[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
AGRICULTURAL LABOR: FROM H-2A TO A WORKABLE AGRICULTURAL GUESTWORKER
PROGRAM
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HEARING
BEFORE THE
SUBCOMMITTEE ON
IMMIGRATION AND BORDER SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
FEBRUARY 26, 2013
__________
Serial No. 113-3
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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U.S. GOVERNMENT PRINTING OFFICE
79-584 PDF WASHINGTON : 2013
COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
HOWARD COBLE, North Carolina ROBERT C. ``BOBBY'' SCOTT,
LAMAR SMITH, Texas Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
SPENCER BACHUS, Alabama ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
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 JUDY CHU, California
TED POE, Texas TED DEUTCH, Florida
JASON CHAFFETZ, Utah LUIS V. GUTIERREZ, Illinois
TOM MARINO, Pennsylvania KAREN BASS, California
TREY GOWDY, South Carolina CEDRIC RICHMOND, Louisiana
MARK AMODEI, Nevada SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
KEITH ROTHFUS, Pennsylvania
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
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Subcommittee on Immigration and Border Security
TREY GOWDY, South Carolina, Chairman
TED POE, Texas, Vice-Chairman
LAMAR SMITH, Texas ZOE LOFGREN, California
STEVE KING, Iowa SHEILA JACKSON LEE, Texas
JIM JORDAN, Ohio LUIS V. GUTIERREZ, Illinois
MARK AMODEI, Nevada JOE GARCIA, Florida
RAUL LABRADOR, Idaho PEDRO R. PIERLUISI, Puerto Rico
GEORGE HOLDING, North Carolina
George Fishman, Chief Counsel
David Shahoulian, Minority Counsel
C O N T E N T S
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FEBRUARY 26, 2013
Page
OPENING STATEMENTS
The Honorable Trey Gowdy, a Representative in Congress from the
State of South Carolina, and Chairman, Subcommittee on
Immigration and Border Security................................ 1
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 2
The Honorable Bob Goodlatte, a Representative in Congress from
the State of Virginia, and Chairman, Committee on the Judiciary 4
The Honorable Zoe Lofgren, a Representative in Congress from the
State of California, and Ranking Member, Subcommittee on
Immigration and Border Security................................ 5
WITNESSES
Bob Stallman, President, American Farm Bureau Federation
Oral Testimony................................................. 7
Prepared Statement............................................. 10
Chalmers R. Carr, III, President, Titan Farms, Ridge Spring, SC
Oral Testimony................................................. 14
Prepared Statement............................................. 17
Mike Brown, President, National Chicken Council, on behalf of the
Food Manufacturers Immigration Coalition
Oral Testimony................................................. 38
Prepared Statement............................................. 40
Giev Kashkooli, 3rd Vice President, United Farm Workers
Oral Testimony................................................. 44
Prepared Statement............................................. 47
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Material submitted by the Honorable Zoe Lofgren, a Representative
in Congress from the State of California, and Ranking Member,
Subcommittee on Immigration and Border Security................ 54
Material submitted by the Honorable Trey Gowdy, a Representative
in Congress from the State of South Carolina, and Chairman,
Subcommittee on Immigration and Border Security................ 102
AGRICULTURAL LABOR: FROM H-2A TO A WORKABLE AGRICULTURAL GUESTWORKER
PROGRAM
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TUESDAY, FEBRUARY 26, 2013
House of Representatives
Subcommittee on Immigration and Border Security
Committee on the Judiciary
Washington, DC.
The Subcommittee met, pursuant to call, at 2:02 p.m., in
room 2141, Rayburn Office Building, the Honorable Trey Gowdy,
(Chairman of the Subcommittee) presiding.
Present: Representatives Gowdy, Goodlatte, Poe, Smith,
King, Jordan, Amodei, Labrador, Lofgren, Conyers, Jackson Lee,
Gutierrez, Garcia and Pierluisi.
Staff present: (Majority) George Fishman, Chief Counsel;
Allison Halatei, Parliamentarian & General Counsel; Graham
Owens, Clerk; (Minority) Perry Apelbaum, Staff Director & Chief
Counsel; and David Shahoulian, Minority Counsel.
Mr. Gowdy. Good afternoon. The Subcommittee on Immigration
and Border Security will come to order.
Without objection, the Chair is authorized to declare
recesses of the Committee at any time, and in that regard I
would apologize to the four witnesses upfront. There will be
votes called at some point during this hearing. I will commit
to you to come back as quickly as these tired old legs will
bring me back. So I apologize in advance for any inconvenience,
but it is unavoidable.
With that, I would like to welcome, on behalf of all of us,
all of our witnesses.
There are at least three things that we all remember from
this year's Super Bowl: the power shortage; the assault and
battery that was not called in the end zone on fourth down; and
most importantly, a commercial with Paul Harvey's voice
celebrating the respect that all of us have for the American
farmer.
Farming is more than just a means of securing a safe,
reliable food source. Farming is more than just living in
harmony with land and withstanding the vagaries of nature.
Farming is a way of life. It is a culture, a uniquely American
culture in many regards. We would do well to place ourselves in
the shoes of farmers because we sometimes lose track of what it
takes for growers to actually put this bounty on the world's
tables. We lose track of what it takes for them to give us the
safest, most efficient, most reliable agricultural system in
the world.
For those crops that are labor-intensive, especially at
harvest time, hard labor is critical. One grower might need
only one or two hired workers to help plant, tend and harvest
several hundred acres of wheat. However, another might need
hundreds of seasonal workers to harvest hundreds of acres of
fruits or vegetables, and a dairy or a food processor might
need hundreds of workers year round.
It is universally agreed that at least half of our seasonal
agricultural labor supply is made up of workers without legal
residency status. This figure is probably much more than half,
and could comprise upwards of 1 million unauthorized workers.
As Congress considers yet again immigration reform, we must
decide whether and under what circumstances and conditions
growers can continue to rely on these workers.
We all seek a future without reliance on unauthorized
workers. But to accomplish that, we need a guestworker program
to provide growers with the labor they need, indeed all of us
need.
What about the current H-2A agricultural worker program?
This program is numerically capped, and initial expectations
were that growers would use hundreds of thousands of H-2A
workers each year. Yet, the State Department only issues about
50,000 visas a year. So why is it so under-utilized?
What I am going to do today is ask the farmers, because in
the eyes of many, the program itself is designed to fail. It is
cumbersome. It is full of red tape. Growers have to pay wages
far above the locally prevailing wage, putting themselves at a
competitive disadvantage with growers who use illegal labor.
Growers are subject to onerous rules, such as the 50 percent
rule, which requires them to hire any domestic worker who shows
up even after the H-2A worker has arrived from overseas.
Growers can't get workers in time to meet needs dictated by the
weather. And finally, growers are constantly subject to
litigation by those who don't think the H-2A program should
even exist.
What growers need is a fair and workable guestworker
program. They need a program that gives them access to the
workers they need, when they need them, at a fair wage and with
reasonable conditions, and they need a partner in the Federal
Government, not what is often perceived as an adversary.
A reformed guestworker program will work better for growers
and for workers. If growers can't use a program because it is
too cumbersome, none of its worker protections will benefit
actual workers. If a program is fair to both growers and
workers, it will be widely used and workers will benefit from
its protections.
I look forward to hearing today's witnesses and learning
how they would reform our agricultural guestworker system.
I now would recognize the past Chairman of the full
Committee, Mr. Conyers.
Mr. Conyers. Thank you, Chairman Gowdy, for your comments
about our first hearing of the Immigration Subcommittee. I am
glad we are here to talk about our country's agricultural labor
needs, and I welcome the four distinguished witnesses that are
with us today.
We talk about how our agriculture industry depends on the
migrant labor. Right now, half or more of the 2 million
farmworkers picking our crops and harvesting our fruits and
vegetables, I am sorry to say, are undocumented immigrants. I
think this is unsustainable, and I think that the entire
Committee is motivated to try to do something about this.
I feel that we all have the common goal of solving this
problem, and I believe the discussion with the witnesses before
us can help bring us closer to the solution.
I want to begin by talking about what we mean when we talk
about our agricultural labor needs. We know that these are hard
jobs. We know it is back-breaking work. In many ways, it is
also skilled work. Maybe you don't need a Ph.D. in engineering,
but I doubt most engineers would be very good at cutting
lettuce in exactly the right way to bring it to market.
We also know that there are Americans and immigrants with
work authorizations who perform this work, and there are not
nearly enough of them to get the job done. This is important to
Members of Congress from districts that produce the hand-picked
produce that we all enjoy. Their local economies are built upon
a, frankly, untenable situation. They depend on the labor of
undocumented immigrants, which means they depend on our
willingness to tolerate that unacceptable situation.
The U.S. Department of Agriculture reports that every on-
the-farm job supports 3.1 upstream and downstream jobs in
processing, trucking, distribution. These jobs are generally
held by American workers, so the destruction of agriculture and
the offshoring of all these farm jobs means the loss of
millions of other jobs in communities across the country.
It is important to us. So the question that we are faced
with is what do we do? Last Congress, we heard over and over
that the solution is to reform the H-2A program for temporary
seasonal agricultural workers, or to create an entirely new
program to accomplish that same goal. This Committee never
considered proposals to allow all of our current undocumented
workers who work year after year at the same farms, provide
skilled, dependable labor that benefits us all, to earn
permanent legal status. These are people who have families,
have been paying taxes, are good people, and are already doing
the work that benefits us all.
Does it make sense to anyone that we should deport all of
our current workers and replace them with half a million new
temporary workers who can only stay for 10 months and must come
and go back every year? It would take billions of dollars to
deport the farmworkers we already have, something that we know
can never happen, and we would require growers across the
country to spend hundreds of millions of dollars bringing in
new farmworkers.
So, I conclude with these suggestions. Number one, let's
find a way to provide legal status to current undocumented
farmworkers. And secondly, let's see if we can collectively
create a new temporary visa program to bring in new farmworkers
when we need them, and this would be efficient for both the
employers and give the much needed and deserved protection to
the workers.
And so we welcome you, gentlemen, and I thank the Chairman
for his indulgence, and I yield back my time.
Mr. Gowdy. I thank the gentleman.
The Chair would now recognize the gentleman from the great
State of Virginia, the Chairman of the full Committee, Mr.
Goodlatte.
Mr. Goodlatte. Thank you, Mr. Chairman. I appreciate your
holding this hearing. As former Chairman of the House
Agriculture Committee, I have had the opportunity to learn
first-hand what farmers face in dealing with the H-2A program.
It is a costly, time-consuming, and flawed program. Each year,
employers have to comply with a lengthy labor certification
process that is slow, bureaucratic, and frustrating. It is a
process that forces them to expend a great deal of time and
money each season in order to prove to the Federal Government
what nearly everybody already knows is the case: that legal,
dependable farm labor is very hard to find.
In addition, the law forces them to pay an artificially
inflated wage rate, higher than the prevailing wage in their
region, and provide housing and daily transportation for their
workers at their own expense. These farmers are paying an
average of $10 an hour or more, and still cannot find enough
Americans willing to take the jobs. Even worse, as a result of
complying with these H-2A regulations, H-2A farms almost always
find themselves at a competitive disadvantage in the
marketplace.
