers and grower associations from across the United States;
and from Karen Narasaki, President of the Asian American
Justice Center. I would ask unanimous consent.
Mr. Gallegly. Without objection.
[The information referred to follows:]
__________
__________
__________
__________
Ms. Lofgren. I think this is a complicated question to some
extent and in other ways not. You know, we talk of this as
unskilled work, but that is not really accurate. A lot of
people don't realize. They say, well, these people ought to
come here legally, but when people say that I don't think they
realize that we have 5,000 permanent resident visas a year for
people that don't have college degrees. Now, they may have high
skills, but being a farm worker doesn't require a college
diploma. And so the people who have come here over the past 20
years to do hard farm work didn't really have an option for the
most part, and the farmers who employed them, for the most
part, did not have options either.
I don't hold myself out as an expert, but I do recall my
husband's stories of his very short career harvesting carrots
in Bakersfield where you just couldn't do it. I mean, the
people who knew how to harvest it could make some kind of wage.
Somebody who was just willing to work hard couldn't do it.
And I remember in my own district when I was in local
government, the mushroom cutters down in Morgan Hill and San
Martin who--it was highly skilled and very sharp knives in the
dark areas. They were paid well and they were highly skilled. I
couldn't walk in and do that, I will tell you.
And so I think we need to put that on the table that these
are hard jobs but they are in many cases skilled jobs. And they
are often in remote locations. So when I went out and visited
the strawberry growers--I don't have any in my district, but
over on the coast, I mean people are living in barracks and it
is not like you could live at home or anywhere nearby. I mean,
it is in a remote location. So I think in addition to the
wages, there are other elements of this profession that really
weigh against people in urban settings saying, you know, I will
go sign up and do that.
Having said that, I think the wages do matter. We have
talked about 50 percent to 75 percent of the farm workers in
America don't have their proper papers. But that means that 50
percent to a quarter percent are Americans and they deserve the
same kind of wage protection that any other American worker
has.
I was kind of surprised that apparently the Bush
administration at the end put out their regulation that lowered
the wages, and the assertion seemed to be that somehow this
would protect U.S. workers from wage competition from
undocumented workers. But that didn't make any sense to me. At
the time, Congressman George Miller and I wrote a letter noting
that wage competition for Americans is just as bad from
temporary workers as it is from undocumented workers and that
lowering the wages would bring about exactly what the
Department of Labor said it was trying to prevent.
What do you think of that rationale, that by lowering the
wages for temporary workers, we could somehow protect the wages
of American workers? Does that make sense to you?
Ms. Oates. Congresswoman, there is absolutely no other
area, no other sector that we have ever done that and seen it
not have an impact. So I am confused by that.
But, you know, I can't tell you what the thinking was, and
I have to respect my colleagues from the last Administration.
Ms. Lofgren. That is fair.
Ms. Oates. What I can tell you is that when we made the
change, we did it at the beginning of our Administration so
that we could learn by our mistakes and make adjustments and we
have done that. As I said in my oral testimony, we have had
challenges and we have adapted to those challenges.
Ms. Lofgren. Well, under the H-2A program, workers can't
switch employers, and they have to leave the United States when
the job ends. And if they want to return in the following year,
they have to depend on an employer to apply for a visa for
them, and of course, they have no rights to transition to any
kind of permanent protected status.
Given that, is the Department concerned that H-2A workers
might be particularly vulnerable to abuse and limited in their
ability to ask for better job terms because of the bargaining
position they have, the way that we have set this up? What do
you think about that?
Ms. Oates. Absolutely, Congresswoman. I mean, it is why
getting information from them is so difficult. In many
instances, they are loyal to their employer and things work
well, but in the instances when they have problems, it is very
difficult--and I am sure you will hear that from the advocate
groups--to get them to say anything because their family's
livelihood is dependent on their ability to work for the full
crop cycle.
Ms. Lofgren. So given that this group--and that is not to
say that every employer would exploit or abuse them. I am not
certainly saying that. But as a group, they are particularly
vulnerable to abuse and they are in no position to argue about
it. Would that cause you concern that unscrupulous employers--
not the bulk, but unscrupulous employers--would discriminate
against American workers to obtain a group that they could
exploit?
Ms. Oates. Well, I think that is exactly the reason that we
think it is so important to have the State workforce agency
involved. We think the States are in a unique position. They
know the employers. They know employers that have played by the
rules before. And actually many Governors have spoken to me
about the fact that those that played by the rules often felt
disadvantaged by the folks that you are defining as
unscrupulous employers. So I think it is our statutory
responsibility to make sure that we are doing all that we can
to make sure that more employers are playing by the rules.
Mr. Gallegly. The time of the----
Ms. Lofgren. In closing, if I may ask unanimous consent for
another 60 seconds.
Mr. Gallegly. Without objection.
Ms. Lofgren. I would just note--I think it was last week--
we had the former Chairman of the Committee, Bruce Morrison,
saying we ought to trust the market rather than the
regulations. And if we gave some stature to these employees so
that they were not in a position to be abused, that is likelier
to protect them than an army of enforcers. You will never have
enough enforcers out in the field to protect against that.
Isn't that correct?
Ms. Oates. That is exactly right. I mean, our average over
the past few years in terms of Wage and Hour, as I said, our
enforcement arm, is about 131 investigations a year.
Ms. Lofgren. I thank the Chairman for the additional time
and yield back.
Mr. Gallegly. The gentleman from Iowa, the Vice-Chair of
the Subcommittee, Mr. King.
Mr. King. Thank you, Mr. Chairman.
I appreciate your testimony, Ms. Oates.
And I think about some of the things that were said. First,
I look forward to the apology that I expect will be coming from
Mr. Conyers, and I don't feel the need to defend myself. I will
let the facts unfold here over time.
But also, on the statement made by the Chairman of the
Subcommittee, ``we are a country of immigrants,'' I would make
the point that every nation is a nation a immigrants. I haven't
found anyone who came up with an exception to that, although
some have tried.
I would take you to this. You are the Department of Labor.
So do you look at the big picture items such as our population
is somewhere around 306 million to 308 million people? Do you
know what our labor force is, the overall labor force?
Ms. Oates. In all sectors?
Mr. King. Yes.
Ms. Oates. I don't have that number with me, Congressman,
but I am happy to get that for you.
Mr. King. Well, I would appreciate that. I know that there
is a chart that is published on your website that is very
available. The last time I looked at it, it was about 142
million.
Ms. Oates. I would have said a little under 150 million. So
I think that is probably right, but I would rather give you an
accurate number.
Mr. King. And I am confident that 142 million has gone up
some. So let's say we are in conceptual agreement here.
Do you ever look at those numbers then at the number of
Americans that are not in the labor force? And do you happen to
have a conceptual estimate of what that might be that we would
find if we looked on that chart? I am waiting for it to come to
me.
Ms. Oates. No, no. Absolutely. I think that the number is
growing, unfortunately, separating from the labor force, people
getting fatigued from looking after being dislocated. And the
critical number that I would point out to you is the abysmal
participation of those 25 and younger right now who are
actively looking for jobs, and that is particularly marked when
you are talking about disaggregating by people of color. In
your State, both Black and Latinos in Iowa are twice as likely
to be unemployed 25 and under than----
Mr. King. I appreciate your perspective on that, and that
is something I wanted to explore here. From some old numbers,
mostly from memory for me, I remember going to that chart and
adding up. Would you agree that 16 is a legitimate age to start
counting the available labor force?
Ms. Oates. Yes, sir.
Mr. King. So from 16 to 19, if I remember, the last time I
looked it was 9.7 million in that group. And then from 20 to
25, I believe is the next segment. There was another group, a
little larger than half that size. And as I added that up, I
went up to 74 because Walmart hires at 74 and we are paying
unemployment at 74.
Now, I am making this point because I think we will find,
when we look at this chart, that those not in the workforce,
those who are formally unemployed and those who are not in the
workforce but not formally unemployed, come to a number that
will approach or perhaps exceed 80 million. And if we have 80
million Americans that are eligible for work--now, all of them
are not eligible perhaps for picking strawberries, but this is
a huge universe of people. 80 million people. That is a greater
population than most countries in the world by far.
