[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]



                 REGIONAL PERSPECTIVES ON AGRICULTURAL 
                         GUESTWORKER PROGRAMS

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

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                   IMMIGRATION POLICY AND ENFORCEMENT

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                               ----------                              

                            FEBRUARY 9, 2012

                               ----------                              

                           Serial No. 112-92

                               ----------                              

         Printed for the use of the Committee on the Judiciary








   Available via the World Wide Web: http://judiciary.house.govFOR 














       REGIONAL PERSPECTIVES ON AGRICULTURAL GUESTWORKER PROGRAMS

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

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                   IMMIGRATION POLICY AND ENFORCEMENT

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                               __________

                            FEBRUARY 9, 2012

                               __________

                           Serial No. 112-92

                               __________

         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             JARED POLIS, Colorado
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
MARK AMODEI, Nevada

      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

                              ----------                              

                            FEBRUARY 9, 2012

                                                                   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

                               WITNESSES

Gary W. Black, Commissioner, Georgia Department of Agriculture
  Oral Testimony.................................................    21
  Prepared Statement.............................................    23

Paul Wenger, President, California Farm Bureau Federation
  Oral Testimony.................................................    26
  Prepared Statement.............................................    81

H. Lee Wicker, Deputy Director, North Carolina Growers 
  Association
  Oral Testimony.................................................    87
  Prepared Statement.............................................    90

Bruce Goldstein, President, Farmworker Justice, Washington, DC
  Oral Testimony.................................................    93
  Prepared Statement.............................................   139

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable Sam Farr, a Representative in 
  Congress from the State of California, submitted by the 
  Honorable Zoe Lofgren, a Representative in Congress from the 
  State of California, and Ranking Member, Subcommittee on 
  Immigration Policy and Enforcement.............................     6

Material submitted by the Honorable Daniel E. Lungren, a 
  Representative in Congress from the State of California, and 
  Member, Subcommittee on Immigration Policy and Enforcement.....     6

Technical Report 11-67 titled ``H-2A Temporary Agricultural 
  Employee Program,'' submitted by Paul Wenger, President, 
  California Farm Bureau Federation..............................    28

Report titled ``No Way to Treat a Guest,'' submitted by Bruce 
  Goldstein, President, Farmworker Justice, Washington, DC.......    95

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Doc Hastings, a 
  Representative in Congress from the State of Washington........   161

Letter from Diego Santiago Reyes Margarita, Farm Labor Organizing 
  Committee, AFL-CIO.............................................   163

Prepared Statement of Robert L. Guenther, Senior Vice President, 
  Public Policy, United Fresh Produce Association................   164

Brochure submitted by the National Council of Agicultural 
  Employers (NCAE)...............................................   166

Report submitted by Gary W. Black, Commissioner, Georgia 
  Department of Agriculture......................................   170

 
       REGIONAL PERSPECTIVES ON AGRICULTURAL GUESTWORKER PROGRAMS

                              ----------                              


                       THURSDAY, FEBRUARY 9, 2012

              House of Representatives,    
                    Subcommittee on Immigration    
                            Policy and Enforcement,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to call, at 10:06 a.m., in 
room 2141, Rayburn House Office Building, the Honorable Elton 
Gallegly (Chairman of the Subcommittee) presiding.
    Present: Representatives Gallegly, Smith, Lungren, Gowdy, 
Ross, Lofgren, and Jackson Lee.
    Staff Present: (Majority) George Fishman, Subcommittee 
Chief Counsel; Marian White, Clerk; (Minority) David 
Shahoulian, Subcommittee Chief Counsel; and Tom Jawetz, 
Counsel.
    Mr. Gallegly. I call to order the Subcommittee on 
Immigration Policy and Enforcement.
    Today we have a hearing on ``Regional Perspectives on 
Agricultural Guestworker Programs.''
    Good morning to all.
    Today's Subcommittee hearing represents our third hearing 
on the issue of seasonal agricultural labor and legislative 
proposals regarding a guestworker program. This is a complex 
issue which impacts not only foreign farm workers and 
agricultural employers but also U.S. workers, local communities 
throughout the United States, and, of course, the American 
taxpayer.
    This is a critical issue to U.S. agriculture because real-
world experience has shown that there are simply not enough 
Americans willing to work as migrant farm workers. The labor-
intensive branch of agriculture--fruits, vegetables, and 
horticulture specialties--employs over 1.2 million individual 
farm workers a year.
    Each year, farm workers are interviewed by the U.S. 
Department of Labor's National Agricultural Workers Survey. The 
survey found that, over the 2007 and 2009 period, 48 percent of 
farm workers openly admitted being illegally in the country. 
The actual figure may be even higher, and the NAWS shows that 
85 percent of first-time farm workers openly admit to being 
illegally in the country.
    What options for legal workers do growers really have? 
Since 1986, the H-2A program has made visas available for 
temporary AG workers. However, 16 years ago, American 
agriculture told the Subcommittee that the H-2A program was 
``characterized by extensive, complex regulations that 
hamstring employers who try to use it, and by costly litigation 
challenging its use when admissions of alien workers are 
sought.'' They alleged that the Department of Labor was 
``implacably opposed to the program.''
    Front and center in the growers' minds was ensuring the 
availability of sufficient labor to meet crucial needs like 
harvesting whose timing varies with the weather. Unfortunately, 
timeliness has never been the H-2A program's strong suit. 
Neither has realism about the availability of domestic labor. 
It seems that little has changed in the intervening 16 years.
    The Bush administration's Labor Department initiated a bold 
plan to revamp the H-2A program. The plan, which was later 
rescinded by the Obama administration, remade the program into 
an attestation-based system designed to streamline the 
regulatory process and speed up the availability of 
guestworkers for growers that faced labor shortage. It also was 
designed to make the costs of the program more manageable for 
the growers.
    Even though these changes did improve the H-2A program, let 
me make it clear on one point. The H-2A program is not 
structured to meet the needs of the vast majority of 
agricultural employers in the United States. It simply is not 
flexible enough to provide an adequate supply of labor in a 
timely fashion to many growers, especially growers of specialty 
crops, across the country.
    I look forward to hearing the testimony today of a diverse 
panel of witnesses who will provide their own assessment of the 
H-2A program and to discuss specific recommendations for an 
alternative guestworker program. It is my hope that this 
hearing will plant the seed for much-needed reform of our 
agricultural visa program.
    And, with that, I would yield to my good friend, the 
Ranking Member from California, the number-one AG State in the 
United States, Ms. Lofgren.
    Ms. Lofgren. That is correct. Thank you, Mr. Chairman.
    You are right, this is the third hearing before the 
Subcommittee specifically on our AG workforce. But, really, we 
have been talking about the issue for this whole Congress, in 
relation to Chairman Smith's proposal to implement a mandatory 
E-Verify system. As Members of both sides of the aisle have 
made clear, without something to address the country's 
agricultural workforce needs, mandatory E-Verify would simply 
destroy segments of our agriculture industry.
    Looking back at the numerous hearings we have held on this 
issue over the last few years, I think that critical facts are 
sometimes ignored. We all know that crops like corn, wheat, and 
soy are not the issue here. The biggest problem is with 
seasonal, labor-intensive fruit and vegetable production. When 
it comes to such farming, we don't just need a workforce, we 
need an experienced workforce. And even an experienced 
workforce is not enough; we need a fast, flexible, and 
experienced workforce.
    Farmers do their best to plan harvests, but unusual rises 
or dips in temperature or humidity can suddenly move up a 
harvest, giving growers just days or even hours to pick 
valuable crops. Planned harvest schedules often go right out 
the window. The grower must find experienced workers with the 
right skills immediately or lose his or her crops.
    Luckily, such a fast, flexible, and experienced workforce 
exists in America today. Those workers have helped make 
American agriculture a resounding success. For those who 
believe in the power of the free market, this is a prime 
example of that power.
    Technological advancement may get all the attention, but 
America has long been an agricultural powerhouse. Agriculture 
continues to be a major sector of our economy and a primary 
U.S. export. In fact, we export so many more agricultural 
products than we import that the sector is regularly the 
largest in which we see a trade surplus.
    Yet Congress has long ignored the needs of labor in this 
sector. For decades, we have rightfully been educating and 
training our children for work in other areas. And at the same 
time, our immigration laws have made it all but impossible to 
fill the resulting void with foreign, legal workers. Despite a 
need for millions of workers, some on a permanent basis, our 
immigration laws have made only 5,000 green cards available per 
year for people without bachelor's degrees. That is 5,000 per 
year to be shared not just by agricultural employers but also 
by landscapers, restaurants, hotels, and many other industries 
who hire such workers.
    The H-2A temporary worker program hasn't done the job 
either. Any employer will tell you that the program is just too 
slow and bureaucratic for fast-moving harvests. A recent survey 
by the National Council of Agricultural Employers found that 72 
percent of H-2A users reported that their workers arrived 22 
days, on average, after the date of need. So it is no surprise 
that the program is used so sparingly, reaching the high-water 
mark of 64,000 visas in 2008.
    In that environment, is it any wonder that market forces 
worked their magic to pair up willing employers and willing 
workers? Let's be honest here, the government essentially left 
farmers with no choice but to hire undocumented workers. And 
everyone, including the government, looked the other way as 
workers came in to fill the jobs that our country desperately 
needed filled.
    So what do we do now? Do we accept responsibility for 
creating this mess, recognize that we have an experienced 
workforce that has been providing critical services to the 
country for years, provide a way for them to obtain legal 
status and continue to help this country succeed? Or do we, as 
some suggest, attempt to throw out this entire experienced 
workforce and import millions of new workers through a 
government-controlled program that has never worked in the 
past?
    I have mentioned it before, but I need to mention it again. 
How can anyone think that the answer to our labor needs is to 
deport over a million agricultural workers who are already 
here--workers who have experience, who know where to go, what 
to do, when to do it--just to ship in millions of new 
government-approved workers every year, year after year after 
year?
    The proposals essentially ask taxpayers to spend billions 
to deport the experienced workers, only then to require 
America's farmers to shoulder the costs annually of bringing in 
millions of new workers. It doesn't make sense. It won't work.
    We already know the result in those States where action has 
been taken--tremendous loss. We have seen a preview in Georgia 
and Alabama because of their new immigration laws. University 
of Georgia estimates that because of resulting worker shortages 
in just seven key berry and vegetable crops, Georgia and its 
growers will suffer up to $391 million in direct and indirect 
losses every year. And a professor at the University of Alabama 
estimates that Alabama will face between $2 billion and $11 
billion in annual economic losses. Is this what we want for 
American agriculture?
    I think we need to face facts. The law has been broken for 
decades, failing to meet the needs of entire industries, 
particularly AG. People took matters into their own hands. Yes, 
the workers came without obeying the rules, but almost every 
fruit and vegetable farmer in the country also broke the rules. 
The government essentially let it all happen. We are all at 
fault. We need to recognize that and do what is right for the 
country, and we can't allow ideology to trump common sense.
    So, with that, Mr. Chairman, I would yield back.
    Mr. Gallegly. I thank the gentlelady.
    And the good news is, we have this hearing this morning. 
The bad news is, the bells just went off and we do have votes. 
We will get back as quickly as possible. We may lose some 
Members along the way, but this will be an important thing to 
have on the record, and we will recess until such time as 
needed to get back from, as quickly as possible, from the 
intervening votes.
    So, with that, we stand in recess, hopefully for not more 
than about 35 or 40 minutes. Thank you.
    [Recess.]
    Mr. Lungren [presiding]. At this time, the Chair would 
recognize the Chairman of the full Committee, the gentleman 
from Texas, for a statement.
    Mr. Smith. Thank you, Mr. Chairman.
    The agriculture industry needs to hire hundreds of 
thousands of seasonal workers each year to help put food on 
Americans' tables. However, many workers with better options 
choose to work elsewhere. That is why many illegal immigrant 
farm workers who received amnesty in 1986 soon left the fields 
for other jobs in the city. As the President of the American 
Farm Bureau has stated, any new amnesty, such as AG jobs, 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 H-2A temporary agricultural 
work visas, yet half of farm workers remain illegal immigrants. 
Why don't more growers who have heavy demands for seasonal 
agriculture labor make use of the program? Well, 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 all together.''
    This Subcommittee held a hearing last year in which 
witnesses described what was wrong with the H-2A program. 
Growers believe that the Labor Department, which largely 
administers the H-2A program, is hostile to them and the 
program. Growers are also troubled by the great cost of using 
the H-2A program, especially the ``adverse effect wage rate.'' 
Growers have to build free housing for their guestworkers.
    America needs an agricultural guestworker program that is 
fair to everyone it impacts: American growers, farm workers, 
consumers, and guestworkers. A program 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 and 
the rights of guestworkers. And it must keep in mind the 
pocketbooks of American families.
    I have introduced legislation, the American Specialty 
Agriculture Act, that accomplishes these goals. It establishes 
an H-2C guestworker program responsive to the needs of American 
growers and maintains strong policies to protect citizens and 
legal workers. And it does so without the fraud-ridden mass 
amnesty for illegal immigrant farm workers that failed in 1986.
    Let me highlight some of the provisions of the bill. First, 
the bill puts the Agriculture Department in charge of the H-2C 
program. Second, in order to minimize red tape, the bill 
streamlines the process for H-2C workers by making it 
attestation-based, just like the H-1B program for high-skilled 
workers.
    Third, the bill requires growers to pay H-2C workers and 
American workers the prevailing wage, as required in other 
guestworker programs. Fourth, the bill allows growers to 
provide a housing voucher instead of actual housing, which can 
prove extremely burdensome for growers who may need foreign 
workers for only a few weeks a year.
    Fifth, the bill opens up the H-2C program to dairies and 
other agricultural producers that cannot use the H-2A program 
because they employ workers year-round. Sixth, the bill allows 
growers to include binding arbitration in contracts with H-2C 
workers in order to forestall abusive and frivolous litigation.
    I am also pleased that the report of Georgia Agriculture 
Commissioner Black finds that my bill, ``institutes an H-2C 
program that will be responsive to the needs of America's 
specialty growers.'' And I look forward today to hearing 
perspectives from both coasts on how best to write and 
implement an agricultural guestworker program. We must put 
policies in place that help ensure American growers can keep 
growing our crops and our economy.
    Thank you, Mr. Chairman. I yield back.
    Mr. Lungren. I thank the Chairman for his statement.
    And I might say, I enjoy sitting here because it is the 
first time I have seen that there is an override button where I 
can cancel all other microphones while activating my own.
    Mr. Smith. You are not supposed to know that.
    Mr. Lungren. I never knew that was here, but----
    Ms. Lofgren. Before you do that, Mr. Chairman, could I ask 
unanimous consent to put the statement of Congressman Sam Farr 
into the record?
    Mr. Lungren. Absolutely. Without objection, so ordered.
    [The prepared statement of Mr. Farr follows:]
   Prepared Statement of the Honorable Sam Farr, a Representative in 
                 Congress from the State of California
    Chairman Gallegly, Ranking Member Lofgren and Members of the 
Subcommittee,
    As the Judiciary Subcommittee on Immigration Policy and Enforcement 
reviews immigration reform proposals, I urge you to consider the impact 
that policy changes would have on the California agricultural industry 
and the workers they employ.
    As Members of Congress, we must enact immigration policies that are 
tough, fair and practical.
    Successful immigration reform must establish a system that turns 
those who are willing to work hard and play by the rules into 
taxpayers, paying their fair share. We need a system that has common 
sense rules for who and how many people we let in legally, so we don't 
flood the labor market in hard times, but that allows businesses to 
hire the workers they need.
    With these principle in mind, I am concerned that the acute 
shortage of agricultural workers across our districts has not been 
adequately taken into consideration. I believe that any immigration 
reform legislation must provide farmers, ranchers and agricultural 
producers with a stable and legal workforce. For every job created on a 
farm, many more non-farm support jobs are created in the supply chain 
of distribution. Yet California's farmers, who are responsible for 
billions of dollars of economic activity every year, continue to face 
significant barriers to finding a legal and stable workforce. The ideal 
solution would be the rapid passage of legislation like AgJOBS.
    I am concerned that some interim immigration reform proposals would 
create even more devastating labor shortages for growers. It is short-
sighted to think mandatory worker verification methods, like E-Verify, 
are the sole solution to our country's illegal immigration issues. 
Further, we should not impose additional barriers to legal workers who 
are willing to work hard and play by the rules. It would risk the 
economic vitality of the entire American agricultural industry and fail 
to accomplish true immigration reform.
    I believe the time for immigration reform is long overdue, but we 
need to find the right balance between ensuring American citizens have 
the best chance of finding a job while also ensuring our agricultural 
industry has an adequate and stable workforce for years to come. I 
stand ready to work with you to accomplish this goal.
                               __________