What all of this tells us is that farmers who participate
in the H-2A program do so as a matter of last resort and
conscience. They do it because they know that realistically,
most of the available farm labor is illegal, and they don't
want to break the law. A guestworker program should help
farmers who are willing to pay a fair wage for law-abiding,
dependable workers, not punish them. For this reason I support
replacing the H-2A program and implementing new policies that
will bring our illegal agricultural workers out of the shadows
as a first step in the process of overhauling our Nation's
immigration system.
Addressing the complex labor issues of the relatively small
agriculture sector can help us understand how we can build our
broader immigration laws and enforcement mechanisms in order to
enhance the U.S. economy and make our immigration laws more
efficient and fair for all involved.
Instead of encouraging more illegal immigration, successful
guestworker reform can deter illegal immigration and help
secure our borders. I believe we should enable the large
population of illegal farmworkers to participate legally in
American agriculture. Those eligible will provide a stable,
legal agricultural workforce that employers can call upon when
sufficient American labor cannot be found.
In addition, a successful guestworker program will provide
a legal, workable avenue for guestworkers who are trying to
provide a better life for their families. It is well past the
time to replace the outdated and onerous H-2A program to
support those farmers who have demonstrated that they will
endure substantial burdens and bureaucratic red tape just to
employ a fully legal workforce and to offer a program that is
amenable to even more participants in today's agricultural
economy.
We can do this by designing a program with practical
safeguards and expanding the current universe of jobs to
include dairy jobs and work in food processing plants, among
other things.
I thank Chairman Gowdy for holding this important hearing,
and I look forward to hearing from all of our distinguished
witnesses today.
Mr. Gowdy. I thank the gentleman from Virginia.
The Chair would now recognize the gentlelady from the great
state of California, the Ranking Member of the Subcommittee,
Ms. Lofgren.
Ms. Lofgren. Thank you, Mr. Chairman. I want to thank both
you and Chairman Goodlatte for holding this hearing.
As we know from the three hearings we held on this issue in
the last Congress, as well as many other hearings before that,
nowhere is evidence of our broken immigration system more
glaring and acute than in the ag sector, where as much as 75 to
80 percent of the workforce is undocumented. I am sure we agree
that we can't begin to fix our immigration system without
finding a solution to the agricultural problem. I expect that
both Chairmen are committed to finding such a solution. I am
committed to working with them to finding solutions in this
Congress.
Let's quickly look at the facts. As we know from past
hearings, mechanized crops like corn, wheat and soy are not the
issue here. The challenge is with seasonal, labor-intensive
fruit and vegetable production, as well as year-round dairy and
livestock. These areas require a migrant, flexible, and
experienced workforce. While farmers do their best to plan
harvests, unexpected changes in humidity or temperature can
suddenly move a harvest up, giving growers just days to pick
valuable crops. Failure to find experienced workers or any
workers at all can lead to significant losses. These losses can
ripple through our economy.
Agriculture continues to be a major sector of our economy
and a primary U.S. export. In fact, we export so many
agricultural products, many more than we import, that this
sector is regularly the largest in which we see a trade
surplus. Yet, Congress has long ignored the labor needs of this
sector.
For decades, our country has rightfully educated our
children for work in other areas. At the same time, our
immigration laws have made it all but impossible to fill the
resulting void with legal foreign workers. For example, despite
a need for millions of workers, some on a permanent basis, our
immigration laws issue only 5,000 green cards per year to
people without bachelor's degrees. That is 5,000 per year to be
shared not just by ag employers but also landscapers,
restaurants, hotels and nannies, and many other jobs where
immigrant workers fill a crucial need.
The H-2A temporary worker program has not filled the gaps
either. Farmers often complain that the program is too
bureaucratic and slow, and surveys show that H-2A workers often
arrive weeks after they are first needed. Many growers feel
they cannot make the program work, and that is why the program
has been used so sparingly, reaching the high water mark of
64,000 visas in 2008.
In that environment, should anyone be surprised that market
forces work their magic to pair up willing employers and
willing workers? If we are honest, we must admit that Congress
essentially left farmers with no choice but to hire
undocumented workers. Let's not fool ourselves; we all knew it
was happening, and we looked the other way as workers came to
fill the jobs that our country desperately needed filled. Many
of our constituents are still in business because those workers
came here.
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, and provide a way for them to attain legal
status and continue to help this country succeed? Or do we, as
some have previously suggested, attempt to throw out millions
of agricultural workers just to force our growers to import
millions of other workers through government controlled
programs that have not worked in the past?
I think we will all agree that the only viable solution is
a balanced approach that both preserves the current workforce
and makes it easier to meet future needs with new workers. If
we learned anything from our many hearings on this issue, it is
that a one-sided solution won't work. There was a time when we
understood that. Years ago, growers and farmworkers came
together to craft the ag jobs compromise. Supported by both
business and labor, ag jobs also had the strong support of many
Members on both sides of the aisle.
We know that some growers no longer support that
compromise, and that most Republicans withdrew their support in
years past. But it nevertheless shows that all sides can reach
a balanced, bipartisan agreement when we work together for a
common purpose.
Now, I am heartened by the news that the American Farm
Bureau and the United Farm Workers have reengaged in talks to
reach a balanced and thoughtful compromise, and I welcome those
negotiations, and I commit to doing what I can to ensure their
success. The country really needs that you all succeed. We must
do now what America does best, be pragmatic. We must recognize
that our laws have been broken for decades, failing to meet the
needs of entire industries, particularly agriculture, so people
took matters into their own hands. Yes, the farm workers came
without obeying immigration rules, and almost every fruit and
vegetable farm in the country also broke the law by hiring
them, and the government essentially let it all happen.
Congress can't escape our role in this. We need to
recognize that and to do what is right for our country, and I
have confidence actually that we will do so.
Thank you, Mr. Chairman.
Mr. Gowdy. I thank the gentlelady from California.
The entire Committee welcomes a very distinguished panel of
witnesses today. I am going to introduce you en banc, and then
I will recognize you individually. Many of you have testified
before, so you are familiar with the lighting system. Green
means go, yellow means speed up--I hope there is no law
enforcement around--and red means, if you can, go ahead and
conclude.
We are first delighted to have Bob Stallman. Mr. Stallman
is a rising cattle farmer from Columbus, Texas. He is the
President of the American Farm Bureau Federation. Mr. Stallman
was first elected president in January 2000. The American Farm
Bureau Federation is an independent, non-governmental,
voluntary organization governed by and representing farm and
ranch families. Prior to becoming President of the American
Farm Bureau Federation, Mr. Stallman served as President of the
Texas Farm Bureau. He became a member of AFBF's Board of
Directors in 1994. Mr. Stallman graduated with honors from the
University of Texas at Austin in 1974.
After he testifies, it will be Mr. Chalmers Carr, who is
the President and CEO of Titan Peach Farms, which is in South
Carolina, its largest commercial peach operation. He is also
treasurer of the South Carolina Peach Council, Chairman of the
South Carolina Farm Bureau Labor Committee. Mr. Carr began his
farming career in 1990 and has been with Titan Farms since
1995. He has participated in the H-2A program for 13 years. He
received his Bachelor's degree from Clemson University.
Mr. Michael J. Brown currently serves as the President of
the National Chicken Council. The National Chicken Council is a
national non-profit trade association representing the U.S.
chicken industry. Prior to his joining the NCC, Mr. Brown
served as Senior Vice President for Legislative Affairs of the
American Meat Institute. He also served as the treasurer of
AMI's political action committee, AMI PAC. Mr. Brown earned his
Bachelor of Science in political science and history from the
State University of New York, Brockport.
And finally, we have Mr.--I'm just going to tell you right
now I am going to mess this up, but I think the last name is
pronounced Kashkooli. Is that fair? Okay, all right. Mr.
Kashkooli is the legislative and political director and third
Vice President of the United Farm Workers of America,
overseeing the union's political, legislative, research and
communications work. He served with the UFW for 14 years
throughout California, New York, Washington and Florida, and
across to California. He graduated in 1989 from Brown
University in Rhode Island, where he first became active in
supporting the United Farm Workers' cause.
Mr. Stallman, we will begin with you. On behalf of all of
us again, we welcome you and thank you for your participation.
TESTIMONY OF BOB STALLMAN, PRESIDENT,
AMERICAN FARM BUREAU FEDERATION
Mr. Stallman. Thank you, Mr. Chairman, Members of the
Subcommittee. My name is Bob Stallman. I am a rising cattle
producer from Texas and serve as President of the American Farm
Bureau Federation. I appreciate the opportunity to testify
today regarding my organization's views on the agricultural
labor challenge facing food production in the United States.
America's farmers, livestock producers, fruit and vegetable
growers, and dairy producers all have specific labor demands.
But those demands vary by region, by commodity, by season, and
by market characteristics. We desperately need--in fact, we
have needed for some time--a system that is flexible,
adaptable, efficient and economic for producers. This system
must attract a sufficient number of competent, willing and able
employees to sustain and grow production, allow the recruitment
and hiring of non-resident agricultural workers when the need
is demonstrated, and allow an opportunity for some current non-
resident agricultural workers to apply for legal resident
status.
This need for change is partly driven by the failure of the
current H-2A program. Farmers and ranchers have witnessed
increased denials, seemingly arbitrary changes in the
interpretation of longstanding agency rules, dates of need that
have gone unmet. In short, the program as it is administered
today is simply not doing what Congress designed it to do.
A year ago, American Farm Bureau set out to identify what
such a system would look like. We established a working group
from around the country that considered the needs of fruit and
vegetable growers from California and Florida, livestock
producers and custom harvesters in the Midwest, dairy farmers
in upstate New York and everywhere in between. And we didn't
just talk to ourselves. We sought input from worker advocates,
Members of Congress on both sides of the aisle, Committee
staff, labor unions, and labor advocate groups.
We also talked to other agricultural interests. This led to
the founding of the Agriculture Workforce Coalition. Clearly,
we wanted to identify the needs of growers, but we also wanted
to be sensitive to the rights and needs of workers. To
summarize briefly, our program would be a wholly new program
that is market based. We envision that, over time, it would
entirely replace H-2A. It would be administered by the U.S.
Department of Agriculture. Further, it would eliminate
unnecessary bureaucracy and expenses both for the government
and employers, and it would provide workers job portability and
the freedom to quit and leave for other positions if they wish,
a right they currently do not have under H-2A.
Importantly, it would broaden the program to all of
agriculture, including year-round jobs. There is currently no
program, even H-2A, which provides this opportunity to workers
or employers.
It would allow employers to offer a contract for certain
jobs, but would not require workers to take such positions, an
option they currently do not have.
My written submission to the Committee goes into much
greater detail about our proposal, and I will be pleased to
answer questions from the Committee about any specific
provision.
Provided that this Committee and Congress can adopt such a
program, my organization would be prepared to accept greater
employer verification obligations, such as E-Verify. As you may
recall in the last Congress, Farm Bureau could not support the
E-Verify legislation approved by this Committee for the simple
reason that we were not provided a workable program.
