[Senate Hearing 118-39]
[From the U.S. Government Publishing Office]



                                                         S. Hrg. 118-39

                          FROM FARM TO TABLE:
                   IMMIGRANT WORKERS GET THE JOB DONE

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                    ONE HUNDRED EIGHTEENTH CONGRESS

                             FIRST SESSION

                               __________


                              MAY 31, 2023

                               __________


                          Serial No. J-118-18

                               __________


         Printed for the use of the Committee on the Judiciary






                [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]





                                 

                 U.S. GOVERNMENT PUBLISHING OFFICE

52-708 PDF                WASHINGTON : 2024














                       COMMITTEE ON THE JUDICIARY

                   RICHARD J. DURBIN, Illinois, Chair

DIANNE FEINSTEIN, California         LINDSEY O. GRAHAM, South Carolina, 
SHELDON WHITEHOUSE, Rhode Island             Ranking Member
AMY KLOBUCHAR, Minnesota             CHARLES E. GRASSLEY, Iowa
CHRISTOPHER A. COONS, Delaware       JOHN CORNYN, Texas
RICHARD BLUMENTHAL, Connecticut      MICHAEL S. LEE, Utah
MAZIE K. HIRONO, Hawaii              TED CRUZ, Texas
CORY A. BOOKER, New Jersey           JOSH HAWLEY, Missouri
ALEX PADILLA, California             TOM COTTON, Arkansas
JON OSSOFF, Georgia                  JOHN KENNEDY, Louisiana
PETER WELCH, Vermont                 THOM TILLIS, North Carolina
                                     MARSHA BLACKBURN, Tennessee

             Joseph Zogby, Chief Counsel and Staff Director
      Katherine Nikas, Republican Chief Counsel and Staff Director










                            C O N T E N T S

                              ----------                              

                        MAY 31, 2023, 10:01 A.M.

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................     1
Graham, Hon. Lindsey O., a U.S. Senator from the State of South 
  Carolina.......................................................     3

                               WITNESSES

Witness List.....................................................    41
Carr, Chalmers R., III, owner and chief executive officer, Titan 
  Farms, Ridge Spring, South Carolina............................    10
    prepared statement...........................................    42
Costa, Daniel, director, Immigration Law and Policy Research, 
  Economic Policy Institute, Washington, DC......................    12
    prepared statement...........................................    61
Lytch, Adam, operations manager, L&M Farms, East Palatka, Florida     8
    prepared statement...........................................   140
Sequeira, Hon. Leon, former Assistant Secretary of Labor for 
  Policy, Prospect, Kentucky.....................................     7
    prepared statement...........................................   143
Torres, Diana Tellefson, chief executive officer, United Farm 
  Workers Foundation, Bakersfield, California....................     5
    prepared statement...........................................   151

                               QUESTIONS

Questions submitted to Daniel Costa by Senator Hirono............   163
Questions submitted to Adam Lytch by Senator Klobuchar...........   165
Questions submitted to Diana Tellefson Torres by:
    Senator Hirono...............................................   166
    Senator Tillis...............................................   167

                                ANSWERS

Responses of Daniel Costa to questions submitted by Senator 
  Hirono.........................................................   168
Responses of Adam Lytch to questions submitted by Senator 
  Klobuchar......................................................   175
Responses of Diana Tellefson Torres to questions submitted by:
    Senator Hirono...............................................   177
    Senator Tillis...............................................   179

                MISCELLANEOUS SUBMISSIONS FOR THE RECORD

Submitted by Chair Durbin:

    AFL-CIO, statement, May 31, 2023.............................   183
    Alianza Nacional de Campesinas, Inc., statement, May 31, 2023   192









 
                          FROM FARM TO TABLE:
                   IMMIGRANT WORKERS GET THE JOB DONE

                              ----------                              


                        WEDNESDAY, MAY 31, 2023

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice at 10:01 a.m., in 
Room 216, Hart Senate Office Building, Hon. Richard J. Durbin, 
Chair of the Committee, presiding.
    Present: Senators Durbin [presiding], Whitehouse, 
Klobuchar, Coons, Blumenthal, Hirono, Padilla, Ossoff, Welch, 
Graham, Grassley, Cornyn, Hawley, Kennedy, and Blackburn.

          OPENING STATEMENT OF HON. RICHARD J. DURBIN,
           A U.S. SENATOR FROM THE STATE OF ILLINOIS

    Chair Durbin. This meeting of the Senate Judiciary 
Committee will come to order. Last week, the Members of the 
Committee traveled back home for Memorial Day. It was an 
opportunity to meet with constituents and learn more about 
their concerns. For my part, I met with constituents across the 
State of Illinois, and everywhere traveled I heard the same 
thing over, and over, and over. I'm sure other Members of the 
Committee did as well. Our Nation is in dire need of legal 
workers.
    We have roughly 10 million unfilled jobs in this country, 
and too few workers to fill them. This shortage is hurting 
every community and every industry, from healthcare to 
hospitality. I visited Decatur, Illinois, a town in the central 
part of our State that I have represented in Congress--in the 
House and in the Senate for decades. I have never heard this 
before. They have too many job vacancies. They are desperate 
for workers in Decatur, Illinois. I don't think I've ever heard 
that in the 40 years that I've been representing that 
community.
    One sector where worker shortages is especially dire is 
agriculture. An industry that relies heavily upon the labor of 
immigrants. Today, our Nation's broken immigration system makes 
it difficult for Americans' farms and factories to recruit and 
retain the workers they need to create stability and 
affordability of our food supply. Go to the grocery store if 
you haven't recently. Go with your parents if you're a young 
person. Let them tell you the story of what things used to cost 
just a few months ago and what they cost today.
    Part of the problem is the supply chain itself and the 
people who are an integral part of it. So we're going to start 
this morning's hearing by looking at a video on the essential, 
dangerous, and often invisible work that farmworkers perform 
every day, and how our immigration system is failing. It's 
failing them, as well as our Nation's farmers, and ultimately, 
the American people. Let's show the video.
    [Video is shown.]
    Chair Durbin. For more than three decades, Congress has 
failed to modernize our Nation's immigration system. As a 
result, our Nation's farms, factories, and food processing 
facilities have struggled to secure a steady, stable supply of 
workers. I work with my friend, the Ranking Member Senator 
Graham, and others on both sides of the aisle to advance 
bipartisan legislation to reform farmworker immigration. But 
we've never secured enough votes to support the enactment of 
the law.
    And that's not just bad for our Nation's economy. It's a 
national security risk. Our shortage of farm and food workers 
has forced us to rely on other countries to meet our food 
needs. In fact, the U.S. Department of Agriculture has 
projected that America--believe this or not--will soon become a 
net importer of agricultural products.
    When it comes to securing our Nation's food supply chain, 
immigration reform is a top priority. And though strengthening 
our Nation's borders is a crucial component, it's only one part 
of the equation. We need to approach this issue as an economic 
imperative because the fact is, immigration reform is the most 
immediate and meaningful step we could take today to resolve 
our shortage of workers. We need to recognize these issues are 
fundamentally interconnected.
    Many immigrants who cross the border end up working in the 
fields because of unmet demand for farmworkers. Immigration 
reform would help reduce unauthorized immigration by legalizing 
this labor migration. But it seems that some, in States like 
Arkansas, would prefer to address this shortage by rolling back 
child labor laws. This is not a solution. This is a shame. 
Immigrants already account for more than 60 percent of all 
farmworkers in our country. Most of them are undocumented.
    Let's put the facts on the table. What would happen to 
America's farmer, farm operations if we deported these workers? 
Well, let me tell you about a farmer named Shay Myers, 
testified before our Committee 2 years ago during our last 
hearing on the importance of immigrant farmworkers. Shay shared 
with us that his asparagus farm lost an entire season's worth 
of profit because 36--36 H-2A workers were delayed at the 
border, and they couldn't find domestic workers to replace 
them.
    He noted, and I quote, ``It's not safe because if we can't 
get workers, we can't harvest our crops. If we can't harvest 
our crops, we can't feed you.'' Shay is one of the millions of 
American farmers and business owners who understand our economy 
depends on the labor of immigrants.
    Reducing the wages of legal immigrant farmworkers or 
forcing undocumented farmworkers out of the workforce, as some 
have proposed, is not a solution. Instead, lawmakers must enact 
new laws to protect the rights of these workers while also 
providing them with a path to permanent legal status. These 
reforms will ensure that farmworkers can continue contributing 
to our Nation.
    I'd like to thank Senators Ossoff and Tillis who requested 
this hearing on a bipartisan basis. They have both seen the 
critical role that immigrants play in the agricultural industry 
in their home States of Georgia and North Carolina. Now, I want 
to introduce my noteworthy colleague who has become notorious 
in one country, but he's safely returned to ours. We are glad 
to have him back. Senator Graham.

          OPENING STATEMENT OF HON. LINDSEY O. GRAHAM,
        A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA

    Senator Graham. Thank you, Mr. Chairman. Yes, it's been an 
interesting couple of days. Glad to be home. That's for darn 
sure. I want to thank Senator Blumenthal for being willing to 
represent me in Russia. It'll be a test of your legal skills.
    Senator Blumenthal. You have the right to remain silent.
    Senator Graham. Thank you. I think I have a right to stay 
out. I intend to do that. So anyway, about my trip. This 
Committee has been bipartisan in many ways, and to my 
Democratic colleagues, and Republican colleagues, you've been 
great on Ukraine. You've been terrific. Senator Durbin, you've 
been absolutely terrific. People on our side, I feel the same 
way about.
    In the coming days, maybe hours, there'll be a massive 
counteroffensive that will begin to liberate parts of Ukraine 
from the Russian invaders. All the money and effort we've made 
to help the Ukrainian military and people is about to pay 
dividends. So I'll talk in more detail about that.
    So back to matters here at home. Chalmers Carr is a 
constituent of mine. He's in the farming business. Senators 
Cornyn, Grassley, myself, Durbin, all of us have been seeking a 
solution to a vexing problem for years. So let's start with the 
idea that it is a problem. I'm surprised that only 60 percent 
of the people working in agriculture are immigrants. I thought 
that it would actually be more.
    So what we have is a dilemma. Nobody on this Committee 
wants to deny an American worker a job in any area off the 
economy. You can't get an H-2A visa until you try to hire an 
American to do the job in question. And legal immigration, as 
you well know Mr. Chairman, is designed to help American 
companies who fall short in hiring here at home. So they can 
have a robust workforce added to the native-born workforce or 
the U.S.-citizen workforce to keep the company in America so 
they don't have to leave.
    And, you know, the visa programs supplement the American 
citizen workforce to give the employer a chance to stay in 
business here at home. So it's a win-win. The problem is, 
you've identified, is it's very difficult for employers right 
now to find workers in certain areas of our economy. I am here 
to tell you that H-2A, H-2B, we're not denying an American 
worker a job. We're creating an opportunity for an American 
employer to stay in business in America.
    The problem we have, Mr. Chairman, is if we legalize the 
agricultural workforce, give legal status without securing our 
border, and changing our asylum laws first, you will have a run 
on this country that you've never seen. It will be pouring 
gasoline on a fire. That's the dilemma.
    I am not antagonistic to trying to find a solution to the 
agricultural dilemma of creating a more robust legal system so 
you can access legal workers. And some can stay because it 
would add value to our country. But if we legalize everybody 
here in the agricultural sector without first securing our 
border, and changing the magnets that are drawing 6 million 
people in the last couple of years into our country, then we'll 
have made the problem worse.
    So I just would end on this note. Very sympathetic to the 
dilemma faced by the immigrant workforce and by the employers, 
but the solution of legalizing millions of people in the 
agricultural community without first dealing with the broken 
border and a broken asylum system, I mean, I think, is ill-
conceived. Thank you.
    Chair Durbin. Senator Graham, I don't disagree with you. 
But I think there's an orderly way to do this in the bills that 
have been prepared by Senator Bennet, for one, our friend who 
is on the Gang of Eight, really put a time requirement in this 
so that the workers had to be here for, I think, it was 20 
years, under one of our proposals. So this is not going to be a 
run on the border in any respect. You have to have shown that 
you're a reliable worker, number one, and a trustworthy future 
American over a long period of time to qualify.
    And I would also say, I'm all for an orderly process at the 
border. I think we all agree on that. If we establish an H-2B 
process or something like it that has specific numbers coming 
in who are monitored while they're here in the United States, I 
think it's going to avoid the calamitous outcome that you think 
may happen. I hope I'm right. Let's see if the witnesses can 
add anything to that.
    We have five witnesses today. I'll introduce the Majority 
witnesses and turn to the Ranking Member for the Minority.
    Our first witness is Diana Tellefson Torres. Welcome. 
Serves as the chief executive officer of the United Farm 
Workers Foundation. The nonprofit arm of the United Farm 
Workers of America Union.
    We are also joined by Adam Lytch--did I pronounce that 
correctly? Thank you. Adam Lytch is the operations manager at 
L&M Companies.
    The final Majority witness is Daniel Costa. Serves as the 
director of immigration law and policy research at the Economic 
Policy Institute. Senator Graham.
    Senator Graham. Thank you, Mr. Chairman.
    Our witnesses are Mr. Leon ``Sequeira''--is that pretty 
close? Okay. Thank you. He's currently an attorney in private 
practice where he represents agricultural employers and ag 
associations across the country. He previously served as 
Senate-confirmed Assistant Secretary of Labor for Policy under 
President George W. Bush. At the Department of Labor, he was 
involved intimately in developing the Bush administration's 
immigration policy reforms, including the first overhaul of the 
H-2A program in more than 20 years. He received his bachelor's 
degree from Northwest Missouri State University, and his law 
degree from George Washington University Law School.
    The second witness is my constituent, Chalmers Carr. Mr. 
Carr is a first-generation farmer and the owner, president, and 
CEO of Titan Farms located in Ridge Spring, South Carolina. He 
oversees a farming operation consisting of over 6,100 acres of 
peaches and several hundred acres of vegetables. And employs 
over 850 H-2A temporary workers annually.
    Mr. Carr has served on many national boards for the U.S. 
Department of Agriculture, and is the current president of USA 
Farmers, a national organization representing H-2A employers. 
He's a member of the South Carolina Agriculture Commission, 
serves as treasurer of the South Carolina Peach Council, and is 
an executive board member of the Palmetto AgriBusiness Council.
    He and his wife moved to Ridge Spring in 1995, Lori. And 
they have farmed there ever since. I've been to their farm, and 
he has the best peaches in the world. So thanks.
    Chair Durbin. We're going to have a peach competition 
before this is all over.
    Senator Graham. And that's saying something of South 
Carolina.
    Chair Durbin. Thank you, Senator Graham. So I'll lay out 
the mechanics of the process. It's simple. Five-minute opening 
statements, 5-minute questions by each individual Senator. We 
kick it off with the oath. And I ask each witness to please 
stand and raise their right hand.
    [Witnesses are sworn in.]
    Chair Durbin. Let the record reflect that the witnesses 
have answered in the affirmative. Ms. Torres, you're first.

