[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]




                               before the

                            SUBCOMMITTEE ON

                                 of the

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES


                             FIRST SESSION


                             JULY 19, 2017


                           Serial No. 115-40


         Printed for the use of the Committee on the Judiciary

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

 31-629                 WASHINGTON : 2018            
                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
    Wisconsin                        JERROLD NADLER, New York
LAMAR SMITH, Texas                   ZOE LOFGREN, California
STEVE CHABOT, Ohio                   SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California          STEVE COHEN, Tennessee
STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr., 
TRENT FRANKS, Arizona                    Georgia
LOUIE GOHMERT, Texas                 THEODORE E. DEUTCH, Florida
JIM JORDAN, Ohio                     LUIS V. GUTIERREZ, Illinois
TED POE, Texas                       KAREN BASS, California
JASON CHAFFETZ, Utah                 CEDRIC L. RICHMOND, Louisiana
TOM MARINO, Pennsylvania             HAKEEM S. JEFFRIES, New York
TREY GOWDY, South Carolina           DAVID CICILLINE, Rhode Island
RAUL LABRADOR, Idaho                 ERIC SWALWELL, California
BLAKE FARENTHOLD, Texas              TED LIEU, California
DOUG COLLINS, Georgia                JAMIE RASKIN, Maryland
RON DeSANTIS, Florida                PRAMILA JAYAPAL, Washington
KEN BUCK, Colorado                   BRAD SCHNEIDER, Illinois
          Shelley Husband, Chief of Staff and General Counsel
       Perry Apelbaum, Minority Staff Director and Chief Counsel

            Subcommittee on Immigration and Border Security

              Jim Sensenbrenner, Jr., Wisconsin, Chairman
                 Raul R. Labrador, Idaho, Vice-Chairman
LAMAR SMITH, Texas                   ZOE LOFGREN, California
STEVE KING, Iowa                     LUIS V. GUTIERREZ, Illinois
JIM JORDAN, Ohio                     PRAMILA JAYAPAL, Washington
KEN BUCK, Colorado                   SHEILA JACKSON LEE, Texas
MIKE JOHNSON, Louisiana              DAVID CICILLINE, Rhode Island

                            C O N T E N T S


                             JULY 19, 2017
                           OPENING STATEMENTS

The Honorable Bob Goodlatte, Virginia, Chairman, Committee on the 
  Judiciary......................................................     4
The Honorable Ken Buck, Colorado, Subcommittee on Immigration and 
  Border Security, Committee on the Judiciary....................     1
The Honorable Zoe Lofgren, California, Ranking Member, 
  Subcommittee on Immigration and Border Security, Committee on 
  the Judiciary..................................................     3


The Honorable David Valadao, 21st District of California, U.S. 
  House of Representatives
    Oral Statement...............................................     7
Ms. Sarah Frey, President and CEO, Frey Farms
    Oral Statement...............................................     8
Mr. Jon Wyss, Orchard Owner, Gebbers Farms
    Oral Statement...............................................    10
Mr. Giev Kashkooli, Vice President, United Farm Workers
    Oral Statement...............................................    12