There is an important additional provision to our program
that I would like to stress. In order to provide short-term
stability and an orderly, effective transition to this new
guestworker program, we believe Congress should include
provisions permitting certain workers who have worked in U.S.
agriculture who might not otherwise qualify to obtain work
authorization. Granting existing experienced agricultural
workers work authorization is a crucial part of making sure
that there is not economic dislocation in the agricultural
sector while we transition to a new program.
Last, while I am testifying today on behalf of American
Farm Bureau, I want to reiterate the impact of the Agriculture
Workforce Coalition. Agriculture has faced disagreements in the
past. Today, the AWC represents a range of broad agricultural
interests from coast to coast. The unity of this group speaks
volumes for the importance of this issue for the industry. The
proposal I have outlined today is aligned with the views of the
AWC, and all of agriculture is united behind this common effort
to break with the past and construct a model program that will
work for us in the future.
All of us recognize the highly contentious nature of this
debate, but we urge the Committee to remember one overriding
fact: U.S. agriculture needs a comprehensive, workable
solution. We cannot wait, and we pledge our support to you and
all Members of the Committee as you grapple with this issue.
I appreciate this opportunity to testify and will be
pleased to answer any questions from the Committee.
[The prepared statement of Mr. Stallman follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Gowdy. Thank you, Mr. Stallman.
Mr. Carr.
TESTIMONY OF CHALMERS R. CARR, III, PRESIDENT,
TITAN FARMS, RIDGE SPRING, SC
Mr. Carr. Thank you for allowing me the opportunity to
explain my experiences and my views of the deficiencies in the
H-2A program and share with you the needed reforms to create a
viable guestworker program.
I am the farmer in the group. I am the one here that does
this every day. My name is Chalmers Carr, and I own Titan Farms
in Ridge Spring, South Carolina, where I grow 5,000 acres of
peaches and farm 700 acres of vegetables. I have been working
within the H-2A program for the last 14 years, employing 500
legal alien workers just last summer.
Looking beyond the role that agriculture plays in national
security, I ask you to think about food safety and the impact
that the fruits and vegetables imported into this country have
on our society. Due to labor shortages, domestic production of
fruits and vegetables is declining, while imports are
increasing. An FDA report shows that imported vegetables are
three times more likely to be contaminated with foodborne
pathogens and four times more likely to be treated with
pesticides exceeding domestically grown produce.
I ask you to ponder this one statement: A country with an
abundant food supply has many issues. However, a country that
cannot feed itself only has one.
In order to have a vibrant and robust agriculture industry,
we must have a workforce that is vibrant and robust as well.
The current U.S. labor market is experiencing a negative
demographic trend. The Baby Boomers are getting older, and our
younger generations, who are far less in numbers, are using
their brains instead of their backs.
There is also an enormous misconception that our country
has an abundant supply of American workers willing to work in
the agriculture industry. Even in the recent recession,
unemployment of domestic workers at the farm level did not
increase. Furthermore, it is commonly accepted that 50 percent
of the 1.2 million workers in agriculture are undocumented. I
heard today it is 75 to 80 percent. Because of this large
percentage of undocumented immigrants, states have felt
abandoned by the Federal Government and have begun to pass
their own immigration and employment verification laws. Such
cavalier legislation is having a negative impact on the
availability of farm labor.
Currently, there is a shortage of workers regardless of
their legitimacy. Demographic trends clearly show that this is
an ongoing problem and that this is only going to get worse.
This is why agriculture must have a viable guestworker program.
The current H-2A program only supplies 4 percent of the
labor force needed in agriculture. This statistic alone
verifies the fact that the H-2A program is riddled with
problems and is cumbersome to use, that the vast majority of
agriculture employers have stayed clear of it.
I would like to highlight the major problematic areas of
the H-2A program, details of which are contained in my written
statement before you. First and foremost, the program is
limited in who can participate. The wage rate is not market-
based and not realistic. The 50 percent rule for recruitment,
the application process, the requirement to provide housing,
the transportation and visa fees, and lastly, the litigious
nature of the program, these are the key reasons why the
agriculture industry has not used the H-2A program.
As Mr. Stallman said, the agriculture community has been
divided, and we have come together. The Agriculture Workforce
Coalition, or AWC, is now speaking with a united voice,
representing the diverse needs of agriculture employers from
across the country. As you begin the debate on guestworker
reform, I would ask you to consider the problematic nature of
the current program and incorporate solutions that I have
provided in my written statement which are consistent with the
AWC's principles on guestworker reform.
Lastly, I would address this Committee and ask you to hear
just one statement very clearly. The agriculture industry
cannot endure another election cycle. Whether you tackle
comprehensive immigration or not, the agriculture community
needs immigration reform, and we need a guestworker program
now.
I would like to leave you with this last question. Would
you rather have the food you feed your family grown on the
fertile soils under the governance of the USDA and the FDA
being harvested by lawfully admitted foreign nationals, or are
you willing to accept putting food on the dinner table tonight
that was grown in a foreign country with unknown production
practices, unknown food safety protocols, while either way that
food is still going to be harvested by a foreign national?
It is my hope that Congress desires to ensure that American
farmers can continue to feed Americans at home, with plenty
left over to feed the rest of the world. Thank you for your
time and consideration.
[The prepared statement of Mr. Carr follows:]
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Mr. Gowdy. Thank you, Mr. Carr.
Mr. Brown.
TESTIMONY OF MIKE BROWN, PRESIDENT, NATIONAL CHICKEN COUNCIL,
ON BEHALF OF THE FOOD MANUFACTURERS IMMIGRATION COALITION
Mr. Brown. Mr. Chairman, Chairman Gowdy and Ranking Member
Lofgren, I appreciate the opportunity to testify here today on
the important issue of comprehensive immigration reform.
I am Mike Brown, President of the National Chicken Council.
NCC's members produce and process more than 95 percent of the
chicken consumed in the United States. I am testifying today on
behalf of a broader Food Manufacturers Immigration Coalition.
To date, much of the immigration reform discussion has focused
on the need to retain highly skilled workers such as scientists
and engineers, and the need for additional temporary
agriculture workers. These are important objectives, but they
do not meet the needs of our industry sector.
We seek workers who will stay on the job to become skilled
and efficient, helping us to keep our food products and
employees safe. This takes investment, up to thousands of
dollars spent on training and equipment for each employee.
The coalition's principles are as follows. Under
enforcement, while border security has improved significantly
over the past decade, improvements can be made to further lower
the number of illegal border crossings. One suggestion the
coalition has is to provide exit or expiration data to E-Verify
to aid the government in its effort to track visas and prevent
overstays.
Under strengthening employment verification and preventing
identity fraud, unfortunately the government does not provide
employers with a reliable verification method to prevent
identity fraud. E-Verify is a step in the right direction, but
it must be strengthened. Our industry has had nearly 20 years
of experience using this program.
If strengthened, this program will serve as an effective
and efficient virtual border, if you will, because the
electronic data will keep folks from seeking employment if they
know they can't pass.
Over the past decade, the government has discovered
thousands of ineligible employees working for employers who
have processed these employees through E-Verify. The system
does not account for identity fraud. Currently, multiple people
can earn wages on the same Social Security number or use the
Social Security number of a deceased individual.
The solution? Employers should be allowed to require an E-
Verify Self Check. E-Verify Self Check is an online service
that allows individuals to check their employment eligibility
before beginning a new job. The Self Check entry portal helps
prevent identity fraud by melding E-Verify with an automated
Connect The Dots program, similar to credit background checks
when we all apply for credit cards or other information.
Under the current interpretation of the Office of Special
Counsel for Unfair Immigration-Related Employment Practices,
employers may not require anyone to use Self Check in the
employment process. In fact, we may not even discuss it with a
prospective employee. The Social Security Administration must
be required to verify that Social Security numbers are not
being used in duplicate locations or are not matched to
deceased individuals. In return for participating in these
aggressive screening programs, a safe harbor should be provided
for employers that utilize the E-Verify Self Check and follow
the automatic referral process.
Under anti-discrimination, employers can often be caught
between an employee verification obligation and non-
discrimination enforcement. For example, the Department of
Justice's Office of Special Counsel has cited employers for
allegedly acting too aggressively in verifying work
authorization status of new hires. Simultaneously, the same
business is often targeted for worksite enforcement action for
not being vigilant enough. Statistic-based discrimination
penalties have been imposed on employers who recruit outside
the local community or work with the State Department to hire
workers with refugee status when Americans are unavailable or
unwilling to fill these jobs.
Immigration reform legislation should require that DHS,
DOJ, DOL, and other enforcement or anti-discrimination agencies
consult internally and publish rules of the road; in essence,
harmonize the law throughout the Federal Government.
Access to labor. An effective occupational visa system may
be the most important barrier to illegal immigration. The
existing temporary programs for general labor skilled workers
are for seasonal labor only, which does not help manufacturers
whose occupational needs are year-round and ongoing. Ag jobs
legislation, as important as it is, does not benefit food
manufacturers.
A manufacturing visa program should include flexible annual
goals or targets for immigration that emphasize economic
migration, predominantly employment-based migration. These
goals or targets should be flexible and adjustable to reflect
changing conditions.
On earned legalization, our coalition supports an earned
legalization program. Our broken immigration system has
resulted in up to 11 million undocumented immigrants living in
the shadows. Congress must provide a fair and practical roadmap
to address the status of unauthorized immigrants in the United
States.
Mr. Chairman and Members of the Committee, again, I
appreciate the opportunity to testify before you today.
[The prepared statement of Mr. Brown follows:]
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Mr. Gowdy. Thank you, Mr. Brown.
Mr. Kashkooli.
TESTIMONY OF GIEV KASHKOOLI, 3RD VICE PRESIDENT, UNITED FARM
WORKERS
Mr. Kashkooli. Thank you, Chairman Gowdy, Ranking Member
Lofgren, and Members of this Subcommittee. Thank you so much
for the opportunity to testify today. I know that from Florida
to Idaho, you have extraordinary experience here, from
Congressman Gutierrez to Chairman Goodlatte, the amount of
years that you have put in, along with Congressman Gowdy and
Ranking Member Lofgren. It is extraordinary what you have put
in, and we really do believe we are now in a very special
moment.
My name is Giev Kashkooli. I am a Vice President of the
United Farm Workers of America. We are honored to speak with
you today, to share alongside the American Farm Bureau and Mr.
Brown and Mr. Carr some of the issues that confront American
agriculture for agriculture employers and for agricultural
workers, for farmers and for farm workers.
America's farms and ranches produce an incredible bounty
that is the envy of the world. The farmers and farm workers
that make up our Nation's agricultural industry are truly
heroic in their willingness to work hard and take on the risk
as they plant and harvest the food all of us eat every day.
But our broken immigration system threatens our Nation's
food supply. Thankfully, many of you have devoted many years to
help fix this, and while our views have diverged in the past
from those of Chairman Goodlatte, we do not question
Congressman Goodlatte's commitment to improving our immigration
system for agriculture, and we are very grateful for the
seriousness with which you have studied these issues.
The UFW and our Nation's agricultural employers have often
also been at odds on many policy issues, but we have been
working diligently to see if we can come to an agreement that
would unify our agricultural employers and our agricultural
workers in the agricultural industry, and we believe we are
making progress toward that end. We really are in a unique
moment to get something done.