So I want to make this point also that there are at least
71 means-tested Federal welfare programs that we have in this
country that compete for a large share of that labor that is
not in the workforce. And so when we look at an equation and
hear a statement that there are a million illegals working in
the farm sector and we need them, I am thinking about a nation
that has a lot of people that are riding along on this boat and
not pulling on the oars. Wouldn't a logical nation want to
employ all of those that are eligible for work before they
would bring people in, especially given that we have 71 means-
tested welfare programs and we have established a welfare state
and that welfare state supplements low wages also in the United
States?
And when you consider that the lowest 50 percent of income
pays only 2.7 percent of the income tax, would you agree that
there are many things out of balance in this economy and that
it would be probably difficult to try to fix it by going in and
adjusting to the demand in the H-2A program?
Ms. Oates. Well, I don't represent an agency that operates
any of those 71 means-tested welfare programs, so I don't think
I can speak on their behalf.
But let me tell you what I can speak about. I think it is
critical that we don't make inside-the-beltway decisions about
what American workers will and won't do. I think we need to
make sure that American workers are aware of the work that is
available near to their home or near to a place where they are
able to go to work.
And I think anecdotally in the summer of 2010, we saw
community college students and high school graduates picking
fruit that never dreamed they would be picking it before.
And I think that our responsibility statutorily is to do
everything in our power to make sure that Americans are aware
of jobs that are available and that the guest workers that we
bring over come over in a fair and equitable way and that no
worker working in the agricultural business adversely affects
the wages of American workers.
So I mean, I would be happy to look at numbers with you. I
would also be happy to look at any mechanism you or any other
Members of the Committee would have to help us get the word
out.
Mr. King. Mr. Chairman, I would ask unanimous consent for
an additional minute.
Mr. Gallegly. Without objection.
Mr. King. Thank you, Mr. Chairman.
I would just pose this question. There are over 600,000
acres in the San Joaquin Valley that have been dried up because
of water policy primarily coming out of California but also
that this Congress has some oversight over. Wouldn't it be
rational to think that there would be a demand for fewer Ag
workers in the San Joaquin Valley if we can't get the water
opened up to the farmers down there?
Ms. Oates. Again, it is not an area of my expertise with
the San Joaquin Valley, but it would seem to me that we should
be doing everything as a Federal Government that we can to open
up employment opportunities in every sector, and if clearing
arid land and making it farmland again is a way to create jobs
and create businesses, we should be actively looking at that.
Mr. King. Thank you.
Thank you, Mr. Chairman.
Mr. Gallegly. The time of the gentleman has expired.
Mr. Conyers?
Mr. Conyers. I don't have any questions.
Mr. Gallegly. Mr. Conyers has no questions.
We would yield then to the gentleman from Texas, Mr.
Gohmert--Mr. Poe. I am sorry. Mr. Lungren is next. If Mr.
Lungren will join us, he will be next.
Mr. Lungren. Ms. Oates, I just have to say that I am as
disappointed by your testimony as just about anything I have
ever heard. This is as nonresponsive as Steve Colbert last
year.
Ms. Oates. I am sorry to hear that, sir.
Mr. Lungren. Well, I am very sorry to hear it too because
listening to your testimony and reading your testimony, you
would think that the H-2A program is working well. It is a
failure right now for agriculture, and those of us in this
Congress on the Democrat and Republican side are going to pass
e-Verify. I don't think there is too much doubt about that. And
when we pass e-Verify, we are going to have a crisis in the
agricultural area, and we need to have something that works.
And I hear from you about you don't have an opinion as to why
only 50,000-some people have made applications when there seems
to be a demonstrated need for 200,000. You don't have an
opinion on that? I mean, you are open to opinions, but you
evidently weren't open to the opinions of the previous
Administration when they attempted to make it work.
We have a crisis and some people are talking about the fact
that California is the reason we don't have water. The reason
we don't have water is a Federal court decision based on
Federal law that says that the delta smelt is more important
than homo sapiens in the central valley of California who don't
have jobs. And we have hundreds of thousands of acres now
fallow. We are going to have millions of acres fallow if we
don't do something to solve this problem.
To hear somebody come up here and testify as to how well
the H-2A program is working when it is a demonstrated failure
right now for agriculture--we are going to have a crisis and
you are telling us that you are concerned about your statutory
authority after you folks decided that you would get rid of the
regulations of the previous Administration, but you are open to
other opinions. I mean, frankly, I am very, very frustrated
because I know what is going to happen. We are going to have a
crisis in agriculture in the United States. A lot of it is
going to be in California, but not just California. And we are
going to be sitting here talking about how well the H-2A
program has worked, and it isn't working. I am astounded.
The fact of the matter is we have had foreign labor working
in agriculture for 150 years. It has been legal or illegal,
depending on whether we had a workable program. And I am not
going to defend the Bracero program because I think it had all
sorts of problems with it. I have tried to come up with
alternatives. But the fact of the matter is it is frustrating.
In 1986, I was the Republican who led the charge for the
votes to pass Simpson-Mazzoli, and what happened was what
someone else mentioned here. A lot of those people who were
legalized went on to other work. They didn't stay in the
fields. I am not saying they should have stayed in the fields.
I wouldn't have stayed in the fields either. The fact of the
matter is it is tough work, as you have said. And I don't think
we can get American workers to work there. I wish we could. And
if that is not the case, we need to have a workable program.
The H-2A program is not working, demonstrably not working.
And to have you come up here and testify as if the thing is
just working fine, I am sorry, is extremely disappointing
because some of us are trying to work our way out of it. Some
would like to have comprehensive immigration reform. We are not
going to have it. Let's just be honest about it. We are going
to have e-Verify I think, and if we do, e-Verify and no
comprehensive program, agriculture is going to be clobbered,
and maybe some people think they ought to be clobbered. They
are being clobbered by the lack of water right now and no one
seems to give a whole lot about that.
But I am sorry. I am just very, very frustrated.
Let me ask you this question. If we pass e-Verify, do you
have an opinion as to whether that will have any impact in the
agricultural labor market?
Ms. Oates. Congressman, if the Congress passes e-Verify, we
will do everything that we can to work with----
Mr. Lungren. That is not my question. My question is do you
think it will have an impact in terms of the labor market in
agriculture in the United States.
Ms. Oates. If the NAWS data is correct, as we believe it
is, absolutely it will have an effect.
Mr. Lungren. And what recourse will agricultural workers
have? Advertise for American workers to work in agriculture?
Will that solve their problem in your opinion?
Ms. Oates. In my opinion, it is a part of the solution but
not the entire solution.
And Congressman, if I may, with great respect, just correct
something. I never said that the H-2A program is working well.
I told you what we were doing.
Mr. Lungren. I am sorry. I guess I misinterpreted the words
when you were talking about the great job that the Department
of Labor is doing.
Ms. Oates. I respect that. But you need to hear what I did
say. What I did say is we are working very hard to make sure
that the information gets out and that we are in the process of
continuous----
Mr. Lungren. Do you think it is going to work? If you get
enough information out, are we going to have enough American
workers to fill the void of those foreign workers who will now
not be eligible under e-Verify?
Ms. Oates. I don't know the answer to that, but I will tell
you we----
Mr. Lungren. Do you have a suspicion? Do you have a
suspicion? Do you have an inkling?
Ms. Oates. I am not a suspicious person.
Mr. Lungren. Do you have an inkling?
Ms. Oates. I have an inkling that we would have to ramp up
what we are doing to address increased claims and we would be
willing to do that.
Mr. Lungren. I thank you very much for your candor.
Ms. Oates. Thank you, Congressman.
Mr. Gallegly. The time of the gentleman has expired.
The gentlelady from Texas, Ms. Jackson Lee.
Ms. Jackson Lee. Thank you very much, Mr. Chairman.
Ms. Oates, welcome?
Ms. Oates. Thank you, Congresswoman.