                        WEDNESDAY, JULY 19, 2017

                        House of Representatives

            Subcommittee on Immigration and Border Security

                       Committee on the Judiciary

                             Washington, DC

    The subcommittee met, pursuant to call, at 2:35 p.m., in 
Room 2141, Rayburn House Office Building, Hon. Ken Buck 
    Present: Representatives Buck, Goodlatte, Smith, King, 
Jordan, Johnson, Biggs, Lofgren, Conyers, Gutierrez, and 
    Staff Present: George Fishman, Counsel; Tanner Black, 
Clerk; Stephanie Gadbois, Counsel; and David Shahoulian, 
Minority Counsel.
    Mr. Buck. The Subcommittee on Immigration and Border 
Security will come to order. Without objection, the chair is 
authorized to declare recesses of the subcommittee at any time.
    We welcome everyone to today's hearings on agricultural 
guestworkers, Meeting the Growing Needs of American 
Agriculture. I recognize myself for an opening statement.
    Good afternoon. This hearing is an important opportunity to 
examine America's agricultural labor needs and the role of 
foreign workers in this equation, an issue very important to me 
and the people of Colorado. I look forward to Chairman 
Goodlatte's introduction of and the committee's consideration 
of the Agricultural Guestworker Act in the coming weeks. This 
legislation presents a real opportunity for us to enact 
fundamental agricultural guestworker reform for the first time 
in three decades, reform that will benefit American 
agriculture, the American consumer, and hungry people all over 
the world.
    After all, America is the world's breadbasket and its corn 
bushel, and its salad bowl, and its potato patch, and its dairy 
farm. This hearing is not about how we handle certain crops. 
Instead, it is about year-round labor-intensive agricultural 
products or products that require additional help at certain 
times of the year, such as harvest.
    Colorado provides a great example of the problem we are 
examining today. Leprino Foods is the largest manufacturer of 
mozzarella cheese in the United States and a leading producer 
of whey protein. They have two production facilities in the 4th 
Congressional District. When I visited Leprino, I heard stories 
about how they had the capacity and market to increase their 
production. However, Leprino can't ramp up their business to 
meet market demand because the local dairies can't produce more 
    I also met with those local dairy farmers. They confirm 
that recruiting employees continues to be the largest challenge 
to their growing businesses and supplying more dairy products 
for this country. This is the same story I hear as I visit farm 
after farm across my district. Labor is the lifeblood of the 
agricultural industry. Without the ability to find and retain a 
reliable workforce, our agricultural industry will continue to 
struggle to meet the market's needs.
    When it comes to labor needs, agricultural labor is in a 
class by itself. There is little debate over whether there 
enough Americans willing to take on the job of a migrant farm 
worker. In fact, over the past several decades, our government 
has only encouraged Americans to abandon such labor, leaving 
foreign workers to fulfill our season agricultural labor needs.
    The Labor Department believes that workers who do have 
legal status appear to be leaving farm jobs because of age or 
opportunities for more stable and higher paying employment 
outside of agriculture, and are being replaced almost 
exclusively by unauthorized foreign-born workers. What legal 
labor force options do growers have? Since 1986, the H-2A 
program has provided visas for temporary agricultural workers. 
However, over two decades ago, the American agriculture 
industry told this committee that the program was characterized 
by extensive complex regulations that limit employers' ability 
to use the program, and by costly litigation challenging its 
use when admissions of alien workers are sought. They allege 
that the Department of Labor was implacably opposed to the 
    For growers, the H-2A program was intended to ensure the 
availability of sufficient labor for key needs like harvesting. 
But for a program created to dynamically offer labor supply to 
those farmers and ranchers most in demand, timeliness has never 
been a strong suit.
    Two decades later, little has changed. An apple grower told 
us that were it not for the H-2A guestworker program, broken, 
costly, and perilously litigation-prone as it is, we would be 
unable to farm at all. One of the most frequently cited reasons 
our region's farmers go out of business is that they simply 
cannot continue under the burdens of the current H-2A program.
    The H-2A program itself is designed to fail. It is 
cumbersome and full of red tape. Growers have to pay wages far 
above the local prevailing wage, putting them at a competitive 
disadvantage against growers who use illegal labor. Employers 
must also follow onerous regulations, like the 50 percent rule, 
which requires them to hire any domestic workers who show up, 
even after the employer has recruited for U.S. workers and 
welcomed his or her H-2A workers from overseas.
    In short, under H-2A, growers can't get workers when they 
need them. Bureaucrats decide if employers have a full 
workforce, not the weather or crop conditions. Moreover, 
employers constantly face frivolous litigation by those who 
don't think the H-2A program should even exist. What growers 
need is a fair and functional guestworker program, one that 
gives them access to the workers they need when they need them 
at a fair wage and with reasonable mandates. Growers need a 
partner agency in the Federal Government that treats them as 
allies, not as adversaries.
    I look forward to hearing from today's witnesses. We will 
hear from a Member of the House of Representatives, Congressman 
David Valadao, who represents one of the largest agricultural 
districts in our country. We will hear from our growers who do 
the right thing and utilize the H-2A program. We will hear from 
an advocate for farm workers, who believes that the program 
harms both American workers and the guestworkers themselves.
    It is now my pleasure to recognize the ranking member of 
the Subcommittee on Immigration and Border Security, Ms. 
Lofgren of California, for her opening statement.
    Ms. Lofgren. Thank you, Chairman Goodlatte, and we hope 
that Chairman Labrador is well. And thank you, Mr. Buck, for 
chairing this hearing.
    As we know from many hearings we have held on this issue 
over the last two decades, nowhere is evidence of our broken 
immigration system more glaring and acute than in the 
agricultural sector, where a critical half if not more of the 
workforce is undocumented. We can't begin to fix our 
immigration system without finding a solution for our 
agricultural sector; I am sure on that we agree. I expect that 
both chairmen are committed to finding such a solution. But 
whatever we do, I am afraid we won't have a lasting solution 
unless it is bipartisan and fairly balanced--balances the needs 
of employers as well as workers.
    Let's look at the facts. As we know from past hearings, 
mechanized crops, like corn, wheat, and soy, aren't the real 
problem. 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.
    Now while farmers do their best to plan harvests, expected 
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. We export so many 
agricultural products, so many more than we import that the 
sector is regularly the largest cause of our trade surplus.
    Yet, Congress has long ignored the labor needs of this 
sector. For decades, our country has, in fact, pushed to 
educate our children for work in other areas. At the same time, 
our immigration laws have not been updated to fill the void. 
For example, despite the growing demand for workers, some on a 
permanent basis, our immigration laws provide only 5,000 green 
cards per year to people without bachelor's degrees. That is 
5,000 per year, not just for agriculture, but landscaping, 
forestry, hospitality, nannies, and the many other areas where 
immigrants fill crucial needs. And until recently, the H-2A 
temporary worker program wasn't widely used.
    Farmers often complained to me that the program was too 
bureaucratic and slow, that the H-2A workers were known to 
sometimes arrive weeks after they were first needed. Many 
growers felt they could not make the program work, and the 
program was used sparingly in some parts of the country for 
    In that environment, should anyone be surprised that market 
forces worked their magic to pair up willing employers and 
willing workers. A recent Department of Labor survey indicates 
that at least half of America's farm workers are undocumented. 
The vast majority of these workers have been here for a very 
long time. Most of them have been here for at least 15 years, 
and some 93 percent have been here for more than 5 years. These 
workers came to fill critical needs, and many of our 
constituents are still in business because those workers came. 
There is no acceptable solution that fails to deal with this 
    Given congressional inaction, use of the H-2A program has 
risen sharply in recent years. Last year, some 165,000 H-2A 
visas were issued, making it a 160-percent increase in the use 
of the program in 10 years' time. But this program cannot meet 
our labor needs on its own. We have to find the courage to do 
what is right, to provide a seat at America's table for those 
who have long grown the food we serve on it.
    The question before Congress is simple: Do we recognize 
that we have an experienced workforce that has been a critical 
economic part of the country for years, and provide a rational 
way for them to obtain permanent legal status 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 
exploited programs that will harm U.S. workers and foreign 
workers alike.
    I hope that we can all agree that the viable solution is a 
balanced approach that both preserves the current workforce and 
provides a reasonable path for new workers. If we learned 
anything from our many hearings on this subject, it is that a 
one-sided solution won't work. There are times when we 
understood that. Years ago, growers and farm workers came 
together to craft the AgJOBS compromise; and they came together 
again in 2013 to support reforms in S. 744, the bipartisan bill 
that passed the Senate by a wide margin.
    It is worth noting that every farm organization, every 
farmers group in the United States and the United Farm Workers 
agreed on the elements in that bill. It was supported by 
business and labor and had strong support from many Members on 
both sides of the aisle.
    Unfortunately, that bill never got a vote in the House. But 
that bill shows that all sides can reach a balanced bipartisan 
agreement when we work together for a common purpose. I think 
we can do that again. I stand ready to be part of that process, 
and I thank the chairman again for holding this hearing and I 
yield back the balance of my time.
    Mr. Buck. Thank you, Ms. Lofgren. It is now my pleasure to 
recognize the chairman of the Judiciary Committee, Mr. 
Goodlatte of Virginia, for his opening statement.
    Chairman Goodlatte. Thank you, Mr. Chairman. As former 
chairman of the House Agriculture Committee, I have had the 
opportunity to learn firsthand 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. They must expend a great deal of time and 
money each season in order to prove to the Federal Government 
what nearly everybody already knows to be the case: Legal, 
dependable domestic farm labor is very hard to find.
    In addition, the program forces them to pay an artificially 
inflated wage rate. These growers must pay an average of over 
$13 an hour in some States and still cannot find enough 
Americans willing to take the jobs. Further, they must provide 
free housing and daily transportation. H-2A farms almost always 
find themselves at a competitive disadvantage in the 
marketplace. Agricultural employers who participate in the H-2A 
program do so as a matter of last resort and because they want 
to uphold the rule of 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 have long supported replacing 
the H-2A program with a workable guestworker program. Instead 
of encouraging more illegal immigration, successful guestworker 
reform can deter illegal immigration and help secure our 
    We should enable the large population of illegal farm 
workers 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.
    In the 113th Congress, I introduced, and the committee 
reported, the AG Act. This bill would replace the H-2A program 
with a new program that provides growers with streamlined 
access to guestworkers and enables dairies and food processors 
to participate.
    The bill would assure a reliable workforce by creating a 
program that is market-driven and adaptable. It would reduce 
red tape by adopting an attestation-based petition process. It 
would, subject to certain conditions, allow guestworkers to be 
employed at will, making it easier for workers to move freely 
throughout the agricultural marketplace to meet demand. It 
would protect program users from abusive lawsuits.
    The bill will not recreate the pitfalls of the H-2A 
program. It will not require growers to hire and train unneeded 
workers after they have engaged in domestic recruitment and 
their guestworkers have arrived, provide free housing and 
transportation, or pay an unrealistic or uncompetitive wage 
rate dreamt up by Labor Department bureaucrats.
    The new program would be, at its core, a true guestworker 
program. It does not create any special pathway to permanent 
legal status. The bill simply allows agricultural employers to 
hire, under the guestworker program, aliens who had been 
unlawfully present, just as they can hire any other foreign 
national. They would be required to abide by the same 
conditions as other guestworkers, including leaving the U.S. 
periodically, to ensure that they retain ties to their home 
    I have been in discussions with the agricultural community 
ever since the committee reported the AG Act over 4 years ago. 
The bill that I will shortly reintroduce makes a good faith 
attempt to take into account their comments and concerns. We 
cannot squander the golden opportunity we have this Congress to 
enact meaningful agricultural guestworker reform.
    I am pleased to welcome all of our witnesses here today. I 
thank the chair for holding this important hearing, and I want 
to thank in advance all of our witnesses for sharing their 
insights with us today.
    Thank you, Mr. Chairman.
    Mr. Buck. Thank you, Mr. Goodlatte.
    We have a very distinguished panel today, and I will begin 
by swearing in our witnesses before introducing them. If you 
would all please rise.
    Do you swear that the testimony you are about to give 
before this committee is the truth, the whole truth, and 
nothing but the truth, so help you God?
    Let the record reflect that all the witnesses responded in 
the affirmative. Please be seated.
    I will now introduce the witnesses and then call on them 
for their opening statements.
    Congressman David Valadao was born and raised in 
agriculturally rich Hanford, California. As a lifelong resident 
of California's Central Valley, he has been active in 
agriculture, on dairy industry groups as well as many local 
causes, including Children's Hospital of Central California, 4-
H, Future Farmers of America, and various Catholic charities.
    In 2012, Mr. Valadao was elected to represent California's 
21st Congressional District, which includes Kings County and 
portions of Fresno, Kern and Tulare Counties. In November 2016, 
he was elected to serve a third term. Representative Valadao 
serves on the Appropriations Committee, including on the 
Subcommittees on Agriculture, Military Construction and 
Veterans Affairs, and Transportation Housing and Urban 
Development. Welcome, Mr. Valadao.
    Ms. Frey is the founder and CEO of Frey Farms. Today, she 
and her four brothers and their dedicated team of employees 
operate farms and agricultural facilities in Florida, Georgia, 
Missouri, Arkansas, Illinois, Indiana, and West Virginia. Their 
multi-State operation specializes in growing, packing, and 
shipping of fresh market produce, including watermelons, 
cantaloupes, sweet corn, fall ornamentals, and hard squash. And 
Frey Farms is one of the Nation's largest pumpkin shippers. 
Frey Farms has been using the H-2A program since 2002. Welcome.
    Mr. Wyss was born in Thermopolis, Wyoming, and married his 
wife Melanie in 2003. Prior to joining his wife's family 
company, Gebbers Farms, as an analyst and government affairs 
director, he served as the chief deputy assessor for Spokane 
County, worked for various U.S. Bankruptcy Trustee offices, and 
temporarily served as a Washington State Senator.
    Mr. Wyss also serves on the U.S. Apple Board of Directors, 
American Farm Bureau Labor Committee, and is the vice president 
of USA Farmers. He attended Texas Tech University and Lubbock 
Christian University in Lubbock, Texas. He has two daughters 
and one son. Welcome.
    Mr. Kashkooli is the vice president of the United Farm 
Workers of America, overseeing the union's political, 
legislative, and communications work. He has worked for the UFW 
for 20 years in California, New York, Washington, D.C., and 
Florida. He graduated from Brown University in Rhode Island in 
1994, where he first became an active supporter of the United 
Farm Workers cause.
    Mr. Kashkooli has managed dozens of political races for the 
UFW, including the election of county, State, and national 
candidates. He continues to play a key role in UFW's 
immigration reform efforts.
    Each of the witnesses' written statements will be entered 
into the record in its entirety. I ask that each witness 
summarize his or her testimony in 5 minutes or less. To help 
you stay within that time limit, there is a timing light in 
front of you. The light will switch from green to yellow, 
indicating that you have 1 minute to conclude your testimony. 
When the light turns red, it indicates that the witness' 5 
minutes have expired.
    I will now recognize Mr. Valadao for his opening statement.