 STATEMENT OF DIANA TELLEFSON TORRES, CHIEF EXECUTIVE OFFICER, 
            UFW FOUNDATION, BAKERSFIELD, CALIFORNIA

    Ms. Torres. Chairman Durbin, Ranking Member Grassley, and 
distinguished Members of the Committee, I want to thank you for 
this opportunity to testify. My name is Diana Tellefson Torres, 
and I am the CEO of the UFW Foundation, based in California and 
serving farmworker families around the country.
    Behind me are farmworkers and children of farmworkers who 
have worked in the fields. Take Jackie, who began picking 
blueberries at age 14. Our Nation's food supply relies on about 
two million farmworkers, about half of whom are U.S. citizens 
or lawful permanent residents, according to the Federal 
Government.
    Farm work is a career. And farmworkers across the country 
often will proudly share about the decades that they have 
worked feeding the Nation, and, in fact, much of the world. And 
yet our fellow U.S. citizens and lawful permanent residents who 
are farmworkers often live in poverty, and struggle to feed 
their own families.
    Fifty percent of the men and women they work alongside 
either do not have documentation or are here through the H-2A 
guestworker program. Lack of legal status, combined with a 
shameful history of excluding the industry from basic labor 
laws such as overtime pay or the right to join a union, makes 
farmworkers vulnerable to a range of abuses.
    The threat of immigration enforcement is a form of coercion 
that employers can use against both undocumented and H-2A 
workers. U.S. citizens and work-authorized colleagues also 
often work in fear, as they know that they can easily be 
replaced by more vulnerable workers. Esther from California, 
who has worked as a farmworker in the U.S. for 25 years picking 
grapes, vegetables, and oranges asked me to tell you, ``I wish 
to tell our lawmakers in Congress to please pass legalization 
for farmworkers so we may see our families without fear. That 
we may work without fear. And that we may contribute to this 
country without fear.''
    Today, the United States has a choice. We can recognize the 
incredible value of farmworkers, and work towards a day when 
the industry is characterized by workers who work and live 
without fear because they have a way to earn citizenship and 
enjoy equal labor rights. This choice will enable farmworkers 
to stay in agriculture and help the industry in our rural 
communities thrive.
    Or, we can continue to turn a blind eye to the fact that 
too many farmworkers work without legal authorization, and that 
the existing H-2A visa program has become the worst source of 
human trafficking among U.S. visa programs. And workers in the 
program too often have their rights violated.
    The number of H-2A jobs approved by the DOL has increased 
rapidly from 79,000 H-2A positions in 2010 to 371,000 in 2022. 
It is hard to know which stories to tell when it comes to the 
lives of too many H-2A workers. I hope you have read my 
testimony and understand that the problems for H-2A workers 
most often begin before they even get to this country because 
the system is dependent on recruiters that are able to 
discriminate in the workers they choose, and often insist on 
the payment of illegal recruitment fees. Accordingly, H-2A 
workers come to this country largely indentured.
    Additionally, Federal law excludes H-2A workers from the 
Migrant and Seasonal Agricultural Worker Protection Act, which 
protects farmworkers' rights. Workers live in substandard 
conditions, work in extreme conditions for well over 10 hours a 
day, experience wage theft, and do not speak up because they 
will only be chosen to come back to the U.S. in future years if 
they don't complain. This is why our increasing reliance on the 
H-2A guestworker program in its current form threatens the 
conditions of all farmworkers.
    Congress not passing bipartisan agricultural immigration 
reform that honors the women and men who feed us is an active 
choice to support a deeply flawed system, harming both workers 
and law-abiding employers. That is why we have worked for 
decades to craft bipartisan solutions to enable career 
farmworkers to gain legal status, and to reform the H-2A 
program.
    The Farmworkers' Movement, led by the United Farm Workers, 
has come to an agreement with most of the Nation's major grower 
associations to move forward bipartisan agricultural 
immigration bills that won the majority votes in the House or 
Senate during the administrations of Presidents Bush, Obama, 
Trump, and Biden. And indeed, many of you here today have been 
part of those efforts. We have come so frustratingly close in 
passing agricultural immigration bills, and we remain ready to 
partner again. Thank you for the opportunity to speak to you 
about the important work that farmworkers do.
    [The prepared statement of Ms. Torres appears as a 
submission for the record.]
    Chair Durbin. Thank you, Ms. Torres. Mr. Sequeira.

STATEMENT OF HON. LEON SEQUEIRA, FORMER ASSISTANT SECRETARY OF 
              LABOR FOR POLICY, PROSPECT, KENTUCKY

    Mr. Sequeira. Thank you. Good morning, Chairman Durbin, 
Ranking Member Graham, and Members of the Committee. I 
appreciate the opportunity to testify today about the critical 
role of the H-2A agricultural visa program in providing much-
needed farmworkers to America's farms.
    I've worked on employment and immigration policy for nearly 
20 years. Throughout my career, there have been two constants 
on America's farms. First, a profound shortage of domestic 
labor. And second, misguided Government policy that makes it 
harder to farm.
    Unfortunately for farmers, each year, both of these factors 
get worse. The lack of sufficient domestic labor means that 
farmers with labor-intensive farming operations have no choice 
but to rely on the H-2A program to secure their labor. 
Throughout its history, the H-2A program has been plagued by 
complicated regulations, bureaucratic inefficiencies, high 
costs, processing delays, artificial limits on which 
agricultural employers can participate, and, most 
distressingly, open hostility from the Department of Labor.
    Despite the program's numerous shortcomings, farmers have 
no other legal option. But each year, the Department of Labor 
seems intent on making it harder and harder to use the H-2A 
program. In the event there is any lingering doubt about 
whether there are sufficient numbers of domestic workers to 
take these farm jobs, a few statistics from the Department of 
Labor's data on the H-2A program will make this clear.
    In 2022, farmers submitted more than 18,000 applications 
for certification of about 370,000 positions. As part of the 
Department's certification process, these positions were 
advertised nationwide, and farmers were required to hire any 
U.S. applicant who met the basic job qualifications.
    Last year, fewer than 300 U.S. workers accepted these 
positions. That's not 1 percent. That's not one-half of 1 
percent. That is six one-hundredths of 1 percent of available 
farmworker openings filled by U.S. workers. To say it another 
way, if math isn't your strong suit, as it is for me--or is not 
for me, I guess, I should say--for every 10,000 farmworker job 
openings, just 6 were filled by U.S. workers. And 2022 was not 
an unusual year.
    Participating in the H-2A program is no easy task, and it 
is certainly not for the faint of heart. Even for a Government-
administered program, its costs and difficulties are legendary. 
The Department of Labor sets annual wage rates for the program. 
And over the past 5 years, they've increased these rates, on 
average, nearly 25 percent.
    Nationwide, the average H-2A wage is more than $16 an hour. 
In Washington and Oregon, it's nearly $18 an hour, and in 
California, it's $18.65 an hour. On top of that, farmers also 
must provide their employees with free housing and free daily 
transportation benefits that virtually no other employer, 
farmer, or otherwise provides. In addition, farmers also pay 
all the expenses of their workers in traveling to the United 
States and then returning home each year.
    Despite the profound lack of workers willing to perform 
this work in the U.S., and despite the already high cost of the 
program, the Department of Labor has recently devised yet 
another way to ratchet wage rates and farm production costs 
even higher. New Department of Labor regulations will 
fundamentally change how H-2A wage rates are calculated. And 
they have decided to further increase rates for certain basic 
tasks performed on the farm such as driving a truck loaded with 
vegetables, transporting a worker from housing to the field, or 
erecting a fence to contain livestock.
    This misguided approach will lead to significant disruption 
in farm operations and tens of millions--if not hundreds of 
millions of dollars in additional costs to farmers. My written 
testimony contains a more detailed description of how these new 
regulations will harm America's farmers.
    The Department seems to assume that every time they 
increase wages, farmers will just correspondingly increase 
their prices to recover those costs. But the Department is 
oblivious to a central element of the agricultural economy. 
Unlike virtually every other business, farmers do not get to 
set the price of their products. The market sets the price.
    And increasingly, the market is dominated by low-cost 
imports, especially from Mexico, where the required wage rate 
is the equivalent of $10-$11 per day. In the United States, H-
2A farmworkers must be paid at least $16 per hour on average. 
Is it any wonder why we have a $37 billion trade deficit in 
fruits and vegetables with Mexico?
    Plain and simple, the Department of Labor is pricing 
farmers out of the market and out of business. And as you said, 
Mr. Chairman, this will be the first year in which the United 
States imports more food than it exports. That should be a 
clear warning to policymakers that Government policy must 
change.
    We need a future workforce solution that provides farmers 
access to labor with a fair and predictable cost structure that 
enables them to remain competitive in the international 
marketplace. Otherwise, within a generation, or even sooner, we 
will be totally defendant on foreign countries to feed us. Mr. 
Chairman, thank you, again, for the opportunity. I look forward 
to your questions.
    [The prepared statement of Mr. Sequeira appears as a 
submission for the record.]
    Chair Durbin. Thank you, Mr. Sequeira. Mr. Lytch.

          STATEMENT OF ADAM LYTCH, OPERATIONS MANAGER,
                L&M FARMS, EAST PALATKA, FLORIDA

    Mr. Lytch. Good morning. My name is Adam Lytch, and I'm the 
regional manager for L&M Farms, located in East Palatka, 
Florida. Our operation spans several States, including Florida 
and Georgia. And we produce a variety of specialty crops 
including potatoes, cabbage, broccoli, bell peppers, 
watermelons, squash, cucumbers, and many more.
    First of all, let me thank Chairman Durban and Ranking 
Member Graham for the opportunity to come here today to speak 
to this distinguished Committee on an issue that is very near 
and dear to me, the domestic workforce crisis facing U.S.----
    Chair Durbin. Mr. Lytch, could you pull your microphone a 
little closer, please?
    Mr. Lytch. Excuse me.
    Chair Durbin. Thank you.
    Mr. Lytch. For me, this issue transforms politics, and we 
need reforms that will allow us to have a stable workforce so 
that our growers can continue to feed the Nation. Like many 
farm kids, I grew up wanting to do the same thing that my dad 
did. I grew up in the fields alongside him and other workers 
doing everything from chopping cotton to cropping sand lugs. It 
was all hard work. I remember over 30 years ago, it started to 
become harder for my family to find workers. Our existing 
workforce had begun to age out, and others no longer wanted to 
pursue this type of work.
    During this time, a man from Mexico, Ruben, stopped by 
asking for a job. He shared with me the love he had for a place 
he called home, and the importance of making sacrifices for 
your family. He simply wanted to be here in the U.S. so that 
his family in Mexico could have a better life. As the years 
went by, Ruben started to recruit more workers from Mexico. Our 
family operation had no other way to meet our seasonal work 
needs. That's how from an early age, I began to understand that 
American agriculture was dependent on immigrant workers to get 
the jobs done.
    Fast forward over 30 years, and not much has changed. There 
have been no fixes to the problem that I witnessed firsthand 
all those years ago, and America's food system still requires 
seasonal workers. As American farmers, we face a variety of 
challenges. Most of these are things we cannot control, like 
weather, market conditions, rapid inflation, and supply 
disruptions, like during the recent COVID-19 pandemic.
    However, the single biggest issue we face is the 
unprecedented shortage of domestic labor and the restricted 
access to a H-2A guest workforce. The H-2A program is currently 
our only option. The program is greatly flawed and made even 
more challenging by the Federal agency entrusted to administer 
it, with a volatile wage structure and program restrictions 
such as seasonal need which does not work well in this era of 
modern agriculture.
    Additionally, under the H-2A program, a self-inflating 
Adverse Effect Wage Rate, or AEWR, is set each year for 
workers. The methodology for which lacks visibility, accuracy, 
and stability for growers. The AEWR was originally created to 
protect American workers who perform the same duties as those 
on the H-2A contracts so that they would not be adversely 
affected.
    But that is no longer the case since there are no American 
workers willing to do these jobs. In fact, American families 
are the ones being adversely affected as our workforce crisis 
will continue to drive food prices even higher.
    We treat our workers fairly. And most of them, over 93 
percent, come back year after year. It is important that they 
earn a fair wage that provides us stability. We want them to 
come back every year. We want a program that works for all 
involved. But if nothing changes, there will certainly be a 
sharp decrease in production, affecting not only farmers and 
farmworkers, but the rural communities in which we operate who 
also depend on agriculture.
    For 2023, the AEWR in Florida increased 15.5 percent, and 
we received notice of this just 38 days before it went into 
effect on January the 1st. We had workers on the way from 
Mexico when we found out we had nearly a $2 dollar per hour 
increase coming. At the same time, our crops were mostly all 
planted, giving us little to no time to react.
    Our crops are touched by human hands at every step of the 
production, harvest, and packing process. Labor alone makes up 
between 40 and 50 percent of our total cost to grow and harvest 
most of our crops. As a result of the AEWR changes this year, 
my company will see at least a $1.4 million payroll increase 
over the prior year. These rising labor costs tied to the H-2A 
program exacerbated by a new Labor Department wage rule, make 
it nearly impossible to compete with countries that pay a 
fraction of what we do for their workforce.
    It is often said that food security is national security. 
We must create a pathway to earned legal status for those in 
the current domestic workforce, have wage stabilization, and 
greater H-2A program access to ensure that the U.S. can feed 
itself. But it is up to Congress to act.
    In closing, I will ask you this: Will you support our 
American food system by passing agricultural workforce reform, 
or will we have to rely on our foreign competitors to step up, 
and meet our food and nutrition needs the next time our supply 
chain is so greatly disrupted? We need Congress to support and 
seed real change on this issue before it is too late. The 
future of American agriculture, especially the fresh fruit and 
vegetable industry, depends on it. Thank you.
    [The prepared statement of Mr. Lytch appears as a 
submission for the record.]
    Chair Durbin. Thank you, Mr. Lytch. Mr. Carr.