    Mr. Lungren. And I ask unanimous consent that the statement 
of Tom Nassif, president and CEO of Western Growers; the 
statement of Maureen Torrey Marshall of Torrey Farms of New 
York; and the statement of Dale Foreman, chairman of the U.S. 
Apple Association, be included in the record as well.
    Without objection, so ordered.
    [The material referred to follows:]
 Prepared Statement of Tom Nassif, President and CEO of Western Growers
    Chairman Gallegly, Ranking Member Lofgren and members of the 
committee, thank you for the opportunity to submit this statement. 
Western Growers Association is an agricultural trade association 
headquartered in Irvine, California. Western Growers members are small, 
medium and large-sized businesses that produce, pack and ship almost 90 
percent of fresh fruits, nuts and vegetables grown in California and 
approximately 75 percent of the fresh fruits, nuts and vegetables grown 
in Arizona. In total, our members account for nearly half of the annual 
fresh produce grown in the United States, providing American consumers 
with healthy, nutritious food.
    I submit this statement in support of the proposal introduced by 
Representative Lungren, H.R. 2895. Representative Lungren's proposal 
goes a long way towards addressing the unique labor concerns of 
agriculture. Unfortunately, if such a proposal does not accompany 
mandatory E-Verify legislation, the concerns facing the largest 
agricultural state will have been ignored, precipitating greater crisis 
in the future. Sadly, legislation which is being touted as a job 
creation measure will have the opposite effect in communities where 
seasonal agriculture plays a central role. My statement will lay out 
the importance of agriculture to the U.S. economy, unique concerns and 
challenges our industry faces, and the need to move forward on a 
solution to the current labor crisis.
       agriculture is critical to the health of the u.s. economy
    Studies conducted by the University of California Davis, 
demonstrate that every California agricultural job creates two non-
farms jobs in our economy, and every farm dollar generates an 
additional $1.27 for the California economy. Nationwide, the Department 
of Labor reported that 24 million jobs, a full 14 percent of all people 
employed in the United States, are supported by the U.S. food and fiber 
industry.
    Not only is agriculture's role in maintaining a safe and secure 
food supply vital to our economic recovery, it is critical to the 
strength of rural America. Western Growers members and their employees 
are members of the very communities in which they grow, pack, and sell 
products. In 2009, when the California water crisis forced us to fallow 
500,000 acres in the Central Valley, thousands of farms jobs were lost, 
and rural non-farm businesses supported by these jobs suffered. Some 
communities realized unemployment levels of 40 percent.
    Without an agricultural worker program that is workable, growers in 
California, Arizona, and across the country will eventually face 
similar predicaments. Securing a legal workforce is not a new challenge 
for agriculture. We've been working towards this goal for more than 15 
years. But in the face of no immigration reform, a diminishing labor 
supply, threats due to I-9 audits and ICE raids, and now E-Verify 
legislation emerging at the state and the federal levels, it is clear 
that U.S. agriculture will be decimated without a workable mechanism to 
hire and continue to employ the labor we need.
              demographics of u.s. agricultural work force
    There are about 1.8 million people who perform hired farm work in 
the United States. Approximately 1.2 million or more of these people 
are not authorized to work here. Studies demonstrate that for a variety 
of reasons including the seasonal nature of the work, the difficulty of 
the work, and the skill level required for many agricultural jobs, 
unemployed Americans are unwilling to work in the labor intensive 
agriculture sectors--produce, dairy, nursery, livestock. The labor 
force in each of these sectors is overwhelmingly made up of foreign 
born employees.
    In the late 1990's, at the insistence of Senator Dianne Feinstein, 
a multi-county welfare-to-farm-work program was launched in 
California's Central Valley. Regional unemployment ran 9 to 12 percent; 
in some localities, unemployment exceeded 20%. State and county 
agencies and grower associations collaborated to identify cropping 
patterns, labor needs, training, transportation, and other factors 
impacting employment levels. Out of over 100,000 prospective ``welfare 
to work'' placements, three individuals were successfully placed. In 
the aftermath of the program, several employment agencies stated--in 
writing--that they would no longer seek to place the unemployed in 
seasonal agricultural work because it suffered from such a low success 
rate, and that seasonal agriculture was ``not a fit'' for these 
individuals.
    In 2006, in Washington State, a tight labor supply for the cherry 
harvest was a warning sign of a looming labor shortage for the much 
larger apple harvest. Again, state and local agencies teamed up with 
grower associations to conduct an advertising blitz and provide special 
training on how to safely pick apples without harming their market 
value or damaging the trees' future productivity. In that program, over 
1700 workers were sought; roughly 40 were successfully placed.
    In 2007, the North Carolina Farm Bureau Federation set up a 
statewide hotline for job seekers, and advertised it in print and on 
radio. North Carolina needs roughly 60,000 crop and livestock workers 
each season. Two calls were received; one was from a grandmother who 
felt that farm work would do her grandson good.
    In 2010, the United Farm Workers Union launched the ``Take Our 
Jobs'' campaign. A media blitz which included national coverage. As of 
mid October, which generally marked the end of the growing season and 
the campaign, 10,021 people had inquired about jobs in the fields, yet 
only nine people had taken jobs in the fields. Most of them quit after 
a few days.
    Some might be tempted to consider wage rates as an additional 
factor that might discourage unemployed American workers from seeking 
agricultural jobs, but the facts do not bear this out. According to an 
October 2011 USDA farm labor analysis, wages for field workers averaged 
$10.54 per hour. American workers do not seek nor stay in farm jobs, 
even today with unemployment hovering at 8.3 percent. The fact is the 
majority of farm jobs in this country must be filled by foreign 
workers.
                challenges to a secure, stable workforce
    Even before the challenge of E-Verify legislation, the need for a 
workable agriculture labor program could not have been more clear.
    In California, a state with no E-Verify legislation pending, and 
across the country, agricultural employers are facing an increasingly 
difficult time finding a sufficient, stable workforce due to the 
existing federal enforcement-only work authorization laws.
    As you know, the Immigration Reform and Control Act (IRCA) mandates 
procedures for employers to verify the employment eligibility of their 
workforce. Failure to comply with IRCA can lead to substantial civil 
penalties and, in some cases, criminal charges. However, employers are 
prohibited from questioning the documents the employee presents if they 
appear to be valid. When the Department of Labor conducts workplace 
audits the employees' work authorization is scrutinized and run through 
DHS databases, often times with severe consequences for agricultural 
employers.
    The Obama Administration has made enforcement of IRCA a priority. 
In 2011, the federal government initiated 2,338 employer audits, up 
dramatically from past years, made more than 150 criminal arrests and 
levied more than $7 million in fines on employers.
    Agriculture and food processing are among a select group of 
industries that are receiving the most attention.
    In March of 2011, 85 percent of a California wholesale nursery's 
year round workforce--more than 70 employees--had to be terminated at 
the peak of their Mother's Day floral season when DHS determined their 
work documents were ``suspect.''
                         the impact of e-verify
State
    The existing challenges we face in securing a stable workforce will 
pale in comparison to the devastating impact of E-Verify legislation in 
the absence of a workable labor program.
    State E-Verify laws are being enacted or considered across the 
country. The state of Georgia offers a glimpse into the future for the 
nation if E-Verify were to be imposed without a farm worker program. 
There, passage of a state law including E-Verify has led to farm labor 
shortages as high as 30 to 50%. Field workers are simply avoiding the 
state and Georgia growers and producers lost $75 million in production. 
An economic impact model indicates that the lost fruit and vegetable 
production resulted in an estimated $103.6 million reduction in total 
goods and services produced on a state wide basis and over 850 full 
time jobs. A repeat of 2011 level labor shortages for a full year, 
could result in production losses of $184 million and 1,512 jobs. And 
as described above, the economic misery resulting from lost production 
and lost payroll is also being felt in the community-based businesses 
that serve farms and farm workers.
    Reports from Georgia are being replayed now in Alabama, which 
passed an even stricter E-Verify measure. If states are the 
laboratories of policy formation, the Congress should take note of 
these examples before enacting federal legislation without a workable 
solution for agriculture.
    The trends in California, which I noted does not have E-Verify 
legislation in place, are already startling. Our members, and other 
specialty crop producers across the country, are looking to foreign 
countries as they make plans to expand their businesses and create 
additional jobs there, not here. I have members who have moved portions 
of their operations out of the United States, not because the cost of 
getting product to market is less in other countries, but because of 
the uncertainty surrounding the labor supply in the United States. In 
foreign countries there are local populations able and willing to work 
in the fields. We are moving production to where the labor force is 
located and where the regulatory burdens allow us to continue in 
business, competing with global producers.
    In the absence of a workable ag labor program, E-Verify not only 
promotes the movement off shore of what was once U.S. production, it is 
a jobs killer for rural America. When the incomes and taxes generated 
by farmers and employees leave a community, seed and fertilizer 
companies and distributors are impacted. Tractor and other equipment 
dealerships suffer. The decreased demand for packing and processing is 
injurious to the suppliers of packaging and processing equipment and 
their employees. Banks and storefronts close, and communities are 
imperiled.
    Right now, the only program we have available to us to secure with 
certainty legal workers is the H-2A or temporary agricultural guest-
worker visa program. As has been well-documented, it is utterly failing 
the agricultural industry including Western Growers members.
    For example, H-2A is used to address only 2-3 percent of U.S. 
agriculture's labor needs. And even then, a 2011 nationwide study of H-
2A users commissioned by the National Council of Agricultural Employers 
that was presented to the House Subcommittee on Workforce Protections 
last September, reports that 72 percent of workers arrived late, on 
average, 22 days after the date of need. In 2010, employers in the H-2A 
program reported $320M in losses due to their inability to get the 
workers they needed or to get workers when they were needed.
    The Department of Labor appears, at best, indifferent to 
agriculture's needs. The Western Growers members who farm in Yuma, 
Arizona hire Mexican H-2A workers who live in Mexico and commute to 
work. Many of these H-2A employees prefer to return home after each 
work day. These employees decline to use the approved housing that is 
required to be provided to them by the growers under H-2A regulations. 
Despite repeated requests for an adjustment to the requirements, the 
Department of Labor has taken the position that employers must make the 
housing available for the H-2A commuters prior to obtaining employer H-
2A certification, regardless of whether the H-2A workers intend to use 
it. This imposes a significant cost on the growers without affording 
any benefit to the intended H-2A worker beneficiaries.
    H-2A is administratively burdensome, implemented ineffectively, and 
is too unresponsive and inflexible to meet the labor needs of U.S. 
agriculture.
    It is also unduly punitive. DOL seeks damages in the hundreds of 
thousands of dollars for minor technical violations of the program, 
including payment of \3/4\ of the wages workers would have earned if 
they had worked an entire season. This requirement applies even if the 
workers voluntarily quit the first few days of the season, but the 
grower notifies DHS of the workers' departure more than two work days 
after they have left the job site.
    The Department of Labor also appears to target growers who use H-2A 
(with wage and hour investigations). 8 percent of H-2A employers report 
that they were audited before they participated in the program, but 35 
percent report being audited since entering the program.
    As noted earlier, the H-2A program is used by a small percentage of 
agricultural employers. We are talking about the need for a program 
that will work for the remaining 96 percent of us and the greater than 
one million people we need to hire each year.
Federal
    At the federal level, mandatory E-Verify legislation, H.R. 2885, 
was passed by this committee in September 2011.
    Similar to the state E-Verify laws, in the absence of an 
agriculture worker program, H.R. 2885 will deprive farms across America 
of a majority of their existing skilled workforce, as well as new 
employees willing to fill these jobs.
    In H.R. 2885, agricultural employment is singled out for unique 
treatment with respect to the hiring process. The positive aspect of 
this provision is that it recognizes the special challenges agriculture 
faces. Unfortunately, the bill does not provide the needed solution to 
this challenge--a workable labor program.
    Agriculture is provided with an extended period before employers 
are required to E-Verify their employees. This 36-month extension does 
little to provide us with relief, however. As soon as the IRS sends an 
employer a notification of non-matching wage and earning statements or 
the Social Security Administration or Department of Homeland Security 
sends a No-Match letter, the employer arguably has constructive 
knowledge that the employee is not work-authorized. If the no-match 
cannot be resolved, the employee must arguably be terminated. We are 
left without certainty about our work force.
    Moreover, with DHS conducting an unprecedented number of audits of 
employer I-9 records, which, as noted above, often result in the 
termination of a large number of key employees, agriculture could be 
singled out for such audits during the 36 month deferral period. Other 
businesses will have already had to comply with E-Verify. Again, we are 
left without certainty about our work force.
    Pending E-Verify legislation introduced in the Senate, S. 1196, is 
even worse for agriculture than the House proposal. There is no 
recognition of the challenges for agriculture imposed by E-Verify 
legislation. Under the Senate plan, all employers would be mandated to 
use E-Verify one year after enactment and it would eliminate a 
provision retained in the House bill, the agricultural commercial-off-
the-shelf (COTS) exemption for agricultural products under current 
federal procurement regulations. Elimination of this exemption would 
make it nearly impossible to source U.S.-produced meat, milk, fruit, 
and vegetables for the school lunch program and U.S. military.
                        steps toward a solution
    In order to move us closer to a solution to meet our labor needs, 
we must consider a new approach to an employee visa program: one that 
resembles the current labor market. The number of visas would be 
determined by the number of employer requests for workers on a monthly 
and annual basis and would vary year-to-year based on market 
conditions.
    It would eliminate the contractual tie of the current H-2A program, 
benefiting employees and employers. A workable program would also 
provide farm workers with the same protections, no more, no less, than 
U.S. workers with respect to all employment related laws and employment 
taxes. Thus there would be no reason for an employer to prefer a 
temporary foreign worker over a U.S. worker. The perception of such 
preference is often a criticism levied at temporary worker visa 
programs. In reality, employers generally prefer to hire local workers 
first rather than rely on long distance migrants.
    It is also imperative for this program to address, not only the 
need for future employees, but also the need to retain our experienced 
employees, the people who are already here. Our farms could not 
function without these valuable farm employees; yet most work without 
proper immigration status. Any to attempt to address the farm labor 
problem in this country needs to provide a vehicle for these law-
abiding, high skilled, hard-working and valuable immigrants to continue 
working in agriculture legally. This is critical to ensuring a stable 
agricultural labor force.
                               conclusion
    The labor emergency affecting American agriculture threatens not 
only farmers and rural communities' livelihoods; it puts at risk our 
stable and reliable food supply. If there are indeed 1.2 million or 
more falsely documented workers in agriculture and they were no longer 
able to work, then the 2 nonfarm jobs that they create will also be 
lost. That is a loss of 3.6 million jobs.
    The workforce willing to grow and harvest crops exists, but it 
exists in other countries. Ensuring a stable and legally authorized 
farm workforce is about growing jobs in the United States, promoting 
economic activity in both rural and urban communities. It's also about 
avoiding a dependency on foreign food supplies. With less domestic 
production, more food will have to be imported, compromising the safety 
and security of our food supply since only 1-2% of imported food is 
inspected.
    There is not a person in our country that is not connected to this 
problem. If you eat fresh produce, drink milk, grill steaks or purchase 
plants for your yard, you are benefiting from the hard work of a 
foreign agricultural worker. And do not forget that 90% of those 
working in this country illegally are employed in other industries, not 
agriculture.
    Based on the experiences of ad hoc state implementation of E-Verify 
laws, we know that enforcement at the federal level, without a workable 
labor program for agriculture, would be devastating to farmers 
throughout the United States and the entire U.S. economy, as jobs are 
permanently lost.
    I urge the Members of this Committee who are concerned about the 
survival of agriculture in your states to work together and reach out 
to your colleagues to craft a workable bipartisan solution to this 
important economic issue.
    Foreign workers will harvest the produce Americans eat. The 
question is whether they will do so in the United States or abroad. E-
Verify legislation in the absence of a workable agricultural labor 
program will answer this question, and it will not be in the best 
interest of America.
    On behalf of Western Growers, I am appreciative of this Committee's 
willingness to examine the labor crisis facing U.S. agriculture. The 
impact of the labor market uncertainty has resulted in the competitive 
disadvantage for U.S. specialty crop production. We look forward to 
working with you to do something about it.