    Mr. Valadao. Good morning, Chairman Buck, Ranking Member 
Lofgren, and members of the subcommittee. I appreciate the 
invitation to testify before you today during today's hearing, 
examining the labor needs of the agriculture industry 
throughout the United States.
    As the son of immigrants, immigration is an issue close to 
my heart. As a Representative of California's 21st 
Congressional District and a dairy farmer myself, I understand 
the critical role immigrants play in California's agriculture 
industry. The success of our agriculture industry depends on 
immigrants, and without them the industry's economic viability 
and our rural communities will greatly suffer. I am hopeful 
that the work done in this subcommittee today will further our 
efforts to successfully update our Nation's immigration 
    As you know, farming in California is extremely labor-
intensive. Many immigrants come to this country to fill farm 
worker positions and do the hard work necessary to care for 
livestock and harvest produce in a timely manner. Their 
strenuous work makes it possible for families across America to 
put food on their tables. However, our agriculture industry 
faces a serious shortage of immigrant agriculture workers, and 
the truth is most Americans are unwilling to fill these 
    The shortcomings of the H-2A program have exacerbated this 
shortage. A major issue facing California's farmers and 
ranchers is the program's inability to meet the needs of year-
round farmers, including dairy and livestock farms and ag 
operations with multiple crops and harvests. We must repair the 
system, both for the current workforce and in order to ensure 
our agriculture communities have access to the workers they 
desperately need for the years to come.
    Hardworking immigrant farm workers are not only the 
backbone of our agriculture industry, but they and their 
families are the heart and soul of many rural communities. 
However, it is an unfortunate reality that the policies 
implemented by the previous administrations did little to 
improve our immigration system. Instead, executive orders and 
regulations trapped many workers on this side of the border, 
preventing them from returning to their families back into 
their home country and imposing unfair ultimatums on those who 
contribute so much to our economy.
    Further, we must reform the system to provide both employer 
and employee choice and flexibility. This can be achieved by 
ensuring employees have the freedom to move from employer to 
employer without contractual commitment. In doing so, we can 
ensure our farmers and ranchers have access to the workforce 
they depend on. Without the hard work of skilled immigrants, 
California's agriculture industry faces serious consequences 
and risks inflicting consumers with high prices and decreasing 
our food security as a Nation.
    Reforming our immigration system, especially as it relates 
to our current and future workforce, is a complex undertaking 
and requires a comprehensive approach. For too long, extremes 
on either side of the aisle have discouraged real and 
meaningful discussion on immigration reform. However, this 
subcommittee's commitment to addressing the agriculture 
industry's labor crisis does not go unnoticed.
    I am hopeful that the work done by this committee will 
ultimately culminate in the implementation of a fair and 
balanced immigration policies that ensure an adequate immigrant 
workforce while continuing to combat illegal immigration.
    Again, thank you for the opportunity to testify today. I 
look forward to working with the committee, the Congress, and 
the administration, to craft a bipartisan solution to 
immigration reform that ensures our Nation's safety and 
protects our agriculture communities and the economy.
    Mr. Buck. Thank you, Mr. Valadao.
    The chair now recognizes Ms. Frey.


                    TESTIMONY OF SARAH FREY

    Ms. Frey. Good afternoon. Thank you, Chairman Buck, and all 
the members of the subcommittee for the opportunity to be here 
today and to share my thoughts and experiences with all of you 
in respect to the H-2A program and the need for an expanded ag 
    First, a bit about myself and my farms. My name is Sarah 
Frey and I am the CEO of Frey Farms, headquartered in southern 
Illinois. We specialize in the multi-State growing, packing, 
and shipping of fresh fruits and vegetables. We are best known 
as the Nation's largest pumpkin farm. However, pumpkins are 
actually a small part of what we produce. We actually grow 
millions of watermelons. Our farms and facilities are located 
in Florida, Georgia, Illinois, Indiana, Arkansas, Missouri, and 
in West Virginia.
    Frey Farms is actively engaged with policymakers on a 
variety of issues, and we are especially thankful for this 
opportunity to share our perspective on the H-2A guestworker 
program that we have relied on for 15 years.
    American consumers demand locally sourced fruits and 
vegetables when in season. Expanding our farming operations and 
bringing quality local fresh fruits and vegetables to the 
Nation's top 25 grocery retail chains would not have been 
possible without a reliable workforce. While expensive and 
laden with bureaucratic inefficiencies, the H-2A guestworker 
program has been the only practical solution for our company. 
Our farms continue to face challenges like most farms. Ours are 
in rural areas and rural communities, far away from larger 
labor pools needed to fill the jobs that are required and 
necessary for harvesting specialty crops.
    Many of the specialty crops grown in the United States have 
harvest windows as short as just a few weeks, due to the 
geographic location and general regional climates associated 
with the farmland. Relocating a domestic family every few weeks 
is logistically unfeasible. Therefore, lack of access to 
domestic labor, combined with an overburdened Federal 
guestworker program, means that fruit and vegetable providers 
are in a daily struggle to secure an adequate workforce.
    The reality is this: Much of the Nation's foreign-born farm 
workers do not have proper work authorization, and the emphasis 
on enforcement without an accompanying effective legal ag 
guestworker program puts our industry and our Nation's ability 
to sustainably and affordably feed our people in jeopardy.
    I want to be clear. We support strengthening our Nation's 
ability to uphold the law. We want our employees to be legally 
authorized to work in this country, and that is why Frey Farms 
and the produce industry have long advocated for reforms to our 
Nation's immigration system to deal with this issue. We believe 
those who are working in agriculture without the proper 
documentation should be able to make their presence known and 
join a guestworker program. When their seasonal harvest work is 
finished, these workers could return to their home country, as 
the current H-2A program requires them. Transportation could 
and would be provided by their American employer.
    Moreover, the legality of these immigrant employees would 
no longer be in question, and regulations for the proper 
execution of the law would be in place. These workers would 
then be allowed to return under the lawful rules of a new 
guestworker program, and the American farmer could operate 
without the stress and anxiety of wondering where their next 
group of employees will come from.
    The foundation is in place to help ag bridge the gap 
between its current supply and the vastly disparate demand for 
labor. We urge you to do what it takes to ensure that whatever 
immigration legislation Congress debates does not become final 
without a mechanism for addressing ag's real and urgent labor 
needs. Failure to address these needs will undermine all the 
good work Congress has done in legislation, like the farm bill 
and its support for specialty crops.
    The very essence of agriculture is growing healthy 
nutritious food. It all depends on congressional action now to 
make the necessary reforms to a guestworker program or overhaul 
and create a new guestworker program.
    I thank you on behalf of Frey Farms and the ag community 
for the continued work and service that you dedicate to our 
livelihoods. With that, Mr. Chairman, I am happy to take 
    Mr. Buck. Thank you, Ms. Frey.
    The next witness, Mr. Wyss, you are recognized for 5 