Let me speak a little bit about what is at stake for the
women, men, and children who work in the fields and do some of
what Congressman Goodlatte recently called the hardest,
toughest, dirtiest jobs. Every day across America, about 2
million women, men and children labor on our Nation's farms and
ranches, producing our fruits and vegetables and caring for our
livestock. At least 600,000 of these Americans are U.S.
citizens or permanent legal residents. Our migrant and seasonal
farm workers are rarely recognized for bringing this rich
bounty to supermarkets and our dinner tables, and I think that
is why, Chairman Gowdy, so many of us were struck by the
commercial that you mentioned. Most Americans cannot comprehend
the difficult struggles of these new Americans who work as farm
workers.
Increasingly, however, American consumers are asking
government and the food industry for assurances that their food
is safe, healthy, and produced under fair conditions.
The life of a farm worker in 2013 is not easy. Most farm
workers earn very low wages. The housing in farm worker
communities is often poor and overcrowded. The Federal and
state laws exclude farm workers from many of the labor
protections other workers enjoy, such as the right to join a
union without being fired for it, overtime pay, many of the
OSHA safety standards, and in many states they don't even have
workers compensation for farm workers.
Farm workers were excluded from these Federal laws in the
1930's, and that is one of the sadder chapters in the history
of our Nation, the reasons why. Even in California, where we
have won many of these protections and farm workers get many of
these protections, we still have seen dozens of farm workers
die over the last several years for the simple lack of water or
shade working in that hot sun. Not everyone is able to work on
Mr. Carr's farm, a farmer who is really following the law. Such
poor conditions and discriminatory laws have resulted in
substantial employee turnover in agriculture.
So we also want to have a serious discussion about the
future of the workforce upon which American agriculture and
American consumers depend. First and foremost, we seek an end
to the status quo. Our number one priority is reform of our
immigration process that includes a workable legalization
program for the 1 million or more farm workers who are
currently working in the fields and their immediate family
members, with a roadmap toward a permanent resident status, and
then to citizenship.
We believe that the farm workers who harvest our food and
feed us deserve, at the very least, the right to apply for
permanent legal status. To the extent a new path is needed to
bring professional farm workers from abroad to this country,
these workers should be accorded equality, job mobility, strong
labor and wage protections, and an opportunity to earn
immigration status leading to citizenship.
We have seen Europe's failed experiment of second-class
legal status, and we at the United Farm Workers, we believe
that America really is exceptional, like I think all of you do.
Our agricultural system is just one more example of how America
is exceptional. So we should honor the new Americans who
continue to build our agricultural system as the heroes that
they are for our country.
Now, there are agricultural employers who will need to
continue to have the security of a contract with farm workers
so that they can make sure to meet those needs, and we are
hopeful that complaints about bureaucracy that we all
understand would not justify reducing wages and job
opportunities of U.S. workers, or eliminate wage, housing, and
transportation protections.
We thank you very much. We believe that we can come to a
system that can honor our American values and our exceptional
agricultural system.
[The prepared statement of Mr. Kashkooli follows:]
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Mr. Gowdy. Thank you, Mr. Kashkooli.
The Chair will now recognize the Chairman of the full
Committee, the gentleman from Virginia, Mr. Goodlatte, for his
5 minutes of questioning.
Mr. Goodlatte. Thank you, Mr. Chairman, and thank you all
for your excellent testimony.
Mr. Stallman, let me start with you. The fundamental basis
of your guestworker proposal is a market-driven approach in
which workers with portable visas could seek agricultural
employment around the country. I certainly recognize and
appreciate the need for that.
However, doesn't the risk exist that these guestworkers
will seek illegal employment outside of agriculture? And if
that is the case, doesn't your proposal depend upon the
existence of a mandatory E-Verify to ensure that guestworkers
can't get jobs outside of agriculture?
Mr. Stallman. Yes, we have readily acknowledged that there
has to be a system and process for monitoring these workers to
be sure they are meeting the requirements of their work status,
and E-Verify is definitely a way to do that.
Mr. Goodlatte. And I say this not to punish these workers.
I say this because this is a balance that we are trying to find
between the interests of American workers and workers that we
need because there is a shortage, as Mr. Kashkooli
acknowledged. If you have 2 million workers in agriculture, and
600,000 of them are United States citizens, obviously there is
a big need for non-U.S. citizens. We would like to get as many
U.S. citizens into this area as possible, and if it is a
market-driven approach where you are paid a fair market wage,
we would like to see that accomplished.
But we also need to have a system where people come, and
then don't go into other sectors of the economy and compete
with U.S. workers in areas where they are willing to work and
take the jobs and undercut the wage rate in that area. That is
a separate issue from what happens to them long term, and I
would argue that there will be a number of different ways where
people who have this opportunity could ultimately find other
opportunities. They might marry a United States citizen. They
might get an education and petition for a job that requires
more skill, and that is not to say that this is not skilled
work, but more skill that would enable them to qualify for a
different type of work with a green card.
But that is a separate thing from a temporary worker
program that is needed, and if you don't have a mechanism to
allow them to come here, work, send money home to their
families and so on, you're going to find that you have a system
where you are constantly replenishing a huge number of people,
over 1 million a year. If they do it for several years, it
might be several hundred thousand new people a year that you
would have to then be providing a green card.
So we need to have, if we are going to do a broader base,
some call it comprehensive immigration reform, we need to have
a component here that will work for this industry that is not
only heavily dependent upon these workers, but also heavily
competitive with international competition. Food can be
produced in lots of different countries around the world.
So designing something that works for agriculture is a
critical part to designing something that works for a solution
to this entire problem.
Let me ask you also, Mr. Stallman, do you believe that meat
processors and fruit and vegetable canners, which are not in
the fields--they have raised that product, they have harvested
that crop and now brought it into a processing plant--do you
believe they also should have access to a new guestworker
program?
That is directed to you, Mr. Stallman.
Mr. Stallman. I am sorry. I thought that was Mr. Carr. We,
in our proposal, talk about extending our program up the chain
for basically unfarm packing facilities. When you get into the
more advanced food processing and processing facilities, in
fact, a lot of those entities, particularly in the livestock
sector, have not wanted to be part of the agriculture program,
and those sectors generally have a different labor need and
different labor conditions than what we do on the farm because
it is permanent work, for the most part it is indoor work.
Mr. Goodlatte. Right, but there are certain farm works--for
example, if you have a dairy farm, your work is not temporary.
It can be indoors because those dairy parlors are indoors. So
there is sort of a transition there between the temporary field
workers that we definitely recognize, and the traditional H-2A
worker program is not well-designed, but is it is designed to
address, moving to farms that produce a product every day of
the year, milk in this instance, to folks who take that product
off the farm and further process it. If you visit those
facilities around the country, you will find that there is a
need for workers in that area that may be just as great as in
the farming area.
Mr. Stallman. We are basically using the current
definitions in our proposal for what constitutes a----
Mr. Goodlatte. Would you be open to a broader definition to
try to address this problem from a broader standpoint?
Mr. Stallman. I think I would leave that to those
particular industries and those particular entities to come up
with that.
Mr. Goodlatte. Okay. Well, let me ask Mr. Brown and Mr.
Kashkooli.
Mr. Brown. Thank you, Chairman Goodlatte. As you know, in
our industry, we look for a more permanent employee. But as far
as a temporary visa program to help with our labor needs,
particularly in times when the economy is doing quite well and
it is difficult to attract labor, we would be very open to a
new visa category for employees for, say, a 24- to 36-month
period. When you think of the up-front investment you have made
in time and training and the thousands of dollars, we would
certainly be open to that and support such a move forward.
Mr. Goodlatte. Mr. Kashkooli?
Mr. Kashkooli. Sure. I think in terms of dairy, it is clear
there is a case to be made there. In terms of packing houses, I
think we are more comfortable with the existing definitions. I
think for us, there are, in fact, a lot of ways to do this.
What is important is that there are certain guideposts. There
are 600,000 farm workers now who are U.S. citizens and
permanent legal residents we are talking about, we hope. All of
us are talking about taking the existing workforce who does not
have legal status and allowing them to earn legal status.
So the three things in terms of just guideposts is, first,
we just cannot hurt the job opportunities for those people, and
that would be true if it was in packing houses as well. Second,
we have got to therefore be concerned about what does
recruitment look like so that those people know about the work.
And third, we need to be learning about wages.
I have heard that the current wage rates are artificial. We
do believe they are artificial. We believe they are
artificially low. The majority of the workforce doesn't have
legal status, and therefore the wages have been artificially
depressed in any real market.
Mr. Goodlatte. Well, let me just interrupt you there. Do
you believe that if we had a system where they had now legal
status in the United States, whatever that might be, but they
had legal status, and as Mr. Stallman describes, they have the
ability to leave a job where they feel they are being treated
unfairly, and they have the ability to move from farm to farm
without having an H-2A petition filed for each and every farm
location, if they had that, their wages might well go up, might
it not, under a market-driven approach? As opposed to having a
bureaucracy trying to figure out what that wage should be,
which is what we do right now.
Mr. Kashkooli. Right. You may be surprised to know that we
believe that private citizens acting collectively can be more
effective than government regulation.
Mr. Goodlatte. And I am glad to hear that. I agree with
that.
Mr. Kashkooli. Great. I thought so. What President Stallman
described, actually, sounds right. But the problem here is the
written proposal that they have proposed does not do that. In
their written proposal, there is an ability to tie a worker to
a contract and have their visa impacted by that contract. So
what we would be in favor of is two programs, one truly free
market, and I want to get to that in just a second; and second,
a contract program that is either H-2A or modeled after the
protections of H-2A, which, after all, were a compromise
originated by President Reagan.
And for the employers that need the security of knowing
that a worker needs to show up exactly at that date and for
however long the season is, knowing the weather variations,
they are probably going to continue to need to use that
contract program and then connect themselves to a set of
government protections for all of the historic reasons that
have had to take place.
On the free market, we think that makes a lot of sense. We
want to make sure that it is not an artificial free market, so
there should not be an endless supply of minimum-wage labor.
That is not a truly free market. It should not be an unlimited
supply. So there needs to be some kind of cap. There really
does need to be portability. A worker really does need to be
able to move. They need to have equal labor rights. There
cannot be an incentive to hire that person over the other
people who are working in the United States, and there needs to
be some kind of roadmap to citizenship, we believe.
And the reason is because, as Chairman Gowdy just mentioned
in referencing that commercial, the people who are harvesting
our food which we eat every day, it is a euphemism to call them
guestworkers. These are the new Americans who are working our
land and feeding us. That is honorable, sacred, beautiful work.
And to say to the people who do that work--we believe that the
people who do that work should be able to, at least at some
point, if they are not in fact temporary, if they in fact are
coming back year after year, at least be able to earn the right
to apply for legal status.
Mr. Goodlatte. Both Mr. Stallman and Mr. Kashkooli offered
good contributions here to something that needs to be resolved.
My time has long expired. I think we have a vote pending.
Mr. Gowdy. I thank the Chairman.
I would now recognize the Ranking Member, the gentlelady
from California, Ms. Lofgren.