 STATEMENT OF CHALMERS R. CARR, III, OWNER AND CHIEF EXECUTIVE 
       OFFICER, TITAN FARMS, RIDGE SPRING, SOUTH CAROLINA

    Mr. Carr. Chairman Durbin, Ranking Member Graham, and 
Members of the Judiciary Committee, good morning.
    Chair Durbin. Good morning.
    Mr. Carr. My name is Chalmers Carr. I'm a first-generation 
farmer from South Carolina, where my wife and I own and operate 
Titan Farms. We grow peaches, bell pepper, eggplant, and 
broccoli.
    Over the last 24 years, we have grown into the second 
largest peach operation in the country. We could not have done 
this without participating in the H-2A program for the last 25 
years, where we annually bring in over 800 workers, and we have 
over a 90 percent return rate of these workers. This, coupled 
with our great full-time employees, have allowed us to build a 
future for us and our family. I greatly appreciate you holding 
this vitally important hearing entitled, ``From Farm to Table: 
Immigrant Workers Get the Job Done.''
    While this was very true for more than the last half of the 
century, things have changed greatly. There's ample evidence 
that we have a substantial shortage of domestic and immigrant 
workers choosing to work in agriculture. Yet nonimmigrant 
workers, guestworkers coming in through the H-2A program are 
taking these jobs by the hundreds of thousands.
    Unfortunately, ag labor reform has been tied to immigration 
reform since 1990. Therefore, we have had no reform to ag 
labor. As a result, we have a very fragile food supply chain 
that was highlighted during the pandemic. Food inflation is at 
an all-time high. Our imports and our dependence on foreign 
countries for our food sources is growing rapidly.
    The Department of Labor is using a flawed wage methodology 
which has increased wages nationally 7 percent this year, and 
24 percent over the last 5 years. Ten States this year, like 
mine and like Adam's in Florida, saw double digit wage 
increases. To couple the problem, DOL has recently passed a new 
wage rule that will bring in new wages, higher wages, and more 
complexity to the H-2A program, adding fuel to this problem.
    Allow me to share a few impacts from our farm. Under the 
flawed AEWR methodology, this year our wages increased 14 
percent. This will result in a $2.6 million payroll increase. 
But more importantly, it will raise the cost of our box of 
peaches 5 percent. This is what we call food inflation.
    The problematic new DOL wage rule will drive our wages up 
another 10 to 15 percent, adding another $2 million to our 
payroll. We will have to file 15 to 20 H-2A contracts annually 
instead of the 5 that we currently do. We will have to hire two 
full-time employees, one in H.R. and one in accounting, just to 
implement this new rule. And we are very concerned about the 
liability of this new rule as it is very vague to how it's 
going to be applied. Honestly, with these recent changes and 
the current H-2A program, we are finding it difficult to 
understand if we can remain profitable.
    Things to consider. The Adverse Effect Wage Rate, as Adam 
said, was designed to make sure that we protected domestic 
workers from foreign workers coming in and lowering wages in 
similarly employed positions. But yet we have less than 1 
percent, as Leon said, 0.006 percent of American workers 
choosing to do these jobs.
    So who are we adversely affecting? I would say we're 
adversely affecting the U.S. consumer with higher food prices. 
We are threatening our national security as our increased 
dependence on foreign imports grows. And yes, we're affecting 
the American family farm.
    The new DOL wage rule uses BLS, Bureau of Labor Statistics, 
nonfarm wages to set new wage rates. How can this be considered 
similarly employed? That's like comparing peaches to oranges. I 
believe the future of our great Nation is imperative that we 
reform the H-2A program in order to stop, and hopefully undo, 
many of these negative trends that I've shared with you.
    But first, I implore you to prioritize ag labor crisis as a 
national security issue. To separate ag labor reform from 
immigration reform which seems to be intractable by supporting 
and passing the following: Senate Joint Resolution 25, a 
congressional review action on the new DOL wage rule; and 
supporting the bipartisan bill, S. 874, Farm Operations Support 
Act. This is the first step you can do to put a tourniquet on 
the problem.
    The next steps I would ask you to do is examine the issue 
closely, understanding the world today and our labor force is 
completely different than it was just 20 years ago. Study the 
issue, debate the issue, and then pass meaningful agriculture 
labor reforms that will help secure our country's future. I 
stand ready to work with you, and I thank you for allowing me 
to testify today. I appreciate you having this hearing, and I 
look forward to answering your questions.
    [The prepared statement of Mr. Carr appears as a submission 
for the record.]
    Chair Durbin. Thanks, Mr. Carr. Mr. Costa.

STATEMENT OF DANIEL COSTA, DIRECTOR, IMMIGRATION LAW AND POLICY 
      RESEARCH, ECONOMIC POLICY INSTITUTE, WASHINGTON, DC