                     TESTIMONY OF JON WYSS

    Mr. Wyss. Mr. Chairman and members of the committee, thank 
you for having us today and for this opportunity.
    Gebbers Farms is a family-run and operated farm that is 
been in Okanogan County in Brewster for over a century. We 
raise thousands of acres of apples and cherries along the 
Columbia River, but we also have cattle and timber, and manage 
the thousands of acres of that timber.
    Growing up in rural Wyoming, I watched the temporary labor 
force come and go in the sugar beet harvest. And that whole 
time growing up, I wondered why these immigrants were here 
taking American jobs that Americans would do. I would hold this 
belief until 20 years later, when I moved to the State of 
Washington and met my now wife. Our dating relationship nearly 
ended over our differing views on immigration. But to help me 
understand the immigration and the programs and the need for 
seasonal workers, we went to her cherry farm.
    The drive ended in the orchard with an immigrant worker 
meeting us and handing me a ladder and a bucket, and the goal 
was to start at one end each and meet in the middle. It wasn't 
close. In that short timeframe, I learned that my 20 years of 
beliefs needed to change.
    Without an available domestic labor supply, we entered the 
H-2A program in 2010. We quickly discovered that it is not easy 
to operate in 2010 like you do in 1950, in the fifties, when 
the program was designed by Dwight Eisenhower. Agriculture's 
production today is nothing like 1950. 1986 update did not fix 
the program. So we are asking you to update the current H-2A 
program to something that is functional and workable.
    Due to the nature of our crops, we have to apply for four 
separate contracts. That means filing those four contracts with 
four different agencies and four opportunities for delay. Our 
first year in H-2A, we hired 300 workers from Jamaica and 750 
from Mexico, and we continue to increase the number of workers 
each year, even though wages continue to climb. Fortunately, 
because we pack all of our own fruit, we are able to use H-2A 
in our packing house and supplement the continued loss of 
domestic labor. Other growers aren't so fortunate and don't 
have access to the H-2A program, and Congress should allow more 
flexibility for other employers to join.
    Once our H-2A workers arrive, they are paid the government-
mandated Adverse Effect Wage Rate. In Washington State, it is 
$13.38 per hour, one of the highest in the country. The prior 
administration changed the rates at will with little or no 
advance notice, which caused significant challenges to our 
payroll, forcing us to reprint all contracts and updating the 
wage and hour posters at a significant expense.
    Some would say, well, if you would just pay more, you would 
get more workers. But I would point out that we are already 
paying over $13 an hour, and the local retailers and other 
businesses in our community are paying minimum wage of $11 an 
hour. So if it were about wages, I would ask, why are people 
taking the other local seasonal jobs than those at the farm, 
where we also provide housing and transportation.
    In 2014 and 2015, our county suffered back-to-back massive 
wild fires, burning nearly a million acres, of which a majority 
was timberlands. First, there were two critical impacts that 
impacted our labor supply. First, the fires substantially 
increased the need for seasonal labor for reforesters and 
increased the need on the public and private sector lands. Our 
own personal timberlands, we have to replant over 8,000 acres. 
However, that requires an H-2B visa. The Department of 
Agriculture oversees forestry, so it would make sense that 
reforestation would fall within the Department of Agriculture.
    Second, the fires took an additional toll on our 
agriculture workers, because they shifted from farm work to 
reconstructing the 300 homes that had to be rebuilt within the 
area. We live in a community of 2,100, and our county is 5,000 
square miles, but only has 41,000 total people. So you can see 
the transfer that has occurred.
    The H-2A program does provide a legal stable program for 
workers to come to our farm, but the program is not reliable 
and has been plagued with inefficiencies and delays by DOL and 
others. For example, the entire visa system was down at the 
State Department 2 years ago. That caused a backup of thousands 
of workers who couldn't get their visas, and the employers were 
left in some cases without workers for weeks. In our industry, 
we pick, pack, and ship every cherry we have in 45 days. A 
delay of weeks would have made us miss our entire packing and 
harvesting season.
    It is important to note, though, that our community has 
rallied around these H-2A workers and they have actually become 
part of our community. Each August, our Jamaican H-2A workers 
celebrate the Jamaican Independence Day at one of our labor 
camps. The workers prepare authentic Jamaican food, play music, 
and host a soccer tournament. The event is open to the public 
and serves as an annual fundraiser to support charities back in 
the home country of Jamaica.
    Our local sheriff told me before I came out, I remember the 
days when we used to come to the labor camps a couple times a 
week and we were picking people up. Now our off-duty officers 
are coming to your labor camp to pick workers up to go to 
church. There is a significant difference that has occurred, a 
change that is occurred as our workforce has changed.
    I leave you with this thought: Washington agriculture 
produces 300 commodities, at a value of $68 billion, and 
produces 200,000 jobs. That is larger than Boeing, $15.1 
billion of that value is commodities that are exported out of 
the State of Washington and the ports, which makes us truly the 
refrigerator to the world. Without access to a legal stable 
supply of labor through some type of worker program, 12 percent 
of the Washington State economy is at risk.
    I look forward to working with this committee, the rest of 
Congress, and the administration, to move forward with a 
permanent solution on this issue. And we are here for each of 
you to be a resource and answer questions as we go along the 
way. Thank you.
    Mr. Buck. Thank you, Mr. Wyss.
    Mr. Kashkooli, you are now recognized for 5 minutes.