Ms. Lofgren. Thank you, Mr. Chairman. Before asking my
questions, I would like to ask unanimous consent to put into
the record statements from the Western Growers, from Farmworker
Justice, the Southern Poverty Law Center, California Rural
Legal Assistance, Global Workers Alliance, and several others,
if I could.
Mr. Gowdy. Without objection.
[The information referred to follows:]
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Mr. Gowdy. And without taking any of your time, I would ask
the same for a statement from our colleague, Doc Hastings.
[The information referred to follows:]
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Ms. Lofgren. I would also like to just note that a
wonderful person who is leading a delegation from California is
here in our hearing room, Professor Cynthia Mertens from the
University of Santa Clara School of Law, my alma mater. So
welcome, Professor Mertens, and the students and others that
you have brought here today. It is wonderful to see you.
I have a number of questions. First, our prayers are with
President Rodriguez. We know that he had a death in his family
and was unable to be here, but we are very pleased to have you,
Mr. Kashkooli, and your terrific testimony.
You have talked a little bit about the portability issue
and the idea that you really would be for portability, but
there is a flaw in the proposal that has been put forward. I am
not sure I understand that flaw. Could you explain it clearly
to us?
Mr. Kashkooli. Sure. I will be sure to pass on your
condolences to Arturo.
In the existing written proposal that the Growers
Association has put together, in the so-called free-market
program, they want the ability to tie workers to a contract
that the Federal Government is involved in, and their visa, it
has control over that visa. Therefore, the worker would have to
go home if they broke the contract. That, therefore, is not
portable. That worker does not have the ability to do that.
We do not object to an employer being able to tie a worker
to a contract even if the Federal Government is involved. But
then if that happens, we need to make sure that the set of
protections that were negotiated under President Reagan or
something like them, their equivalent, continue to be in place.
Senator Rubio has said that if an employer has a lot of
leverage over the worker, then the worker needs to have more
sets of protections from the government, and we subscribe to
that.
Ms. Lofgren. So if I understand it correctly, you are
actually not objecting to having a temporary worker program,
provided that it is truly portable, there are labor protections
that don't incentivize employers to hire guestworkers as
compared to American citizens or legal permanent residents, and
that there is cap so that you actually have a market, not a
limitless supply of foreign workers. Would that be a fair
summary of your position?
Mr. Kashkooli. That is exactly right, with two other
additions. One, equality of treatment; and second, a roadmap to
citizenship for people who are not, in fact, temporary.
Somebody who is temporary, but someone who is here year after
year and most of the year, that is no longer temporary.
Ms. Lofgren. So that is addressing people who have been
here for a long time and people who might in the future come
for a very long period of time.
Mr. Kashkooli. Correct.
Ms. Lofgren. You know, even though we don't have agreement
yet, it seems to me that there are the elements for getting an
agreement here, and that is a piece of good news that we can
actually make progress on.
I am happy that the California Farm Bureau is represented
by the American Farm Bureau, I guess. We had testimony from the
California Farm Bureau in the last Congress that they would
oppose mandatory E-Verify without a solution for transitioning
the current workforce into legal status, because just doubling
down on the current situation would be a catastrophe. And they
also indicated that the H-2A program simply didn't work for
them. I realize that the H-2A program has worked in some
locations. We had testimony to that effect. But I think for
most farmers, it has not worked.
Do you agree, Mr. Stallman, that it would be really
impossible to replace the current undocumented workforce with
just a temporary program? Are you clear about that?
Mr. Stallman. So you are talking about not doing anything
to craft a program for those workers that are----
Ms. Lofgren. Well, we had Dr. Richard Land from the
Southern Baptist Convention who was a witness at the Committee
a number of years ago. I don't want to steal his line because
it was so well put, but he said that for years and years we had
two signs at the southern border. One sign said ``No
Trespassing,'' and the other sign said ``Help Wanted.'' In
response to the latter sign, 10 or 11 million people came in.
There was no legal way for them to enter and do this job. Many
of those individuals have been here for many, many years,
decades.
So, if those skilled individuals are working in
agriculture, can they all be replaced just by a temporary
worker program? If they were removed, could you actually make
this work?
Mr. Stallman. Unlikely, at least at the level that exists
today, and that's why our proposal takes into account both of
those factors.
Ms. Lofgren. Right.
Mr. Stallman. You know, how do you handle that experienced
workforce that is here? They have been referenced as
undocumented. They are documented, but the documents probably
are fraudulent.
Ms. Lofgren. Right.
Mr. Stallman. The law prevents employers from questioning
the validity of the documents.
Ms. Lofgren. I understand that.
Mr. Stallman. Yes, they are here, and that group needs to
be dealt with. Part of our proposal deals with that.
In addition, though, we need that future flow capability--
--
Ms. Lofgren. I understand. But I wanted to press you,
because some people have asserted in the past that we could
simply eliminate the vast undocumented group of workers and
just replace them with a temporary worker program, and I know
your testimony was that that was not the case. But I thought it
was important that that be very clear, that that is just not a
workable scenario for your industry.
Mr. Stallman. Because of all that experience that exists
there, although it is the long-term employees that have all the
experience, it would be highly disruptive if the scenario that
you described occurred where we couldn't continue to use those
who are currently here, not with legal status, and just try to
replace those with some kind of future flow or temporary
program.
Ms. Lofgren. Thank you. I see my time has expired, so I
will yield back.
Mr. Gowdy. I think the gentlelady.
They have a call for a vote, so I am going to try to
squeeze in Judge Poe before we go. I would just say to my
colleagues on both sides, I am coming back. I am going to go
last. So if you are able to come back after votes, I promise
you will not be the last one to ask your questions.
With that, Judge Poe.
Mr. Poe. Thank you, Mr. Chairman.
Thank you for being here, gentlemen. Mr. Stallman, it is
good to see you. I notice you grow rice and Columbus. I
represent a lot of rice farmers in Liberty County, Texas. Many
times I am asked, well, how many illegals work for the rice
farmers in Liberty? Well, the answer is always none. They are
too poor to hire anybody. It is all family farms. They have the
sons and the daughters and the uncles and aunts all working
those rice farms, and I am sure that is the same with you. Rice
farming to me is the hardest farming there is.
But anyway, I think the whole concept of food, Mr. Carr, is
like you said. It is one thing for the United States to be
dependent on foreign oil, but I think we can never get into a
situation where we are dependent on some other country for what
we eat. It is a national security issue. It is also a national
health issue. So I operate on that premise.
I do think the concept that it is working to some extent
with the H-2A visas has merit, and I think that is a good place
to start to fix it, and I also believe we should have a
verified, expanded guestworker program in other areas, but deal
with this issue first, and then, as the Chairman has said, let
the market drive the whole issue of guestworkers.
I commend all of you for trying to work together to find a
solution that works, because you all are in the business, and I
hope, as the other side has mentioned, we can come up with a
solution that works, that is verifiable, but keeps that issue
of national security in the forefront.
Mr. Carr, I don't know who is minding the farm now that you
are in Washington, D.C. I don't think this is peach season
picking yet, but you had mentioned that in your experience, I
want to address the issue that Americans will take the jobs
that foreign nationals are taking. You have heard that since
you ever started the farming business. I used to kind of
subscribe to that philosophy as well. I think now we have
developed a culture where, unfortunately, there are many
Americans who would rather get paid not to work than will work
on your farm. They just weigh the good and the bad and they
decide they can get paid not to work through government
programs. That is another issue we have to fix.
So, if I understand you correctly, you advertised for a
couple of years, 2010 to 2012, for American workers, and you
had 2,000 positions available for workers, farm workers, and
483 Americans applied, and they were hired.
Mr. Carr. Yes, sir.
Mr. Poe. One hundred nine did not show up on the first day
of work; is that right?
Mr. Carr. That is correct.
Mr. Poe. And then after a couple of days, 321 quit for
various reasons.
Mr. Carr. That is correct.
Mr. Poe. And therefore you ended up with 31 Americans
working the whole season; is that correct?
Mr. Carr. That is correct.
Mr. Poe. Is that experience--and I know that applies to
your farm--is that experience that you have had typical of the
industry, in your opinion?
Mr. Carr. Yes, sir. That is very typical of the industry,
in my opinion.
Mr. Poe. And what were you paying those folks?
Mr. Carr. My prevailing--I mean, my A-wage last year was
$9.39 an hour, along with free housing and free transportation,
although for domestic workers the base wage would have been my
A-wage at $9.39.
Mr. Poe. Okay. And is that typical? I am about out of time.
Is that typical or not?
Mr. Carr. That is very typical of the industry. If you look
at the statistics, basically 6 percent, roughly 6 percent of
all U.S. workers that are hired under H-2A contracts finish the
job. I would say that my numbers are low compared to my
neighbors to the south in Georgia, who have experienced 1,700
referrals in 1 year not to produce any that will finish a
contract.
Mr. Poe. And you are required to hire Americans if you can.
Mr. Carr. Yes, sir. We are required to. When I advertised
these 2,000 positions, this was over a 3-year seasonal period
where I basically averaged about 650 visas a year, and in doing
that we have to hire any willing and able U.S. worker that
comes through the door, with no background check. All we can
ask them is have they read the contract and can they do the
work there. We take them to the field. We go through a 2-day
training process. Quite frankly, most of them leave before the
training process is even over with.
But as you reported right there, 109 never even showed up,
which is another problem within the system right now because
under current regulations, pre-recruitment, we lose a visa
requested for every U.S. worker that says they are going to
show up. So that 109 under new regulations would have lost one-
for-one. We would have lost visas to bring foreign workers over
here, causing further delays in the program.
Mr. Poe. Thank you, Mr. Chairman. I yield back my time. I
believe we can fix this problem and be beneficial to the United
States. Thank you, sir.
Mr. Gowdy. Thank you, Your Honor.
We will be in recess pending votes, and then we will
return. Thank you. I appreciate your patience.
[Recess.]
Mr. Gowdy. The Committee is back in session. Again, we
appreciate everyone's indulgence with that.
I would recognize the gentlelady from the state of Texas,
Ms. Jackson Lee.
Ms. Jackson Lee. Let me thank the Chairman and the Ranking
Member for the beginning of a series of very important
hearings, and these witnesses, who hopefully are being part of
history today as we try to look at this large question of
immigration reform.
I want to acknowledge the American Farm Bureau by
acknowledging the Texas Farm Bureau, who I have had the
pleasure of working with very often. It just shows that in
Texas, you can't run away from our true roots. So I am
delighted to see you here and to have the insight that you are
giving to us.
I want to, before I start my questioning, to just emphasize
that I believe that there is a sense of urgency. It should be a
sense of urgency on moving forward on comprehensive immigration
reform. What we are gaining today is to understand, as I have
done for over a decade now, having had witnesses such as many
of you before this Committee before, that there are pieces of
the immigration puzzle that have distinctive needs. But I don't
believe we can ride one horse into the sunset and have the kind
of approach that will help any of you, that as we fix what you
need, we still need a system of a comprehensive approach
because the very tradition of farming in many instances, except
for family farms, is you do want workers who are consistent,
skilled, but I think you all can see that maybe at some point,
it may differ now in 2013, those workers may go somewhere else.