    Mr. Costa. Good morning, Senator Durbin and Ranking Member 
Graham, and other distinguished Members of the Committee. I'm 
especially honored to be before the Judiciary Committee today 
given my own interest and personal history on the topic.
    I am myself the son of immigrants. Each who came to the 
United States from a different country, and through a different 
immigration pathway. The first jobs that most of my family 
members on both my mother's and father's side had, after 
arriving in the United States, were in the food supply chain in 
the agricultural heartland of California where I grew up and 
now live.
    My dad's entire side of the family, when they immigrated to 
the U.S., almost all lived and worked on dairies milking cows 
in the Central Valley. My mom worked at the local poultry 
processing plant while she was still pregnant with me. Thus, I 
feel deeply connected to these issues that we're discussing 
here today.
    I believe that the United States has benefited greatly from 
immigration and the immigrants who arrive both economically and 
culturally. It's also why I believe that the United States 
should grow and expand permanent immigration pathways. And I 
believe that we should do much more to improve the migration 
pathways that currently exist.
    And Congress should first and foremost regularize the 
status of those who are in the United States but lack an 
immigration status. Or have only a precarious temporary status. 
That one action on its own would be the best and most impactful 
reform to improve conditions across many low-wage industries, 
including in the farm labor market.
    At present, 5 percent of the U.S. labor force lacks an 
immigration status. That leaves those workers vulnerable to 
retaliation by employers, leaving immigrant workers fearful of 
complaining when their rights are violated which degrades 
standards for all workers, and allows employers to violate the 
law with impunity. It also makes it difficult for those workers 
to organize and join unions.
    Increasingly, it's not just unauthorized immigrants who are 
suffering from the impact of this dynamic. There are millions 
of workers today, including those with DACA, TPS, and parole, 
for example. These workers have a precarious status that is in 
a gray area. They have some protection from deportation along 
with the work permit, which is good because, in practice, it 
means having workplace rights.
    However, many of those migrants do not have a permanent 
path to remain in the United States. Their status is subject to 
the whims of policymakers and can be taken away at any moment. 
That prevents them from being able to integrate and participate 
fully in American economic and political life. Congress should 
also provide them with a path of permanent residents 
immediately.
    And then there are temporary work visa programs like H-2A 
which are an instrument to ultimately deliver migrant workers 
to employers, but without having to afford them equal rights, 
dignity, or the opportunity to integrate and participate in 
political life. And which undermine labor standards, and leave 
more than two million migrant workers vulnerable to abuse. 
Those work visa programs can and should be reformed to include 
a quick path to a green card.
    How do we know that lacking status harms workers, and that 
providing status can make a significant, positive impact? Take 
a look at the research. Here's just a few examples. A landmark 
study of low-wage workers found unauthorized immigrant workers 
were more than twice as likely to be the victims of minimum 
wage violations as compared to U.S.-born citizens.
    A study of DACA recipients, who have protections from 
deportation and a work permit, showed that they doubled their 
wages after receiving a work permit. And in terms of 
citizenship and permanent residents, there is a very broad 
consensus that exists among economists and in the literature. 
And there are some real-world examples, like the studies done 
on the wage gains after the IRCA legalization, showing that 
permanent residents and citizenship both raises wages and 
reduces poverty.
    And finally, I'd like to say a few words about the 
conditions in the fields for farmworkers that cultivate and 
grow the food we eat, and the wages they earn. Working on a 
farm is one of the most dangerous and difficult jobs in the 
entire labor market. Farmworkers earn very low wages even 
compared to the wages of other low-wage workers. In fact, the 
wages farmworkers earn are either at or near poverty levels, 
making it so that many cannot afford the fresh fruits and 
vegetables that we all buy that they picked with their own 
hands.
    As a thought experiment, a co-author and I at UC Davis 
posed the question, How much would it cost to give farmworkers 
a significant raise in pay, even if it were paid entirely by 
consumers? The answer is, not that much--about the cost of two 
movie tickets or a nice bottle of wine.
    If average farmworkers' earnings rose 40 percent, and the 
increase were passed on entirely to consumers, the average 
spending on fresh fruits and vegetables for a typical household 
would rise by only $25 per year. A 40 percent raise--some might 
recall--was a wage increase that Cesar Chavez helped to win in 
the first UFW table grape contract in 1966.
    Taking the current national average wage of $16.62 per hour 
for farmworkers, a 40 percent increase would mean a new hourly 
wage of $23.27 per hour. Such a raise could greatly improve the 
quality of life for farmworkers without significantly 
increasing household spending on fresh fruits and vegetables.
    And then finally, it's also important to keep in mind that 
many of the claims you'll hear today about the rising wages of 
farmworkers are misleading. First, because they cite percentage 
increases that are often not adjusted for inflation. And 
second, because the so-called large increases are almost always 
starting from a very low number. Like the $12.41 an hour that 
H-2A farmworkers earned in Florida last year, which is the 
biggest State for H-2A employment. Or the $11.99 an hour they 
earned in Georgia, the second largest H-2A State. With that, 
I'll conclude. And I look forward to your questions.
    [The prepared statement of Mr. Costa appears as a 
submission for the record.]
    Chair Durbin. Thanks, Mr. Costa. I was just conversing with 
my colleague, Senator Graham, about our experience on the Gang 
of Eight. Was that about 10 years ago?
    Senator Graham. Yes.
    Chair Durbin. We had four Democrats and four Republicans 
and we spent months putting together a comprehensive 
immigration reform bill which passed in the floor of the 
Senate. Included in that farm bill was a section on farmworkers 
agreed to by both growers and farmworkers and it involved a 
path to citizenship. It was, I think, a thoughtful and serious 
attempt to address this problem. It passed in the Senate. It 
was never called for consideration in the House of 
Representatives.
    Senator Bennet has been one of the leaders on this issue 
from Colorado--Senator Feinstein, Senator Rubio, and a few 
others. I do believe there is a will to solve this problem. And 
the fact that it is a part of comprehensive immigration reform 
is the fact that we think valid arguments in many aspects of 
immigration to consider it. And I hope we do. I ultimately hope 
we do.
    I want to say that I have no prejudice against growers and 
farmers at all. I had a valued member of my staff for many 
years whose family was one of the largest employers of migrant 
farmworkers in Southern Illinois. Good people. Really 
thoughtful people who cared a lot for their workers, and they 
showed it.
    I also want to say that we're living in a world that is 
hard to understand. I pass by these fast food restaurants, and 
I see what's written on the signs outside. Burger King, $15.70 
an hour to start at your Burger King. You go by on I-55, 
driving from Chicago to Springfield, you pass an Aldi 
warehouse. Aldi, of course, being a major grocery company, 
they're offering nearly $20 an hour for starting salaries for 
people who come to work for Aldi.
    I don't know what they'd be doing, but it certainly would 
not start off as being too technical. And they're being offered 
$20 an hour to sign up. So when we talk about the current wage 
rate in this country, I think we have to be honest and 
realistic about it. There's a competition going on and a 
bidding war for our limited number of workers.
    Having said that, Ms. Torres, I read your entire statement. 
You didn't have a chance in 5 minutes to present it. And there 
are many parts of it that are just heartbreaking to think in 
America this is taking place. Would you address the issue of 
wage theft that is in your statement there? And it appears that 
many workers who are nominally being paid so much per hour are 
actually being paid less because there's a middleman. What's 
that all about?
    Ms. Torres. Well, thank you for your question, Senator. You 
know, I'll begin this with a story from Georgia because I was 
just there last summer. And I was speaking with some farmworker 
women who were indigenous workers, spoke an indigenous language 
from Mexico. Their first language was not Spanish or English. 
And, you know, they were walking through some of the issues 
that they're seeing and started to tell me that when they get 
paid, they're getting paid by the person who actually gives 
them a ride to work.
    So, it's not the foreman, it's not the actual owner of the 
farm, and they're getting paid in cash. And they're very aware 
that often the wages that they're being paid in cash don't 
include the amount that they should be paid for the work that 
they did that week. And so we're looking at not just a foreman 
as an intermediary. Now, we're seeing this random person who's 
giving them a job keeping some of the money.
    And so these workers were letting me know that, ``Well, we 
can't say anything. We don't have papers, and I need a ride to 
work because I don't own a car. I can't afford a car.'' And so 
we're talking about the most vulnerable of workers. And we're 
talking about individuals who are keeping our food secure. 
We're talking about individuals who often don't feel like they 
have a voice. They don't have legal status. They feel that if 
they say anything, they may get deported. And so they're----
    Chair Durbin. Let me ask, if I can?
    Ms. Torres. Of course.
    Chair Durbin. Just a few weeks ago, it was disclosed about 
the exploitation of child labor--immigrant child labor. And 
some of that's happening in the heart of the Midwest. You know, 
I'm not going to name names for the States that are involved. 
But we think that we're above that sort of thing, and it's not 
true. In food processing, in slaughterhouses, children are 
being employed. I don't know if it's intentionally or 
negligently, but it doesn't speak well for our country that 
that would be happening. You mentioned one of the young people 
with you today who started picking fruit at age 14. Did you 
say?
    Ms. Torres. Fourteen, correct.
    Chair Durbin. Is that common?
    Ms. Torres. That is common. Unfortunately, in agriculture, 
children can work in ag at a very young age. And so, you know, 
oftentimes you have parents--we're talking about poverty wages 
here where farmworkers are making between, like, median and 
mean, somewhere between $17,500 a year to a little less than 
$20,000 a year.
    Chair Durbin. I'm sorry----
    Ms. Torres. Those are poverty wages. And so--yes, sir.
    Chair Durbin. Sorry to interrupt you, but I want to ask one 
other question.
    Ms. Torres. Of course.
    Chair Durbin. Mr. Lytch, one of the proposals in the House 
of Representatives passed on a partisan basis was to impose E-
Verify on agriculture workers. That, of course, would check 
whether they're documented or undocumented. That legislation 
also included changes to the H-2A program reversing recent 
Department of Labor regulation setting wages.
    The bill did not include a path to legal status for 
undocumented workers even though we know they make up at least 
40 percent of the agriculture workforce. What would a mandatory 
E-Verify provision for agriculture workers do to the 
agriculture industry?
    Mr. Lytch. E-Verify alone without some reforms to the H-2A 
program or a visa program would certainly be devastating. I 
think both have to happen together. We live in and operate in 
States that currently do have E-Verify, and we comply with 
those laws.
    But I think for the ag sector overall, which is, I think, 
what you're asking, it would be pretty devastating to have that 
based on the percentage that you mentioned of workers that are 
undocumented. So both have to happen together. There has to be 
some type of H-2A reform, greater access to the program before 
mandatory E-Verify.
    Chair Durbin. Mr. Carr, I'm going over a minute here, but I 
want to give you a chance to respond to Ms. Torres about 
practices at your farm. I want you to have a chance to say a 
word about it.
    Mr. Carr. I'd be glad to. Well, first of all, Ms. Torres 
was referring to non-H-2A workers, and unfortunately, she was 
also referring to undocumented workers. This is one of the 
reasons why I joined the H-2A program 25 years ago.
    I have the oversight of the Department of Labor 
investigating or coming and looking at me every time. My 
payroll and my payroll records are published. They come in and 
look at those. Every employee on my farm gets a separate 
paycheck with their wage statement. So participating in the H-
2A program is one way we can make sure that there isn't farm 
labor abuse.
    Chair Durbin. Thank you. Senator Graham.
    Senator Graham. So let's see if I can do kind of a recap 
here. Does everybody on this panel agree that--is it 40 
percent, Mr. Chairman, of people working in agriculture are 
here illegally? Is that generally accurate?
    Mr. Carr. Senator, that's probably a low number in farm 
labor. Actual crop growing, harvesting of crops, that is 
probably a low percentage.
    Senator Graham. All right.
    Mr. Costa. The data from the Labor Department says that 
it's about 44 percent are undocumented. But that's obviously a 
very difficult population.
    Ms. Torres. Nearly half is what we've seen from the Federal 
Government. So, yes, some consensus there.
    Senator Graham. Yes. Okay. Let's just assume for a moment 
it's half. All right, America, half the people in the food 
supply chain, in vegetables, in peaches, and all that other 
stuff we like to eat, are here illegally. If they all left 
tomorrow, what would happen to the agricultural community? Mr. 
Carr.
    Mr. Carr. I would ask you, What would happen to our 
country? Because our food supply would go down, and our food 
security would absolutely disappear overnight. We----
    Senator Graham. What do you think, Mr. Lytch?
    Mr. Lytch. I would agree. I think that a lot of those jobs 
are likely being filled now by people----
    Senator Graham. What do you think, Mr. Sequeira?
    Mr. Sequeira. I would agree with the other comments, 
certainly.
    Senator Graham. All right. Okay, here's the deal. Half the 
people working here illegally, if they left tomorrow, we would 
be hosed. So how do you fix it? You find a way to keep them 
here on our terms without making other problems worse. Does 
everybody agree that's kind of a reasonable solution? They stay 
here, but they have to pay taxes. They have to earn their way 
into some kind of legal relationship in the United States. Does 
that make sense to everybody on this panel? Okay. Good.
    Now, here's the problem. If we do agriculture alone--and I 
know Chalmers doesn't like hearing this--you're going to have 
to include other parts of the economy that have the same 
problem you do. Because there are a lot of people out there 
want more labor like you do. And there are a lot of people on 
my side, less now, thinking this is not a problem at all. It's 
a problem.
    If you say there's enough American workers to make 
agriculture work in America, you don't know what you're talking 
about. And if you say that we can survive in this country as 
farmers given foreign competition, you don't know what you're 
talking about. We're going to import more food than we export 
because it's so much cheaper to farm in other places than it is 
here.
    So the goal we've been trying to achieve all these years, 
Mr. Chairman, is to fix this problem in a way that's a win-win. 
Is there any asylum reform in the bill that we're talking about 
regarding agricultural workers? The answer is no. So if we did 
this bill tomorrow, and you didn't change the asylum system, 
you're going nowhere with illegal immigration. That's the 
problem.
    A secure border is necessary, I think, as part of any 
effort to provide legalization to people already here that are 
adding value to our country. Most Americans want to secure the 
border. And Democratic colleagues have been in the past very 
good on this. So I don't want to sugarcoat this. Everything you 
say is true, Ms. Torres. Everything you say--I don't doubt one 
bit what you say is true about--particularly women, how they're 
being treated.
    Mr. Lytch, Mr. Carr, I don't doubt one bit if these rules 
keep going into effect, we're going to put you out of business. 
And, Leon, you've been trying to fix this for years. And Mr. 
Costa, we may have a different view about the impact of raising 
wages to $23 an hour across the board on the American consumer.
    So, Mr. Chairman, thank you for having the hearing. The 
only solution available to us is to take the problem in 
agriculture, come up with a win-win for the agricultural 
community. But also, deal with the other magnets of illegal 