    Mr. Kashkooli. Thank you. Thank you, Chairman Goodlatte and 
Ranking Member of Judiciary Conyers.
    The Chairman. Is your button on?
    Mr. Kashkooli. Thank you. Thank you, Chairman Goodlatte and 
Ranking Member of Judiciary Conyers, Acting Chair Buck, Ranking 
Member Lofgren.
    My name is Giev Kashkooli, and I am a vice president with 
United Farm Workers, the Nation's first and largest farm worker 
union. We work with farm worker organizations in close to 20 
different States on the issue of immigration.
    A growing problem in American agriculture is the difficulty 
in matching willing workers in the United States with 
agricultural employers trying to hire people so that we can 
continue to feed the United States.
    I was really moved by the Acting Chair Buck's words when he 
said that labor is the lifeblood of the agricultural industry, 
the lifeblood of the agricultural industry. And while Mr. Wyss 
and Ms. Frey and I have been working on this issue to change 
immigration for over 10 years now, each of us, I don't think 
any American has stopped eating over the last decade while we 
haven't finished fixing immigration. The issue has not been--
although we disagree on many things, we have been able many 
times under different administrations to come together on an 
    The issue is matching willing workers to willing employers. 
Again, because we are talking about the lifeblood, this is 
tough work. The watermelons harvested on Ms. Frey's farm, those 
are 3- to 4-pound watermelons that are picked by crews of 
workers who literally pick tons of watermelons in a day's work, 
over and over again.
    To do the cherries, right, close to the border of Canada, 
it gets to freezing temperatures in the winter with the folks 
doing that work. By the summer, it can get deadly hot, and I 
mean literally deadly. Dozens of farm workers around the United 
States have died from the basic lack of water and shade that 
farmers that are not playing by the rules like Mr. Wyss and Ms. 
Frey apparently are.
    Because we are talking about human beings, that is why we 
go through four agencies. We are talking about people coming 
into the United States from a different country. We are talking 
about making sure that U.S. citizens and legal permanent 
residents have a chance to get the job. Close to half of the 
workforce does have U.S. citizenship or legal permanent 
residence. And for those U.S. citizens who are willing to take 
on the work who maybe are outside of it, that is why that 50 
percent rule is in place. If someone is willing to come and 
pick the crops and they are a U.S. citizen and legal permanent 
resident, they should have access and be able to get that job 
so that we eat.
    The reason it is free housing is because, as Ms. Frey 
described, the jobs sometimes are 2 to 4 weeks. I don't know 
too many people who are prepared to rent an apartment, first 
and last month's rent, for just 2 to 4 weeks. That is why free 
housing is important. The reason that housing needs to be 
inspected and not just attestation is because just a couple 
months ago, in Arizona a farmer tried to house people in 
converted school buses, 100-degree heat, no ventilation, 
converted school buses, and expected people to cook their meals 
in those converted buses.
    The reason there is litigation is because a farmer, an 
administrative law judge found in California a farmer was 
discriminating against U.S. citizens applying to work as 
workers, was insisting that those same workers give kickbacks 
in order to work off of their meager dealings and a whole other 
host of issues. That is why that rule is in place.
    The Adverse Effect Wage Rate, although it has a complicated 
name--and that is the wage rate that is required under the H-2A 
program--is actually not that complicated. It is the average 
wage rate, and it is determined by a survey that the government 
does with current agricultural employers to determine the 
average. And, as any math teacher will remind us, the way the 
average works is if you pay somebody less than the average, 
then your group average is going to go down. So the reason you 
have an average wage rate is to make sure that the U.S. workers 
and legal permanent residents, their wages don't go down.
    There are some facts that we all agree on. The current H-2A 
program has no cap. The program has doubled since 2012, as Ms. 
Frey's diagram shows, and tripled in the last decade. It is up 
30 percent over the last year. And the Department of Labor--
this one we may agree with, but it is a fact the Department of 
Labor has a timely approval rate of 98 percent over the last 
    Fortunately, there is a positive workable solution. The 
first step should be to honor the people who are the lifeblood, 
as Chairman Buck said, of our system. Allow farm workers, 
professional farm workers who have worked 100 days in the 
previous 2 years to earn legal status. Congressman Gutierrez 
has a bill that does that, H.R. 2690, and there is over 50 
cosponsors. Thank you.
    Mr. Biggs. [Presiding.] And now I turn it over to the 
chairman of the Judiciary Committee, Mr. Goodlatte.
    Chairman Goodlatte. Thank you, Mr. Chairman.
    Let me address my first question to Mr. Wyss and Ms. Frey. 
Isn't one lesson that we learned from the 1986 legalization of 
illegal immigrant farm workers, when they receive permanent 
residence they leave the fields for more attractive jobs in the 
cities? In fact, Philip Martin, professor of agricultural 
economics at the University of California at Davis, found that 
by 1997-1998, the percentage of crop workers who had been 
granted permanent residence through the 1986 act had fallen to 
only 16 percent.
    Isn't it the case that if Congress were to again grant a 
special pathway to citizenship to illegal immigrant farm 
workers that growers would soon be left in the lurch? Mr. Wyss.
    Mr. Wyss. Thank you, Mr. Chairman, Congressman Goodlatte. I 
can only speak for our farm and what happened with us after 
1986. We did go through the legalization program and did have a 
considerable number of our workers adhere to that and receive 
their citizenship. Many of them became actual business partners 
with some of the members of the family and now own their own 
orchards. And so they have moved off the farm, but they have 
become orchard owners on their own.
    We did see a shift after a few years of the workforce 
transitioning into other jobs, you know, in the hotel, 
restaurant industry, construction. The area in which we live, 
the labor pool is small and they had already lived there, so 
they didn't actually leave the area, but some of them did take 
other jobs. But, like I say, I can go through the list. Frankel 
Lucas, he now became a citizen through that program----
    Chairman Goodlatte. You don't need to. I turn to Ms. Frey. 
I have got a couple other questions and I have a limited amount 
of time.
    Ms. Frey. So your question--could you repeat the question?
    Chairman Goodlatte. The question basically is, if we were 
to have an amnesty program like we had in 1986, my 
understanding from the American Farm Bureau is that about a 
million people who worked in agriculture were given legal 
status, and about half of them left farm work because they 
could work anywhere. They could drive a cab. They could own 
their own business, as Mr. Wyss suggested. And it didn't solve 
the problem. In fact, I would argue that it enhanced the 
problem of illegal immigration.
    Ms. Frey. Well, I think that it is pretty common knowledge 
we all want a better life for our children, and even those who 
came here illegally and worked in agriculture. Yes, it is true, 
people do leave ag once they have worked here, because they do 
want a better and different life for their kids.
    So it is an unfortunate thing from this side of the table 
when we need an expanded ag workforce, and that is why I think 
broadening or expanding a guestworker program is really our 
solution, because it is going to be very difficult to keep 
people working in agriculture long term.
    Chairman Goodlatte. Thank you. As someone farming in 
multiple States, what have you been observing regionally as far 
as the growing use of the H-2A program?
    Ms. Frey. I found at Frey Farms, we used to be in the 
minority. We are headquartered in southern Illinois. I didn't 
start the company in a border State. I started the company in 
the Midwest. And most of the fruits and vegetables we produce, 
the biggest volume, the largest volume comes out of the 
    And what we--you know, throughout the years, we didn't have 
access to an urban population of ag farm workers, so we had to 
participate in the H-2A program. It was out of necessity when I 
was first building the company. Today, though, we are seeing 
those numbers increase with employers.
    As workers are leaving agriculture, more ag employers are 
looking to and for reliable guestworker solutions, because 
people are leaving ag. Workers are leaving ag. And so we have--
you know, we have noticed that throughout the years, where we 
used to be in the minority, we are no longer. And even States 
like California, many growers out there provide or request 
hundreds if not thousands of H-2A visas, because there simply 
isn't enough labor to fill their positions.
    Chairman Goodlatte. So you think the solution is to improve 
the guestworker program?
    Ms. Frey. Absolutely. Absolutely. Especially--our company, 
our business, our farms are different, because, like I said, we 
are not located in border States. We don't have access to the 
populations of ag workers, such as the State of California or 
Arizona. You are talking about Illinois, Indiana, Arkansas, 
Missouri, Iowa. We simply don't have access to the amount of 
workers needed in these rural areas in such a short amount of 
    Now, if we were offering--if we were able to offer year-
round employment, that would be very different and we would be 
able to fill those positions, I believe, with American workers. 
But it is simply not the case, because we are growing these 
crops in rural areas where we simply don't have the population 
to be able to support the number of harvest jobs needed for 
such short seasonal time windows.
    Chairman Goodlatte. Thank you.
    Thank you, Mr. Chairman.
    Mr. Biggs. Thank you. I now turn the time over to the 
ranking member of the subcommittee, the gentlelady from 
California, Ms. Lofgren.
    Ms. Lofgren. Thank you very much. I think it is important 