Ms. Jackson Lee. And thank the Secretary and the Department
for doing such great work on behalf of American workers.
You know that our chief responsibility for all of us and I
believe the crux of the Department of Labor's founding premise
is to protect American workers, protect workers.
Ms. Oates. That is correct.
Ms. Jackson Lee. And as well, I believe it is to be part of
the nucleus of job creation and generation that we are trying
to and that we have been successful on for many of us with the
policies that we have worked on here in this Congress. It has
been about investing in job creation. And a lot of what you do
is based upon that. Am I correct?
Ms. Oates. That is correct.
Ms. Jackson Lee. So it is interesting on this particular
hearing on the H-2A program--and I was reading materials, and
it looks as if we are conflicted on the potential of this
program. What is the jurisdiction that the Department of Labor
has with respect to farm workers?
Ms. Oates. Congresswoman, it is our responsibility at the
Employment and Training Administration to work with the
employers to take the applications, to work with the States in
taking those applications, and then it is our sister agency,
Wage and Hour's responsibility at the Department of Labor to do
the enforcement.
Ms. Jackson Lee. So do you think it is productive to
suggest that the wages of farm workers, as you have stated
them, over the maybe period that you have been in place to be
lowered? Do you have any documentation that suggests that these
are outrageous hourly rates and that you are creating multi-
millionaires in the farm working business?
Ms. Oates. I do not, and I think it is really important.
Unlike many other sectoral workers in the United States, farm
workers don't enjoy the privilege of overtime. So, therefore,
their hourly wage is what they get whether they work 8 hours a
day or 16 hours a day. And I think their work ethic is such
that in partnership with the employer, they often do work
extended hours because of mother nature and the crop times. So
I think that it would be very difficult to become a wealthy
person as a farm worker.
Ms. Jackson Lee. Though this is not something we are
promoting, I know I have heard from adults who have said they
started as they were children, and in fact, we do know that in
a number of farming communities, there is an issue of when the
child will go to school and taking children out of school. So
we know that they are working during that timeframe. We know
that they are working as young adults during the time that
women are in their child-bearing stages, and some may even be
working during pregnancy. We know that there are those who
might be considered senior who are working. And the work--is it
light labor in your interpretation?
Ms. Oates. As I shared with my personal experience, I
couldn't do it for 2 hours. I think it is absolutely difficult
labor particularly with those crops that are picked in the
high-point heats of the summer and late fall.
Ms. Jackson Lee. I know as a Members of this Committee for
a number of years, one of the things that we talked about is
the poor living conditions that farm workers are in. Have you
assessed that in the U.S. Department of Labor?
Ms. Oates. It was something that there was a fair amount of
time and energy spent on as we contemplated changing the rule
because the self-attestation on housing clearly was not meeting
a livable standard. That was part of the anecdotal evidence
that was brought to us and we investigated, that housing was
one of the serious problems under self-attestation.
Ms. Jackson Lee. So the whole question of living conditions
and travel, the idea of lowering wages and then having the
workers be responsible for their travel and then poor working
conditions might make this a very challenging work to be
involved in.
Ms. Oates. Absolutely. And one of the things that is out of
all our control, except our friends at the Department State,
who is another valued partner in this, is the abysmal behavior
of some of the agents in foreign countries, what they charge
people even to get on a list. So we need to make sure that we
are being as clear and transparent as possible here in the
United States on our part because we really don't have the same
degree of control over those unscrupulous agents in other
countries.
Ms. Jackson Lee. So let's get to the crux of this. How many
American workers do you believe are being blocked from
participating in farm work, and is there a complexity and a
seemingly contradiction in the call for more farm workers and
then the call that immigrants, because these happen to be
immigrants, are taking jobs away from American workers? Is
there a way that the Department of Labor can assist in getting
American workers into the farm industry?
Ms. Oates. Well, I think what we are trying to do, what we
started last year, and what we are amplifying this year is, in
our close partnership with States, to get clear information out
about the work that is available, about the hourly wages that
are available, and the earning potentials, particularly for
young people who may be willing to do this to help pay their
way through college and for those who have experienced no luck
in looking for jobs after their last unemployment status ran
out.
So with the States, different States are doing different
things. Actually the Texas Workforce Board in your State has
been very aggressive working with us, even though Texas is not
suffering to the great extent as some other States. Their
unemployment is somewhere around the middle 8's right now, 8.5.
They have done much better in the recovery earlier. But the
Texas Workforce Commission has been a great partner in terms of
getting that information----
Ms. Jackson Lee. So our U.S. Department of Labor is making
themselves available with information for American workers.
Ms. Oates. That is exactly right.
Ms. Jackson Lee. And when we hear the cry for more workers,
it is not because we have not let American workers be aware of
their opportunities, and it is the farm industry that has cried
out for more immigrant workers to be able to ensure that their
crops go from farm to market.
Mr. Gallegly. The time of the gentlelady has expired.
Mr. Gowdy from South Carolina?
Ms. Jackson Lee. Thank you, Mr. Chairman. I hope we can
talk about comprehensive immigration reform. Thank you.
Mr. Gowdy. Thank you, Mr. Chairman.
Ms. Oates, let me apologize to you. One of the frustrations
of being in Congress is there are multiple hearings at the same
time, and I have been in a markup in OGR. But I wanted to come
over because nary a week has gone by that farmers from South
Carolina have not come into my office and expressed to me their
frustration with trying to abide by our laws and also make a
living at the same time. So my questions to you hopefully will
capture some of their frustration and enable me to go back and
provide them with some answers.
Since the creation of the department's online job registry
that lists job opportunities with growers who have applied for
H-2A workers, how many American workers have received jobs
through the registry?
Ms. Oates. I don't have that information, and I don't think
we collect that information. So we list the jobs just like we
would do on a job board for any sector, and as people go and
fill that job, all we know is that the job has been removed. We
don't know whether a worker from Texas took it or a worker from
South Carolina. Just like we wouldn't know whether the job
order was filled and removed, we wouldn't know who took that
job.
Mr. Gowdy. Can you cite me to any studies, or do you have
evidence other than anecdotal evidence that the H-2A program is
costing American workers jobs, that there is a pool of American
workers who would take these jobs absent the program? Is there
a study you can cite me to or something to support that
proposition?
Ms. Oates. No, Congressman, unfortunately not, but it would
be no different. I don't know your district, but I can tell you
South Carolina--we had an Ohio metalworking company move to
South Carolina, and they called us and said we can't find
workers. And what we did for them was the same thing we would
do for any of your folks, is get them connected with the State
and get them connected with the local workforce board. And I am
happy to tell you that within 8 weeks they had a full
workforce. So I only give you that anecdotal outside of the
agricultural work because it is a recent example in your State.
What we are doing is advertising those jobs, hoping that that
will get the word out through a number of means, and then maybe
this time next year I will have a better answer for you.
But right now, I know of no study and I have no hard data
that explicitly says 10 American workers took a job and removed
the need for 10 guest workers to come in and take those jobs.
Mr. Gowdy. Are there any requirements that putative
employers are not allowed to pursue? Here is the scenario. I
want to apply for an H-2A visa, and I have got American workers
that may apply in that slot. Can I run a background check on
American workers before I hire them in lieu of my H-2A visa?
Ms. Oates. You, as an employer, can put any bells and
whistles on getting that job that you would like. Background
checks would be included in what I would put under the category
of bells and whistles.
Mr. Gowdy. So if folks in the agricultural field are under
the misapprehension that they cannot run background checks on
American workers who want to apply, then you and I together
today can correct that misapprehension.
Ms. Oates. So let me be very explicit about this. I apply
for a job, any job. The employer has any right to tell me what
they are going to do, drug test me, do a background check or
anything else, as long as I know that, as I continue the
application.
Where there could be a problem--and I would want to get
back to you on this, if you chose to do a background check on
me and didn't notify me. When I took my job in the U.S. Senate,
they notified me that I was going to have a background check.
When I was nominated by the President, they notified me that
there was going to be a background check. There might be
something different if you did that background check without my
knowledge.