immigration, and help other parts of the economy that are 
experiencing the same thing you're experiencing.
    So I'll end where I began. I'm for small deals. I'm for 
medium deals. I'm for big deals. But we're living in a world of 
no deals. To the American people, we've got a lot of problems. 
But what this hearing tells me, if we don't reform our 
agricultural system, food prices are going to spike in this 
country. It's going to become a national security problem. And 
a lot of American farmers are going to be out of business 
because they can't compete with foreign entities that don't 
have to deal with these problems. Thank you.
    Chair Durbin. Thank you, Senator Graham. I couldn't agree 
with you more, and we've at least got a little experience 
working together. And I hope that others will join us in our 
renewed effort. Senator Klobuchar.
    Senator Klobuchar. Thank you very much, Mr. Chairman. Thank 
you, both of you, for your work. I think that whether it is in 
the agriculture area, whether it's in manufacturing, whether it 
is in our nursing homes, or hospitals, it is very clear that we 
need reform. I have been a long supporter of comprehensive 
immigration reform.
    I was part of the original deal we had back when Bush was 
President where we had a few Democrats in the room. And we also 
had Senator Graham, I remember, in the room. Then we had the 
bill that when Senator Grassley and Senator Leahy were leading 
the Committee that passed through this Committee.
    And then recently, Senator Rounds, during President Trump's 
time, led a group that we came up with an agreement that would 
have greatly helped on this front. But, unfortunately, 
President Trump didn't support it. And so now we are where we 
are. And three times. Three times we came close. And I believe 
we need a reform that includes agriculture workers, but also 
includes other things like doctors, and nurses, and healthcare 
aides, and the like. And I just don't think we're going to be 
able to wait anymore.
    I'll start with you, Mr. Lytch. You discussed how you've 
been unable to fill all of your job openings with American 
workers. Last year, Minnesota had 6.9 job openings for every 
100 jobs in the State. The third highest job vacancy rate since 
the State started tracking data. It's the number one concern I 
hear in rural Minnesota--and not just in ag, but with 
restaurants, manufacturing, and the like. I am proud of our 
good economy in our State, but it's getting to the point, 
especially in some of our healthcare settings, where we simply 
don't have enough workers.
    As a business owner, could you talk about what challenges 
you faced? And also last year, Senators Cornyn, Coons, Tillis, 
and I urged the administration to fix the backlogs that keep 
seasonal workers and businesses that rely on them waiting. 
Could you talk about that, and what happens when there's a 
processing delay?
    Mr. Lytch. I'll be glad to. Thanks for the question. 
Similar to the story that Chairman Durbin shared about Shay 
Myers mentioning a couple of years ago his issues with 
asparagus. We had the same issue on our farm. December of 2021, 
we had 120 workers scheduled to come on December the 10th. 
There was delays at the State Department processing their 
visas--most of the workers that were all returning.
    We had about 160 acres of broccoli that was ready to 
harvest that we completely lost, were unable to harvest. Our 
loss on those fields of broccoli totaled somewhere around 
$600,000 which was a significant hit on our crop, and 
ultimately led to us losing pretty significant money for the 
season just because we lost that much because we did not have 
the workers to harvest it.
    So, I think one of my concerns going forward with the new 
OEWS wage desegregation, and one of the issues that that could 
create is like one of the issues that Chalmers mentioned on the 
increase in applications. So, I think a lot of employers are 
looking to do that. They're having to desegregate and list 
these different jobs on different contracts. And I'm worried 
that there's already significant delays within both DOL and at 
the State Department that this could create an even worse 
backlog. So that's a major concern going forward.
    Senator Klobuchar. Okay. Thank you. Ms. Tellefson Torres, 
you talked about human trafficking and how there have been ag 
workers that have fallen victim to that. Senator Cornyn and I 
led the Abolish Trafficking Reauthorization Act, clearly, a 
priority of this Committee to move forward. What additional 
protections are necessary to protect farmworkers from human 
trafficking?
    Ms. Torres. Well, thank you for the question, Senator. 
Well, we're here also talking about the need for legalization 
with a path to citizenship for farmworkers who are here 
undocumented. We're talking about the dignity of all 
farmworkers, and so H-2A workers who are coming into this 
country need to be able to understand that they can enforce the 
law themselves.
    And so this is why there is a need for equal rights, for 
the opportunity for H-2A workers to enforce their own rights. 
And really impose joint liability between employers, farm labor 
contractors, and recruiters to prohibit recruiting fees, 
prohibit wage theft to ensure that all of the different layers 
within the ownership and the people who are employing these 
folks understand that there shouldn't be any shenanigans. That 
farmworkers are here and need to be protected.
    So we really feel that it's necessary to have H-2A workers 
be part of the Migrant and Seasonal Agricultural Worker 
Protection Act. They're excluded at this point. We're not sure 
why. Why are farmers who have only domestic workers having to 
abide by this Act, and those who are bringing in H-2A 
guestworkers not having to abide by one of the only Federal 
protections that covers farmworkers? And so there's a lot that 
needs to be done.
    Senator Klobuchar. Well, that's for sure. So, thank you. 
And I do hope, Chairman, as we work on these, that we also in 
addition to getting the Farm Workforce Modernization Act--that 
I strongly support--that we look at other issues I raise with 
H-2Bs, with the healthcare area, our Conrad 30 bill, and the 
like. When we look at this, we look at other areas as well 
where we need to add more workers. It's just becoming a near 
crisis point in my State. Thank you.
    Chair Durbin. Thanks, Senator Klobuchar. Senator Grassley.
    Senator Grassley. Mr. Sequeira, I want to briefly discuss 
policy issues, and implications surrounding undocumented 
immigration, and amnesty. First, does providing a mass 
legalization program for undocumented immigrant farmworkers 
actually address the problem of shortages in the agricultural 
labor? And does such a program do anything to break the cycle 
of agricultural dependence on undocumented labor?
    Mr. Sequeira. Thank you, Senator. I think the easy answer 
to your question is, no. The data shows us that providing 
legalization--and there may be perfectly valid policy reasons 
to do so. But the data shows that that does not solve the 
workforce labor shortage. All of those workers, or nearly all 
of them who would receive legal status, are already employed. 
Providing them legal status, again, may have some benefits, but 
it doesn't create any more workers to fill any of the openings.
    Senator Grassley. Okay. Also to you, the last time you were 
before this Committee, I spoke about my concerns with the 1986 
Immigration Reform and Control Act, and issues with Special 
Agricultural Worker program. Does the Immigration Reform and 
Control Act offer us any cautionary tales with respect to the 
results of a mass farmworker legalization program?
    Mr. Sequeira. Yes, Senator, it does. Which is, it's the 
exactly wrong approach to take. Providing legalization without 
ensuring a workable future, reasonable guestworker flow doesn't 
solve the problem.
    The workers who were legalized under the 1986 amnesty 
quickly left agriculture to pursue other jobs in the economy. 
And no one can blame them for attempting to move up the 
economic ladder. That's part of the American dream. But those 
workers left agriculture and left additional openings that had 
to be filled, and with no reasonable means of filling them 
through any legal process. And with virtually no enforcement at 
the border, workers flooded across, and filled those jobs that 
the recently legalized workers had vacated.
    Senator Grassley. Okay. Then also for you. Several 
constituents have reached out to me regarding issues of the 
Labor Department's Adverse Effect Wage Rate, and the impact 
that it has on them. What changes would you like to see 
Congress or the Department of Labor pursue in terms of how the 
wage rule is calculated?
    Mr. Sequeira. Senator, I'm quite sure that everyone here 
will not stand around long enough to hear the long list in 
response to that question. I think, in short, the current wage 
calculation status is broken. Simply put. It's not rational. 
It's not transparent. And most importantly, it's not 
predictable.
    As we've heard today, being notified 30 days in advance 
that you're going to have to increase your wage rates 10, 15, 
20 percent per hour is an impossible business structure. 
Farmers are already committed for the year. They've already 
gone to the bank. They've already borrowed money based on what 
they expect their expenses are going to be. And the Department 
of Labor at the 11th hour will dramatically raise them. And 
they do this, year in and year out.
    It's worse this year because the Department has now pursued 
an entirely new methodology and theory for trying to raise 
certain wage rates. It's going to insert even more 
unpredictability and more complexity into the system. And the 
bottom line is, it increases costs for farmers by tens of 
millions of dollars.
    Senator Grassley. Mr. Carr, we all know that farmers are 
struggling to find stability for their labor pool. In your 
view, what are the main drivers of the agricultural sector's 
reliance upon undocumented immigration labor?
    Mr. Carr. When you say reliance on undocumented labor, the 
first and foremost is we have a society, a domestic workforce 
that is not choosing to do these jobs. It's definitely--it's 
clearly and amply pointed out when you see that less than 1 
percent of Americans apply for the over 300,000 H-2A positions 
authorized every year.
    So, it's an economic incentive for a foreign worker to come 
to this country. They're coming here not to migrate here and 
become citizens here. They're coming here for the economic 
opportunity. If we created a better guestworker program and 
reformed the H-2A program, we could solve this problem. And we 
could have a legal flow of workers coming in and out of this 
country to support our domestic food production.
    Senator Grassley. Thank you, Mr. Chairman.
    Chair Durbin. Thanks, Senator Grassley. Senator Coons.
    Senator Coons. Thank you, Chairman Durban, Ranking Member 
Graham for this hearing as well as for your leadership on this 
issue over so many years. And I'd like to thank all of the 
witnesses today.
    In my home State of Delaware, immigrant labor is absolutely 
key to agriculture. Roughly 40 percent of our State's land is 
in agriculture. Although we're a small State, ag is a big part 
of our economy. The family farms that are largest in my State--
Fifer, Vincent, Papen, others--all rely on immigrant labor to 
harvest our fruits and vegetables and are essential. And the 
badly broken H-2A system, and overall immigration system, 
imposes real and lasting costs.
    When I meet with farmers in Delaware, they raise the need 
for more reliable, more transparent, more fair labor system, 
and faster processing in order to feed our Nation and the 
world. And I think we need to be mindful that we owe the food 
on our tables to farmworkers who've kept these farms growing 
despite shortages, uncertainty, unpredictability.
    And in my view, their tireless, hard work under the sun 
must earn them a place outside the shadows of the American 
system. And to do that, we need to move, Mr. Chairman, towards 
an immigration system that is safe, humane, orderly, fair, and 
consistent with the rule of law.
    I was pleased to see an initiative last week by 
Representatives Salazar and Escobar to introduce a bipartisan 
Dignity Act. A bill that would include substantial investments 
in border security, significant reforms to our asylum system, a 
path to legal status for Dreamers and others if they meet work 
requirements, and reforms specifically to our agricultural 
workforce. It is clearly a work in progress, but it's a start.
    And it's clear to me that the ball is now in our court in 
the Senate to answer a simple question: What can we find 60 
votes to do, and to finally get done, particularly in this 
area, to address a system every Senator knows has fundamental 
flaws? So I'm committed to working with my colleagues to find a 
path forward, and I hope they will join me in doing so.
    For years, I've heard from Delaware farmers that the H-2A 
program's application process is too complex, too time 
consuming, too costly, too unpredictable. Many have to hire a 
consultant just to fill out the forms and pursue this. The 
process can't be sped up when needed to catch an early harvest. 
This past mild winter in the Mid-Atlantic caused whole fields 
of strawberries and asparagus to ripen weeks early. And 
multiple Delaware farms lost produce because their H-2A workers 
hadn't arrived yet, and there was no flexibility to allow them 
to arrive a week, or 2, or 3 earlier.
    Mr. Lytch, could you just talk a little bit about how 
you've seen that same dynamic, and what pending legislation 
might do to address the issues I just raised?
    Mr. Lytch. Yes. Thanks for the question, Senator. Like I 
mentioned earlier about--you brought a good point about crops 
maturing early. We're obviously picking a date out on the 
calendar that we want our workers to arrive. And so months in 
advance, 3 to 4, sometimes 5 months in advance when we start 
working on these applications.
    And obviously, Mother Nature deals us the card that we're 
dealt. So we have a seed to put in the ground when we think 
it'll be harvested. And so the uncertainty of that is pretty 
dramatic. I will say, for our operation, especially after the 
issue we had a couple of years ago with our crops getting 
ready, the crew not able to come. We've just had to kind of cut 
back on what we do earlier, what we're putting at risk, because 
we have a continued worry that that will happen.
    As far as legislation that's currently out there, I think 
any of them, obviously, it has to be a bipartisan effort. We 
understand that we have to have both sides, but we also need to 
address both parts. The workforce that is here, and we have to 
address these changes to the H-2A program. So we cannot have 
one without the other.
    Senator Coons. We've been achingly close over and over in 
the 13 years I've been here. Mr. Costa, I know I'm about to run 
out of time. I was struck by your testimony that addressing our 
economic workforce needs is not just a matter of reforming the 
employment-based system. It's about addressing those who are 
here who are undocumented, and providing lawful and orderly 
pathways for people to come here more generally. Could you just 
elaborate briefly on those points as well?
    Mr. Costa. Sure. Having a permanent status means, in 
practice, having labor and employment rates. It also means not 
being afraid to leave your house to go to work and show up at 
your job. And so that is one of the main ways that you can 
really stabilize the workforce and allow people to know that 
they can show up at work.
    In many cases, it'll also mean being able to join and form 
unions. Although, unfortunately, in agriculture, farmworkers 
are not covered by the National Labor Relations Act. So it 
wouldn't help farmworkers for that, but it would for other 
undocumented workers.
    Senator Coons. Well, what I've heard across the panel this 
morning was, first, that millions of people deserve to live 
without fear. And that those who are employers, who are 
farmers, need predictability, transparency. If we're going to 
have a legal system, we need to make changes here. And we are 
falling short of what all of you need and deserve. Thank you, 
Mr. Chairman.
    Chair Durbin. Thank you, Senator Coons. Senator Cornyn.
    Senator Cornyn. Thank you, Mr. Chairman. Thanks to each of 
the witnesses for being here today. The problem you're 
describing is real, and I just want to make sure everybody's 
clear. Mr. Carr, Mr. Lytch, you're not suggesting that any 
immigrant worker that has an H-2A visa would get a job that an 
American citizen was ready, willing, and able to perform. Are 
you?
    Mr. Carr. No, sir. You have to go through an application, 
and DOL has to certify that there are no domestic workers 
willing and able to take those jobs.
    Mr. Lytch. Correct. And we have to report to DOL the number 
of applications that we get for the jobs that we do have 
posted. You heard the number earlier, but we think it's less 
than one-half of 1 percent that apply for the jobs that we post 
and advertise for.
    Senator Cornyn. Well, I note that the Farm Workforce 
Modernization Act which passed the House last year hasn't even 
been reintroduced in the House of Representatives this year. So 
I'm not really sure what bill it is we're talking about. But as 
one or more of you have noted, there's no way anything's going 
to pass unless it passes both houses of Congress and gets 
signed by the President. Which means, by definition, it has to 
be bipartisan.
    And the House has passed a border security bill which could 
serve as a vehicle to do other things on the immigration issue. 