to separate out what used to be and what is, in terms of 
looking forward. It used to be--and we had hearings on this. We 
had a lot of complaints, that the H-2A program was always late. 
I think a majority of the workers arrived after the harvest was 
to be collected. That is no longer the case. In the last 2 
years, more than 95 percent of the applications have been 
approved. Ninety-eight percent of them were on time. So that is 
been a transformation of that program, and we ought to proceed 
with that understanding.
    I just listened carefully to the testimony, and, Ms. Frey, 
you suggested that the current undocumented workers step 
forward, become H-2A workers and go back to their country, if I 
heard you right. And I think we really need to make a 
separation between what we do with the individuals who have 
been here and what we are going to do proactively for an 
additional workforce, because 55 percent of the farm workers 
who are undocumented here have been here more than 15 years. 
More than half of them have children who are U.S. citizens.
    So the idea that people who have been here 15 years or 20 
years, have U.S. citizen children, they have grandchildren, 
that they are going to step forward and go to some foreign 
country, you know, it is just not going to happen. And so we 
are not solving the problem. And then we need to think about 
how are we going to preserve or craft a program that works and 
that--for our future flow of farm workers. So I think the two 
solutions are not the same, if I may.
    I am interested also in not just timeliness, but how the H-
2A program works and doesn't work. It is my understanding that 
just yesterday, there was an amendment in the appropriations 
bill to allow the H-2A program to be used to fill permanent 
    And I am wondering, Mr. Kashkooli, what do you think that 
would do to labor market stability in the current ag worker 
system, that amendment?
    Mr. Kashkooli. We were stunned to learn that yesterday's 
Appropriations Committee chose to legislate on an issue of 
jurisdiction here, so that year-round workers would be allowed 
to apply to this H-2A program. It was really a surprise. Again, 
Ms. Frey and Mr. Wyss spoke eloquently.
    Ms. Frey spoke about the need on seasonal work. What 
yesterday's action did speaks to year-round work in a single 
location, like a dairy. And the dairy industry is a place--in 
any other year-round operation, you are competing in the free 
market for workers. The dairy industry is an industry where 
literally dozens of workers have died every year, some in the 
most gruesome ways: A gentleman named Randy Vasquez in 
Washington State just 2 years ago, and then just last year a 
gentleman named Roberto Vasquez, the same last name, not 
related, but same fate, died drowning and suffocating in a 
manure pool. That company where he worked was fined $5,000 for 
lacking some basic protections on a safeguard that every dairy 
operation knows that these manure pools exist.
    So the notion that the H-2A program would be legislated 
yesterday in an Appropriations Committee for workers who are 
working year-round was stunning to us. We think it more 
appropriate that the Agricultural Worker Program Act, offered 
by Congressman Gutierrez, H.R. 2690. This would take the 
current professional workforce who have worked in agriculture 
for over 100 days, and then if they continue to work in 
agriculture over the next 5 years 100 days a year, then they 
would be able to get--apply for permanent legal status.
    That creates an incentive for that group of people to stay 
in agriculture. I think Congressman Goodlatte overstated the 
issue about workers leaving in 1986. More reliable data 
suggests only 1.9 percent of the workforce left annually over a 
20-year period. That said, the Agricultural Worker Program Act, 
by having people be able to earn legalization would be able to 
move into jobs that are year-round work and they would have the 
skills to do it.
    Ms. Lofgren. As a matter of fact, if the Department of 
Labor survey is accurate and I assume it is, it is actually 
less percentage than I had been saying over the years. It is a 
little over 50 percent that are undocumented. But half the farm 
workers are documented or Americans. So certainly that is a 
factor to weigh in.
    Mr. Kashkooli. In truth, I think it is a little difficult 
to know just exactly how many people have legal status or not. 
But what we know is that it is probably around half that have 
citizenship or legal permanent residence.
    Ms. Lofgren. My time has expired, so I yield back, Mr. 
    Mr. Biggs. Thank you. I recognize Mr. King from Iowa.
    Mr. King. Thank you, Mr. Chairman.
    And I thank the witnesses for your testimony. I am sitting 
here thinking about the bigger picture, and it occurs to me 
that each of the witnesses have a sliver of this American 
economy to testify to, and that is the scope of your experience 
and your business. And yet this Congress has the responsibility 
to look at the entire 360-degree scope of the destiny of the 
United States of America.
    And so how do these pieces of this jigsaw puzzle fit into 
the overall picture and what works out best for the future of 
our country? And it starts me thinking about some numbers that 
I haven't heard here. One of them is this number, 95,102,000. 
That is the number of Americans who are of working age not in 
the workforce. And there is another number, 7 million. That is 
the unemployed Americans. So that is 102 million Americans of 
working age not in the workforce. Then I have some couple of 
months ago asked my staff, carve that number down for me, 
because there will be some people in that that are disabled and 
others that have other obligations that aren't able to work.
    So what if we were mobilizing America on, say, a World War 
II status, where we put everybody to work that we could because 
we needed to do everything possible simultaneously. We had an 
unemployment rate then of 1.02 percent, by the way.
    But if you carve that number down of 102 million, it still 
gets down to about 82 million people there that aren't 
contributing to the GDP from the production side of this scale. 
And so it starts me thinking about how this works in a country 
if we are bringing people into America to do work that--nobody 
has quite said it here--that some say Americans won't do. And, 
of course, I would reject that, because I can't find anything I 
haven't actually done that wasn't, you know, too distasteful 
for me to do if it needed doing. And by the way, if it paid 
well enough, that helps a lot also.
    So roughly one out of three Americans are not in this 
workforce, and yet I continually hear the request that we 
should bring more people into America. And by the way, they 
aren't all going to be working, but probably a higher 
percentage of them than they are in America. So if one out of 
three aren't working, Marilyn and I raised three sons, and they 
got paid for the work they did, but also they got an allowance 
earlier in life.
    And I am just wondering what it would be like if one of 
those sons had said, I am not going to do my chores, I am not 
going to mow the lawn, I am not going to get the mail, I am not 
going to change the oil on that bulldozer, and I am not going 
to pick up that shovel and dig that ditch, all the things we 
did in the construction business. I want my brothers to do that 
work and I want you to pay me my allowance anyway. You know 
that wouldn't last one day, and pretty soon that one that 
wouldn't work would be the one doing all the work until he 
learned the lesson to carry his share of the load.
    So I am wondering how a country like the United States of 
America, with our excellent work ethic that we have and this 
spirit of entrepreneurship that we have, how we can tolerate 
what is going on? How we can be taxing the producers of America 
and transferring that wealth over onto the couches of America 
where people aren't getting off of it to go to work sometimes 
for three generations, and then at the same time press that we 
should bring people into America to do this work that we 
already are subsidizing people sitting on the couch, paying 
them not to do that work?
    And so I think imagine what America would be like today if 
we were a continent unto ourselves, say similar to Australia, 
and we didn't have a land bridge to the north, south, east or 
west, and it was thousands of miles of ocean, and we had 
secured our borders, and then we had the labor force that was 
within us or the labor force that was brought in legally into 
the United States of America.
    Now I will narrow it down to that which you do have focus 
on, and I am going to ask Mr. Wyss, because he has volunteered, 
and that is this: What would America look like if we hadn't 
evolved into this massive dependency on illegal labor? Would 
the fields grow up to weeds? Would we have more automation? 
Would there be more people working in agriculture? Would there 
be higher wages, higher benefits? Would the standard of living 
and quality of life be leveled more?
    And I am going to go to Mr. Wyss, as I promised, for the 
answer to that.
    Mr. Wyss. Thank you, Mr. King. I think your analysis is 
very good. And one example that I would give for our area, the 
reason that we jumped into the H-2A program the way we did is 
we followed all the government regulations and we received an 
ICE audit, and so we had to let a considerable number of our 
workers go. At the same time that that happened, a sawmill 
closed in our area less than 20 miles away and 200 people were 
without employment. We offered the job to all 200 people from 
the sawmill to come work in our agricultural fields, and they 
chose not to take the job.
    Mr. King. I am sorry, excuse me. I have only got 14 seconds 
    Mr. Wyss. They wouldn't take it because they stayed on 
    Mr. King. I understand. And we have hired employees for 42 
years, so believe me, I do understand.
    I will just make this point into the record at the close of 
this time as the seconds tick down, and that is this: That Mr. 
Goodlatte stated that he would like to see these workers go 
back at least once a year. I believe the best program to assure 
that that happens is a bonding program, so that the employment 
agencies could ensure that this does happen, and that would 
give a high degree of comfort to the program. So I want to put 
that suggestion in.