But I would love to get you that information. Again, I am
not an enforcement agency. So I am not as familiar with these
details as some of my other assistant secretaries might be. So
I would love to keep the door open so that I could get you more
accurate information on that from our attorneys and the people
in the enforcement agencies.
Mr. Gowdy. I would like that because I want to be able to
tell the folks in the agricultural business in the upstate of
South Carolina what they--I mean, this is a category of folks
who very much want to comply with the law. To the extent that
they can figure out what it is, they want to. And if they are
operating under the misapprehension that they are not allowed
to screen workers because they have applied for an H-2A visa, I
would like to disabuse them of that misapprehension with your
help.
Ms. Oates. Absolutely. I don't know whether this would ruin
your reputation or not, but we would be happy----
Mr. Gowdy. You couldn't do nothing to ruin my reputation
that I have not already done.
Ms. Oates [continuing]. To join those meetings or happy to
meet with your constituents and your staff.
Mr. Gowdy. That would be very helpful.
Ms. Oates. You know, we are your Department of Labor.
Mr. Gowdy. That would be very helpful to me.
When I graduated law school, I ruined my reputation. So
there is nothing you can do.
[Laughter.]
Mr. Gowdy. Last question. And again, this is born out of
their frustration. I am nothing but the conduit to ask you, and
if you are not the proper person for me to ask, then tell me.
And I acknowledge that you are not in charge of the Wage and
Hour Division.
Ms. Oates. The Assistant Secretary is much taller and much
younger.
Mr. Gowdy. There is a sense of frustration or there is an
allegation, shall we say--and bald allegations don't carry any
weight with me, but I am going to pass it on in case you can't
knock it back--that Wage and Hour investigators hand out lower
penalties to H-2A growers who publicly support the AgJOBS
amnesty; in other words, that there is a disparity in the
punishment based on your support or lack thereof for certain
programs. Have you seen any evidence of that at all?
Ms. Oates. I haven't, Congressman, but I might not. So that
doesn't mean that it doesn't exist. If you would allow me to
get back to you. I do have a staff person here from Wage and
Hour who will take your question back and we will get you an
answer through the Chair with your permission or individually,
whatever you would prefer. I haven't worked with this Committee
before. But whatever way you would like us to get that
information, Chairman, we would be happy to do it.
Mr. Gallegly. That is totally appropriate and we always
summarize the request for that at the end of the hearing.
The time of the gentleman has expired.
Mr. Gowdy. Thank you, Mr. Chairman.
Mr. Gallegly. I have no further questions for the witness.
Ms. Oates, thank you for being here.
At this time we will bring up the second panel.
Ms. Oates. Thank you, Chairman, very much.
Mr. Gallegly. Our three panelists today on panel II starts
with Mr. Leon Sequeira who is of counsel for the Washington,
D.C. office of Seyfarth Shaw LLP. He is former Assistant
Secretary of Labor during the George W. Bush administration.
Mr. Sequeira has a background in business-related immigration
matters and was involved in the Department of Labor's 2008
revisions to the H-2A and H-2B temporary worker program
regulations.
Prior to his service at the Department of Labor, Mr.
Sequeira worked in the U.S. Senate where he served as legal
counsel to now Republican Leader Mitch McConnell.
Mr. Sequeira received his B.A. from Northwest Missouri
State University and a J.D. with honors from George Washington
University Law School.
The second witness is Mr. Lee Wicker. Mr. Wicker is Deputy
Director of the North Carolina Growers Association, the largest
H-2A program user in the Nation.
Prior to this position, he worked for the North Carolina
Employment Security Commission as the technical supervisor for
farm employment programs and the statewide administrator for
the H-2A program.
Mr. Wicker has been growing flue-cured tobacco with his
family in Lee County, North Carolina since 1978.
He graduated from the University of North Carolina at
Chapel Hill.
And our third witness, Mr. Bruce Goldstein, is President of
Farmworker Justice here in Washington, D.C. He has substantial
experience regarding the H-2A temporary foreign agricultural
worker program.
Prior, he worked as a labor and civil rights lawyer in
southern Illinois and became a staff attorney at Farmworker
Justice in 1988.
He received his bachelor's degree from Cornell University
and his law degree from Washington University in St. Louis.
We will start with Mr. Sequeira. And am I pronouncing that
correctly? Close enough?
Mr. Sequeira. Sure. Sequeira.
Mr. Gallegly. Thank you.
TESTIMONY OF LEON R. SEQUEIRA, OF COUNSEL,
SEYFARTH SHAW LLP
Mr. Sequeira. Good morning, Chairman Gallegly, Ranking
Member Lofgren, and Members of the Committee. Thank you for the
opportunity to testify at today's hearing.
Nearly 4 years ago to the day, I appeared before this
Subcommittee as an Assistant Secretary of Labor to discuss the
importance of legal immigration to our Nation's economy. Today,
however, I appear before the Subcommittee in my personal
capacity to discuss whether the H-2A temporary non-immigrant
worker program is meeting the needs of American agriculture.
And Mr. Chairman, I would submit the answer to that question is
no.
Since the Department of Labor issued new H-2A regulations
last year, American farmers with the need for seasonal labor to
help plant, tend, and harvest their crops find themselves
frequently trapped in a dysfunctional Department of Labor
bureaucracy that is either unable or unwilling to make coherent
decisions in a timely manner. This is not what Congress had in
mind when it created the H-2A program 25 years ago.
When establishing the program, Congress understood that the
timing of a farmer's labor needs is dictated by the weather,
not by the arbitrary whims of some Government bureaucracy in a
faraway city. For that reason, Congress established precise
deadlines by which the Department of Labor has to act on H-2A
applications. But on a near daily basis, we now see the
Department ignores this clear congressional intent, not to
mention the clear and explicit statutory language.
The Department's mission in administering the H-2A program
is to provide farmers with timely access to labor and to review
their applications to ensure that agricultural workers are
being properly recruited and paid so that the employment of
these foreign temporary workers does not result in an adverse
effect on U.S. workers. That mission, however, is being
perverted by arbitrary administrative practices that routinely
impose substantial delays and added costs on employers while
delivering few, if any, measurable benefits. Rather than
helping facilitate timely access to seasonal labor, the
Department instead subjects farmers' applications to multiple
rounds of nitpicking over minor, nonsubstantive paperwork
issues and typographical errors that have nothing to do with
ensuring U.S. workers are properly recruited and paid for these
jobs.
The examples of the questionable behavior by the Department
are virtually endless. To cite just a few recent examples, the
Department frequently imposes requirements on farmers that
appear nowhere in the statute or the regulations. In countless
cases, the Department rejects applications without any
legitimate reason whatsoever. Numerous farmers see their
applications delayed as a result of State and Federal
bureaucratic in-fighting. Still others have their paperwork
accepted at the State level as meeting all the H-2A program
requirements, only to have the Federal Department of Labor
reject the same paperwork saying it does not meet the program
requirements. Other employers have their paperwork accepted by
the Department of Labor but then a month later, the Department
will change its mind, send them a letter, and claim the
application doesn't meet the standards for acceptance after
all.
When subjected to this arbitrary decision-making, H-2A
employers, who by definition have a pressing need for workers,
are left with few options but to submit to the Department's
unreasonable demands if they are to have any hope at all of
securing workers in a somewhat timely fashion.
But increasingly, employers are pushing back at this
bureaucratic bullying. The Department's questionable approach
to the H-2A program has led to a recent explosion of litigation
both before administrative law judges and in Federal court.
Notably in the past 6 months, there have been more than 300
administrative appeals filed with the Department of Labor's
administrative law judges challenging the Department's
decisions. That is more than twice the number of appeals filed
during the same period the year before. The results of these
appeals demonstrate the Department's decisions overwhelmingly
fail to withstand scrutiny. In the hundreds of appeals in the
past 6 months, the Department's position has prevailed less
than 10 percent of the time. That loss record speaks volumes.
Out of every 10 tries, the Department gets it right just once.