Maybe they are assisting in poultry, and they may go on to some
other area. And then, as in every profession or every work
site, new ones come in. But you need a consistency. Your
business needs to stay in place; you need a consistency.
I don't think we can get there when we say we can fix this,
and then we leave a whole gaping hole and leave out
comprehensive immigration reform.
I serve as the Ranking Member on the Border Security
Subcommittee, maritime security, and we met this morning, and I
said the same thing, that it must be a continuum between border
security and comprehensive immigration reform, securing the
border. But I also said that you can't move one without the
other, because you need to have a certainty on the side of the
immigration process in order to ensure that our friends at the
border, the resources, the new way of approaching it, having
outcomes, will be able to discern those who are here who are
intending to do harm or the cartels or the drug violence versus
individuals who are seeking to better their lives.
So let me go to Mr. Kashkooli on, I think, a package that
you gave us. I was trying to recount from your testimony what
you would be interested in and having the right kind of
package. Why don't you continue to expand? Could you expand on
this concept? Is this your concept, tying the workers to a
contract, and then the Federal Government protect their status
as workers? Could you just expand on that?
Mr. Kashkooli. Sure. For employers who want to have a
contract and the security of a contract with workers, we want
to see the protections that are in the H-2A program. We want to
see the H-2A program. And those protections are wage
protections to make sure that farm workers are given the
average wage, housing, transportation, and that they have some
kind of security that they will be getting at least 75 percent
pay for the work. I want to just emphasize what that means,
because we have been talking about----
Ms. Jackson Lee. And my time is short. Can I just interrupt
with a question that Mr. Brown and all others can answer?
Mr. Kashkooli. Absolutely. So those are the big things. And
when we say wage rates, what we are looking for is the average
wage rate of what is paid. In South Carolina, that is $9.78. So
for someone working for 27 weeks, 40 hours a week, which is a
job order, we are talking about $10,562.
Ms. Jackson Lee. For that particular skill?
Mr. Kashkooli. Yes.
Ms. Jackson Lee. And let me just say that I view that as a
skill, and I don't like the issue of high skill/low skill.
But my question would be would you take the workforce from
the existing undocumented individuals, and I know the H-2A, or
are you leaving the pathway open for others to come as H-2A? So
let me ask, because we have a population of those who are here
in the United States.
Mr. Kashkooli. Right.
Ms. Jackson Lee. And their difficulty is when they finish,
they have the protection of being on a site when they are doing
their farm work, which is seasonal. Then they are left, in
essence, without status, without a job, because it is seasonal.
The question is do they go back? Do they stay? If they go back,
because they are undocumented, they can't get back in.
So let me just ask, are we talking from the existing base
of workers, or are we recognizing that there may be caps on
what we can bring in?
Mr. Kashkooli. We want to see existing farm workers, the
farm workers who have the skills, who are feeding us right now,
be able to earn a roadmap and a legal path to citizenship.
Ms. Jackson Lee. Mr. Brown?
Mr. Brown. Our industry is uniquely different than the
other industries at the table as far as the production of
agriculture that is dependent on H-2A seasonal, and we are on
the manufacturing side of agriculture.
Ms. Jackson Lee. Meat packing.
Mr. Brown. So we assume that the employees in our industry
are eligible to be employed by passing through E-Verify. Now,
when we are talking about a visa program from our industry's
perspective, we are looking at the future for when legislation
does pass that recognizes those that are in the country now
undocumented as legal. Once they are recognized as legal, they
can continue to be employed wherever they so choose, whether it
is on a farm, whether it is in a meat plant, where have you.
We also recognize the challenge that work groups do move
and migrate, as all of our people have through industries. In
good economic times in this country, people will gravitate
toward other jobs. So we then recognize a work shortage. We
want to expand the current visa category and perhaps a new
category outside of the H-2A program, or if H-2A can
accommodate it, then we would look at that.
Ms. Jackson Lee. Mr. Carr?
Mr. Gowdy. The gentlelady's time has expired. Mr. Carr, if
you want to answer it----
Ms. Jackson Lee. Thank you, Mr. Chairman.
Mr. Gowdy [continuing]. As quickly as you can, that would
be great. We are 2 minutes over on this one.
Mr. Carr. Thank you, Mr. Chairman. Yes, I would like to
answer that question. First of all, agriculture is united in
the fact that we do need to keep our labor force that is here
presently working. So we need to put them into a lawful status
that allows them to continue to work in agriculture. But by the
same token, history will show you that when we did this in 1986
and we gave amnesty to 1.1 million agricultural workers, they
very quickly left the farm. So any type of proposal has got to
have a valid guestworker program that is going to provide us a
future flow of future workers into this country legally.
Ms. Jackson Lee. Thank you very much, Mr. Chairman. I think
we have some challenges to respond to ahead of us, and I think
we have some complexities that can be handled in the
comprehensive immigration reform. I yield back.
Mr. Gowdy. I thank the gentlelady from Texas.
The Chair would now recognize the immediate past Chairman
of the full Committee, the gentleman from Texas, Mr. Smith.
Mr. Smith. Thank you, Mr. Chairman. Mr. Chairman, I have
three concerns, and what I would like to do is address one
concern to each of three witnesses. The first concern is this,
and, Mr. Kashkooli, let me ask you to respond.
In 1986, we had a special agricultural worker program. It
was riddled with massive fraud. After the program went into
effect, the Government Accounting Office said that two-thirds
of the individuals who had been approved as guestworkers were
fraudulent. About 1 million people were expected to qualify as
being eligible; 3 million people were approved.
How do we avoid fraud on that scale if we have another
guestworker program where virtually anybody can apply for it,
and how do we avoid what happened in 1986? We had hundreds of
taxi drivers in New York City qualify as ag workers and
obviously were allowed to stay in the country.
Mr. Kashkooli. So I certainly hope we have all learned our
lesson. In the ag jobs proposal, there was a pass work
requirement and a future work requirement, so I think that is
the first. That is important.
Mr. Smith. But the problem with fraud is that nobody checks
that. That is what happened in 1986. We just simply don't have
the resources, the personnel, to check to make sure that that
individual actually worked where they said they worked. That is
why we had the New York City taxi drivers claiming to have
worked on local farms, and clearly that was not the case.
Mr. Kashkooli. So what we have proposed and in the past had
agreed on is that there would also be a future work requirement
to work in agriculture, and my understanding is that any
proposal that we talk about in a comprehensive way would
include E-Verify. So I think that is a basic way to make sure
that we get rid of fraud.
Mr. Smith. I don't know that E-Verify is going to block
someone from becoming eligible for a guestworker program
because E-Verify or any other biometric system that we might
come up with is just going to check a single identifier. It is
not going to check background or work or anything else. In
other words, we recognize that we are trying not to repeat some
of the same problems, whether they be with enforcement or
anything else that we had in 1986, and I am just not convinced
yet that we have come up with any way to avoid the massive
fraud that occurred in 1986. We will have you just discuss that
a little bit more, if we could.
Mr. Stallman, nice to see a Texan here. A question for you,
and I think you may have addressed it earlier to some extent,
but I would like to follow up on it. My second concern is the
endless pipeline. You have individuals admitted to work in this
country, and if they can work in more than one location, you
have the endless pipeline as they move on to other jobs, and
meanwhile the need is still there, so they are followed by more
individuals who are admitted to work who then leave that job
and move on, and you end up with millions of people coming into
the country not working in the jobs that they were requested.
Mr. Stallman. Well, our proposal is not an open pipeline.
It is restrictive and----
Mr. Smith. You limit it to the ag field, right?
Mr. Stallman. Yes, yes.
Mr. Smith. Okay.
Mr. Stallman. It is a proposal where ag employers have to
register with USDA first to be able to provide a valid job to
these individuals who come in either under an 11-month portable
program, that is our portability program, or under a longer-
term contract program. Now, these employees have the ability to
move from registered employer to registered employer, but they
are time-limited, and also they can be tracked.
Mr. Smith. I think you have narrowed the diameter of the
pipeline there, but I still think you have a modified pipeline,
because individuals who are needed to pick peaches in the hill
country of Texas might leave, and then you are still going to
need people to pick peaches in the hill country of Texas. Then
you still have that phenomenon, I think, to some extent.
Mr. Stallman. Well, if they leave the program, they would
be out of status.
Mr. Smith. No. But they can move from that job to another
job, is the point.
Mr. Stallman. To another ag job.
Mr. Smith. To another ag job. So you are still leaving the
original grower with a labor shortage that has to be filled.
Mr. Stallman. But as long as you have the capability, if
need is demonstrated and you don't have domestic workers
willing to do it, as long as you have the ability to bring in
those workers, I mean, there is not going to be an unlimited
number of agricultural jobs.
Mr. Smith. Right, right. So you hopefully hit that, and
then we will see if that works. I hope it might. We will find
out.
Mr. Brown, my third concern is this. If individuals are
admitted to this country as guestworkers and they stay here for
any substantial length of time, then they are not guestworkers,
they are permanent workers. But that occurs because they are
not going home. If you have someone here for 3 years who
doesn't have to go home until the 3 years is up but only has to
go home for a very short period of time during a several-year
period, I don't think they are ever going to go home,
particularly if family members have been able to join them and
so forth.
That is why I think a true guestworker program--and I see
my time is up--would be a short guestworker program. Real
quickly, can you respond on that? Turn your mic switch on
there, yes.
Mr. Brown. I would respond in two ways. One, there are ways
to track these people currently, and there are ways to improve
E-Verify, with E-Verify Check. But also when we bring----
Mr. Smith. I am talking about the length of time now.
Mr. Brown. But when we bring guestworkers into this
country, we can establish through E-Verify electronic data for
an exit visa. So the government will know when the time is up
and prevent them from going to another----
Mr. Smith. But do you think they should go back every year
for some period of time, or do you think they should be allowed
to stay for many years? In which case, I would argue they are
no longer temporary or guestworkers.
Mr. Brown. I think there should be a path to legalization,
and I am going to leave that judgment----
Mr. Smith. You are going in the opposite direction. Okay.
But that is not a guestworker program.
Thank you, Mr. Brown. Thank you, Mr. Chairman.
Mr. Gowdy. I thank the gentleman from Texas.
The Chair would now recognize the gentleman from Illinois,
Mr. Gutierrez.
Mr. Gutierrez. Thank you very much, Mr. Chairman.
First of all, I have been here 20 years and I have never
seen a panel put together like the one that we have before us
that has been put together by the Republican majority and with
invitations from the Democratic minority in which I have to say
that in each and every instance, all of the witnesses, I am
able to share values, I am able to share perspectives with you,
I am able to sympathize, I am able to say that is how I think.
Now, I think that bodes well for finding a solution to a
problem. So I just want to say to all four of the witnesses--
Mr. Gowdy, I want to congratulate you. I want to say that the
first set of witnesses that we had from the STEM industry was
very much the same; that is, people giving their perspective so
that Congress can find a solution. What an incredible thing. I
think that that is exactly what is going to happen here. I
think that is part of the magic of the moment in which we live
in, number one.