But so far, there hasn't been any indication from either the 
Chairman of this Committee with jurisdiction or Senator 
Schumer, who controls the agenda on the floor, that that is a 
priority for them. So that's part of our challenge.
    I hope we can come up with maybe a rifle-shot way to 
ameliorate some of the hardship associated with the H-2A 
program. I'm not optimistic that we are somehow all of a sudden 
going to have an epiphany and figure out how to do 
comprehensive immigration reform. I'm skeptical that that could 
happen. And one reason why is because the Biden 
administration's current policies are a magnet for illegal 
immigration.
    And Senator Graham, I agree with completely, has pointed 
out that the asylum system, as currently operated, again, is a 
magnet for people to come from all over the world to the United 
States, claim asylum, or be paroled. Which it means, to be 
released into the interior, and then being told, well, at some 
future date, maybe--maybe you'll appear in front of an 
immigration judge.
    I'll repeat something that I've said before, an experience 
I had when a bipartisan group of Senators went to the Yuma 
Sector, the Border Patrol Sector, the agricultural community 
there in Southwestern Arizona. We were greeted by the Border 
Patrol Sector chief who said, ``Welcome to the Yuma Sector. We 
have seen and encountered people from 170 plus countries that 
speak more than 200 languages at our Yuma Border Patrol 
Sector.''
    Those people, of course, under the current policies of the 
Biden administration were then released into the interior, 
either given a notice to appear for a future court hearing, or 
a notice to report to an Immigration and Customs Enforcement 
office for potential processing of their future and as yet 
unstated asylum claims.
    Senator Kelly, one of the Senators from Arizona, pointed 
out that Mexicali, which is a city in northern Mexico, just 
close--just not very far away from the Yuma Sector. So he said, 
``I suspect what happens is, people will fly in here from all 
around the world, and Uber--Uber over to the Border Patrol, and 
claim asylum.'' So there is so much wrong and broken with our 
current immigration system.
    I really feel like this hearing, as important as the 
subject is we're talking about, is almost a parody when it 
comes to how much our current system has failed, and how much 
we have failed as Members of Congress to address this in a 
rational, reasonable way. But it's not going to happen by 
either party trying to dictate what they want. The only way you 
pass things around here is in a bipartisan way, bicameral way, 
and something that gets a President's signature.
    I have not yet seen a serious discussion that would give me 
any optimism that that's in the process of occurring or may 
occur anytime in the near future. I hope I'm wrong. I've been 
here for two decades now, been involved in every immigration 
debate that we've had, tried to be constructive, and I wish to 
continue to be constructive. But the way that this issue is 
being handled by the administration, and the failure of 
Congress to deal with this in a realistic fashion doesn't give 
me a sense of optimism. Thank you.
    Chair Durbin. Thank you, Senator Cornyn. Farmers have to be 
optimists, I don't know how you would survive otherwise. We 
should be, too. I would take that as a charge from Senator 
Cornyn and accept it. Senator Blumenthal.
    Senator Blumenthal. Thanks, Mr. Chairman. My grandfather 
was a farmer. And not always optimistic because he had to deal 
with many of the obstacles that have been described here. The 
weather, the markets, and the need for people to work for him. 
And he was a farmer in Nebraska. He raised corn and cattle on a 
farm just south of Omaha, Nebraska.
    But I do think, in the interests of being constructive, to 
use my colleague's term, we can replicate the kind of process 
that we had in 2013 when we passed in this Committee--I was 
proud to be a part of it--a bipartisan effort, comprehensive in 
dealing with many of these issues. I think it's not only 
possible, it's obligatory at this moment in our history.
    So I would like to work with you, Mr. Chairman, and the 
Ranking Member in this effort. I have supported the Farm 
Workforce Modernization Act, which would expand the H-2A 
program by permitting year-round contracts. And in our State, 
dairy farmers and produce farmers are desperately in need of 
this additional workforce.
    But right now, this system, as the Senator from Texas said 
so well, is broken in fundamental and disastrous ways. One 
effect is not only on the prices of commodities for consumers, 
but also the human toll on workers, particularly in illegal 
trafficking. And I want to expand on the questions asked by 
Senator Klobuchar to you, Ms. Torres, dealing with the issue of 
trafficking. I know that your response to her was that one 
solution would be to include H-2A workers in the Migrant and 
Seasonal Agricultural Worker Protection Act, which would give 
them remedies and rights.
    My fear is that they would be reluctant in seeking to 
enforce those rights. They would be intimidated by the system. 
Perhaps there would be private efforts to aid them. But isn't 
the issue of enforcement fundamental even now to preventing the 
illegal recruitment fees and other measures that are right now 
a violation of law under our current statutes? Don't we need 
more aggressive enforcement by the Department of Labor?
    Ms. Torres. That would be a resounding yes. We do. We 
definitely need more increased DOL enforcement. You mentioned 
workers coming forth even when they do have rights. Right? 
Worker representation is also helpful. Right? Organizations 
that work directly with workers that can develop the trust, 
like unions, for example. It's important for workers to 
understand what their rights are. We're talking about very 
vulnerable workers who sometimes don't know how to read and 
write, even when I mentioned the indigenous workers that I've 
met with in Georgia.
    So it's important to understand that sometimes even the 
rights that workers do have aren't always--you know, the 
workers will say that the laws on the books are not the laws in 
the fields. And so it's really important that workers 
understand what is available to them. And I also want to just 
say that, you know, any legalization program would be 
undermined if we just move forward with H-2A changes in 
isolation. So, you know, any type of policy really has to be 
something that is addressing undocumented workers here, and 
that is addressing the H-2A worker protections that are needed.
    Senator Blumenthal. I would suspect, and I think you would 
agree, that the kinds of abuses that are documented in the 
Polaris Project, in Operation Blooming Onion--you refer to them 
in your testimony--are much more widespread and I agree with 
you that it has to be more than just one piece of this 
framework to prevent illegal trafficking, wage theft, other 
abuses. There has to be a comprehensive approach. Would you 
agree?
    Ms. Torres. I would definitely agree. Yes.
    Senator Blumenthal. My time has expired. Thanks, Mr. 
Chairman.
    Chair Durbin. Thank you, Senator Blumenthal. Senator 
Blackburn.
    Senator Blackburn. Thank you, Mr. Chairman. I want to pick 
up where Senator Cornyn left off, and really focus on the 
timing of this hearing. And this issue at the southern border 
is something that is a paramount concern. And this year, with 
you as the Chairman, we have not had a single hearing that 
really focuses on the crisis at the southern border.
    And we know that girls are being trafficked. They are being 
raped. We know what is happening with all the fentanyl that is 
coming into this country. We know the numbers of illegal 
migrants that are coming into this country. And while Title 42 
and the expiration of Title 42 loomed, this Committee, instead 
of focusing on that and the subsequent issues, we had a hearing 
about delegitimizing the Supreme Court.
    And we have literally focused on so many topics, just about 
everything, except what is happening at the southern border. We 
did have Secretary Mayorkas come before us. He basically 
refused to answer any question. You mentioned earlier the 
concern with child labor laws. That is something that concerns 
me also.
    But Secretary Mayorkas and Secretary Becerra, they've lost 
85,000 children. They don't know if they're being trafficked. 
They don't know if they're alive or dead. They don't know if 
they're in work gangs. They don't know if they're being abused. 
But, you know, Mr. Chairman, I think we need to focus on the 
entire crisis at that southern border.
    Now, in January of this year--and Mr. Carr, I want to come 
to you on the question--DHS proposed a new rule that would 
increase the application fees for the H-2A visas. Now, I think 
one of the things that is so troubling to Tennessee farmers 
that I talked to is here's this new asylum program fee which 
would charge employers seeking to sponsor immigrants for 
certain work visas, an unprecedented $600 per visa.
    Now, Tennessee farmers tell me that this is something that 
is making it just about unaffordable. And, of course, the fee 
is going to be there to support what is turning out to be a 
broken asylum system. And what frustrates a lot of our farmers 
is instead of rewarding people like you that are bringing in 
legal H-2A through a legal process, those that are able to be 
H-2A workers, that they're paying this fee, and then the fee is 
being used to prop up this illegal entry. And those that are 
trying to do it right are the ones paying the cost in more than 
one regard.
    So, I've enjoyed listening to your testimony, and you've 
been at this for years. And I want you to talk about--
specifically about this proposed rule, and the impact that that 
is going to have on farmers like you.
    Mr. Carr. Thank you very much, Senator. So the Department 
of Homeland Security in their justification for their fee 
increase, which they said they needed more staff and it was 
costing them more to do the applications, also put in there 
that a portion of that increase would go to paying for the 
asylum process.
    This is putting that burden on the workers--employers, such 
as myself, that are doing it legally and properly to pay for 
illegal workers coming into this country claiming asylum, which 
has nothing to do with agriculture. So I ask the question, why 
should agriculture be paying for this process?
    Senator Blackburn. Well, and what I hear from farmers is 
there is no efficiency that they are being given in this 
process. That it's still taking them longer for this backlog to 
be cleared and to get people cleared. And sometimes the crop is 
already ready for harvest before they're getting the okay. That 
there does not seem to be any urgency from DHS. Is that what 
you're seeing?
    Mr. Carr. I've seen those cases. What you have is a problem 
with the application process in itself. You have the ability 
for the Department of Labor to basically request further 
evidence, or give a notice of deficiency just because the 
complexity of the program. As these notices of deficiency go on 
and on, the timeframe of getting your workers moves out further 
and further.
    If we streamline the H-2A process, and made the application 
system more easy, allow for an attestation where the employer 
can certify that they understand the rules of the game and they 
will abide by the rules of the game, we could then get our 
workers in much more timely manner.
    Right now, we're not able to apply for H-2A workers. It's 
more than 75 days out from our date of need, but no less than 
60 days from our date of need. That's a 15-day window that we 
have to work in, and then we have to try to figure out all the 
hoops and hurdles that we're going to get.
    I've had notices of deficiencies on a contract written the 
year before that had no notices of deficiency given back to me 
the next year because a different reviewing officer looked at 
it and chose that there was something wrong with that 
application. Those inconsistencies are what's driving these 
delays.
    Senator Blackburn. Thank you. That's helpful. Thank you, 
Mr. Chairman.
    Chair Durbin. Thank you, Senator. I'd like to address the 
issues which you directed to the Chair when you suggested that 
we did not have a border security hearing. You were present, 
were you not, when Secretary Mayorkas came before us? I know 
you did. And it's an annual appearance by the Secretary, which 
was not the case before I took over the gavel. And he was here 
for virtually 3 hours all about border security. Start to 
finish. So to say that----
    Senator Blackburn. And refused to answer----
    Chair Durbin. Well----
    Senator Blackburn [continuing]. Mr. Chairman----
    Chair Durbin [continuing]. That's your conclusion, 
Senator----
    Senator Blackburn [continuing]. He refused to answer the 
questions.
    Chair Durbin [continuing]. You're entitled to your 
conclusion. The second point I want to make about a hearing on 
delegitimizing the Supreme Court. I sat here thinking, ``What 
is she talking about?'' Well, of course it has to do with 
Clarence Thomas and the gifts which he received, and whether 
the Supreme Court of the United States should have a code of 
ethics like every other Federal court. That is your 
construction of delegitimization of the Court, I don't see it 
that way.
    In terms of fentanyl, thank you for coming last night. You 
and Grassley. Senator Grassley came with a presentation from 
DEA. I hope you understood that it was a bipartisan effort, off 
the record, so that we both understood the issue better. We're 
not ignoring it. We're trying to address it in a constructive, 
bipartisan way. And I'll continue to do that if I can. Senator 
Hirono.
    Senator Hirono. Thank you, Mr. Chairman. I thank all of the 
panelists for your testimony. Clearly, we have a broken 
immigration system, both on the legal immigration side as well 
as the undocumented persons who are in our country, some 11 
million or so.
    Mr. Costa, I understand that in terms of the percentage of 
people who are in the ag sector who are undocumented, perhaps 
some 45 percent of the ag workers are undocumented. It's hard 
to tell because it's not an easy statistic to get. But a very 
large percentage of ag workers are undocumented. And then those 
with H-2A visas, these are legal migrants, constitute perhaps 
11 percent or so of those in the farm segment--ag segment. Are 
those accurate statistics?
    Mr. Costa. About 10--depending on how you count it, 
somewhere between 10 and 15 percent of the ag workforce. Yes.
    Senator Hirono. So of the 45 percent or so of the ag 
workforce who are undocumented, they are the most exploited in 
terms of recruiting fees, wage theft, and all of that. Correct?
    Mr. Costa. I would say they're very similarly exploited. I 
know that H-2A workers technically have a legal status, but 
they arrive here usually after paying illegal recruitment fees. 
Which leave them in debt. Which leave them sometimes more 
vulnerable than undocumented workers because they don't have 
family here and a network here.
    Senator Hirono. Thank you. I realize that it is not an easy 
thing to determine what steps we should take. Some of the 
information I have, for example, Mr. Costa, is that if we were 
to increase the legal pathways to enter our country--I'm not 
talking about pathways to citizenship. But just increasing, for 
example, our visa program, that it reduced illegal crossings at 
the southern border. Does that make sense to you? That if we 
were to increase the availability of legal visas that would 
decrease illegal border crossings?
    Mr. Costa. I have pushed back against the administration's 
efforts to channel the flows at the border into these 
indentured worker programs. I'm not sure, I think, it makes 
more sense to expand our asylum programs, and expand refugee 
numbers because the people who are showing up at the border are 
mostly people who need protections.
    Senator Hirono. So, I'm sorry, I'm running out of time. 
While there may be some connection, there are all these other 
issues with regard to persons presenting themselves at the 
southern border. I agree. I think both of--both you and Ms. 
Torres indicate--more so Ms. Torres--that H-2A workers perhaps 
should be covered under the Migrant and Seasonal Agricultural 
Worker Protection Act. I think Ms. Torres testified to that. 
Mr. Costa, would you agree that we should contemplate doing 
that?
    Mr. Costa. Yes, absolutely. And I would add on to what Ms. 
Torres said about labor enforcement in agriculture. Last year, 
we had the lowest number of inspections of agricultural 
employers that we've ever had on record. And the funding levels 
for the wage and hour division are at 2006 levels after 
adjusting for inflation. So there just aren't enough 
inspections to be able to protect workers in agriculture.
    Senator Hirono. Do the other panelists agree that putting 
everyone, all these ag workers, under the Migrant and Seasonal 
Agricultural Worker Protection Act would make sense as opposed 
to having two regimes? You know, the H-2A regime? Would you 
agree that we should consider putting everybody under the 
Migrant and Seasonal Agricultural Worker Protection Act? This 
is for the other three panelists who have not responded.
    Mr. Sequeira. Senator, I would not--I would not support 
that. Of course, ultimately, that's a decision for Congress. 
But when the Migrant and Seasonal Ag Worker Protection Act was 
passed by Congress, a conscious decision was made to exclude H-
2A workers.
    Senator Hirono. Yes, I realize that. But it doesn't make a 
heck of a lot of sense to me.