Unfortunately for employers, the appeals process is
becoming yet one more required step in a long application
process because the Department routinely refuses to correct its
own erroneous actions. A recent decision issued by an
administrative law judge in an H-2A appeal summed up the issue
very well. The judge implored the Department to review its
policy and consider the costs it imposes on employers, the
administrative law judges, and the taxpayers. The judge also
noted that forcing employers to file these appeals was, quote,
a patently inefficient and unnecessarily expensive way to
proceed and that it seems to reflect a breakdown in common
sense. Mr. Chairman, I could not say it better myself.
And I will close by noting that since the judge issued that
opinion in February, American farmers have been forced to file
more than 100 additional appeals of the Department's decisions.
Thank you. I look forward to your questions.
[The prepared statement of Mr. Sequeira follows:]
__________
Mr. Gallegly. Thank you very much.
Mr. Wicker?
TESTIMONY OF H. LEE WICKER, DEPUTY DIRECTOR,
NORTH CAROLINA GROWERS ASSOCIATION
Mr. Wicker. Good morning, Mr. Chairman, and Committee
Members. I am Lee Wicker, Deputy Director of the North Carolina
Growers Association. Thank you for holding this hearing on a
critical issue for labor-intensive agriculture.
As the largest H-2A program user in the Nation, NCGA
currently has 600 grower members that will employ nearly 6,000
H-2A workers and many thousands more U.S. workers this season.
I am extremely proud of the growers I represent because they
are the most compliant farmers in the Nation when it comes to
the various State and Federal labor laws.
Without farm workers, crops rot in the fields, farmers will
lose their farms, and grocery store shelves across America will
be void of fresh local produce. It is that simple. We must
never take farmers, farm workers or our food supply for
granted. If farms don't have farm workers, then our food supply
is in jeopardy.
Farmers need a legal, available, affordable workforce, and
the H-2A program has the potential to fill that need. Presently
H-2A is the only option for farmers if they want to ensure they
employ a legal workforce. Unfortunately, the H-2A process is
not working well because it is costly, time-consuming, and
flawed. Farmers have to complete a lengthy labor certification
process that is slow, bureaucratic, and frustrating. In
addition, they are forced to pay an artificially inflated
adverse effect wage rate. Many producers simply have no
confidence that they can successfully navigate, afford, or
comply with the onerous requirements.
The H-2A rules that were written in 1987 were in desperate
need of reform because the program had become too expensive and
bureaucratic for farmers to use. In 2008, new rules were
written by Secretary of Labor Elaine Chao. These regulations
were a mixed bag, but on balance, the 2008 regulations made
real improvements to important areas and more new growers
signed up to use the program.
But in 2010 the H-2A rules were rewritten by current
Secretary Solis who took the worst from the '87 rules, combined
with the bad from the 2008 rules, maintained harsh penalties,
added unnecessary barriers and unwarranted burdens, and created
the current regulations which are horrendous for farmers,
making the program harder than ever to use.
Currently H-2A is too litigious, too expensive, and too
much of a bureaucratic morass at three Federal agencies that
oversee the program. Since the Solis regulations took effect,
the number of North Carolina farmers using the program has
declined. Those farmers haven't stopped farming. They have
merely switched to illegal workers, which the current
Administration hopes to build pressure and increase the chances
of success for amnesty bills like AgJOBS.
Farmers need workers not amnesty to grow crops. To ensure
that growers have an adequate and legal workforce, the solution
is not amnesty bills like AgJOBS but rather permanent statutory
reform of the broken H-2A program so that farmers can and will
use it. Farmers want to comply with the law, but to do so, the
program must be viable, sustainable, and predictable.
Having endured the regulatory exercise twice in 24 months
demonstrates clearly that improvements to the H-2A program must
be put into statute to avoid the regulatory whipsawing of the
regulated community where farmers lose confidence in the
program when Administrations, agendas, and priorities change.
In order to fix the H-2A program so that it is workable,
there are four crucial areas of the program that must be
corrected in statute.
Number one, reform the wage rate. Link it to a statutory
minimum wage, State or Federal, whichever is higher in each
State. An H-2A wage rate of 110 percent of minimum wage is a
fair rate that will prevent an adverse effect on U.S. farm
workers. While farmers would use piece rates to create
incentive, the 110 percent would be the absolute minimum. It is
important to remember that H-2A workers get free housing,
utilities, and transportation each day to the job, all provided
by the farmer. If you add the costs to obtain H-2A workers
using the economic model developed in 2006 by Phillips and
Brown, Ag economists at NC State, the expense equals on average
an additional $2.06 per hour. This is a conservative estimate.
Number two, mandate binding mediation and arbitration.
Growers and workers should quickly resolve legal issues through
mediation and arbitration. Growers sign contracts all the time
that contain this kind of language. And so if it is okay for
farmers, then it should be okay for farm workers.
Number three, visa cost and transportation reimbursement.
Cost associated with the worker applying for the visa should be
borne by the worker. Inbound transportation should be
reimbursed to the worker by the farmer, as it currently is,
upon completion of 50 percent of the work contract. If the
reimbursement is issued upon arrival, the financial incentive
for the worker to remain on the farm is reduced, and workers
who quit leave the farmer shorthanded.
Number four, streamline the H-2A process. There are too
many unnecessary delays at Labor, Homeland Security, and State.
The entire system must be streamlined and simplified. Farmers
want statutory language that describes in detail the labor
market test/certification criteria to avoid the regulatory
whipsawing with executive branch changes. We have learned this
the hard way that when the language is ambiguous,
administrators and courts with an agenda or bias can interpret
legislation in ways that Congress never intended.
We would also like to see the definition of ``agriculture''
expanded to allow greater participation from farmers with an
11-month standard visa rather than 10 and a 3-year special visa
which would allow certain sectors of agriculture and year-round
farms to continue to thrive.
In summary, without these changes, H-2A is simply too
expensive, too litigious, and too onerous for most growers to
use. Most farmers prefer to employ illegal aliens because it is
cheaper and they remain off the Federal and legal radar
screens. Even high profile farmers employ illegal workers with
impunity because they have allegedly been told by ICE agents
that they won't be investigated.
As Members of the House Judiciary Immigration Policy and
Enforcement Subcommittee, you have the forum and the ability to
articulate the problem and offer policy solutions that will
ensure American agriculture has an adequate and legal labor
force.
The H-2A program is not and never has been about
immigration. H-2A reform should be decoupled from the
comprehensive immigration reform debate. Please remember our
growers need a workable H-2A program, not amnesty. Amnesty
didn't work in '86 and so-called comprehensive immigration
reform bills like AgJOBS with its amnesty provisions will not
work today. It will only make matters worse.
Thank you for your attention, and I look forward to
answering any questions you have.
[The prepared statement of Mr. Wicker follows:]
__________
Mr. Gallegly. Thank you, Mr. Wicker.
Mr. Goldstein?
TESTIMONY OF BRUCE GOLDSTEIN, PRESIDENT, FARMWORKER JUSTICE
Mr. Goldstein. Mr. Chairman and Members, thank you for the
opportunity to testify about the H-2A agricultural guest worker
program and farm workers, the poorest of the working poor. But
it is good to hear, Mr. Chairman, that some far workers are
making $28 per hour in California.
The H-2A program is deeply flawed and should not be the
major vehicle for filling the Nation's 2 million to 2.5 million
jobs on farms and ranches.
In addition, Congress should not get mired in previously
fought battles. Many agribusiness groups lobbied in the 1990's
for changes to streamline the H-2A program by cutting worker
protections and reducing Government oversight. These
legislative efforts failed as did efforts of farm worker
advocates to pass their own policy proposals.
Recognizing the need for a solution, major grower and farm
worker groups reached a compromise called AgJOBS. It would
allow eligible undocumented farm workers to earn a legal
immigration status, revise the H-2A program in balanced ways,
and provide America with a stable, productive, and decently
treated farm labor force.
The Bush administration in its last few days made drastic
anti-worker changes to the H-2A program regulations, slashing
wage rates and job protections for U.S. and foreign workers.