    I appreciate everybody's testimony, and I yield back the 
balance of my time to the chairman.
    Mr. Biggs. Thank you.
    At this time, Mr. Gutierrez.
    Mr. Gutierrez. Thank you, Mr. Chairman. And I thank Mr. 
Conyers for allowing me to proceed with questions. Thank you, 
Mr. Conyers. And I want to thank all my colleagues for having 
cosponsored the bill on the democratic side and look forward to 
working for a bipartisan approach in the future.
    First of all, let's not go into tangents here about the 
American government paying people to sit at home on their 
sofas. I don't know where that program is, but I guess I will 
search for it. That is not the problem here. You see where we 
are going, right? The future of America, and people are lazy, 
and if they weren't lazy, we wouldn't need a guestworker 
    Look, I want to make clear to everybody Ms. Frye and Mr. 
Wyss have been invited by the majority to come and speak here. 
And I am willing to be contradicted, but I listened attentively 
to what you had to say, and it seems to me that Mr. Wyss said 
that he needs these workers to come because the workers who 
live in the State of Washington would prefer to make $11 an 
hour working in the service industry than making 13 and having 
a home.
    And Mrs. Frye made a little bit different argument if I 
listened correctly. Ms. Frye's argument is there is just not 
enough people where she farms, there is a lot of acres to farm 
and not a lot of people to do the farming. So we need to bring 
a population. It isn't that people are lazy out in middle 
Illinois and in Virginia and in Georgia, there is just not 
enough of them. So we need to bring people in. And I got to 
tell you, I don't see people--did I get it right, Ms. Frye?
    Ms. Frye. You nailed it.
    Mr. Gutierrez. Okay. Did I get it right, Mr. Wyss?
    Mr. Wyss. Yes.
    Thank you. I just want to make sure--I mean, my friend, 
Mr.--they are going to just say, well, you two are in the 
same--right? You are always together, so--but these are--the 
Republicans invite farmers to come before this committee to 
tell us what their problems are, and ask us for solutions, and 
what we do is we talk about people on a couch getting paid by 
the government and bonds.
    Mr. Wyss, if I heard you correctly, you said there were, 
like, four different agencies. Do you want to add another 
agency, a bonding agency, to get your workers?
    Let me ask the question--Ms. Frye, do you have workers that 
return to you, year in and year out, to come and work your 
    Ms. Frye. Every year for the past 15 years.
    Mr. Gutierrez. So they come, they work legally under the 
    Ms. Frye. Correct.
    Mr. Gutierrez [continuing]. Leave and then come back to do 
the crops the next year?
    Ms. Frye. That is accurate.
    Mr. Gutierrez. You look forward to them coming back?
    Ms. Frye. I do.
    Mr. Gutierrez. Do you see them as farmers?
    Ms. Frye. I see them as farmers, and I see them as family.
    Mr. Gutierrez. Thank you. You see them as farmers, and you 
see them as family.
    Mr. Wyss, you got people that come back regularly, know 
your farm, know your foremans, know your family?
    Mr. Wyss. I have about a 98 percent return rate.
    Mr. Gutierrez. Ninety-eight percent. So they come, they 
work, and then they come back the next season. And, with you, 
it would probably be, like, 6, 7 weeks, right? Cherries, 6, 7 
    Mr. Wyss. We bring workers in for 10 months out of the year 
for different contracts.
    Mr. Gutierrez. For different contracts. But, like, the 
cherry season has a certain----
    Mr. Wyss. May to November.
    Mr. Gutierrez. May to November.
    And, Ms. Frye, do you have shorter windows of opportunity?
    Ms. Frye. We do. Some harvest seasons are only 4 weeks.
    Mr. Gutierrez. Ms. Frye, did you work in the fields when 
you were a young girl?
    Ms. Frye. I did. Every day.
    Mr. Gutierrez. Tell me what you did.
    Ms. Frye. I harvested melons.
    Mr. Gutierrez. You harvested melons. Watermelons?
    Ms. Frye. Watermelons, cantaloupes, sweet corn.
    Mr. Gutierrez. Mr. Kashkooli talked about how back-breaking 
the work. So there is the union representative here, right, the 
one that wants to organize your workers and negotiate with you 
in the future. Would you agree with them that it is back-
breaking work?
    Ms. Frye. It is very hard work.
    Mr. Gutierrez. Is it hot?
    Ms. Frye. It is very hot work.
    Mr. Gutierrez. Thank you.
    So we have people, the farmers, have come here to represent 
their workers as, number one, people representing the view of 
the majority, that have been invited by the majority here to 
come and speak to us. People that work hard. They are farmers. 
They are family. They come back all of the time. They like 
them. The police come by and then take them to religious 
activities. I imagine they take them to the local churches. 
That is the kind of community that they have developed. I want 
to see that community develop.
    And, look, let's stop talking about oh, well, we legalized 
the illegals back in 1986, and then they all ran off the farms. 
Half of the people working the farms are legal. They are 
citizens and permanent residents. So they didn't race off of 
the farms. We just need more people.
    I am really happy. This is what my mom--I want the 
majority--here is what my mom--I think this is a very American 
expression, but she didn't say it in English. And that happens 
a lot in America, that we get American expressions that aren't 
in English. They get told. She told me, she said, [speaking in 
foreign language]. Study hard now, as a child, so you won't 
have to work so hard as an adult. That is what we do. That is 
why I sent my daughters----
    Mr. Biggs. Gentleman's time has expired.
    Mr. Gutierrez [continuing]. To college. That is what we do. 
Let's stop saying, oh, we can't do this program because then 
people are going to want to do better for themselves. It is 
America. They should be able to do better for themselves.
    I thank the witnesses for coming before us.
    Mr. Biggs. Thank you.
    And now the chair recognizes Mr. Johnson from Louisiana.
    Mr. Johnson. Thank you, Mr. Chairman. Thank all of you for 
your valuable testimony. This is really helpful. I am from the 
State of Louisiana. Agriculture is a big deal. And we have the 
same concerns that you do.
    And, Ms. Frey, first question for you. You mentioned how 
difficult it is been for you in the farm to find long-term 
employment from local citizens within the community. If I gave 
you the opportunity and just pitch you a softball, what would 
you say is--I mean, specifically to elaborate on the H-2A 
program, what can we do to make it more workable for the farm?
    Ms. Frye. Specifically, I think the wage rate needs to be 
addressed first and foremost. If you are an employer 
participating in the H-2A program, you are at a competitive 
disadvantage because your wage rates are much higher. Not only 
your rates are much higher, you have to provide housing. You 
have to provide transportation. All of which is perfectly fine.
    No one participating in the program, I think, has a problem 
with doing any of that. But what we would like to see is a more 
level playing field where all workers are paid wages that are 
    Mr. Johnson. When you are in need of employment, how do you 
advertise for employment? I mean, locally, domestically. What 
is the process you do to try to find local workers?
    Ms. Frye. So by law, participating in the H-2A program what 
we have to do is we actually have to advertise for the jobs 
that we anticipate having in the upcoming season. So we put ads 
in the newspaper. We run them for a certain period of time. I 
think we even do some--potentially some online advertising. We 
provide a notice to the number of jobs that we have and what 
types of jobs they are so that they can be filled by domestic 
    But as I stated before, we farm in very rural areas, and we 
simply don't have the population to support the high number of 
jobs that we need for such short seasonal time windows.
    And I will say--and I do feel like I need to add--that the 
H-2A program bringing in the temporary workers not only 
benefits the communities in which we bring them into, because 
the workers get paid a lot of money, and they spend a lot of 
money in these communities and local businesses, et cetera.
    In addition to that, as we are able to--I mean, if you 
noticed in my opening testimony, we farm in seven States. It is 
actually well over seven States. We would be--every time we 
increase the number of acres that we grow, pack, ship, and sell 
direct to retail markets such as Kroger, Wal-Mart, Target, et 
cetera, we are creating domestic jobs that are at a much higher 
level. So if I am able to grow an extra 300 acres of produce 
that I can sell directly to Whole Foods, or Publix, or Meijer, 
whoever, then I need someone to manage that account with that 
    I need more purchase order clerks. I need more shipping and 
receiving managers. I need more forklift drivers. I need more 
farm managers. These are all domestic positions that I am able 
to create every time I bring in more workers. So I would say, 
to answer your question, the wage rate needs to be addressed. 
And, in addition to that, we need access to even more 
    Mr. Johnson. I appreciate that.
    Mr. Wyss, similar question for you. Obviously, we are 
concerned--we want to reduce the burden on the farmers when 
there is a shortage of labor like this. And I wanted to ask you 
the same general question, specifically what do you think--I 
mean, the wage rate is obviously part of it. But are there 
other things, for example, in modernizing the H-2A visa 
process, do you have any recommendations on how we can 
streamline the application process? Because I know it is a big 
    Mr. Wyss. I think Ms. Frye covered it very well as to some 
of the major problems. But also to streamline the program with 
the application process, I mean, I think we could do a lot in 
the application process to make that more streamlined. And I 
think, me personally, the Department of Labor is who oversees 
this program. But they are also the program auditor. So you 
have the same agency who approves you is the same agency who 
audits you.
    Moving the program over into the farm--USDA, would probably 
be very helpful because they have a better understanding of 
OnFarm. They run all the farm programs with us already. I think 