                               __________


            
                               
    Mr. Lungren. We have a distinguished panel of witnesses 
today. And we are very fortunate that we got our votes done so 
we can actually be uninterrupted now before Members might have 
to return to their districts.
    Each of the witnesses' written statements will be entered 
into the record in its entirety. I would ask that each of you 
attempt to summarize your testimony in 5 minutes or less. And 
to help you stay within that, we have those beautiful timing 
devices next to you. When the light switches from green to 
yellow, you will have 1 minute to conclude your testimony. When 
the light turns red, it signals that the witness' 5 minutes 
have expired.
    We are not as difficult as--well, I won't say difficult--we 
are not as precise as the Supreme Court is. If you have ever 
had an opportunity to argue before the Supreme Court, you are 
instructed that when the red light comes on, you are to stop in 
mid-syllable unless you are addressing a specific question of a 
member of the Supreme Court. We don't do that here, but we 
would like you to try and follow that 5 minutes as much as 
possible.
    Let me introduce the witnesses.
    Mr. Gary Black: Mr. Gary Black serves as commissioner of 
the Georgia Department of Agriculture. He began his career with 
the Georgia Farm Bureau in 1980 as a field representative, 
later served as coordinator for the State Young Farmer Program. 
In addition, he served as president of the Georgia Agribusiness 
Council for 21 years as well as co-managing the Georgia Food 
Industry Partnership. The commissioner earned his bachelor's 
degree in agricultural education from the University of 
Georgia.
    Our second witness will be Mr. Paul Wenger. Mr. Paul Wenger 
is currently serving his second term as president of the 
California Farm Bureau Federation. In addition to serving as a 
member of the Federation board, he chaired the Water Advisory 
Committee. In 2011, Mr. Wenger was elected to the American Farm 
Bureau Federation board of directors. He is a third-generation 
farmer and earned his bachelor's degree from Cal Poly, San Luis 
Obispo.
    Our third witness, Mr. Lee 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 and graduated from the University of 
North Carolina at Chapel Hill.
    Our fourth witness is Mr. Bruce Goldstein. Mr. Goldstein is 
president of Farmworker Justice in Washington, D.C. He has 
substantial experience regarding the H-2A temporary foreign 
agricultural worker program. Prior to this, 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.
    Gentlemen, thank you very much for your testimony. We are 
looking forward to it. And if you would proceed in the order in 
which I introduced you and attempt to keep your remarks to 
about 5 minutes. Your full comments--that is, written, 
submitted comments--will be included in their entirety in our 
record.
    Mr. Black?