    Mr. Sequeira. It's----
    Senator Hirono. You disagree?
    Mr. Sequeira [continuing]. I would say yes. It is 
principally because there are no protections in the Migrant 
Seasonal Agricultural Worker Protection Act that don't exist in 
H-2A. And in fact, the H-2A program has far more. The one 
difference is, under the Migrant and Seasonal Ag Worker 
Protection Act, workers get a private right of action to sue 
their employers and Congress determined that was a bad policy 
to extend to H-2A employees.
    Senator Hirono. Well, in my view, giving the employees a 
right of action is probably--I would consider it a positive 
thing. Mr. Lytch, what do you think?
    Mr. Lytch. I would have the same concerns that he shared. I 
think there's a lot of protections under the H-2A program that 
are already granted. And it all boils down to, you know, what I 
mentioned. We treat our workers fairly. We want them to 
continue to come back. We have a lot of incentive to make sure 
that they're treated fairly, and so that they want to come 
back. We want the same skilled workforce to return year after 
year.
    Senator Hirono. Mr. Chairman, if I could ask Mr. Carr to 
respond also.
    Mr. Carr. Thank you. My H-2A workers are part of my family. 
I've been in this program for 25 years. I started with 175 H-2A 
workers in 1999. I have over 800 now. They've come, they've 
built their families, and what they've done is grown the 
prosperity for their families back home. So to think that we're 
going to mistreat them is absolutely erroneous.
    I would say to you also, if you come to my farm--and invite 
each and every one of you to come to my farm--every one of my 
farmworkers have cell phones with cameras and have access to 
the internet. If we were doing anything wrong, I would be on 
CNN tomorrow and every other farmer would be, too.
    But back to your question about the Migrant and Seasonal 
Worker Protection Act. There are more rules and regulations in 
the H-2A program that go far beyond protecting workers than the 
Migrant and Season Worker Protection Act does. What it does by 
putting into the program, as Mr. Leon Sequeira said, is it 
gives the right to private right of action. Which means that 
farmers are going to be carried into courts of law where 
they're not comfortable, particularly, maybe not even in their 
home State, to have to defend themselves, often, from frivolous 
lawsuits.
    Under the H-2A program, workers are guaranteed a wage. They 
have a contract for a wage, a contract for employment, and are 
provided free housing, and free transportation. Whereas any 
other workers in agriculture are not afforded or not given 
those rights. So I wonder why--what is the motive for putting 
the Migrant and Seasonal Worker Protection Act into the H-2A 
program other than having access to sue in the courts?
    Senator Hirono. Mr. Chairman, since that we have some of 
our panelists testifying against the Migrant and Seasonal Ag 
Workers regarding the private cause of action, could I ask a 
question of Ms. Torres----
    Chair Durbin. Sure.
    Senator Hirono [continuing]. On that point----
    Chair Durbin. Yes.
    Senator Hirono [continuing]. Or Mr. Costa?
    Mr. Costa. I'll give you a data point on it as well.
    Senator Hirono. Under the Migrant and Seasonal Agricultural 
Worker Protection Act where workers do have a private cause of 
action, are we seeing thousands and thousands of private 
lawsuits in this area? Mr. Costa, perhaps you're the person to 
ask.
    Mr. Costa. Absolutely not. What we saw for the workers who 
actually have that right to bring a private action, I believe 
there were 33 lawsuits nationwide last year out of the entire 
farm workforce.
    Senator Hirono. Thank you very much. Thank you, Mr. 
Chairman.
    Chair Durbin. Thank you, Senator Hirono. Mr. Carr, I hope 
the only reason that you're going to appear on CNN is for the 
quality of your peaches. Senator Kennedy.
    Senator Kennedy. Thank you, Mr. Chairman. It seems to me 
that America was born on a farm and you can't operate a farm 
without workers. We can't feed ourselves or our world's 
neighbors without farmworkers. And sometimes we need help from 
neighbors who live in foreign countries. Is that a fair 
statement, Mr. Costa?
    Mr. Costa. Yes. I believe immigrants play an important 
role.
    Senator Kennedy. Mr. Costa, do you believe that illegal 
immigration is illegal?
    Mr. Costa. Under the statutes, yes.
    Senator Kennedy. Okay. Mr. Sequeira--am I saying your name 
right?
    Mr. Sequeira. Yes.
    Senator Kennedy. Do you agree with that statement?
    Mr. Sequeira. Yes, sir.
    Senator Kennedy. Mr. Costa, what grade, A, B, C, D, F, 
would you give President Biden's administration on combating 
illegal immigration?
    Mr. Costa. I don't know what grade I would put. I think 
they've made some useful improvements. But, you know, I think 
that the border has--there's so much money going to the border 
that I think the border is mostly secure. People are mostly 
turning themselves in. They're not really crossing the border 
without authority.
    Senator Kennedy. You can't give a grade? You're an expert 
on immigration and you can't give a grade?
    Mr. Costa. Oh, I guess if I had to, that it'd probably be 
about a C, right in the middle somewhere.
    Senator Kennedy. A C or a D?
    Mr. Costa. A C, because they kept some Trump policies in 
place. They've made some improvements that's sort of in 
between.
    Senator Kennedy. Okay. How about you, Mr. Sequeira?
    Mr. Sequeira. Are we grading on a curve, Senator?
    Senator Kennedy. No, sir.
    Mr. Sequeira. I would be generous and say a D minus.
    Senator Kennedy. Okay. All right. Can we agree that either 
President Biden's administration believes in open borders or 
the person that he has put in charge of making immigration 
policy is not qualified to manage a food truck?
    Mr. Costa. I would fully reject the notion that the Biden 
administration believes in open borders.
    Senator Kennedy. Okay. How about you, Mr. Sequeira?
    Mr. Sequeira. At the risk of being too lawyerly, I might be 
interested in the definition of open borders. I think it's 
certainly fair to say there is a lack of significant 
enforcement at the border. And in fact, my clients who try to--
--
    Senator Kennedy. Let me try to put a finer point on it. 
Right now, we have conscientious farmworkers who live in other 
countries. Some of whom have worked here before. We have 
Nigerian doctors, we have German engineers who are waiting 
years, patiently in line trying to follow the rules of legal 
immigration to come into our country. But yet, the Biden 
administration will welcome anybody who can either secretly or 
less than secretly come into the United States from the 
southern border. Is that not correct?
    Mr. Costa. I don't believe so. I believe that the people 
showing up at the border are mostly seeking humanitarian 
protections because there's a dire need in this hemisphere.
    Senator Kennedy. How about you, Mr. Sequeira? Do you think 
that my description is correct?
    Mr. Sequeira. I do, Senator. And that seems to be obvious 
from watching the evening news.
    Senator Kennedy. Well, the agencies responsible for the 
legal immigration system, Mr. Costa, are failing to process 
applications promptly. Aren't they?
    Mr. Costa. For--I would say it depends. For low-wage work 
visas, they are mostly processing them quite quickly. I'd say--
--
    Senator Kennedy. We've got a backlog of 24 million 
applications. What do you mean, it depends?
    Mr. Costa. It depends on which visa you're talking about. I 
would say for H-2B, for instance, the USCIS prides themselves 
on how quickly they process those visas. When it comes to other 
things, like work permits, they've been slow. And I think the 
problem is that Congress has not appropriated funds for them. 
They have this----
    Senator Kennedy. It's always on money.
    Mr. Costa [continuing]. Fee-based structure.
    Senator Kennedy. We now have a larger Federal budget--
adjusted for inflation--than we've ever had in the history of 
the United States of America.
    Mr. Costa. With all due respect----
    Senator Kennedy. It's always the money. Mr. Sequeira, what 
kind of job do you think that the Biden administration has done 
with legal immigration with a 24-million-person backlog?
    Mr. Sequeira. I think any fair estimation is that it's 
poor.
    Senator Kennedy. Well, can we agree that legal immigration 
is good and illegal immigration is bad?
    Mr. Sequeira. I would think so. The country is founded on 
immigration, people coming here from other countries. Legal 
immigration is good. Yes.
    Senator Kennedy. Does anybody disagree with that statement? 
Does anybody want to defend the Biden administration's 24-
million-people backlog in legal immigration, but yet millions 
have come illegally across the border? Does anybody want to 
defend that? Anybody? Thank you for being here.
    Chair Durbin. Senator Padilla.
    Senator Padilla. Thank you, Mr. Chair. I want to thank you 
and Ranking Member Graham for convening this hearing. There's 
limited time and a couple of important questions I want to make 
sure to get in. So let me get right to it and I'll ask 
responses to be under a minute, if at all possible.
    Clearly we have established today that farmworkers play a 
critical role in ensuring our domestic food supply is both 
secure and sustainable. Farmworkers--and I've seen this 
firsthand--work in jobs that are among the most dangerous, the 
most strenuous, and yet the least compensated in the country. 
And far too often with the fewest labor protections.
    As Mr. Lytch stated in his testimony, food security is 
national security. And that could not have been clearer than 
what we all saw during the height of the COVID-19 pandemic. 
It's one of the many reasons that the first bill I introduced 
in the Senate was my Citizenship for Essential Workers Act.
    My first question is for Mr. Costa. Agricultural workforce 
industry employs about 400,000 workers. Given the significant 
overrepresentation of undocumented immigrants in the industry, 
how could providing a pathway to legalization for farmworkers 
bolster the U.S. economy and trade relations?
    Mr. Costa. Well, it would bolster the economy by allowing 
immigrants to have rights in the workplace, labor and 
employment rights, and be able to better themselves. And their 
wages would rise, and they'd be able to pay taxes, and have 
just the security of being able to go to work. And I would say 
it's actually 800,000 workers in California--400,000 is full-
time jobs. So it's a very large number of workers that need 
those protections.
    Senator Padilla. Thank you. I'll just add to that that they 
are paying taxes. Taxes into programs that they are not 
eligible to benefit from. So it's in a benefit to the----
    Mr. Costa. Agreed. That they'll be able to----
    Senator Padilla [continuing]. Federal Government and to the 
U.S. economy.
    Second topic. As temperatures continue to rise across the 
country, more and more workers, including farmworkers, are at 
increased risk of heat illness. Which can often lead to not 
just cramps, but organ damage, heat exhaustion, stroke, even 
death. In fact, according to a recent Public Citizen report, 
heat stress is expected to kill 2,000 workers, and cause an 
additional 170,000 workplace injuries across the country. 
That's why I've introduced the Asuncion Valdivia Heat Illness 
and Fatality Prevention Act. Ms. Torres, can you discuss what 
protections exist for farmworkers currently that suffer from 
heat-related injuries, or what Congress can do to better 
support these protections?
    Ms. Torres. Thank you, Senator. Well, for most farmworkers 
there remains no requirement that would provide access to shade 
for periodic breaks, to be able to get a reprieve from the sun, 
something that basic. At the national level, there is no heat 
standard.
    And clearly, the bill that you have introduced as Asuncion 
Valdivia bill would basically do what we have done in 
California where farmworkers do have access to be able to take 
paid breaks whenever they need them when it is hot so that they 
can get that reprieve, and, you know, the type of water and 
access to water that they would need. So these are all very 
important things and so we certainly encourage having that 
Asuncion Valdivia Act pass. California is only----
    Senator Padilla. And I was just going to add, and to be 
clear, we're not talking about shade and cool drinking water as 
a luxury or as a----
    Ms. Torres. It's basic.
    Senator Padilla. We're talking about basic protections in 
conditions that are on a very regular basis. In other parts of 
the country, but particularly the west, temperatures of 110, 
120 degrees from sunrise to sunset. Extreme weather conditions.
    The last topic, if I can get to it quickly, deals with 
worker protections. Despite the grueling and dangerous work, 
farmworkers themselves often struggle to feed their own 
families because of low wages. In fact, official data tells us 
one-third of farmworkers live below the poverty line. I 
actually think the real number is bigger. Fewer than half have 
health insurance or paid sick leave of any kind. They do not 
qualify for unemployment insurance or other social safety net 
programs because of their undocumented status.
    And most farmworkers do not have the right to collective 
bargaining. And without that they can be retaliated against for 
organizing, or for reporting unfair labor practices, or even 
complaining about working conditions. That's why I've 
introduced the Fairness for Farmworkers Act, last Congress, 
that would have guaranteed overtime. Simple concept. Overtime 
pay, and additional minimum wage protections for farmworkers. 
Can you describe for a minute what some of the protections that 
have been gained in California, and how they've helped workers?
    Ms. Torres. Absolutely, Senator. Well, you know, overtime 
pay, as you mentioned, is something that farmworkers around the 
country don't usually get to experience. And so in California, 
we were able to pass an overtime law that allows for 
farmworkers to be able to get overtime after 40 hours' worth of 
work. Prior to that, workers could work up to 60 hours or 
more--that's 6 days a week, often working 10 or more hours a 
day. And so what time do they get to spend with their children?
    You have farmworkers now who are able to spend that time 
with their kids. They are able to get overtime like any other 
worker after they work those 40 hours. So it makes a huge 
difference in the quality of their life, but in addition for 
their paycheck. Right? It makes a difference to be able to get 
paid for the very deserving back-breaking work that they do.
    Senator Padilla. Thank you. And Mr. Chair, I know my time 
is up, but I just can't help but to request a fact check. 
Earlier in the hearing, Senator Graham cited a statistic 
suggesting that 60 to 75 percent of our farm workforce are 
immigrants, and was surprised that it's not a higher figure. My 
understanding is that 60 to 75 percent figure refers 
specifically to undocumented immigrants. If we were to add 
lawful immigrants, visa holders, and otherwise, the figure 
would clearly be a lot higher. And I'd be surprised if the 
total figure isn't in the mid to high 90s.
    Senator Graham also implied that providing permanent 
protections for farmworkers would serve as a magnet for 
migrants and lead to a surge at the border. Let's be real. 
Republicans said the same thing about the lifting of Title 42, 
and the surge did not happen. For Members wanting to address 
irregular migration, we have to acknowledge that the pressures 
created for irregular migration are in large part driven by how 
hard we make it to come to this country lawfully. Whether it's 
the process. Whether it's the backlogs. Whether it's the caps.
    Mr. Chair, there was no surge when Title 42 was lifted. 
There will be no surge if we pass the Farm Workforce 
Modernization Act. There will be no surge if we pass the DREAM 
Act. To paraphrase Senator Graham, once again. We can do a 
small deal. We can do a medium deal. We can do a big deal. But 
my God, let's get past the pretext. Let's get past the excuses. 
Let's get past the rhetoric. And let's do a deal that's good 
for growers, good for workers, good for consumers, and good for 
our national security. Thank you, Mr. Chair.
    Chair Durbin. Thank you, Senator Padilla. Senator Ossoff.
    Senator Ossoff. Thank you, Mr. Chairman. And let me begin, 
Mr. Chairman, by thanking you for being so responsive to my 
request to bring the Committee together. To bring 
representatives of growers and farmworkers together to work at 
a solution here.
    And I just want to share with you, and with our panel, and 
with the public that I feel optimistic that we are on the cusp 
of getting something done that will protect farmworkers from 
abuse, that will protect growers from the uncertainty and 
volatility of AEWR, and that will address the reality that's 
been acknowledged by every panelist here today: That 40 to 50 
percent of the farm labor workforce is undocumented, but 
lacking any pathway to legal status which puts both farm 
operators, and growers, and those workers at risk.
    And so I'm optimistic, Mr. Chairman, because the solutions 
are staring us right in the face. And we almost got there last 
Congress. And thanks to Senator Bennet's leadership, intensive 
bipartisan negotiations, we were this close to achieving 
something that has eluded Congress for decades.
    And the service that you, our panelists, have done today 
for this Committee is to illustrate that now is the time. The 
current situation is untenable for growers. The current 