that would be a massive help.
    Mr. Johnson. I have got sixteen seconds. But I will just 
pitch one more question, and see if you can answer real quick. 
I know you talked about the I-9 inspection and audit that you 
all went through. Any suggestions there on how that process 
might be improved, that could have helped in that situation? 
Flexibility in responding, for example. Would that help?
    Mr. Wyss. Well, entry to the program. So after our ICE 
audit we had to enter the program overnight and you have to 
wait a hundred days to get a worker. We needed them the next 
day. So if they could shorten that process down to like what 
they do with H1B, H2B, in an attestation base, we could have 
received those workers when we needed them and not waited a 
hundred days.
    Mr. Johnson. Thank you all for your testimony. I yield 
    Mr. Biggs. Gentleman's time has expired.
    I will recognize the ranking member of the Judiciary 
Committee, Mr. Conyers.
    Mr. Conyers. Thank you very much. I apologize for missing 
the original testimony. But I do have a couple of questions 
here. Ms. Frye--wait a minute. Or Mr. Kashkooli, in Ms. Frye's 
testimony I was told that she outlines a proposal for allowing 
undocumented farm workers to become H-2A workers. Would the 
United Farm Workers support such a proposal in your view?
    Mr. Kashkooli. We wouldn't support that proposal. I think 
what makes more sense is Congressman Gutierrez's proposal that 
takes the current workforce who are professional farm workers 
and allows them to get a blue card or temporary legal status. 
That actually solves the problem that I heard more directly, 
the issue that I have heard Ms. Frye, in particular, address, 
which is they are in areas where there are not a large number 
of workers, and so therefore it is hard to attract workers.
    The blue card giving professional farm workers legal 
status, and also an incentive to stay in agriculture would 
allow the market to work and allow it to work more efficiently 
by taking a million or so farm workers who would be newly 
acquired with blue cards and have them have an incentive to 
match themselves to a more willing employer. I think that is 
the more logical step. And I also note that it has a lot more 
support in Congress than the other proposal.
    Mr. Conyers. Thank you. Now, would allowing existing farm 
workers to obtain temporary immigration status satisfy your 
interest in addressing the current workforce?
    Mr. Kashkooli. Yeah. It would. I think that is what the 
agricultural worker program does, program act does, H.R. 2690.
    Mr. Conyers. Finally, while the majority of the 
agricultural workforce is undocumented and in need of an earned 
legalization program, there is still several hundred thousand 
legal immigrants and citizens who still seek employment in 
agriculture. With the necessity for jobs in the forefront of 
the political debate, we need to assure these individuals are 
not harmed under this new policy. How would these legal 
immigrants and citizens be affected by a new temporary worker 
program like the ones that other witnesses are proposing?
    Mr. Kashkooli. I can't speak to what other witnesses speak. 
But I will speak to the one that Chairman Goodlatte suggested. 
Eliminating the 50 percent rule means that U.S. citizens and 
legal permanent residents who want to work in agriculture 
wouldn't be able to. So we think that is a mistake.
    Reducing wages below the average wage that employers 
themselves have submitted to the United States Government, that 
is a mistake. By definition, that will reduce the wages of all 
farm workers.
    Removing free housing, that is a mistake. As Ms. Frye 
eloquently suggested, bringing people in for short seasons of 
work, if you don't provide free housing, where is it that this 
group of people miraculously are going to show up that no one 
else, U.S. citizens, are willing to do the job? Where is it 
that they are going to live. We know from history where they 
are going to live. They are going to live on riverbeds, on 
school parks. That is where folks live. And, unfortunately, in 
some cases, that is where people are living now without homes.
    So making those types of changes make no sense. Now, doing 
something online as opposed to forced reams of paperwork, that 
makes sense. Having a transparent so that every employer knows 
which labor contractor has been found guilty of the types of 
things that were found in Arizona where people were housing in 
    Right now, if Ms. Frye or Mr. Wyss wants to look up a new 
labor contractor, they don't know. There is no good way for 
them to find out if they have been found guilty of housing 
people in schoolbuses or cheating people on wages. So that 
would be a simple thing to honor employers who have done the 
right thing and to make sure U.S. workers and new workers come 
into the United States. And, if I can, I just want to address 
Congressman King's comment. He said that if you had one of your 
sons not doing work. Let's do the other one. If one out of 150 
people in the United States is making sure to feed everybody--
and our industry is the only industry in the United States that 
impacts everybody. Everyone eats. If one out of 150 people had 
worked for 15 to 20 years making sure all of us fed, doesn't it 
make sense, by Congressman King's own logic, that that would be 
the person you would want to reward, not the one you want to 
    Mr. Biggs. Thank you.
    Mr. Conyers. Thank you very much.
    Mr. Biggs. The gentleman's time has expired. Thank you, Mr. 
    And I recognize myself for 5 minutes to ask a few 
questions. And I will start with you, Mr. Kashkooli. What is 
your organization's estimate of the number of currently 
unauthorized farm workers in the U.S.?
    Mr. Kashkooli. As I mentioned with Ms. Lofgen, those 
numbers are a little challenging. But what we would guess is 
there is roughly 2 million farm workers, professional farm 
workers, in the United States. Government statistics suggest 
that about half don't have legal status. So that would mean 
that the number is about a million people.
    Mr. Biggs. And, Mr. Kashkooli, you have called for 
increasing farm workers protections. Can you tell me what 
provisions are included in the Agricultural Worker Program Act 
that might be addressing those issues that you have identified?
    Mr. Kashkooli. Well, the biggest thing that the 
Agricultural Worker Program Act does is it allows professional 
farm workers to earn legal status. That one step, taking people 
out of shadows means that that group of people can get a 
driver's license and move more freely, move to jobs in other 
parts of the country. There aren't any other protections beyond 
that other than earning that legal status. But that is a big 
one. Because it means you are not worried constantly about 
being deported from the country. And it means that you can move 
freely and seek employers that are treating you correctly.
    So you are not undermining U.S. workers and legal permanent 
residents who are more prepared to speak out. So that is the 
only protection that the Agricultural Worker Program Act, but 
it is a very, very, very important one.
    Mr. Biggs. The next question is for either or both of you, 
Ms. Frye, Mr. Wyss. Chalmers Carr has said that many farmers 
prefer to employ illegals because it is cheaper and they remain 
off Federal and legal radars. Do you get the sense that the 
government is at least providing some kind of perverse 
incentives for hiring illegal immigrants rather than use the H-
2A program?
    Ms. Frye. Yes. Yes. The Department of Labor is like family. 
They stop by all the time.
    Mr. Biggs. Elaborate, will you, please, both?
    Ms. Frye. It seems like every time we turn around. I mean, 
go back maybe 3, 4 years ago, on July 23rd, we were visited by 
Homeland Security, the Department of Labor, the--let's see 
here, OSHA, the FDA, and the Migratory Farm Workers legal 
counsel in 1 day, five agencies. Five agencies in 1 day. Oh, it 
was State and Federal DOL as well.
    So, yeah, I think that when you do participate in a program 
such as the H-2A program you have a big target on your back. 
And, you know, folks come by and, you know, they check on you 
early in the season, which is great because--you know, 
obviously, these--you are bringing in foreign workers. That is 
completely understandable. And they want to make sure housing 
is inspected and everything is good. That is great. But then 
they don't stop coming. And it creates a challenge.
    And I think that employers of the H-2A program have 
actually been targets for a lot of audits. And that is 
unfortunate. Because, I tell you what, the folks who are using 
the H-2A program in this country are American farmers who love 
their country, want to uphold the law, treat their workers 
fairly, pay them an incredible wage rate, and really just want 
to grow fruits and vegetables in a lawful way. The idea that 
those growers have been targeted--which they have--and I can 
speak to my own experiences--versus who you, Mr. Kashkooli, 
were talking about earlier, contract laborers--this not 
    You weren't talking about a farmer earlier making people 
live in schoolbuses. Okay? You are talking about contract 
laborers if I understood you correctly. So this could be anyone 
who has a group of workers working under them, paying them 
whatever they want to pay. The workers have no direct 
relationship whatsoever with the farmer whose fruits and 
vegetables they are actually harvesting.
    You know, so I think those are the folks that probably need 
to be getting looked at a little bit harder versus people who 
are participating, growers who are participating in the H-2A 
program, who are trying to abide by the law and treat workers 
fairly, and pay a loaded wage rate between 15 and $16 an hour. 
That is just my observation.
    Mr. Biggs. Well, thank you. Thank you. And I am glad I 
asked you to elaborate as well.
    Mr. Wyss, she elaborated for you as well. So you don't need 
to at this point.
    Mr. Wyss. She is good. I would have said the same thing.
    Mr. Biggs. And my time is now expired as well.
    And as we get ready to close this hearing, thank you. I 
thank all the participants who have come and testified today, 
and appreciate your testimony, members of the committee as 
well. And, with that, we are adjourned.
    Mr. Wyss. Thank you so much.
    [Whereupon, at 3:56 p.m., the subcommittee was adjourned.]