           TESTIMONY OF GARY W. BLACK, COMMISSIONER, 
               GEORGIA DEPARTMENT OF AGRICULTURE

    Mr. Black. Thank you, Mr. Chairman.
    Chairman Smith, Ranking Member Lofgren, ladies and 
gentlemen of the Committee, and ladies and gentlemen who are in 
attendance at this very important hearing today, I am deeply 
honored to serve as Commissioner of Agriculture for all farmers 
and all consumers in Georgia, a State that is very rich in 
agricultural heritage and diversity.
    I first discussed this guestworker reform issue in this 
type of subcommittee forum with three Vidalia onion farmers in 
1997. Our gracious host for that day was Congressman Sonny 
Bono. Witnesses like me have come to this hall and dozens of 
others on this historic Hill for generations. We lay problems 
at your feet, snap photos, and then return home. The ritual has 
become an industry in and of itself. People share their 
problems with me, too. We can articulate problems very easily, 
but crafting solutions requires more effort.
    America's well-documented illegal immigration problem has 
reached a fevered pitch. Some argue that illegal immigrants are 
a drain on resources. Others insist that illegal immigrants are 
so woven into society that their absence would cripple some 
areas of skilled labor. Nonresident immigrant laborers, those 
of legal and illegal status, harvest crops, milk cows, gin 
cotton, and maintain landscapes. We know this to be true, but 
for a generation, solution-searching discussions have lingered 
on the horizon, much like a summer afternoon cloud bank, 
producing lightning, thunder, and wind but no rain. It is time 
that we work together to break this drought.
    I salute you, Mr. Chairman, and Congressman Kingston, my 
good friend, and other Members who have demonstrated great 
courage in proposing 21st-century solutions to America's much-
maligned guestworker program. Legal service reform, housing 
vouchers, and transferring authority to USDA are ideas that 
warrant immediate consideration. These proposals and others, 
though, must not compete with but be complemented by mandatory 
E-Verify, in my view.
    Opponents have long shouted at each other in this stadium 
for too long. It is time that we leave the grandstands and suit 
up on the field of play with the mutual goal of solving the 
labor problems in American agriculture. Agriculture is not 
alone in this arena, but I suggest that we could provide the 
laboratory.
    Mr. Chairman, your hearing shows this progress, and new 
bills indicate interest. Let's embrace this opportunity by 
considering a multitude of ideas.
    As a component of guestworker reform, I suggested to your 
Senate Subcommittee counterparts last fall a penalty-based work 
authorization permit. Following a limited sign-up period, those 
who would come forward would be subjected to enhanced oversight 
and stiff penalties, including a substantial monetary penalty, 
a biometrically secured agriculture-only permit, immediate 
deportation for violations of permit requirements, forfeiture 
of previously paid Social Security benefits, waiver of future 
Social Security benefits withholdings, with both portions being 
dedicated to a required market-based health insurance product, 
and fierce employer sanctions immediately following the end of 
the sign-up period.
    Mr. Chairman, this puzzle has many pieces, and the economy 
of your hearing does not allow for each to be thoroughly 
examined, but I back up my plea with more detail in my written 
comments and in the 189-page document* that we were required to 
submit to our legislature just this past month. My goal is to 
stretch the balloon in such a way that it will not return to 
its current shape, because the status quo is highly 
unacceptable.
---------------------------------------------------------------------------
    *See Appendix.
---------------------------------------------------------------------------
    Many retailers feature a green, red, orange, and yellow 
bell pepper 24/7. In Georgia, we can grow these varieties from 
June to October. Yet, without a 21st-century guestworker 
program that includes many of the initiatives that are 
contained in pending legislation, an idea similar to those that 
I have discussed, I see no way for farmers to meet the future 
consumer demand with domestically produced peppers and other 
agricultural products.
    We need a legally documented workforce and a reliable 
management system to ensure integrity. I would be delighted if 
this could be achieved by neighbors hiring unemployed 
neighbors. Farmers routinely tell me, ``I will hire all local, 
drug-free, sober, reliable, skilled farm workers in my 
community. Please tell me where I can find them.'' I laud the 
aspiration, but I loathe to tell you that it escapes reality.
    I ask you, as respectfully as I know how, to act with 
haste. Many think this is impossible in 2012, but, Mr. 
Chairman, I am prepared to work with any Member to prove the 
critics wrong. American farm families, our domestic food system 
needs our help now.
    Thank you, and God bless you for what you do.
    Mr. Lungren. Thank you very much, Mr. Black.
    [The prepared statement of Mr. Black follows:]
    
    
    
                               __________

    Mr. Lungren. Mr. Wenger?

             TESTIMONY OF PAUL WENGER, PRESIDENT, 
               CALIFORNIA FARM BUREAU FEDERATION

    Mr. Wenger. Good morning, Chairman Smith, Congressman 
Lungren, Ranking Member Lofgren, and distinguished Members of 
the Committee.
    I am here today because farmers and ranchers across the 
Nation are in critical need of a solution that provides an 
effective, reliable, legal workforce to cultivate and harvest 
our crops and tend to our livestock. In California alone, we 
rely on 400,000 employees during peak season. Nationally, it is 
estimated that the agricultural workforce consists of 1.83 
million hired workers. Some have estimated that as much as 50 
to 70 percent of the hired workers are not authorized to work 
in the United States.
    Agriculture is a very diverse industry. Different regions 
produce different commodities with widely varying weather, 
cultivation, and harvest times. These diverse needs cannot be 
addressed through a one-size-fits-all single program solution. 
It is not a problem confined to agriculture in the Northeast, 
southern border States, or western States. This is not just a 
problem for large farmers. According to the United States 
Department of Agriculture, 60 percent of hired farm labor is 
hired by farms with annual sales less than a million dollars.
    Last year, this Committee approved a bill that would make 
E-Verify mandatory for all employers regardless of size or 
industry. However, it offered no solution to address the unique 
challenges that a national E-Verify mandate will create for 
agriculture. E-Verify without a workable, economical way to 
ensure a legal agricultural workforce will send American 
agricultural production, and the additional off-farm jobs that 
are created by it, to other countries.
    Farmers throughout the United States have tried innovative 
solutions to secure a domestic labor force. All have failed, 
and not because we don't pay enough or offer enough benefits. 
Rather, Americans, through habit and education, have progressed 
beyond agriculture to other occupations, and Americans no 
longer have the desire for agricultural work. Agriculture is a 
lifestyle occupation. Many farmers see their children moving to 
other occupations, and I can speak from experience with three 
sons. Two are home farming with me, and one has decided to move 
on to other things.
    Agriculture needs a timely solution that fills the gap 
between the currently legally authorized workforce and the 
agricultural needs of the Nation. It is estimated agriculture 
employs between 900,000 and 1.2 million unauthorized workers 
with special skills and abilities.
    Any solution must address the following: First, a workable 
solution must deal with the industry's ongoing need for a 
future workforce. Because much agricultural work is seasonal, 
intermittent, and physically demanding, agriculture does not 
attract a domestic workforce. Secondly, most producers have not 
been able to use the H-2A program, but let me be clear: We 
strongly support an overhaul to help those that have been able 
to utilize it.
    I respectfully request that the study released by the 
National Council of Agricultural Employers illustrating the 
major flaws of the H-2A program be submitted into the record. 
Even if H-2A could be substantially improved, reform of that 
program alone cannot stabilize the farm labor situation.
    Mr. Lungren. Without objection, that report will be entered 
in the record.
    [The report referred to follows:]
    
    
    
                               __________

    Mr. Wenger. Good. Thank you.
    It is impossible for the program to scale up quickly, from 
admitting 50,000 to 60,000 workers to admitting the much larger 
numbers agriculture will need. An example in Texas: About 
100,000 workers currently fill a need of 155,000 farm jobs each 
year. In 2009, only 2,807 farm jobs in Texas were certified for 
H-2A, meaning that the H-2A program currently fills only 1.8 
percent of the Texas Farm Bureau needs. And this comes from the 
Department of Labor.
    To ensure our industry a future workforce, we need a new 
program model that is more flexible, scaleable, and market-
oriented. Congressman Lungren is offering such a solution by 
creating a W visa for agricultural workers. It requires a 
biometric visa, criminal background check, and incentives for 
workers to abide by the terms of their visas and return home 
when the work is done.
    The closer a new program comes to replicating the way the 
farm labor force moves now among employers and crops, the more 
likely it will be able to meet the industry's needs. To ensure 
programs actually work, they likely will need to be 
administered by the United States Department of Agriculture 
instead of the Department of Labor, which has a long and 
checkered history of administering the H-2A program.
    A workable program would also meet the needs of the dairy 
and the livestock industries. These operations frequently have 
difficulty finding workers, and their need is year-round. Any 
solution must avoid needless disruptions of the industry and 
must accommodate the large, experienced labor force currently 
within our industry.
    Any solution must deal in a practical and humane way with 
current workers. The most important features of a solution for 
our industry will be to recognize that many of our workforce 
want and need the ability to come to the United States, work on 
our farms and ranches, and return to their home country.
    The consequences of getting it wrong are serious. Make no 
mistake, to lose the ability to feed our Nation and depend upon 
foreign-produced food is a national security issue. Imposing an 
E-Verify mandate and not creating a reliable workforce for 
agriculture will endanger America's food supply that is 
currently grown in America. United States Department of 
Agriculture statistics show that foreign producers are gaining 
market share in the United States. Fruit and vegetable imports 
from China have increased over 555 percent.
    In conclusion, I have shared with you a snapshot of what is 
taking place across America. I urge you to craft a solution 
that provides farmers and ranchers with a solution that is 
economically practical, one that addresses the impact of our 
past inability to resolve this problem and recognizes the value 
of the people who work for us and feed our Nation.
    I will be happy to answer any questions later.
    Mr. Lungren. Thank you very much, Mr. Wenger.
    [The prepared statement of Mr. Wenger follows:]
    
    
    
                               __________

    Mr. Lungren. Mr. Wicker?

         TESTIMONY OF H. LEE WICKER, DEPUTY DIRECTOR, 
               NORTH CAROLINA GROWERS ASSOCIATION

    Mr. Wicker. Good morning, Mr. Chairman, Ranking Member 
Lofgren, 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 has 
over 700 farmer members that will employ more than 7,000 H-2A 
workers and many thousand more U.S. workers in 2012. I am proud 
of the farmers and farm workers of NCGA because they have 
refused to surrender to the conventional wisdom that it is 
impossible to comply with our Nation's labor, immigration, and 
worker protection laws. Instead, the farmers and workers of 
NCGA have committed themselves to compliance. With the dogged 
determination of the American farmer, all labor-intensive 
agriculture can comply, compete, survive, and thrive if the 
Federal Government would institute commonsense agricultural 
labor policy reforms.
    Americans are blessed to enjoy a safe, abundant, and 
affordable food supply produced on our Nation's farms--so 
fortunate, in fact, that many Americans never give a second 
thought to the food they consume, where it comes from, or what 
life could be like if our food security and independence was 
lost. We must never take farmers, farm workers, or our food 
supply for granted.
    In order to continue delivering fresh food to the U.S. 
consumer, American farmers need a reasonable, rational, 
predictable, and workable guestworker program that supplies a 
legal, available, and fairly compensated farm workforce. A 
program that works is critical if our Nation intends to secure 
the viability of our farms, especially those that grow fresh 
fruits and vegetables.
    In previous testimony before this Committee, I described in 
detail the most onerous and chronic problems with H-2A. The 
current program is costly, unpredictable, and administratively 
flawed. It is too expensive, too litigious, and too cumbersome. 
Most farmers lack confidence that the Federal agencies running 
the program will meet their mandated obligations on time, even 
when the farmers fulfill their responsibilities perfectly and 
well in advance of the deadlines.
    In my prior testimony, I also recommended practical and 
sustainable solutions that AG employers across the Nation agree 
will give farmers and farm workers confidence that the AG 
guestworker program can work, be predictable, and treat all 
parties fairly.
    The solutions include: a rational wage rate linked to the 
highest of FLSA or State minimum wage plus 10 to 15 percent to 
help preclude wage stagnation; binding mediation and 
arbitration to fast-track resolution of worker grievances and 
avoid costly lawsuits; allow farmers and workers who share the 
benefits of the program to also share the fixed costs; 
streamline the overly bureaucratic processes that discourage 
participation; allow all sectors of agriculture access to the 
program to encourage wider participation; and provide easy-to-
understand processes for farmers and farm workers to comply 
with immigration law.
    In addition, these reforms must include clear statutory 
language that explicitly defines the role and reach of the 
administrative agency so that farmers are not continually 
whipsawed and subjected to different legal interpretations and 
regulations with every executive branch change.
    Legislation to reform the agricultural guestworker program 
has been introduced in both the House and Senate in this 
Congress by Members from both political parties. It is clear 
there is a bipartisan political agreement that the current 
program is badly in need of reform.
    Chairman Smith's AG guestworker measure, the American 
Specialty Agriculture Act, adopts most of the important and 
meaningful reforms sought by AG employers and would be a 
substantial improvement over the current program. For that 
reason, NCGA proudly endorsed the Chairman's bill last fall.
    Some of the other legislative proposals being considered 
would also make significant improvements. For example, the BARN 
Act introduced by Representative Kingston and the HARVEST Act 
introduced by Senator Chambliss both include most of the 
improvements agricultural employers have suggested are needed.
    Other narrowly scoped proposals expand the existing program 
for specific areas like dairy, sheep, and goat herding. And 
while these are important, they are insufficient to deal with 
the larger systemic problems of the current program.
    Finally, there is the current version of the more than 12-
year-old AgJOBS bill that seeks to legalize the current 
undocumented workforce without adding a single worker to an 
already inadequate supply and without creating a sustainable 
and workable guestworker program for the future. Rather than 
solve the problems with the current AG guestworker program, 
AgJOBS would make many of them worse. AgJOBS clearly will not 
solve our problems. In fact, many AG groups who had supported 
the AgJOBS proposal in the past are not supporting it now.
    I applaud this Committee for their focus and deliberate 
work to solve this crisis. Your continued focus on this issue 
is critical. Unfortunately, the issue of farm labor has become 
linked to the broader immigration debate, and the agriculture 
industry is presently a political hostage.
    It is clear that amnesty alone for undocumented workers did 
not work well for farmers after it was granted in 1986, and it 
will not solve the problems now or in the years ahead. Only a 
workable and predictable guestworker program will ensure that 
farmers continue to plant and harvest labor-intensive crops and 
provide wholesome food for our Nation.
    This Congress has an opportunity and an obligation to fix 
this problem or we will continue to lose our food production to 
foreign competitors. Farmers and farm workers want to comply 
with labor and immigration laws. Now is the time for Congress 
to take action so that they can.
    Thank you very much, and I look forward to your questions.
    Mr. Lungren. Thank you very much, Mr. Wicker.
    [The prepared statement of Mr. Wicker follows:]
    
    
    
                               __________

    Mr. Lungren. Mr. Goldstein?