Fortunately, Secretary Solis reversed these changes, mostly
restoring the Reagan regulations' modest wages and labor
protections. The Department also instituted additional common
sense protections such as a surety bond requirement for labor
contractors and a requirement to disclose job terms to workers
by the time of their visa application.
Deporting the large number of undocumented farm workers in
this country is not feasible. It would bring chaos to
agriculture and would be a vast waste of taxpayers' money.
Undocumented workers constitute 52 percent to 70 percent of the
farm labor force.
Moreover, the H-2A program, which presently provides 3 to 5
percent of the farm labor force, cannot be a meaningful
solution for meeting the bulk of agriculture's labor needs. The
H-2A program cannot be expanded rapidly enough to replace the
current unauthorized work force.
Moreover, the H-2A program should not be the model for the
farm labor force. Pervasive abuses have characterized the H-2A
program decades in part because it is inherently flawed. The
worker is tied to a single employer. The employer holds the
power to decide whether workers can come to the United States
and whether they can return in the future. In fear of
deportation or not being called back in the following year,
workers are extremely reluctant to challenge unfair treatment.
Many guest workers also fear seeking better treatment
because they borrow large sums to pay recruiters for the
opportunity to work and for their travel costs. If they lose
their job, they cannot repay their loans.
While a small number of H-2A workers have rights under
collective bargaining agreements, the vast majority have no
union, and with legal aid programs being underfunded and few
private attorneys willing to take such cases, the H-2A workers
often lack access to the justice system.
Once employers decide to apply for H-2A workers, guest
workers are cheaper than U.S. workers for at least two reasons.
First, the H-2A employer does not pay Social Security or
unemployment tax on the guest worker's wages but must do so on
the U.S. worker's wages. Second, guest workers' vulnerability
also means that they work to the limits of human endurance for
lower pay than U.S. workers. These financial incentives lead to
discrimination against U.S. workers by H-2A employers.
Unfortunately, the main job preference for U.S. workers, known
as the 50 percent rule, is not adequately enforced.
The H-2A program also contravenes our democratic values. No
matter how many years they work under the H-2A program, guest
workers never obtain the opportunity to become permanent
immigrants or citizens with the right to vote. Despite restored
protections and unionization of some H-2A employers, systemic
problems persist that the Department of Labor should stop.
Illegal job terms are being approved by the Department of
Labor. Employers frequently fail to pay the wages owed, often
relying on a piece rate scam to cheat workers. Many employers
fail to pay transportation costs home for migrant workers who
complete the contract season. They tell the Department an
artificially long season, for example, from April to November,
even though few people are needed for that length of time. When
workers leave at the end of the summer, due to lack of work,
such employers refuse to pay transportation costs home and
claim the workers abandoned their contract but will recall them
the next year if they don't complain.
My written testimony includes the complaint of H-2A workers
hired to pick strawberries at Bimbo's Best Produce in
Louisiana. In addition to violations of basic protections,
these workers experienced frequent verbal abuse and feared for
their safety due to their employer's violence.
In conclusion, the H-2A program abuses are rampant and
should be cleaned up. More than 1 million undocumented farm
workers, at least one-half the workforce, are making U.S.
agriculture productive but suffer low wages and poor working
conditions. We need to stabilize the agricultural workforce and
keep agriculture productive by allowing undocumented workers to
obtain legal immigration status and by improving wages and
working conditions.
Thank you.
[The prepared statement of Mr. Goldstein follows:]
__________
Mr. Gallegly. Thank you very much, Mr. Goldstein.
Mr. Wicker, in North Carolina, the North Carolina Growers
Association have been sued, as you mentioned in your testimony,
something--what? 30 times for using the H-2A program. Would you
consider any or a good portion of these lawsuits as being
frivolous? Could you explain?
Mr. Wicker. Yes, we do consider some of the litigation to
be frivolous. It is expensive, and we have been sued by
attorneys that get tax dollars from the United States Congress
through the Legal Services Corporation. And these are small
farmers who are trying to defend themselves, and they are
frequently attacked on technicalities in the H-2A program. And
so, yes. The answer to your question is we do believe that.
Mr. Gallegly. Can you tell me why your growers use the H-2A
program when it would appear that maybe it might be much easier
to just hire illegals?
Mr. Wicker. Well, I think the primary reason is that they
want to comply with the law, and then a very close second would
be that they want farm workers on the farm and there is not an
adequate supply of farm workers in North Carolina. The
estimates range anywhere from 50,000 to 80,000 farm workers in
North Carolina, but that is not necessarily on the ground at
any given time when you need to plant, cultivate, or harvest
crops. These crops are time-sensitive. And so these growers
have put their faith and relied on the H-2A program that
Congress has authorized to be able to have legal farm workers
on their farms when they need them to plant and harvest crops.
Mr. Gallegly. Thank you.
Mr. Goldstein, isn't it true that if illegal immigrant farm
workers were granted amnesty as in AgJOBS, they would be likely
to leave the Ag fields and seek easier jobs in the city?
Mr. Goldstein. I don't believe that is true for the bulk of
the agricultural workers. The AgJOBS earned legalization
program would require people to prove that they have been
working in American agriculture recently and then would be
obligated to work an additional 3 to 5 years in American
agriculture in order to be able to earn an immigration status.
During that time, it would be our goal to work with employers
and government to improve wages and working conditions to
retain those workers and stabilize the farm labor force.
Mr. Gallegly. But once they get their amnesty or
designation legal, would they likely stay in agriculture?
Mr. Goldstein. I believe that many of the people who
perform farm work actually enjoy it and that if employers act
like capitalists in our market economy and don't have easy
access to undocumented workers in the future, then the
employers will do what is necessary to attract and retain
employees, just the way I hope I do the necessary things in my
organization to attract and retain our low-paid attorneys and
health professionals.
Mr. Gallegly. As I have said in some of my earlier
comments, I live in a large Ag district in California, and
while many people do come to this country because of the Ag
industry and how easy it is to get a job in agriculture
illegally, historically they are only there long enough until
they can get into construction or some other job that either
pays more. That is pretty common knowledge. Would you not say
that that is pretty fair? I don't think everybody really enjoys
being on their knees picking strawberries or any number of
other row crops for the rest of their life.
Mr. Goldstein. You know, if you are making less than
minimum wage and you don't have the same rights as other
workers, of course. But in many places now around the country,
farm worker groups are working with employers to actually
upgrade these jobs and improve, and many growers now are having
multiple crops so they extend their season. So it is not like
you work 6 weeks and then you are gone to the next employer.
These workers are settling out in areas where they get 8 or 10
months' worth of work. And as you say, there are some employers
paying enough, $28 an hour. Mr. Wicker's proposal is to pay
basically under $8 an hour under the H-2A program. Well, what
U.S. worker would apply for a job at an H-2A employer, if they
can make $28 an hour, but would only be paid $8 an hour? And
what employer would pay $28 an hour if they could enter the H-
2A program and pay less than $8 an hour?
Mr. Gallegly. I thank the gentleman.
The gentlelady from California, the Ranking Member, Ms.
Lofgren?
Ms. Lofgren. Thank you, Mr. Chairman.
In terms of evaluating the testimony, the North Carolina
Growers Association--you don't yourself grow crops or run a
farm. You represent growers. Correct?
Mr. Wicker. We are a growers cooperative, and we have a
board of directors that are--five board of directors who are
all farmers.
Ms. Lofgren. Right, thank you.
Mr. Wicker. We have advisory committees that are made up--
--
Ms. Lofgren. I don't have very much time.
You get fees, correct, from the growers for the H-2A
program? They pay you to submit paperwork for them. Is that
correct?
Mr. Wicker. I am employee of the growers association, and
they pay the----
Ms. Lofgren. Right, but the association gets the fees from
the growers to help them with this program. Is that correct?
Mr. Wicker. Well, they pay fees to employ me and my
colleagues at the office and then----
Ms. Lofgren. But the source of the fees is from the----
Mr. Wicker. And then we pay fees to the workers to
reimburse them for their transportation costs.
Ms. Lofgren. But the source of the fees is the H-2A
program. Correct?