Many people question why I would leave 20 years of
seniority on the Financial Institutions Committee to come here
and be a junior member. I would tell you, the answer is right
here, because all of the Members of the Subcommittee showed up,
and all the witnesses have brought information that helps us
solve a problem. So that is why I came here, because I thought
that that is exactly what the men and women of this Committee
were going to do independent of their political affiliation.
They were going to look for a solution. I think the testimony
that all of you have given today is a reflection of that.
Now, I want to say to Mr. Carr, I want you to be a
successful farmer, and I want you to have the workers that you
need, and I want you to have the reliable workers. I want you
to have happy workers. I want you to have American workers. I
want you to have people who share the same bond to this country
and to that land that you and your parents and your
grandparents shared with that land. I want them to adopt this
and make it their own, as I am sure you have made it your own,
and your family has. So that is always going to be where I look
at this particular issue.
So I think, Mr. Stallman, as you begin to talk about a
pathway to legalization--and let me just say, as Democrats,
when we first introduced bipartisan comprehensive immigration
reform in 2005, I did it with Congressman Flake here, and
Colby, and it was Kennedy and McCain. The first of 700 pages,
the first 400 were enforcement issues, with E-Verify there. So
we passed that stage a long time ago. The Democrats have always
been, and those who believe in comprehensive immigration reform
and are looking for solutions understand that we need a
verification system, because I don't want another underclass of
immigrants in this country again. I want to end illegal
immigration and undocumented workers once and for all in this
country, and I think that that should be the solution that we
are looking at.
So I want to say to Mr. Brown, look, I am ready to see what
we need to do with dairy and poultry and those that pick garlic
and those that pick lettuce and tomatoes and peaches and see
how it is we categorize them. Whatever makes the most sense for
productivity and for putting food on our tables and making sure
that America is independent, because I think Mr. Carr makes a
great point. We talk about energy dependence and the dependence
on oil. We are quickly going to become a country that is going
to be dependent on the fuel that Americans need each and every
day as human beings, and that is food to put into our bodies
and to fuel ourselves. So I think that is the place where I am
going to be at.
So I want to thank the Chairman. I want to say to Zoe
Lofgren, I am so excited to be working with both of you and
under your leadership in this Committee.
I have just one question that I want to put, because I want
to be also true to who I am and the values that I bring to
this. So I guess I will ask Mr. Stallman. If Mr. Kashkooli
organizes workers, do the members of your association, do the
farmers have the right to fire one of your workers on one of
your farms for joining a union and organizing in that union? Do
you think that is right, that they should be able to be fired?
They are doing a great job. They are picking the peaches. They
are picking the grapes. They are picking the lettuce. They are
picking the tomatoes. They are a great worker. But they decide
to join a union. Should that farmer be able to fire that worker
for joining a union or organizing a union?
Mr. Stallman. We, in our proposal, have basically indicated
that we do not want an expansion of collective bargaining
rights beyond where they are now.
Mr. Gutierrez. But what does that--I am in the union. I am
picking on Mr. Carr's farm peaches, and I am doing a good job
of picking peaches. I doubt that I could do it, but just let us
for a moment imagine that I did, and I wanted to join a union.
Should Mr. Carr be able to fire me for joining that union even
though I am doing a good job in every other respect?
Mr. Stallman. If South Carolina is a right-to-work state,
which I believe it is currently, they should have the ability
to do that.
Mr. Gutierrez. Thank you.
Mr. Smith [presiding]. Thank you, Mr. Gutierrez.
The gentleman from Iowa, Mr. King, is recognized for his
questions.
Mr. King. Thank you, Mr. Chairman. I want to thank all the
witnesses. I think this is an excellent panel, and I appreciate
you coming and delivering your testimony here before Congress
today.
I listened to the testimony that is here, and I am hearing
from interests along the way that our jigsaw puzzle pieces to
the broader picture of what America has become and what America
will become, depending on what decisions are made in this
Immigration Subcommittee and in the fuller Judiciary Committee
and by the voice and the will of the American people, hopefully
reflected here by the United States Congress.
I usually think that we should address these problems by
asking the bigger questions first. For example, there is
something over 6.3 billion people on the planet. We know
feeding them is a very difficult task, and that is what we are
trying to get done.
How many people would come to America if we adopted an open
border policy? I ask that question rhetorically. I know no-one
can deliver the answer to that, but we have to ask that
question. We will have to answer that question, because each
time that we open this up, it opens another gate, and we can't
count the number of people who will come through that, but it
was 1.1 million under the '86 act, and Chairman Smith said, and
I agree, it is the numbers I have been dealing with, over 3
million people actually came through that gate. How many might
come through a limited gate in a guestworker program? We don't
know that answer, but it has always been more than has been
announced.
There are 11 million people here illegally. Well, some of
that data holds up, and some of that I question. I think the
number is larger. But those are things that we have to answer
here as a panel, and I don't want to put you all on that
particular spot, but I would ask this.
If we do a guestworker program and the question becomes, as
Mr. Smith said, they become permanent residents under anything
that we can devise, one of the things I would suggest is if we
go that path, why not bond those workers so that we can ensure
that they do return to their home if it is going to be a
guestworker?
I ask first Mr. Stallman if you and your organization can
support a bonding philosophy and insurance. Here is what I do
in my business. I guarantee that I will perform on the
contracts that I enter into. So if the employer or the agency
that he hires can post a bond that says we will ensure that
they will go back home at the end of this period of time and
then there will be no claim on the insurance, that would
guarantee that. That would be the bonding concept. I would
guess from the look on your face that you have not discussed
that. Is that correct?
Mr. Stallman. That is correct. Our program depends on
setting up a legal structure for the process to occur, and then
having an enforcement mechanism with technology and biometric
identifiers and all of those things. The enforcement technology
is available to where you control what happens under that visa.
They are not flowing into the country in an unlimited fashion
or staying. Our proposal contemplates returning back for
certain periods of time, returning back to their home country.
Mr. King. We have seen the lack of enforcement since '86,
and I would submit that since the '86 amnesty act was passed,
there has been a decreasing enforcement of our immigration law
in each succeeding Administration. So we are back to this
question that all of this is predicated upon enforcement of the
law, and I am suggesting instead that some of you have
testified you would like to see the market forces take care of
the migration. Why not allow the surety companies to take care
of the law rather than the Administrations, that have
demonstrated they will not do that?
I would just ask you this. Would you be open to that kind
of discussion, to nail down a better way to ensure that the law
would be enforced?
Mr. Stallman. We are always looking for better ways for the
law to be enforced. I think the problem that would exist with a
bonding requirement, as we envision this program working with
portability for workers, is who is going to be responsible?
Mr. King. Exactly.
Mr. Stallman. We are basically allowing workers to work for
multiple employers, which meets the needs of agricultural
employers.
Mr. King. And if you had the bonding, and then the
financial services portion of this would make that insurance,
and we wouldn't have to rely upon the government to enforce the
law.
I would pose another one here to Mr. Brown. And that is,
would you agree that wages and benefits knowingly paid to
people who cannot lawfully work in the United States should not
be tax-deductible as a business expense?
Mr. Brown. We would support any enforcement proposal that
guarantees or helps to guarantee that the people we are hiring
are eligible, and if that is part of the component, then we
would support that.
Mr. King. And if we were to amend E-Verify so that
prospective employees could be utilized, and also that current
employees could be checked by the employer? And when I say
utilize, utilize E-Verify for prospective employees and current
employees. Would you support that so that an employer could
clean up their workforce if they chose?
Mr. Brown. Being an industry that has used the program for
over 20 years, we would find it very difficult to expand E-
Verify until it is fixed. If E-Verify is fixed and we can get
past the issues outlined in my testimony, then we would be for
expanding E-Verify's use. But currently, Congressman, you
cannot determine other than whether a name and a Social
Security number matches. That is why people get through the net
on the one hand, and enforcement comes our way. On the other
hand, if we are too aggressive without something similar to
Self Check, then we are set up for the discriminatory
provisions.
So we will work with every Member of this Committee to make
E-Verify effective, and our industry will use it 100 percent.
Mr. King. I thought your recommendations on that were
solid, and I am glad that you followed through and fleshed it
out.
I see that I am out of time. Mr. Chairman, I thank you and
I yield back.
Mr. Smith. Thank you, Mr. King.
The gentleman from Florida, Mr. Garcia, is recognized for
questions.
Mr. Garcia. How are you gentlemen doing? Let me just
reiterate, I think the position on this side, we want
agricultural workers. As you may or may not know, we have a
densely packed agricultural area in my district. It is the most
productive land. But we have some of the similar problems that
Mr. Carr is talking about. I don't think anyone there would
agree with the statement that we have been decreasing
enforcement, right? I don't think any of you would think that
that is what is going on, right? You can say it into the mic.
It's all right. We can hear you over here.
Mr. Stallman. Based on the reports from our members in
various parts of the country, it seems like enforcement by ICE
has been increasing.
Mr. Garcia. Right. Mr. Carr?
Mr. Carr. Not just by ICE but by the Department of Labor it
has been increasing quite a bit.
Mr. Garcia. Mr. Brown?
Mr. Brown. ICE, Department of Labor, and Department of
Justice.
Mr. Garcia. That's good to hear.
Mr. Kashkooli. ICE enforcement is absolutely up. All you
have to do is look at how much it costs for somebody to get
across the country. That market is working.
Mr. Garcia. We spent $18 billion on enforcing the border.
That is more than we spend on the FBI, DEA, and all other
Federal law enforcement. We had negative immigration last year.
So I clearly understand your position.
I had a meeting with my farmers last week. We were not here
working, so I was meeting with some farmers, and my farmers
said--at one point I said to my farmers--I was trying to be
sympathetic. I said, you know, we need to get these folks
documentation. They all smiled. A few of them chuckled, and
they said, well, Congressman, they all have documentation.
Whether it is real or not, we have no clue. Which I think
basically spoke to the truth, that they don't have
documentation.
Here is what I know. I know I can be in a canoe in Thailand
and buy a mango for 15 cents, and the 15 cents at my home in
Miami. The reality is we can figure out who they are and where
they are if we really want to, and I think some of your
positions on E-Verify make sense. I think these should be
agricultural workers. I don't think they should be able to move
to another line.
The farms in my district are relatively small, the nursery
business or the tropical fruit business. They work for a few
months, and then they go up to Wisconsin to pick cherries, and
then they come back and they work on the perennials. These
folks want to work the land.
You know, Mr. Carr, I tend to think of the American worker
as the greatest worker in the world. They are certainly the
most productive worker. Obviously, your experience is not the
same. So I have to assume that these are super-humans we are
importing to do our work.
Why is it that these people work harder than native
Americans? My grandfather was a gardener, so I worked with him,
and I know what it is to do back-breaking work. So, what is the
matter?
Mr. Carr. In my opinion, what you are looking at is they
are wanting to live the American Dream. People that have been
here in this country, we are living it every day. People that
are coming in on these immigrant programs, the guestworker
programs, this is a pathway to a better life for them, so they
are willing to work hard. I am not saying that they work harder
than the Americans that we have. What I am saying is that the
Americans we have here are not willing to do the jobs that we
have at the farm level.