 TESTIMONY OF BRUCE GOLDSTEIN, PRESIDENT, FARMWORKER JUSTICE, 
                         WASHINGTON, DC

    Mr. Goldstein. Mr. Chairman and Members, thank you for the 
opportunity to testify about agricultural guestworker programs.
    Our agricultural labor system is unsustainable and unfair 
to farm workers and their families. This Nation's immigration 
system is broken, our labor laws discriminate against farm 
workers, and the labor practices of many agricultural employers 
are deficient. The resulting turnover in the farm labor force 
means that now more than one-half of the approximately 2 
million seasonal farm workers lack authorized immigration 
status.
    The presence of undocumented workers depresses wages for 
all workers, including the roughly 700,000 U.S. citizens and 
lawful immigrants in agriculture. But undocumented farm workers 
are not leaving, and they are needed. To help agriculture 
thrive, we need a program that allows undocumented workers to 
earn legal immigration status.
    Some Members of Congress have proposed new agricultural 
guestworker programs, but it makes no sense to bring in 
hundreds of thousands of new guestworkers when there are over 1 
million undocumented farm workers, in addition to U.S. citizens 
and documented immigrants. In addition, the H-2A program is 
available and has no limit on the number of guestworkers that 
may be brought in annually.
    Our recent report, ``No Way to Treat a Guest,'' shows that 
the H-2A program contains modest labor protections but is 
fundamentally flawed and rife with abuses of both the U.S. and 
foreign workers. I ask that it be included in the record.
    Mr. Lungren. Without objection.
    [The report referred to follows:]
    
    
    
    
                               __________

    Mr. Goldstein. Many employers prefer guestworkers because 
they are more vulnerable than immigrants and citizens, for 
several reasons: H-2A workers may only work for the employer 
that obtained their visa, must leave the country when the job 
ends, and must hope that the employer will request a visa for 
them in a following year. They never earn the opportunity to 
become permanent immigrants, no matter how many seasons they 
work here. To pay recruitment fees and travel costs, H-2A 
workers often borrow money that must be repaid even if their 
job ends prematurely. Guestworkers will toil to the limits of 
human endurance at low wages, when U.S. workers seek more 
sustainable productivity requirements.
    An employer does not pay Social Security or unemployment 
tax on guestworkers' wages but must do so on U.S. workers' 
wages. H-2A workers are excluded from the principal Federal 
employment law for farm workers, the Agricultural Worker 
Protection Act. And while recruiting in foreign countries, 
employers select workers based on age and gender, which is 
illegal inside the United States.
    These factors have led H-2A employers to discourage U.S. 
workers from applying for H-2A jobs and to subject them to 
unfair working conditions that cause them to quit or be fired. 
We commend Secretary Solis for restoring the H-2A protections 
that the Bush administration unconscionably removed. These 
protections evolved over many years and were issued by 
conservative President Ronald Reagan.
    For example, the principal wage protection requires H-2A 
employers to recruit U.S. workers, using at least the average 
hourly wage paid to farm workers in their region as determined 
by the USDA. The Bush formula, like some recent legislative 
proposals, set most H-2A wages at the average of the lowest-
paid one-third of farm workers in a local area, cutting $1 to 
$2 per hour off of wages for thousands of U.S. And H-2A 
workers.
    We commend DOL's increasing oversight of H-2A applications, 
which has led to the rejection of unlawful job terms that 
discourage U.S. workers from applying for H-2A jobs. 
Nonetheless, violations of basic program requirements are 
rampant, harming both U.S. and H-2A workers. Our report 
recommends strengthening protections and enforcement.
    Some growers audaciously complain that DOL delays 
processing their H-2A applications, even though they caused the 
delay by submitting illegal job terms or incomplete 
applications. Legitimate complaints could be addressed by 
providing more resources to the agencies to process 
applications and visas.
    Representatives Lungren, Kingston, and Smith have 
introduced guestworker bills that would slash wage rates, 
remove labor protections such as U.S. worker recruitment 
protections, minimize government oversight, and shift 
responsibility to the Department of Agriculture, which has no 
expertise administering immigration or labor laws. Their 
proposals would have taxpayers pay for a huge, costly 
guestworker program under which employers would bring in 
hundreds of thousands of additional foreign workers despite an 
adequate supply of farm labor among U.S. workers and 
experienced undocumented farm workers. We strongly oppose these 
bills for the harm they would inflict on U.S. and foreign 
workers.
    Large-scale guestworker programs are anathema to American 
values, because they take advantage of foreign workers by 
depriving them of economic freedom and political 
representation. Farm workers are human beings, not imported 
commodities. Our immigration system is not a set of trade 
rules; it reveals to the world our Nation's values.
    There are sensible policy solutions to provide the Nation's 
agricultural sector with a stable, legal labor force, treat 
farm workers fairly, and ensure a safe food supply. Congress 
should end discrimination against farm workers and labor laws, 
fund labor law enforcement to set a level playing field among 
employers, and encourage employers to offer job terms that 
attract and retain productive farm workers. Most importantly, 
Congress should provide current undocumented farm workers with 
an opportunity to earn permanent immigration status and the 
chance to pursue the American dream.
    Thank you for this opportunity.
    Mr. Lungren. Thank you, Mr. Goldstein.
    [The prepared statement of Mr. Goldstein follows:]
    
    
    