Mr. Wicker. I am sorry. Again, please.
Ms. Lofgren. The source of the fees is associated with the
H-2A program?
Mr. Wicker. The source? I don't understand.
Ms. Lofgren. Never mind. I can see I am going to lose all
of my time asking you this question because I think there is a
reason why you would oppose the AgJOBS program, which is that
the association is funded through fees associated with the H-2A
program which I really think the answer here is something like
the AgJOBS proposal.
I mean, listening to my colleague from California, Mr.
Lungren, you are right. The H-2A program is not working and it
is not going to work. We are not going to get a million and a
half people a year into the United States on the H-2A program.
It ain't going to happen. And as I look at what is happening,
increased I-9 audits, increased ICE enforcement, put aside the
e-Verify program, we are going to have a crisis in Ag with no
workforce unless we do something about AgJOBS.
Mr. Goldstein, I was interested in your testimony about the
streamlining in the 1990's that would have really created a
farm labor system that would exploit workers. It sounded a lot
like the Bracero program of years ago.
The groups that were traditionally at odds, the farm
workers union, the growers, came together to support--and I
thought it was a surprise actually--the AgJOBS bill. Can you
explain how those divergent perspectives were able to
compromise when traditionally they were at odds so that they
could support the AgJOBS bill as more beneficial than the H-2A
bill?
Mr. Goldstein. Well, groups like mine and the United Farm
Workers Union and others were banging their head against the
wall, saying, look, we want a repeat of the 1986 special
agricultural worker program that just granted legal immigration
status to the undocumented farm workers and leave it at that.
And agribusiness groups had numerous legislative proposals that
would basically have slashed the wage rates under the H-2A
program and done what is being asked by some witnesses here
today to do. We all tried to get these bills passed, and they
weren't happening.
But our job is to help farm workers improve their wages and
working conditions. They want to work in agriculture and they
want to be treated well, and growers need a productive labor
force. So there is this strange bedfellows' negotiation that
occurs over a period of time, led by the United Farm Workers
Union and the National Council of Agricultural Employers and
other groups, and they fought over every ``is,'' ``the,'' and
``and'' and came up with the AgJOBS bill. And it is a very
balanced approach. It is just ironic that for several years
now, I go on these road shows talking with these grower
representatives, and on almost every other issue, we are at
each other's throats, but on this one we agree.
Ms. Lofgren. Could I ask a question? One of the questions--
the H-2A program, as we have discussed, is tied to a single
employer, which I think is a flaw in terms of the potential for
abuse. How does the AgJOBS bill address this flaw? And how
would you keep from releasing a worker from a singular employer
to prevent abuse and yet maintain an adequate Ag labor force?
Does the AgJOBS bill address that?
Mr. Goldstein. Well, the AgJOBS bill would address the main
agricultural need in this country by offering a chance for
undocumented farm workers to legalize their status, and then it
would make additional changes to the H-2A program.
Unfortunately, a number of us are critical of the changes that
wouldn't be made in the H-2A program. It would not----
Ms. Lofgren. But the question was really about the AgJOBS
bill.
I would just close in noting that although I think there
are many workers in Ag who are not treated well, I had the
privilege of going out to visit with strawberry pickers over in
Davenport last year, and they were represented by the United
Farm Workers. They had an income of about $18,000 a year. They
had health care. They had a 401(k). It is a modest living, but
it was a decent living. And yet, I noticed that it was still
entirely an immigrant workforce. I give credit to the farm
workers and the growers that are working with them, but I think
there are a lot of elements of farm work that have enticed
immigrants into the field.
And with that, I would yield back to the Chairman.
Mr. Gallegly. The gentleman from California, Mr. Lungren.
Mr. Lungren. Thank you very much, Mr. Chairman.
Mr. Goldstein, in 1986 when we passed the Simpson-Mazzoli
bill, I swallowed hard and accepted the SAW/RAW program against
my best inclinations, but wasn't that supposed to do what you
are talking about here? The SAW program, the Seasonal
Agricultural Worker program; RAW program, the Replenishment
Agricultural Worker program. Those who could prove that they
had worked in the field then got a status here in the United
States so that they were able to continue to work in the
agricultural field.
Mr. Goldstein. It was, and what happened was----
Mr. Lungren. A lot of them left.
Mr. Goldstein. A whole bunch of farm workers stayed in
agriculture for many years, but there was no real immigration
enforcement. Agribusiness was able to hire undocumented
workers. There was no real effort to upgrade the laws about
wages and working conditions for farm workers, which
discriminated against farm workers as an occupation. And so the
workers had limited bargaining power, and there was----
Mr. Lungren. So my point is that is the reason why they
left agricultural work?
Mr. Goldstein. People leave jobs when the conditions and
the wages are poor.
Mr. Lungren. So if the conditions and wages were better
than they had been in the intervening years, the great bulk of
them would have stayed in agriculture?
Mr. Goldstein. I think a substantial percentage would have
stayed in agriculture if wages and working conditions
substantially improved.
Mr. Lungren. Isn't that sort of contrary to the experience
of just about every other group in America, that they start in
jobs sort of analogous to agriculture, but they move on to
other things. They want their children to have a better life
and then, if they have a chance, they have a better life. Isn't
that true?
Mr. Goldstein. Sure, and it is going to be true for some
people. They will go into agriculture and then they will leave.
Mr. Lungren. So how do we maintain a sustainable workforce
in agriculture if you are going to have that continuing
aspiration of people to move on to other things?
Mr. Goldstein. Well, the Economic Policy Institute just
issued a report authored by Professor Philip Martin of the
University of California at Davis that said that we can improve
the wages of farm workers by 40 percent in this country and
just raise the cost of fruits and vegetables to families in
this country per year by $16. A 40 percent wage increase would
keep a lot of farm workers. He also pointed out that we have a
positive trade balance on fruits and vegetables.
Mr. Lungren. So let me ask Mr. Sequeira. How do you respond
to those statistics and analysis?
Mr. Sequeira. Well, Congressman, I think no disrespect to
economists. When I was at the Department of Labor, the
Department's chief economist was in my office, but you can't
get two economists to agree on the time of day.
Mr. Lungren. No, no. Ronald Reagan said if you took every
economist in the world and you laid them down end to end, they
wouldn't reach a single conclusion.
Mr. Sequeira. Right, or the old joke about every economist
has two hands and that's the problem because on one hand, it is
this, and on the other hand, it is something else.
I think the record in history is clear that there is a
perennial shortage of American farm workers in this country,
that we have had foreigners come to this country to harvest our
fruits and vegetables for the better part of 100 years, that
farm workers who were in this country illegally in the 1980's
and that achieved a legalization, moved on to other jobs. And I
don't think anyone would blame them for that. As you noted, the
history of immigration in this country is people come in and
work at lower skilled jobs and in successive generations, they
move up the economic ladder.
Mr. Lungren. See, that is why--I mean, Mr. Goldstein
mentioned strange bedfellows in his coalition to get together
with their group. We have strange bedfellows here. It is called
the Senate and the House. And my best inclination is the Senate
and the House are not going to pass the AgJOBS bill.
The SAW/RAW program has not done what it was supposed to
do.
We are probably going to have e-Verify. I doubt anybody
running for President, including the incumbent, is going to run
on the fact that he is going to be softer on immigration
enforcement than he has been.
We are going to have, as the gentlelady from California
agreed with me, a crisis in agriculture. And while it sounds
great to say, man, AgJOBS will take care of it, it is not going
to pass. It is not going to pass because it has frankly what,
Mr. Goldstein, you want to have in there, a path to citizenship
which has been what has doomed all the immigration reforms in
the past two Administrations. And I say that with regret.
So we can say that agriculture is going to be the bystander
here, but agriculture in many ways is going to be--and I hate
to say it--a victim or they are going to be maybe not the
coincidental victim in this. Maybe this is the intention. I
don't know. Maybe some people think it is great. We will have
Ag collapse and that will force a decision. I just think that
is shortsighted, and I am struggling to find a response to this
when, in fact, the history has been that we have had a
significant number of foreign workers in agriculture long
before you ever saw it in construction, long before you ever
saw it in landscaping, long before you ever saw it in hotel/
recreational. I think that is a fact. And if that is, then I
think we are duty-bound to try and respond to that.
