[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



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                       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:]

    
    
    
    
    
    
    
    


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    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.]


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