                               __________

    Mr. Lungren. Thank all of you for your testimony.
    At this time, we will move into questions by the panel. And 
since there are not a lot of us here, we will probably do 
several rounds, if other Members wish to stick around. And I 
will start, with 5 minutes.
    First of all, Mr. Goldstein, you indicated that my 
proposal, along with other proposals, would slash wage rates. 
If you give workers market mobility--that is, they are not tied 
to a particular employer but can seek employment in 
agriculture, among the different employers--wouldn't that tend 
to give them an ability to benefit from wages?
    That is, I have heard a complaint about our proposal from 
some--very, very few--farmers who said, ``You mean I would have 
to compete with the farmer down the street for these employees 
and I might have to pay them 50 cents more an hour than the 
other?'' How does that slash wage rates?
    Mr. Goldstein. Well, first, more generally, under 
guestworker programs, what happened under the Bracero program 
and tends to happen under the H-2A program, as well, is that 
because the workers are in a restricted, nonimmigrant status, 
they really don't have much bargaining power. And so----
    Mr. Lungren. Could I ask you to specifically refer to the 
question I have? I specifically said it will be different than 
the Bracero program, it would be different than the H-2 
program, in that they would have market mobility, job market 
mobility. Yes, they would be restricted to agriculture, but 
within agriculture they would be able to seek employment. And 
if, in fact, they felt they were mistreated or not paid enough, 
they could seek employment from another farmer.
    I would like you to talk about that specific part of it, 
because----
    Mr. Goldstein. Okay.
    Mr. Lungren.--I have been criticized by some saying, you 
don't tie them to a particular employer.
    Mr. Goldstein. My understanding is that the mobility would 
be between employers that enroll in that guestworker program. 
Growers that enroll in the guestworker program would set up 
recruitment systems to bring in their workers. So if a worker 
at one grower wanted to shift to another, I don't see why most 
of the growers would bring on that worker when they have 
already set up a recruitment system to get an adequate supply 
of foreign workers on temporary work visas.
    So we don't view that mobility as similar to the mobility 
that people have in the usual marketplace for labor.
    Mr. Lungren. I appreciate that. I wish you would at least 
concede what we have in our bill, to talk about that. I think 
it is illogical to suggest that giving them increased mobility 
in the market in which they are allowed to come into the United 
States would not have a tendency to increase wages. I just 
think that is logically inconsistent. So if you won't even look 
at that, I appreciate it.
    Mr. Wenger, in your testimony, you talked about the number 
of farm jobs, I believe it was in New York. Don't we have at 
peak season around 400,000 in California?
    Mr. Wenger. Yes.
    Mr. Lungren. And how many of those were certified for H-2A 
in a recent year, if you have that number?
    Mr. Wenger. I don't have the exact number, but less than 2 
percent. I could get that number for you. But it is 
insignificant in the fact of what our overall demand is. A lot 
of our growers, we have some that are in the strawberry plant 
business, they can utilize in some of their rural areas H-2A 
workers, but where they need larger numbers of people in the 
valley for growing those plants, it doesn't work, and so they 
need to use more seasonal type of labor.
    Speaking just real quickly to your other answer, last year 
a neighbor of mine had cherries that were ready to harvest, and 
a rain was coming in, and he would have lost his crop. The word 
went out immediately, saying, ``I need workers.'' And a lot of 
those workers were working in vineyards and doing other things, 
tying grapevines, things that weren't so critical to be done 
before the weather. When the word went out--he probably paid a 
little bit more for that labor; he had the labor. He brought in 
reefer vans and filled them with those cherries. He was able to 
salvage his crop, and he could not have done that if he didn't 
have the flexibility to try to find folks. Now, were a good 
majority of those folks who probably didn't have legal 
documents? Absolutely.
    And so, your program would allow for that movement between 
folks. And that is so critical when we are talking about 
seasonal fruit and vegetable production and weather-related 
incidents coming in. So we need to have that mobility.
    Mr. Lungren. In the statement that Maureen Torrey of New 
York submitted to us, and I have it in the record, she is the 
owner of Torrey Farms, a 12th generation farm; 2\1/2\ years 
ago, they took a thousand acres of fresh market vegetable 
production out of production, and instead planted corn and 
wheat because they were unsure of how they were able to get 
their labor commitment.
    What did that mean? That meant that their payroll for a 
thousand acres of onions, around $2.5 million for 50 people 
year round, was replaced by payroll for a thousand acres of 
corn at $70,000 a year, covering 2 employees. How that benefits 
the employee, I do not understand.
    Mr. Wenger. Congressman, for the record, we do have last 
year, 400,000 hired farm and ranch workers. Only 3,503 farm 
jobs were certified H-2A.
    Mr. Lungren. I don't want you to state under oath exactly 
what it is, but would you say that it is fair to suggest that 
over half the workforce in the AG fields in California is here 
without benefit of legal papers?
    Mr. Wenger. We are certainly afraid that at least 50 
percent or more.
    Mr. Lungren. Would you believe that is true nationwide?
    Mr. Wenger. Yes.
    Mr. Lungren. My time is up. My colleague from California, 
Zoe Lofgren.
    Ms. Lofgren. Thank you very much and thanks to all the 
witnesses for your testimony.
    Mr. Wenger, from a California perspective, you have given 
your testimony that the E-Verify program, a mandatory E-Verify 
program without a solution for the current workforce would be 
disastrous, and I believe the same thing.
    You have also said, as to solutions, that it has been and 
will be impossible to find and deport the current unauthorized 
farm workforce and replace it with new workers, properly 
authorized under a new visa program or a combination program 
and improved H-2A. Any solution, you have said, must deal 
somehow in a practical and humane way with the current 
workforce.
    Why do you believe that it will be impossible to replace 
the current undocumented workforce with millions of new 
temporary workers?
    Mr. Wenger. They are just not out there, even if you--if 
you were to take the folks that are here and now don't have 
current documents, that you would find out who those are 
through an E-Verify program. And if you were to remove them to 
a desert island and all of a sudden had this big vacuum of 
need, there wouldn't be adequate labor supply, even in Mexico, 
to fill those jobs.
    And I want to also say that these aren't unskilled jobs. A 
lot of the folks that are doing this work that have been here, 
they are driving pieces of equipment that are worth more than 
your most expensive Mercedes. I mean, they are highly skilled 
people that understand what they are doing. And so it is 
paramount that we find a way to find those that are already 
here, that don't have legal documentation, to be able to go 
through some system to get that legal credential, that W Visa 
to be able to allow them to work here.
    Ms. Lofgren. Talking about the skill set, my--the district 
I represent in California is pretty urban, but we have some 
agricultural activity as well, especially in the south part of 
our county. And I remember a number of years ago, when I was in 
local government, visiting with the farmers who were growing 
mushrooms and visiting with the mushroom cutters, I mean, 
incredibly skilled work.
    I mean, I think at that time, and that was, you know, 20 
years ago, they were paying $20 an hour to those people 
cutting, and I couldn't have done it.
    Can you describe some of the other kinds of skilled work? I 
mean, we talk about this as unskilled labor, but I am wondering 
if you could describe the kind of skills that are necessary and 
that are possessed by the current workforce and why it might be 
very difficult to replace those skills with an entirely new 
workforce.
    Mr. Wenger. Certainly for a lot of our commodities in 
California, but throughout the country, they are being much 
more mechanized. And so you have to have a skill set that takes 
years and years to try to learn that and be able to operate 
this machinery in an effective and in a safe manner.
    But today, with such a demand for such locally produced 
food, what you are seeing in your area, we are seeing with 
urban agriculture throughout California. Talking to some of my 
contemporaries and other State Farm Bureaus, what we are seeing 
throughout this country, folks going from more of the commodity 
areas and putting a certain amount of production into seasonal 
fruit and vegetable production.
    And now all of a sudden they are figuring out we need 
somebody that has that hand-to-eye coordination and understands 
how to pick the fruit and harvest the vegetables at the right 
time. Whether it is picking strawberries, if you don't pick a 
strawberry at the right time, it is either overly ripe and will 
wreck everything else. As it perishes in the basket, the other 
strawberries around it, you have to pick it at the ripeness, 
the right time. It can't be too green, can't be overripe.
    It takes a hand-to-eye coordination that takes years to 
learn, whether it is a plum, whether it is a peach. All the 
things that we want our kids and grandkids to eat, it is 
talking about more fresh fruits and vegetables. And that is a 
highly skilled--and you are exactly right, Congresswoman 
Lofgren. We have one of our board members, that they do plums 
and peaches.
    Now they pay the workers on piece rate, and they will work 
every other day. And those workers will go from farm to farm, 
and then they will come back. But when they work at a piece 
rate, they are making 30- to $35 an hour. They know what they 
are are doing, they get the right fruit in the basket, they 
take care of it the right way so they can get the market and be 
the highest quality it can be. It is not just grunt labor, it 
is somebody that is very skilled on what they are doing.
    Ms. Lofgren. Well, just to summarize, I know my time is 
running out. As, like Mr. Black pointed out, that we have had 
these hearings and we have wrung our hands repeatedly. But what 
you are saying is any plan that doesn't deal with taking the 
current workforce and somehow converting them to a legal status 
is not going to completely work; is that right?
    Mr. Wenger. We have a number of people in this country, we 
have to figure out a way to give them some kind of an 
adjustment of status to allow them to be in this country to 
work. You are absolutely right.
    Ms. Lofgren. Thank you, Mr. Chairman. My time has expired.
    Mr. Lungren. I thank the gentlelady. The gentleman, Mr. 
Ross.
    Mr. Ross. I thank you, Mr. Chairman. Let me lay the 
predicate for my questioning so that you gentlemen know where I 
stand.
    I represent a district in central Florida, predominantly 
rural, very agricultural. In fact, my home county leads citrus 
production in the State. We have a lot of specialty crops, a 
lot of road crops. We have a tremendous demand for labor. And I 
concur with several of your testimonies today that this is an 
issue that must be addressed. It has been debated. It has 
lingered, and no action has been taken.
    But I have growers and harvesters back home who cannot meet 
their labor demands, who are sincerely concerned because the 
Department of Labor cannot meet their demand and the labor 
forces they need. They are ineffective, they are inefficient. 
We have litigation that is out of control, and now we are 
looking at how we can keep our growers from trying to farm 
their property for houses instead of crops, and keep them from 
taking their crops overseas because it is the only way they can 
make a living.
    Having said that, we have some wonderful proposals on the 
table today. I think Chairman Smith has a very good one, I 
think Mr. Lungren has a very good one. But I want to address 
some issues of both. And first of all, Mr. Lungren addressed 
this, and I would like to go with Commissioner and Mr. Wenger 
and then Mr. Wicker on portability. Is portability something 
that is absolutely necessary in order to have an adequate guest 
worker program in this country? Commissioner.
    Mr. Black. Congressman, did you say portability?
    Mr. Ross. Portability, yes. In other words, to go from 
employer to employer once they are over here, or stay with just 
one employer.
    Mr. Black. Absolutely.
    Mr. Ross. Portability is necessary then.
    Mr. Black. Absolutely.
    Mr. Ross. Mr. Wenger.
    Mr. Wenger. Absolutely. You have to have portability or it 
doesn't work.
    Mr. Ross. Mr. Wicker.
    Mr. Wicker. GGA supports structured portability so workers 
can move from one certified farmer to another.
    Mr. Ross. And Mr. Goldstein, I know you have commented on 
this, but I don't know if you have any comment with regard to 
portability.
    Mr. Goldstein. We need portability plus.
    Mr. Ross. Let me ask you then about something else with 
regard to Chairman Smith's bill. He talks about caps in his. 
And we can't get from the Labor Department what the adequate 
number of farm workers we need over here. We just can't. We 
don't have statistics on that, for obvious reasons.
    Would it be that maybe we should look at having a ceiling, 
or a ceiling and then a floor, so somewhere in between, the 
USDA would do a study and say that we believe that this many 
number of workers are absolutely necessary. Is that something 
that you think is a workable alternative to address that issue? 
Commissioner.
    Mr. Black. Congressman, I believe that is in the field of 
play for sure. We have to have better data in Georgia. It is 
one of the things that we have discussed in this study. Our 
data is woefully underserved. We need to determine what those 
needs are. And if we could get that ceiling in the proper 
place, I think that is good direction.
    Mr. Ross. And I think over time if we had--if we will touch 
the third rail of immigration and take this away from 
immigration and call it what it is, it is an economic tool 
necessary to keep our economies, our local economies, our 
national economy to work, then I think we might be able to have 
an intelligent talk about this and pass some legislation. So if 
we can pass the legislation, we can start gathering the data 
necessary to find out what our labor needs are on a basis.
    Mr. Wenger, how do you feel about the caps?
    Mr. Wenger. I think caps are dangerous, because we have 
already heard from those folks that may be in H-2A, and if we 
could fix H-2A then they could bring their workers in. But as 
we look about seasons and trying for folks to maybe get up into 
the northeast and the northern areas, I think if you have a 
cap, then those in the southern parts of this country are going 
to be better served, quicker, and some of those others won't. 
And we need agriculture across this country.
    The other thing is anytime you have a cap, and if you say 
that you have a certain amount of months that they can be in 
country, once they come in country and go back, has that been 
used up? Even though maybe they could be in country for 10 
months, they were only there for 3. And historically a lot of 
workers like to come in where we can go back and forth across 
the border. They do like to come in for what they are really 
good at for 3 or 4 months, and they want to go home. And so 
have we used up one of those key spots that we thought we had a 
worker in country for 10 months, but we only had them in for 3 
or 4? So I think caps, as long as we can--and have a W Visa 
type of scenario where they are agricultural workers, allow 
them to go where the work is.
    Some could be in transition. They are not all going to be 
working today. Maybe they are in transit from getting across 
the border to getting up into Maine or getting up into 
Washington State or New York. So I think caps are dangerous.
    Mr. Ross. Thank you. Mr. Wicker, then, if I have time for 
one more question. How do you feel about caps?
    Mr. Wicker. On the caps, we have a de facto cap now with 
the bureaucracy----
    Mr. Ross. Right. Oh, yes.
    Mr. Wicker [continuing]. That just chokes all the program.
    Mr. Ross. Yes. And it is been effective, yeah.
    Mr. Wicker. So, you know, the cap and the American 
Specialty Agriculture Act is 500,000. Should it be higher? 
Maybe. You know, let's pass that and get started.
    I know that if our country makes a commitment and puts the 
right statutory language in place, that we can build a program 
that works for farmers and is accountable for workers. And so, 
yeah, we can have a program that treats workers well.
    Mr. Ross. Thank you, Mr. Wicker. Mr. Chairman, I see my 
time is up.
    Mr. Lungren. Yes. You will have a chance for a second go-
around.
    Mr. Ross. Thank you.
    Mr. Lungren. The gentlelady from Texas is recognized for 5 
minutes.
    Ms. Jackson Lee. I thank the Chairman and the Ranking 
Member for courtesies extended. I just have comments and a 
quick question and then a pointed question to Mr. Goldstein, if 
I could.
    I have been working on these issues. I am not from any of 
the States of the particular witnesses, but certainly have 
joined my colleagues on the importance of trying to address 
questions dealing with farm workers. And in addition, I have 
seen the plight of many of the farming communities, large 
farming communities as it relates to--during these harsh times, 
the loss of product, if you will, in the field.
    And I consider America and want America to be the 
breadbasket of this world, and want to ensure that not only are 
the people who are in need here in this country eat at prices 
that they can afford, but that we are able to serve those 
around the world.
    I am frustrated, however, because we are having this 
hearing, and many of you may have heard me over and over talk 
about comprehensive immigration reform, which would entail, of 
course, even though we have discussed the farm worker visa 
separately, it would discuss a whole comprehensive approach. 
When we talk about individual visas, you can imagine in this 
time of unemployment, no matter how much you may make the 
argument are Americans coming to pick product, there will be 
those who say you are taking jobs away from Americans.
    Let me just ask, going straight across the board, if you 
can give me yes/noes, and then I will get to Mr. Goldstein, 
hopefully, within my time.
    Mr. Black, does your State have housing, school 
requirements for migrant workers, farm workers?
    Mr. Black. No, ma'am. We abide by the H-2A. The one that is 
mainly the focus is those 33 producers in Georgia, I believe, 
that are using H-2A. They abide by those requirements.
    Ms. Jackson Lee. Okay. So are you saying you don't provide 
housing? I said housing and schooling and for the children of 
migrant workers, housing for the families and schooling.
    Mr. Black. Those are the individual responsibilities of 
those crews that come to work with those farmers, not when they 
are living in the community.
    Ms. Jackson Lee. All right. So it is the burden of the 
migrant workers. They provide their own housing.
    Mr. Black. Yes.
    Ms. Jackson Lee. And are their children allowed to go to 
school in Georgia?
    Mr. Black. Yes, ma'am. But what would be important to note 
here is whether or not the family is actually with them or not. 
Many of these workers are not there for that time.
    Ms. Jackson Lee. Okay. I have to move quickly. All right, I 
thank you. I have to move rather quickly.
    And do you have any American workers in your field, U.S.?
    Mr. Black. A very, very limited number.
    Ms. Jackson Lee. Do they come when you call them?
    Mr. Black. I am sorry?
    Ms. Jackson Lee. Do they come when you call them?
    Mr. Black. Well, I would say the best example I have of 
that, Congresswoman, is one of my growers in Tifton, Georgia, 
this past year, under his requirements of H-2A and hiring 
people through 50 percent of the contract period, processed 
1,500 local workers. He was able to get eight of them to stay.
    Ms. Jackson Lee. Okay. Let me move quickly. Mr. Wenger, 
housing, schooling.
    Mr. Wenger. Currently a lot of growers will provide 
housing. They see that as an attraction to get workers, but it 
is not required. And schooling, if they have children that are 
there, they go to the public schools.
    Ms. Jackson Lee. It is open to them.
    Mr. Wenger. Yes.
    Ms. Jackson Lee. Mr. Wicker of North Carolina.
    Mr. Wicker. I can only speak to our H-2A workers, and their 
families don't travel with them. The State Department won't 
issue them visas to travel with them.
    Ms. Jackson Lee. Okay. What about American workers? For Mr. 
Wenger and Mr. Wicker, just quick answers, please.
    Mr. Wenger. It would be the same thing. You know, schooling 
is available through all the public----
    Ms. Jackson Lee. No, American workers working in your 
business.
    Mr. Wenger. Yeah. I mean sometimes there is housing with 
it, but most of the time----
    Ms. Jackson Lee. American workers, U.S. jobs--people 
working in----
    Mr. Wenger. Right.
    Ms. Jackson Lee. I am asking you, do they work in your 
business? Are they in the field picking product?
    Mr. Wenger. I have some that went through the legalization 
process in 1986 that are now citizens.
    Ms. Jackson Lee. Okay. Mr. Wicker.
    Mr. Wicker. Yes, ma'am. We do have U.S. workers working on 
our farms. They tend to be supervisors----
    Ms. Jackson Lee. Native U.S.----
    Mr. Wicker. Yes, local workers, absolutely.
    Ms. Jackson Lee. All right. Mr. Goldstein, what are the 
problems that we should be looking at in this visa program? 
Thank you, gentlemen.
    Mr. Goldstein. Well, the problems were actually discussed 
in a 1909 report by the Commission on Country Life of Teddy 
Roosevelt and reported again in the Commission on Migratory 
Labor, President Truman, which said the same thing that the 
1909 report said and the same thing as the Commission on 
Agricultural Workers said in 1992.
    We need to modernize labor practices, improve wages and 
working conditions to attract and retain farm workers, stop 
relying on the desperation abroad to bring in vulnerable 
workers on restricted nonimmigrant visas. We need to stop, end 
the discrimination in labor laws against farm workers.
    Farm workers don't get overtime pay. Small farmers don't 
even have to pay the minimum wage. You know, we need to do 
things to stabilize the workforce and treat farm workers as 
human beings.
    And we desperately need immigration reform because more 
than half the farm workers are undocumented. And we should give 
them the same opportunity that this Nation of immigrants has 
given to other people: to become immigrants, leading to 
citizenship, so that they have bargaining power with their 
employers and they earn the right to become citizens who can 
actually vote and have an impact on the policies that affect 
them.
    Ms. Jackson Lee. I thank the gentleman.
    Mr. Chairman, could I just make a correction for the 
record, something that I said, so that I will not offend any 
population? I know that the definition of Native Americans are 
those who were defined to have been here when all of us came.
    So my question was trying to establish whether U.S. 
citizens, other than those who have come from out of the 
country to work, were seeking these jobs. And so I think you 
answered, ``Some are and some are not.''
    I thank the gentlemen, and I yield back.
    Mr. Lungren. I thank the gentlelady. We will go in for a 
second round now and start off with 5 minutes.
    Mr. Black, Mr. Wenger, Mr. Wicker, do you support programs 
so that you can exploit vulnerable workers?
    Mr. Black. So that we could exploit?
    Mr. Lungren. Exploit vulnerable workers. One of the 
criticisms expressed by Mr. Goldstein was that these various 
programs rely on vulnerable workers. And I am trying to ask 
your position on vulnerable workers and how your particular 
program does not rely on vulnerable workers. If that is the 
case, how do you empower your workers in the program that you 
envision for us if you try and solve this problem?
    Mr. Black. Well, Mr. Chairman, no, we do not support 
anything that exploits vulnerable workers.
    Mr. Lungren. Well, how would they be empowered by the 
programs that you support?
    Mr. Black. Well, I think it creates a lot of challenges and 
opportunities in the marketplace. I think that portability, 
some of the things you were discussing earlier, and being able 
to compete is an excellent step for us to take.
    Mr. Lungren. Mr. Wenger.
    Mr. Wenger. Yeah. The interesting thing is if you are 
worried about workers being taken advantage of, then give them 
a document so they can travel and vote with their legs where 
they want to go if they think they haven't been dealt with 
correctly. And you don't need to be a citizen, you just need to 
have a legal work document that empowers you.
    In California we have a minimum wage. We pay overtime for 
agricultural work. And if you are really concerned about the 
plight of those that are living in the shadows and they are 
undocumented, then give them a legal document.
    It was interesting last year, last summer, as we were going 
over to my son's graduation at Cal Poly, and we came by a peach 
field that was being harvested--and every single one of them at 
lunch break had their phones out and they were texting and they 
were calling on the phone and talking to people.
    The people we have working in the fields today aren't 
somebody that is just stuck back in the shadows. Give them a 
legal documentation so they can come out of the shadows. As far 
as being a workforce, there should no reason that anybody 
should be taken advantage of.
    Mr. Lungren. Mr. Wicker.
    Mr. Wicker. No, we do not support a program that would 
allow exploitation.
    Mr. Lungren. Well, then, how would you empower them? How 
are they empowered? What in your program allows them not to be 
exploited? Let me put it that way.
    Mr. Wicker. They come through orientation and meet many, 
many, different worker rights groups, like we have the 
collective bargaining agreement at North Carolina Growers with 
the Farm Labor Organizing Committee. They meet migrant help 
providers, they meet English as a second language providers. 
They meet wage and hour investigators. There is a lot of 
oversight and accountability.
    We give full disclosure. We keep records and provide wage 
statements, and we comply with the law. That is how you make 
sure that workers are not exploited.
    Mr. Lungren. As you may know, I am kind of frustrated by 
this whole thing. I was here in the eighties. I was the 
Republican floor manager of Simpson-Mazzoli. I wrote a lot of 
what is now the H-2A program from the eighties, hoping that 
would work. I look now and see it didn't work. We haven't had 
the protection of the farm workers that I believe we should 
have if they had a legal status and they were out of the 
shadows of illegality. And so I am trying to put the best 
program forward that I think can pass and that can actually 
work. But then I hear things like a cap.
    Does anybody here know how many tourists we have coming 
into the United States per year? Fifty million. So what if I 
were here to advocate an arbitrary cap of 25 million? Doesn't 
relate to the flow, doesn't relate to the market, doesn't 
relate to anything except we in Congress decided we are going 
to have 25 million tourist visas here, even though the demand 
is 50 million.
    It seems to me it makes more sense for us to be able to 
establish whatever program we established without a cap, but on 
an annual basis reflects the need as proven by the agriculture 
community, approved by the Department of Agriculture, and then 
reviewed on a yearly basis. If in fact it is a million, it is a 
million. People seem to be afraid of saying that.
    But it seems to me it ought to be what the market tells us, 
and then be real with respect to that and give people the 
mobility in the marketplace, so that in fact they are not wards 
of a particular employer and find themselves back in their home 
country, when they have a legitimate gripe with the employer 
that they have, and an ability to join unions if they want to, 
not join unions, those sorts of things.
    So I just try and deal in the reality of what is out there 
and, to me caps is like saying we know we have 50 million 
visitors that come here a year, but we, the Congress, are going 
to say 25 million. Why? Well, because we think 25 million.
    Maybe we ought to see what the market is and deal with the 
market in that way. And whatever program we adopt, my hope in 
authoring my bill was to have flexibility. And with the legal 
status of the people involved in the program comes the 
protections of already existing law, which they can rely on.
    The gentlelady from California.
    Ms. Lofgren. Well, just a couple of comments really, 
looking--I wasn't here in the Congress during the Reagan years, 
but I think the problem we often talk about wasn't in force. 
The real problem was that there was no mechanism for new people 
to come in. There was insufficient capacity to meet our actual 
economic needs, whether it was agriculture or whether it was 
nuclear physicists, you know. That was the problem. And we are 
still grappling with that problem.
    My colleague from Texas mentioned the need for broad reform 
of the immigration laws. And before I was ever an elected 
official I used to be an immigration lawyer and I taught 
immigration law. And I can tell you that the system is a mess. 
I mean, it is a mess when it comes to agriculture, it is a mess 
when it comes to family law, it is a mess when it comes to 
starter visas for high-tech. I mean, it needs reform, and I 
hope that we can do that.
    I sense it is not going to be in the remainder of this 
Congress, but it is an obligation that I hope we can address 
and it would be wonderful to do it on a bipartisan basis. I 
think, looking at this AG area, the idea--and I credit 
everybody trying to address this--but the idea that we could 
actually get--let's say we put a cap of 500,000, you wouldn't 
find 500,000 people to apply and to be interviewed in consular 
offices to get to American farms in time to avoid the 
destruction of American agriculture. So the idea of a cap 
really is not even worth discussing because it won't work. 
There aren't enough people to apply.
    We have to talk about how do we help the people who have 
worked in the fields to gain a legal status that allows them to 
continue to work, which we need them to do, but also allows 
them the dignity and right that they should have so that they 
can be treated fairly? I certainly would not suggest any of the 
individuals here are unfair, but that happens in the wide world 
that we live in and people need bargaining power and they need 
the capacity to stand up for themselves, which you can't do if 
you are living, you know, in the shadows, if that is how we 
want to describe it.
    So I do understand that immigration is a subject that has 
become to my mind almost irrationally hot as a topic in America 
when we really should just be thinking of what is the right 
thing to do for our country.
    And when I think about how our country has been 
strengthened by immigration, my grandfather was an immigrant. 
And looking at the whole country, we have been strengthened by 
the people who had enough get-up and go to get up and go and 
come to America and dream American dreams and become Americans 
with us. And that is really what this discussion should be 
about.
    Instead of turning our back on our history, we should 
embrace it and make sure that it is part of our future. And the 
AG discussion is, I think, just a small part of that 
discussion.
    Now, having said that, I want to talk about the economy 
because we have a tough economy now, and even though we have 
got a largely unauthorized workforce in the field, they are 
contributing to the economic wealth of the country.
    And when I look at Commissioner Black, your testimony, you 
talk about a survey of respondents indicating that they had 
lost $10 million due to Georgia's new immigration law. But if I 
am reading the report correctly--and you can just say yes or 
no--the survey was of 570 people who responded and reported 
their losses.
    But we don't know whether all those people were even 
farmers. And my understanding is that there are 48,000 farms in 
Georgia. So the $10 million reported lost from the 570 who 
responded to the survey is not all that was lost in Georgia if 
we have 48,000 farms; wouldn't that be correct?
    Mr. Black. Yes, ma'am. And if I may explain the rationale, 
the methodology on the survey, rather than doing economic 
models and extrapolating, we wanted to ask direct farmers 
direct questions. Of our 800 respondents to the surveys, they 
were all farmers. Of the ones that answered the economic impact 
question, that was the 500 number you mentioned.
    Ms. Lofgren. I see.
    Mr. Black. And we said 26 percent of those indicated losses 
that totaled over 10 million.
    Ms. Lofgren. I see.
    Mr. Black. So that is roughly 125, 130 farmers. Then one 
can extrapolate however you might care.
    Ms. Lofgren. Right.
    Mr. Black. But we know that was the direct impact to those 
producers and their response.
    Ms. Lofgren. Thank you. I know my time is up.
    I will just note that the University of Georgia has done 
that analysis, and what they are saying is that the direct 
losses would be $140 million in the spring of 2011 for just 
seven of the key berry and vegetable crops. And according to 
their study, the direct losses would lead to an additional $250 
million in indirect losses to Georgia's economy, for a total of 
$391 million lost to the Georgia economy because of that 
immigration law they passed.
    Thank you, Mr. Chairman. My time is up.
    Mr. Lungren. Thank you. Mr. Ross.
    Mr. Ross. Thank you, Mr. Chairman.
    I want to address the adverse effect of wage rates. I have 
growers back home, I have harvesters back home who utilize H-2A 
programs because they know that it is the right way to go about 
it. But yet their competitors in some instances realize that 
because the market drives wages more than anything, that they 
lose a tremendous competitive advantage and, in fact, the 
resulting outcome has been that you almost incentivize by way 
of an adverse effective wage rate the hiring of illegal 
workers.
    I guess if we had, you know, fixed costs and fixed price, 
then an adverse effect of wage rate could be fixed into the 
formula for the growers' profits, but that is not the case. 
This is a market-driven enterprise.
    And my question to the gentlemen, starting with Mr. Black, 
would be what is your comment on the adverse effect of wage 
rate?
    Mr. Black. Congressman, it is a difficult issue. When you 
look in a packing shed that might have some minimum wage jobs, 
like sweeping the floor, and yet if you are forced, that is an 
economic pressure that you place on a job like that, having to 
abide by that adverse effect of wage.
    That is why I really--when we talk about the whole issue of 
wages in agriculture, one of the things we have been--I am glad 
we have been able to do in our study is kind of explode the 
myth that we underpay people.
    Mr. Ross. Correct.
    Mr. Black. You know, those that are doing the productive 
work.
    But the facts are there are some minimum wage jobs still 
left and having flexibility to----
    Mr. Ross. Is important.
    Mr. Black. Is important.
    Mr. Ross. Mr. Wenger.
    Mr. Wenger. Yeah, I think anytime you set wages at a 
certain level, and if you can--if you don't have caps and you 
let people come in and meet that, for what they are doing, 
their responsibility level, they are going to find what that 
wage should be.
    And as Mr. Black has said, there are going to be certain 
things that are going to have a higher wage rate because maybe 
the work id a little bit harder, maybe it is outside; whereas 
others you don't have the same responsibility, and so let the 
market determine. I mean, here we are, agriculture, I can't 
think of any group as a society that is more free market 
driven, and let's let our wages be free market driven.
    Mr. Ross. Mr. Wicker, how do you feel?
    Mr. Wicker. Yeah, we are advocating a super minimum wage 
that is tied to the Federal or State minimum wage, whichever is 
highest. And what we are looking for is a base hourly wage rate 
that is predictable.
    And then I agree to some extent with these other gentlemen 
that the discretion of the grower, he is going to piece-rate 
systems, responsibilities, skill sets, you are going to pay 
more than that base hourly wage rate. But it is so expensive to 
farm, and what my members tell me consistently is this. All I 
know is that over the last 20 years, our wage rates have gone 
up on average 4.7 percent a year. I am scared to go to the bank 
and push all my chips into the middle of the table and sign the 
note to buy another farm or invest capital and infrastructure 
to try to grow more and do better. I am scared because I can't 
get my hands around where we are going with this labor issue. 
All I know is that it is going up and it is driving me out of 
business.
    Mr. Ross. Mr. Goldstein, don't you think that the adverse 
effect of wage rate incentivizes those who don't want to 
participate in the H-2A program to hire those that are illegal?
    Mr. Goldstein. We think the adverse effect wage rate is 
actually too low. It is a market-based wage rate. It is based 
on a USDA survey of agricultural employers' wages. It includes 
wage rates paid to undocumented workers. And because 
undocumented workers are willing to work for less than U.S. 
citizens and legal immigrants, that survey is resulting in 
depressed wage rates. In addition----
    Mr. Ross. And yet my harvesters back home can't compete 
because there are too many being hired illegally at less than 
the average effective wage rate.
    Mr. Goldstein. We are advocating for a complete change to 
that. We would like to legalize the undocumented workforce and 
have greater enforcement of farm workers' rights.
    You know, and you have just heard the gentlemen, Mr. 
Wenger, saying some of these workers on piece rates are making 
$30 an hour. I have just been talking to some growers who say, 
you know, that worker is making an average of about $10 an 
hour, which is above the adverse effect wage rate in most 
States, but can't we find a way to work together on a solution, 
maybe pay them 15 bucks an hour plus some health insurance?
    Mr. Ross. And you think that is flexibility--Commissioner 
Black.
    Mr. Black. Congressman, just one other point about AEWR. 
One of our growers this year completed his work, completed his 
paperwork, turned the paperwork in. In the process, the AEWR 
changed 1 penny in our State.
    Did the bureaucratic system help him change that paperwork 
up front? Absolutely not. He went to the back of the line and 
started all over for the change of 1 penny on the AEWR. And 
another good example of how that current system surely does 
create obstacles for people using the program.
    Mr. Ross. Thank you again, Mr. Chairman. My time is up.
    Mr. Lungren. I thank the gentlemen, and I thank all of our 
Members here. I would like to thank our witnesses for their 
testimony today.
    Without objection, all Members will have 5 legislative days 
to submit to the Chair additional written questions for the 
witnesses, which we will forward, and then ask you to respond 
as promptly as possible in writing so that we could make your 
answers part of the record.
    Without objection, all Members will have 5 legislative days 
to submit any additional materials for inclusion into the 
record.
    With that, again, I would like to thank our witnesses and 
this hearing is adjourned.
    [Whereupon, at 12:02 p.m., the Subcommittee was adjourned.]
                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