Ms. Lofgren. Would the gentleman yield for a brief comment?
Mr. Gallegly. The time of the gentleman has expired.
Ms. Lofgren. I would unanimous consent that the gentleman
be given an additional 30 seconds.
Mr. Gallegly. Without objection.
Ms. Lofgren. You and I have talked often on this subject,
and I think one of the--and I wasn't in the Congress during the
Reagan amnesty.
Mr. Lungren. I was very young then and we did not call it
``amnesty.''
Ms. Lofgren. I know you were. But there was no provision
for the future flow of employees coming in, and I think there
were enforcement issues.
Mr. Lungren. I understand. If I could reclaim my time, I
will just say one of the responses to that failure to have a
continuing flow was the other side, if I might say, said we
will solve that problem with the SAW/RAW program. We did pass
it. It didn't, and we have this problem that confronts us
today.
I thank the gentleman for the extra time.
Mr. Gallegly. The Ranking Member of the full Committee, Mr.
Conyers?
Mr. Conyers. Thank you, Mr. Gallegly.
Mr. Goldstein, it has been predicted here that we will
never get an Ag bill through and we know it.
Mr. Goldstein. I am sorry. I couldn't hear.
Mr. Conyers. I said it has been predicted here that we will
never get an Ag bill through and we know it. And even though we
know it, are you familiar with what is in that bill?
Mr. Goldstein. Yes.
Mr. Conyers. Roughly? Well, tell me a couple of things that
are in it. We have tried to rearrange the way that we process
immigrants from an illegal status to a legal status. Right?
Mr. Goldstein. Right.
Mr. Conyers. What else?
Mr. Goldstein. Well, it just seems to me that if groups
like ours and the United Farm Workers Union and others could
actually reach an agreement with the employer groups that we
have reached an agreement with, Congress should be able to
reach a similar agreement.
In the AgJOBS bill, in the transition from undocumented
status to legal immigration status, it would require workers to
stay in agriculture for 3 to 5 years. I characterize previous
proposals like that as indenture servitude. To reach a
compromise, farm worker advocates have recognized we have to
make concessions like that. We did.
On the H-2A program, as part of a broader comprehensive
reform of agriculture, we agreed that under AgJOBS that the H-
2A could shift from labor certification to labor attestation.
What that means is instead of more Government oversight over
the way these H-2A employers abuse guest workers, we will agree
to less Government oversight to make it quicker for them to get
access to guest workers.
This is a complex, long, painful compromise, and it just
seems to me Congress should be more open to adopting it rather
than fight these battles over these ideological issues about
immigration on and on and on for decades.
Mr. Conyers. Well, let me ask you this. There has been
agreement between the major parties already, the unions and the
employers. Is that much correct?
Mr. Goldstein. Correct.
Mr. Conyers. Well, then what is so impossible if we could
get beyond ideology and a little partisanship every now and
then? Why can't the Congress get to it?
Mr. Goldstein. Congressman, there are people all over the
country who I report to who ask me that question all the time,
and I don't have a logical answer. I wish that were not the
reality.
Mr. Conyers. Well, do you have an opinion?
Mr. Goldstein. I have an opinion. My opinion is that
Congress should get down to it and pass the AgJOBS bill and
give farmers the legal workforce that they want and get done
with this ideological battle about immigration. It will help
farm workers improve their conditions for years into the future
and help us maintain a positive trade balance and keep us
providing--keep getting healthy food that we need.
Mr. Conyers. This is a very friendly Subcommittee, as you
found out. I will yield to Mr. Lungren to explain to you what
is more difficult.
Mr. Lungren. Well, if the gentleman would yield. I would be
happy to ask the gentleman in return what is ideological about
the basic question of citizenship in the United States? Because
that is what we are talking about. The farmers on their side
did engage in the negotiations, but you say those are the
principal parties.
There are also those who are not involved in agriculture,
the greater American public, who I think has a right to be
heard on the question of the importance of American citizenship
and whether or not you have people who go to the front of the
line. Now, some would say that those in agriculture have earned
a cut in line because they have been working here. others would
say those who remained in their countries from whom the
agricultural workers came or other people who came to this
country illegally--those who remained behind to follow the law
would feel that they were cheated by being negatively impacted
for following the law.
And I don't think that is ideological. I don't think there
is anything ideological when you are on the playground or
whether you are in school in first, second, or third grade and
you are lined up for water, you are lined up for lunch, and
someone cuts in. It is not an ideological thought that that is
unfair that someone has cut in. It seems to be an essential
issue of fairness.
And all I am saying is in my estimation the reason why
AgJOBS could not go forward is an intrinsic piece of it was
that people got to jump in front of the line. Again, we can
argue about whether that is fair, whether because you have had
some years in the United States working while your fellow
citizens from the country that sent you or that you came from
don't have a chance to come to the United States, but that is
an argument that I think is not ideological. I think that is a
fair-minded argument that ought to be dealt with on its merits.
Mr. Conyers. Thank you, sir.
Ms. Lofgren. Would the gentleman yield?
Mr. Conyers. Mr. Chairman, I ask for 2 additional minutes,
if it pleases the Chair.
Mr. Gallegly. Without objection, there will be 2 additional
minutes, but we will summarize and adjourn this meeting by 12
o'clock.
Mr. Conyers?
Mr. Conyers. Thank you, sir.
Ms. Lofgren. Would the gentleman yield?
Mr. Conyers. I yield to the gentlelady.
Ms. Lofgren. Just briefly. In listening to Mr. Lungren, I
think that the issues that he has raised, which I think trouble
him more than they trouble me, can be accommodated. In fact,
there are many occasions when, if it is an employee we need to
make the business run, we put them in the front of the line
because that is what everybody needs who needs employment. But
if it is an issue about when the residence attaches, that can
be dealt with. That could be dealt with in good faith, and I
would suggest that we should discuss that further probably not
on C-SPAN.
I do think that the stability of having someone with a
permanent status--it is not citizenship. It is a legal
permanent resident status so that they have some portability,
they have some standing so they can't be exploited--is an
important concept. Mr. Goldstein has mentioned it. Economists
have mentioned it. Really, the Department of Labor witness
talked about the ability to exploit people if they are
dependent upon a sponsoring employer year after year.
So I do think that there are the elements here of
consensus. And it is hard to move forward on an immigration
matter in this political environment because no matter what you
do, somebody is going to start screaming about it. But I think
that we could make this happen.
And I will be happy to talk to Mr. Lungren further, if he
is interested in doing that. I would hope that we could also
talk to Mr. Berman who has been the lead sponsor on this for so
many years and certainly the coalition of growers and the farm
workers to see whether we could come up with some new element
that addresses the issue that has been raised today and get to
the finish line on this because if we don't do this, if we
don't do this, we are, in fact, going to have a crisis in
agriculture. And the H-2A program is not going to save it. We
are just going to have a big, big problem.
And I am willing to solve that problem, and I am hopeful
that we can, in a bipartisan way, get it done because it is a
freight train coming at us in Ag with the enforcement efforts
that are going on. What do you think when you go in with an I-9
audit into ag? You are going to find at least half the workers
can't produce their papers. This is a disaster. And I hope that
we can rapidly move forward. I pledge my best efforts.
And I would yield back to Mr. Conyers and thank him for
giving me the time.
Mr. Conyers. I thank Chairman Gallegly.
Mr. Gallegly. Thank you, Mr. Conyers. The gentleman's time
has expired. All time has expired.
I want to thank all of our witnesses today for their
testimony.
And without objection, all Members will have 5 legislative
days to submit to the Chair additional written questions for
the witnesses which will be forwarded and I ask that the
witnesses respond as promptly as possible so that we may make
the questions and their answers a part of the record of this
hearing.
With that, thank you for being here today, and the
Subcommittee stands adjourned.
[Whereupon, at 12 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
ATTACHMENT