Mr. Garcia. Well, these are pretty special people, so I
think they deserve treatment of some sort. I know we are
sympathetic. I know you guys are in a tough place. I deal with
farmers all the time in my district. I know you are trying to
do right by them, just like I know those who organize laborers
are trying to do the right job. But we need something that
gives them some ability to make you compete for their work, but
obviously most of you are too small to do contracts or
contracts that lock them. I know that in the dairy industry, we
may have to look at a special type of relationship there. But I
am sure that on your farm it is seasonal, too. So they get to
work other places, too. Correct?
Mr. Carr. That is correct. I am farming seasonal, which is
part of the problem with the program.
Mr. Garcia. Correct.
Mr. Carr. Right now, the program requires employment to be
seasonal in nature. What we need to do is put the seasonal
nature on the worker and make the worker have a home tie to his
home country, so making him temporary but not the job.
Therefore, my company has progressed from 16 weeks a year
harvest to 38 weeks a year harvest. I am bumping the boundaries
of being able to participate in the program. This program needs
to expand to all of agriculture no matter what your employment
needs are, but let the worker be temporary in nature but not
exclude anybody from participating just because your job is
year round.
Mr. Garcia. Very good. Mr. Chairman, I yield back the
balance of my time. I appreciate it.
Mr. Smith. Thank you, Mr. Garcia.
The gentleman from Idaho, Mr. Labrador, is recognized for
questions.
Mr. Labrador. Thank you, Mr. Chairman.
I read recently that Chamber and labor groups have come to
an agreement in which they have agreed to principles regarding
a new guestworker visa program, and one of the issues they
agreed upon is the need to have a new government agency to
analyze the market and come up with the right numbers of visas
to issue.
Mr. Stallman, is there currently a cap on the number of
visas that are issued through the H-2A program?
Mr. Stallman. The visas that are issued are subject to
indicating the need. I don't know if there is----
Mr. Labrador. There is no cap, right? So even though there
is no cap on the number of visas that are available, the
program that I hear the most complaints about in my office is
actually the H-2A program. It is quite problematic. I was an
immigration lawyer for 15 years. I heard a lot of those
complaints as well.
It is so bureaucratic and inefficient that many employers
actually prefer to work outside of the system and they are not
working within the system, and I hear the same about the H-2B
program, which is no better. In fact, just recently I had a
constituent in my office whose livelihood depended upon
receiving a piece of paper from the Department of Labor. He was
waiting for the Department of Labor to approve the
certification, and he flew all the way across the country. He
came all the way from Idaho to Washington just so he could sit
at the Department of Labor and wait for somebody to give him an
approval so he could get the bureaucratic permission to proceed
with his business.
We need to figure out how many visas are needed, as the
Chamber and labor groups are saying. But I am not sure that a
new agency is the right way to do it. What are your thoughts
about that, Mr. Stallman?
Mr. Stallman. Well, I am not sure a new agency to determine
the number of workers and putting caps is the right way to do
it at all. Our program is based on the concept of demonstrating
need and having a market-based presence, basically, to allow
those to come in to meet whatever the market needs. Some type
of artificial caps determined by an agency of the government is
probably not going to work very well for agriculture because
agriculture's needs are very variable, and government response
to addressing those needs in terms of assessing the number of
visa permits or the number of individuals that need to come in
will probably fall behind the curve.
Mr. Labrador. What are your thoughts about that, Mr. Carr?
Mr. Carr. I do believe that a new agency needs to
administer this program. First of all, it is in the Department
of Labor right now, which currently has put all the regulations
on the program, which prevents most employers from using it. By
putting it in the USDA, an agency that is used to working with
the farming industry, you can leave enforcement in the
Department of Labor. But actually administering the program, I
do believe it needs to move over to the USDA, who has the
background of working with farmers in administering farm
programs.
Mr. Labrador. And do you think the Federal Government
should be determining what the needs are of the farmworkers, or
do you think that we should allow the market to?
Mr. Carr. Currently, the H-2A program is uncapped, and I
believe that any future program should be uncapped. If you
create a system that has been put out there by the AWC, and you
have a portable visa and a contract visa, within a certain
amount of time and whatever you do with the adjustment of
workers, you will fill up the workforce, and then your basis
will be there. The transition and understanding what the
transition is going to look like and putting an artificial cap
on it could hinder business and continue to move operations
outside our borders.
Mr. Labrador. Mr. Kashkooli, you said in your testimony
that you want the free market to work, but the free market is
not an unlimited supply. I was a little bit confused by that
statement. What is the free market if----
Mr. Kashkooli. Well, it shouldn't be an unlimited supply of
minimum wage labor. What we are talking about is that there
needs to be certain guideposts. Right now in the country, there
are 600,000 U.S. citizens and legal residents who are
professional farm workers. There is an additional million or so
farm workers that we hope will be able to earn legal status
through this program.
So the Department of Labor's job should be to make sure
that, at a minimum, that U.S. workers, their wages are
protected, that we have some kind of opportunity for them to
get the job, and let us be clear about what we are talking
about here. We are talking about the farm worker who is a U.S.
citizen who right now is making maybe $10 an hour. If another
employer can bring in a job at $8 an hour without having to
offer that job to the person who is making $10 an hour, the job
at $10 an hour, of course, that person is not going to apply
for that job. So that doesn't make sense.
So a program that would allow an unlimited supply of people
making minimum wage, that is not a market----
Mr. Labrador. So who determines the supply? Is it going to
be some government agency here in Washington D.C.? Is that what
you want?
Mr. Kashkooli. That is not actually what the United Farm
Workers have suggested.
Mr. Labrador. So what are you suggesting?
Mr. Kashkooli. We think there are a number of ways you can
do it. In the H-2A program, that is a program that does not
have a cap right now. So that program is always going to be
available. We think you should take the number of people who
are going to earn legal status through the new program and
allow other visas to be added based on the number of those
people who leave. We do think that there does need to be a
basic wage test. If farm worker wages on average are going
down, then by definition there is going to be an oversupply,
and therefore there shouldn't be any new visas based on the
average farm worker wages. And it is not, in fact, that
complicated to get the average wage. The USDA does this every
year. They get the average wage that farm workers are paid and,
by definition, it is an average. So some employers don't like
it because they have to pay a little bit more. Some farm
workers don't like it because, therefore, they are getting paid
less. But it is actually not that complicated. The USDA does it
every year.
Mr. Labrador. Thank you.
Mr. Smith. Thank you, Mr. Labrador.
The gentleman from Puerto Rico, Mr. Pierluisi, is
recognized for questions.
Mr. Pierluisi. Thank you, Chairman.
I have a couple of questions for Mr. Brown. I saw from your
testimony that you and your coalition of food manufacturers
support an earned legalization program for undocumented
immigrants living in the shadows. You specifically stated that
Congress must provide a fair and practical roadmap to address
the status of unauthorized immigrants.
What, in your view, what would be a fair and practical
roadmap? And would it include or would it bar immigrants from
ever attaining citizenship?
Mr. Brown. Our coalition doesn't go that far, sir. But I
would say that we would begin with the thought that if we are
talking about undocumented workers, that we would be talking
about a pathway forward for people that are actually in the
country now, working and contributing to the system. I think
that would be the pool of people that we would be referencing.
Mr. Pierluisi. I also notice that you discuss the many
benefits that immigrant workers bring to the communities in
which your coalition has its businesses, including paying
taxes, preventing shrinking school enrollment, and keeping
businesses alive in communities with declining populations. Can
you expand on the benefits to rural and distressed communities
from growing immigrant communities?
Mr. Brown. Absolutely. As the son of an immigrant, there
are many attributes that they bring to communities, from their
cultural aspects, it could be religious aspects, working with
boys and girls in the various sports programs, et cetera,
working with law enforcement, the entire cultural experience,
the fabric of our society is supported with these people.
Mr. Pierluisi. I will address these next questions to
either Mr. Stallman or Mr. Kashkooli. When I think about farm
workers, I immediately think about their wages and working
conditions. I just heard that the H-2A program doesn't have
cap. But I know that it does have certain requirements that
discourage employers from seeking more workers than they need,
and that is what comes to my mind.
It seems it would be in the interest of employers to bring
in as many workers as possible, because under the laws of
supply and demand, a large supply of workers will lead to lower
wages. Yet, these lowered wages and working conditions would
harm farm workers and could lead to U.S. citizens losing jobs
to foreign workers from poorer countries.
It sounds to me like a cap makes sense. We should have a
cap on any guest farm worker program.
Mr. Kashkooli. The United Farm Workers agrees with that
position. There is a program right now, the H-2A program, that
does not have cap. That is okay. There is a set of protections
to make sure that people are not abused. They are imperfect. We
would like to see the protections stronger. The employers would
like to see them in a different direction. But, yes, any new
program we think needs a cap.
Mr. Pierluisi. Would you agree with that, Mr. Stallman?
Mr. Stallman. No, we do not agree with a cap because of the
variable needs of agriculture and how quickly those needs can
change. That is why we are promoting a market-based program
that will allow the market to make those adjustments. An ag
employer can indicate that they need positions and workers who
wish to come in and work for the conditions that exist, which
in many cases will be wages that are above minimum wage for
sure, and as we have already talked about, the average is over
$9 an hour.
So the question is, to establish that workflow to meet the
needs that exist, if you used a market-based program, you can
do that, and we don't think a cap is suitable because if
someone gets the cap wrong, agriculture gets hurt.
Mr. Pierluisi. I yield back.
Mr. Smith. Thank you, Mr. Pierluisi.
I would like to recognize myself to ask a follow-up
question that came to mind as a result of Mr. Pierluisi's
questions. You responded by saying you believe in a market-
based approach. One concern I have and that I am sure you have
as well is that oftentimes the government does not give us the
statistics or the figures or the metrics for the information we
need for a market-based approach until after 6 months or a
year, or sometimes 2 years. So how would you be able to respond
in a timely way if you are not getting those figures or
statistics for a number of months or perhaps a year?
Mr. Stallman. And that is the whole point in not allowing
the government to set artificial wage rates, as they do in the
H-2A program. What we are talking about doing is an ag employer
can indicate that there is a need that cannot be filled with
domestic workers, and then they will be a pool, if you will, of
workers that are willing to come in.
Mr. Smith. But aren't you going to be dependent to some
extent on what the unemployment rate is among some of those
workers, or not?
Mr. Stallman. I suspect an unemployment rate among those
workers or those that aren't working, particularly if they are
there under the program we have envisioned and they have
portability, they will be moving to where the jobs and the
wages are.
Mr. Smith. Okay. That is a pure market approach, and it is
reliant upon, as you say, no government information whatsoever.
Is that correct?
Mr. Stallman. Well, the government role in this is to
establish the structure of the visa program and the
restrictions----
Mr. Smith. Right. No, I am talking about as far as
unemployment figures or anything else. You are not going to
respond to anything the government does.
Mr. Stallman. Because you would have to do a correlation
directly with specific agricultural jobs, because you can't do
it in general.
Mr. Smith. Okay. Thank you. That answers my question.
No other Members are here to ask questions.
Thank you all for your testimony today. It was very, very
helpful, and appreciate your input.
[Whereupon, at 4:40 p.m., the Subcommittee was adjourned.]