 Prepared Statement of the Honorable Doc Hastings, a Representative in 
                 Congress from the State of Washington
    I would like to thank Chairman Gallegly and Ranking Member Lofgren, 
as well as Chairman Smith and Ranking Member Conyers, for holding this 
important hearing on ``Regional Perspectives of Agricultural 
Guestworker Programs.'' Agriculture, and in particular specialty crops, 
is the backbone of the economy in Central Washington, and labor 
shortages are a constant threat to the economic vitality of our 
communities.
    My district is a top-producing region of a diverse range of crops. 
Without Pacific Northwest growers, the United States would lose more 
than half of its apple and cherry production, more than 70 percent of 
its pear production, and more than 77 percent of its hops production. 
In addition to feeding the United States, many of these products are 
exported and contribute significantly to our agricultural trade 
surplus.
    The crops I mention above share one thing in common--they are all 
labor-intensive. When I was younger, Americans traveled from state to 
state, picking these crops as they became ready for harvest before 
moving on to the next as the seasons progressed. However, that is no 
longer the case. In my home state, this past harvest was a clear 
example of the labor challenges faced by our growers.
    Due to a cold growing season, the apple crop was unusually late 
this year. This caused many of the workers who traditionally pick 
Washington state apples to move on to other regions before the harvest 
begun--causing the worst worker shortage our region has faced in 
decades.
    In September of last year--the height of the apple harvest--
Washington state faced an unemployment rate of 9.1 percent. Growers put 
out signs, advertised on the radio, and worked with workforce training 
centers throughout the state to try and recruit American workers 
willing to pick fruit. Some offered wages as high as $150 a day to 
workers with no experience. Despite these efforts, growers had only a 
handful of pickers show up--and they were often times gone within hours 
or days after realizing how difficult the work was.
    The worker shortage caused as much as two percent of the crop to be 
left on the trees. Even more economically damaging, some of the fruit 
was harvested so late that it impacted the storage capability--
substantially reducing growers' rate of return.
    Unfortunately, the current H-2A Program is not a viable alternative 
to meet the labor needs of our growers. In his opening statement, 
Chairman Smith mentions that there is no limit to the number of visas 
that can be issued as a part of the program. While that may be the 
case, this should not be misunderstood to mean that the program is 
meeting the labor needs of the agricultural community.
    A number of growers in my district apply for workers through the H-
2A program. More often than not, growers get only a small percentage of 
the workers they have requested. Equally damaging for growers of highly 
perishable products--which most labor-intensive crops are--are the 
delays that growers face in securing H-2A workers, who often don't 
arrive until weeks or months after they are needed. Most of these crops 
have a short harvest period and these delays can be the difference 
between making money or breaking even, and suffering a loss on the 
year's crop.
    The H-2A program is also very difficult for growers to administer. 
The high cost, burdensome paperwork requirements, and ever-changing 
enforcement by the Department of Labor make it impossible for most 
small and medium-size growers to participate at all. The larger growers 
don't have just one staff member dedicated to meeting H-2A 
requirements--they have an entire team.
    As it currently exists, the H-2A program denies American farmers 
the workers they need and invites chaos at our borders. I have long 
said that a workable and enforceable guestworker program that gives our 
growers and processors access to a stable legal workforce while 
ensuring that our government is in control of immigration is critical 
to our national security and our economy.
    In my view, as Congress looks at ways to control our borders and 
crack down on illegal immigration, we must establish a new temporary 
guestworker program that provides employers with the legal and willing 
workforce they need in a simple, timely manner. This program must meet 
the growing labor needs of our farmers, and it must respect the 
seasonal nature of Central Washington's agriculture economy. Once 
Americans have passed over an agricultural job opening, employers 
should have a means to bring in a legal workforce.
    Once again, I would like to thank Chairman Gallegly and Ranking 
Member Lofgren, as well as Chairman Smith and Ranking Member Conyers, 
for holding this important hearing. I stand ready to work with you to 
address this critical economic--and homeland security--issue.





        Letter from Diego Santiago Reyes Margarita, Farm Labor 
                     Organizing Committee, AFL-CIO





   Prepared Statement of Robert L. Guenther, Senior Vice President, 
            Public Policy, United Fresh Produce Association
    Thank you Mr. Chairman, for providing the opportunity for the 
United Fresh Produce Association to provide comments regarding the 
Committee's hearing on regional perspectives on ag guestworker 
programs. As you and the other members of the Committee are aware, this 
is an issue of tremendous importance to the men and women of this 
country who provide all Americans with a bountiful supply of fresh 
fruits and vegetables.
    United Fresh is the pre-eminent trade association for the produce 
industry in managing critical public policy issues; shaping legislative 
and regulatory action; providing scientific and technical leadership in 
food safety, quality assurance, nutrition and health; and developing 
education programs and business opportunities for members to better 
meet consumer needs for increased consumption of fresh produce. Founded 
in 1904, United Fresh represents the interests of member companies from 
small family businesses to the largest international corporations 
throughout the global fresh produce supply chain, including growers, 
shippers, fresh-cut processors, wholesalers, distributors, retailers, 
foodservice operators, industry suppliers and allied associations.
    Our mission at United Fresh is to represent the entire industry, 
with all its diversity and array of views. While our members may differ 
on a variety of matters, we work with them to achieve consensus on the 
issues that most impact the various links in the fresh produce chain 
and advocate for policies that most enhance our members' ability to 
stay in business.
    An issue on which we have consensus is with respect to the current 
state of the produce industry's difficulties in maintaining a stable 
workforce of skilled labor and how well the federal government's 
current guestworker program is able to meet that need overall. As you 
are well aware, of the nearly two million on the farm jobs in the 
produce industry currently are largely held by workers who were not 
born in this country. According to the Agriculture Coalition for 
Immigration Reform (ACIR), of which United Fresh is a member, more than 
70 percent of all farm workers in the specialty crop industry do not 
have the proper work authorization in spite of the documentation they 
present to prospective employers. In spite of the repeated, persistent 
efforts of produce industry employers to hire domestic workers, our 
association members have told us about multiple situations in which 
they had very few domestic workers apply for the farm jobs available, 
and of those who did, in numerous instances those workers lasted on the 
job for only a few days and sometimes only a few hours. Given the 
number of jobs needed to be filled, along with the highly time-
sensitive nature of harvesting fruits and vegetables and getting them 
to the marketplace, these kinds of experiences force producers to use 
the workers who apply for these jobs, are skilled and will stay on the 
job.
    Our members make every effort required to recruit domestic workers. 
But as you know, the Department of Homeland Security administers the H-
2A program, which has the mission of providing foreign-born workers for 
seasonal agriculture jobs. We have members who use the H-2A program and 
have received satisfactory results. However, we have also received 
substantial feedback from the members of our association who have tried 
to use the H-2A program and it did not meet their workforce needs.
    For example, the National Council of Agriculture Employers (NCAE) 
conducted extensive research in 2010 into the experiences of their 
members with the H-2A program. Among their findings are that over half 
of survey respondents had to seek additional assistance from elected 
officials to make the H-2A program responsive to their needs. As a 
result of getting workers through H-2A too late in the process, 
reported losses of nearly $320 million. So while the H-2A program has 
been useful for some growers, it clearly does not meet the needs of the 
majority of produce farm operators. It is estimated that less than 5 
percent of farm labor comes from the H-2A program.
    Last year, legislation was introduced and considered in this 
committee that would mandate the use of DHS's E-Verify system for all 
businesses nationwide. With the high number of foreign-born workers in 
the produce industry nationwide, mandatory use of E-Verify would 
disqualify a tremendous percentage of our workforce. That situation, 
combined with a widespread lack of success in recruiting and retaining 
domestic workers and a current ag guestworker program that is riddled 
with flaws would lead to a disastrous situation for the produce 
industry. United Fresh is not opposed to the E-Verify system, but we do 
oppose mandating its use without a corresponding guestworker program 
that ensures a viable, skilled workforce. The fallout in the state of 
Georgia from such a law, with labor shortages and economic losses in 
the millions of dollars, provides a stark illustration of the impact of 
mandatory E-Verify only.
    We believe that any bill to mandate E-Verify must be accompanied by 
guestworker program that address the workers who are currently in the 
U.S. with as little disruption to the industry as possible; it must be 
flexible and market-oriented and acknowledges the nature and flow of 
agriculture field work, as well as the skill level involved; and should 
address future workforce needs. We are ready and willing to work with 
this Committee and others in Congress on how best to achieve these 
principles.
    Improving the ability of the produce industry to attract and retain 
a legal, skilled workforce is in the best interests of legally employed 
Americans. ACIR estimates for every farm job, there are three others 
downstream dependent on the jobs done on the farm. Jobs in the produce 
chain that are not on the farm are much more likely to be held by 
domestic workers. Maintaining an effective, efficient workforce in the 
field helps retain hundreds of thousands of other jobs. At a time when 
U.S. unemployment is still close to double digits, undermining U.S. 
jobs is the last thing Congress should be doing.
    Furthermore, legislation that would remove most of the produce 
industry's workforce without a proposal to fill that void, makes this 
country more vulnerable to food dependence. American producers are 
already competing with increased imports from countries such as China 
and Peru. According to the Congressional Research Service in 2008, a 
gap of $7 billion existed between U.S. fruit and vegetable exports and 
imports. U.S. producers can narrow that gap, but not without a stable 
workforce.
    While mandating E-Verify may seem like a simple solution to the 
problem of ensuring a legal workforce in agriculture and other 
industries, the application of this approach on its own would have dire 
consequences for our members. We appreciate the efforts of Chairman 
Smith, Congressman Lungren, and Congressman Jack Kingston and several 
others to address the needs of the agriculture sector. While we believe 
there is still much that needs to be done to achieve a workable 
solution, it is helpful to see the acknowledgement of agriculture's 
unique needs. We look forward to working with our industry partners and 
with Members of Congress and their staffs to bring about an effective, 
efficient means for ensuring a stable, legal agriculture workforce.



             Brochure submitted by the National Council of 
                      Agicultural Employers (NCAE)




           Report submitted by Gary W. Black, Commissioner, 
                   Georgia Department of Agriculture





                                 
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