situation is untenable for workers. We have the power in this 
Committee and this Congress to act, and to build upon a 
bipartisan framework that exists.
    And I'll tell you that when I talk to growers in Georgia--
and I'm proud to represent Georgia's extraordinary agricultural 
sector--they see it the same way. They support legislation that 
will give them certainty and stability on AEWR and that will 
strengthen protections for farmworkers. Because we all know 
that while the overwhelming majority of growers do the right 
thing, and want to keep bringing back H-2A laborers year after 
year, and build strong relationships with their employees, that 
there is abuse. That it's unacceptable and that Congress can 
take action to prevent it.
    Operation Blooming Onion, a DOJ prosecution in Georgia, Ms. 
Torres, just after those revelations of shocking abuse were 
made public, I led a letter from Senators to State labor and ag 
requesting administrative reforms to protect workers. Ms. 
Torres, it is the case, is it not? And look, and growers and 
farm operators in Georgia, they recognize this as well, that 
there is abuse, and we can and must do more to prevent it. You 
agree, Ms. Torres?
    Ms. Torres. I would definitely agree, Senator. It's 
necessary to do more in it. Just circling back to this Blooming 
Onion case that you talked about. The DOL cannot do this work 
alone. Right? That case, specifically, required multi-agency 
involvement. We're talking about DHS, the FBI, the State U.S. 
Attorney. And so it's a multifaceted effort because we are 
dealing with egregious abuse. But that was not a one-off case. 
We are seeing over and over again, hearing from farmworkers who 
are calling us and calling our team in different States that 
are talking about the type of abuse that they're experiencing.
    Senator Ossoff. Thank you, Ms. Torres. And Mr. Lytch, I 
found your testimony encouraging and you echoed the sentiments 
I hear from Georgia growers every day, which is they want a 
commonsense, bipartisan solution because the current situation 
is untenable. Can you describe the impact, the uncertainty that 
growers face when they're suddenly saddled with a double digit 
increase in the AEWR, and they haven't had the ability to plan 
with certainty, and they're facing other input cost hikes?
    Why is it necessary that as part of a comprehensive bill 
that will address labor and human rights protections, that will 
provide a path to legal status for the undocumented farm labor 
workforce, that we address the urgent needs of growers to get 
certainty and stability on their costs?
    Mr. Lytch. Absolutely. Senator, I want to thank you for 
your work on the bipartisan effort that you tried to lead on 
this. It's a very important issue, and I think you stated that 
well. As far as the uncertainty related to the AEWR, we just 
don't have enough time to plan. We cannot--no one could 
rightfully say that they could manage a business that you could 
foresee a 15 percent, double-digit increase literally in 30 
days. And no one would manage their business that way. And we 
as growers can't either. The costs are just unsustainable.
    So the effects that it will have on us is that we will just 
have to look at the crop mixes that we produce. We have a major 
operation in Moultrie, Georgia. We're proud to be Georgia-grown 
and we want to keep it that way. So we want to be able to grow 
the diversity of crops that we have there, but we have to have 
some certainty around the wage rates for sure.
    Senator Ossoff. Well, thank you for your work in Georgia. 
And let me just close, Mr. Chairman, by saying that if we can 
just disentangle this from Washington politics, we can 
strengthen labor and human rights protections for workers which 
is urgently needed. We can address the need of an undocumented 
farm labor workforce, and it's a need shared by those workers 
and growers to get on track to legal status.
    And we can address these issues around the AEWR that are 
causing so much instability, and so much uncertainty for 
growers in Georgia and across the country. What it's going to 
take is political will. And I want growers across the country 
to know that we're this close and we need voices raised across 
the Nation for Congress to take up that legislation that was 
almost passed at the end of the last Congress. Sit back down at 
the table and pass legislation to address these issues. Thank 
you all. Thank you, Mr. Chairman.
    Chair Durbin. Thank you, Senator Ossoff. And once again, I 
want to thank you and Senator Tillis for requesting this 
hearing. Senator Whitehouse, then Senator Welch.
    Senator Whitehouse. Thank you, Chairman. First of all, let 
me say that I don't know that there's a better Chairman and 
Ranking Member to breathe a little life into immigration reform 
here. I've been involved in at least three separate bipartisan 
immigration reform efforts. You've been at the center of many 
of them, particularly with respect to the Dreamers. And Ranking 
Member Graham has been heavily involved in them. And hearings 
like this, I think, give us some hope for some significant 
progress.
    So there's also obviously real problems with not having an 
adequate farm workforce. And I'd like to ask Mr. Costa, 
American families saw food prices jump pretty dramatically 
recently. Do you assign any connection between that price jump 
and labor disruptions, inadequacy of the workforce, food left 
in fields, and the difficulty of farmers finding a steady and 
reliable workforce?
    Mr. Costa. I actually do not. My colleagues at the Economic 
Policy Institute have shown that most of the price increases 
from inflation have come from corporate profits and not from 
labor costs. There just isn't a connection there.
    Senator Whitehouse. And would it be to our advantage to 
have more reliable and stable farm workforce both in the 
farming community and for consumers?
    Mr. Costa. Absolutely. No question.
    Senator Whitehouse. That is why? I'm asking you an obvious 
question, but it'd be helpful to have you just go ahead and 
explain why.
    Mr. Costa. Because we need--having an adequate food supply 
is a national security issue, I believe. And I think that, you 
know, farmers need to have the workforce that they have. And 
farmers and the agricultural industry plays a very important 
role in many communities, including the one that I grew up in.
    Senator Whitehouse. Mr. Chairman, I'd like to follow up on 
Senator Padilla's comments about safety and respect for the 
farm workforce. And with the Supreme Court now so much the 
center of attention, I'd like to just recall the Cedar Point 
decision which barred union access to farms. Like so many of 
the decisions of this Court, this was a partisan decision. It 
was 6-to-3.
    Like so many of these decisions that undo precedent and 
advantage corporations over regular people, this one was 
heavily populated with front group amici, and even front group 
litigator groups. In fact, the litigation was such a sham just 
to get an issue to the Supreme Court where the litigation 
groups knew they'd get a partisan victory that they actually 
went into the lower courts asking to lose.
    Think about that for a minute. I've tried a bunch of cases, 
and I've sure as heck been around a lot of trials, and I've 
supervised a lot of lawyers who try cases. And going into court 
and saying, ``Your Honor, I'd like to lose, and as quickly as 
possible,'' that's not something you see much. And then getting 
up to the Circuit Court of Appeals and saying, ``Your Honors, 
we'd really like to lose, and as quickly as possible.''
    I think that kind of behavior sends a very strong message 
about how predictable this Court is and why. And we don't talk 
about Cedar Point as much as we do about, say, Janus, the labor 
case, Friedrichs, its predecessor, which had these same 
characteristics of front groups coming in.
    In the case of Janus and Friedrichs, the front groups 
actually swapped position. So in one case, they're the 
litigating group. In the next case, they're the amicus group. 
And the amicus group in the front case becomes the litigating 
group in the second case. And the lawyers go in saying, ``Your 
Honor, we'd like to lose, and as quickly as possible.'' It's a 
telling signal about what is wrong at the Supreme Court, and I 
wanted to remark on that today. Thanks very much.
    Chair Durbin. Thank you, Senator. Senator Welch.
    Senator Welch. Thank you very much, Mr. Chairman and to 
Ranking Member Lindsey. And I want to associate myself with the 
remarks of all of my colleagues.
    In Vermont, it's the dairy industry that is absolutely 
critical to the well-being of our agricultural economy. They 
really account for two-thirds of the milk supply in the New 
England market. And also in Vermont, all of us who are not 
farmers benefit by the custodial connection they have to 
keeping 80 percent of our open land open. And our farms need 
workers and workers need protections. And everything I've heard 
from the panel suggests that you agree with that.
    We've got to fix this. And it's really caught up in the 
situation at the southern border. And that becomes an excuse 
not to do anything that can be done concretely that will be 
beneficial to the agricultural community and agricultural 
workers throughout the country. You know, in Vermont it's 
dairy. I guess in Georgia you claim it's peaches. We got some 
pretty good peaches in Vermont, but we'll give you that for 
purposes of discussion.
    But the point here is that local agriculture is incredibly 
important to the well-being of all of our communities. And it 
is dairy in Vermont. It is perhaps peaches in Georgia. But 
bottom line, all those farms need the workers. And I appreciate 
the comments that you've made.
    And the problem is in Congress because instead of 
coalescing around doing something that will be beneficial to 
the agricultural sector that is part of our local regions, the 
specter of doing anything that politically can be seen as 
winning or losing on the whole southern border situation gets 
in the way of us doing anything that would be beneficial all 
around the country.
    So a big issue for us in dairy is that the H-2A program is 
not available and you've got to milk cows 365 days a year. So 
having seasonal workers as opposed to permanent workers just 
doesn't work. And, you know, in my discussions with our 
workers, I went to the Open Door Clinic, which is a healthcare 
facility that was started by some volunteers in Middlebury, 
Vermont, for many of the agricultural workers.
    Initially, farmers were somewhat skeptical and apprehensive 
because there's legal questions that everybody's living with, 
looking over their shoulder all of the time. But this Open Door 
Clinic is now embraced by the farmers. It's been a tremendous 
benefit for the workers. But you know what? It's pretty 
shocking to me that that has to be a big deal. Shouldn't you be 
able, in the total plain light of day, go see a doctor for a 
medical situation?
    I mean, it's pretty outrageous that the failure of Congress 
to act to protect people who are doing what we all acknowledge 
is fundamentally essential work, milking our cows. Really 
acknowledge that it's hard work, then dignified work, and that 
folks who do that have to be worried as to whether they'll get 
picked up because they're getting a medical checkup, I mean, 
that's really on us.
    So, you know, my hope is that we will be able to come 
around together to pass something comparable to what I voted 
for when I was in the House last year, and that's the 
Modernization Act. And is there anyone on the panel who would 
like to just comment--just go down quickly--about the benefits 
of Congress coming together on that bill? And I'll start with 
you, Ms. Torres. And thank you for all your work----
    Ms. Torres. Thank you----
    Senator Welch [continuing]. Over the years.
    Ms. Torres [continuing]. Senator. I appreciate that. Yes, 
we've been working on this for two decades now. And as you 
mentioned, the Farm Workforce Modernization Act was incredibly 
important. I mean, we really showed on the farmworker movement 
side that we were negotiating and compromising in good faith. 
You mentioned the year-round jobs, you know, in the context of 
legalization for undocumented workers, and further protections 
for H-2A workers--we actually compromised on that.
    We have supported expansion of the year-round guestworker 
program with a cap, but in the context of the entire program 
that we discussed. And I want to say, for year-round jobs, 
these are some of the most coveted jobs that farmworkers want 
because most of the work is seasonal. Workers who are U.S. 
based, domestic citizens, lawful permanent residents want these 
types of jobs.
    And so, you know, we need to have a conversation in 
addition to the FWMA, and then, when we're talking about the 
Adverse Effect Wage Rate, that farmworkers need to be making 
more money, not less.
    Senator Welch. Thank you. My time is up, but I want to 
thank the panel and my colleagues. I yield back.
    Chair Durbin. Thanks a lot to my colleagues on both sides 
of the aisle for coming together for this hearing. It's timely, 
it's important, and I really believe it's a test. A test for 
Congress. One of my colleagues was asking for grades on the 
performance of the President. What would be the grade on the 
performance of Congress when it comes to immigration? Failed 
grade, I'm sure, by every standard. To wait for 30 years and to 
watch the situation grow as desperate as it has, not only at 
the border, but with businesses and farms represented here 
today.
    I've been involved in this immigration debate. My mother 
was an immigrant to this country--I proudly add--and I think 
I've made a contribution as her son. As my kids will, too. 
That's part of America. Immigration has made us what we are 
today. But there are Members of Congress, make no mistake--and 
I won't name names--who believe that we don't need one single 
immigrant. Not one, for any reason. They believe that 
passionately. And I know because I've heard their speeches over 
and over again.
    So we have a challenge. And the challenge, I think, is to 
do it right, and do it quickly. Now, that may be too much to 
ask with a divided Congress, but we certainly should put the 
effort into it. I've been involved in comprehensive immigration 
reform and I believe that is the only way to address this. To 
say, ``I'll just pick my immigration issue, and I don't want to 
talk about anything else.'' Everything's connected, my friends. 
This is a connected Nation, and a connected economy, and we 
ought to have a sensible policy.
    Look what's going on at the border now. We are saying, if 
you come across the border with an appointment--with an 
appointment, we'll consider your case. But if you're turned 
away and you try to come back a second time, you'll be 
disqualified for 5 years from ever returning. Guess what's 
happening? Fewer are coming. They don't want to get that 
second-time jeopardy. It's understandable.
    We also say that if you had immigration quotas for certain 
jobs people will line up to take those jobs. They believe they 
have a chance to get from their country to our country in a 
legal fashion. And that is appealing to them. I've talked to 
the folks coming off of those buses in Chicago over and over 
again. I cannot imagine Carlos taking his wife with a nursing 
infant, and a 4-year-old daughter, and making that trip through 
the Darien Gap.
    I've seen what circumstances they face. How desperate they 
have to be. And their first question to me in Chicago is not, 
``Where is the welfare office?'' Their first question is, 
``When can I go to work? Anything. Tell me, Senator. 
Anything.'' They want to work and they want to work hard.
    And I believe--I thank Mr. Lytch and Mr. Carr for being 
here. I believe that you are conscientious, fair-minded people 
that are trying to make a living at a very tough job, running a 
farm operation. There are people who take advantage of other 
people in everything. In business, in farming, in politics. It 
happens. And I wouldn't blame any of that on you. I believe, 
based on my impression of your performance today, that you are 
in it for the right reasons.
    So now what are we going to do? Senator Ossoff, you're in 
charge of this, my friend, from this point to talk about the 
next step. I want to rely on you and Senator Tillis, who asked 
for this hearing, to meet with Senator Bennet, which I'm sure 
you've done already, and to talk about a practical step to move 
towards some bipartisan hearing or markup in this Committee so 
we can get this issue moving. We've got to get off dead center 
and do something. And I think we're the only Committee that can 
on the Senate side. And I'm looking to you for inspiration and 
leadership. And I know you'll deliver.
    With that, the Senate Judiciary Committee stands adjourned.
    [Whereupon, at 12:13 p.m., the hearing was adjourned.]
    [Additional material submitted for the record follows.]

                            A P P E N D I X

              Additional Material Submitted for the Record


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


                  Questions Submitted to Daniel Costa
                           By Senator Hirono

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


             Questions submitted to Diana Tellefson Torres
                           By Senator Hirono

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


                 Responses of Daniel Costa to Questions
                      Submitted by Senator Hirono

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


                  Responses of Adam Lytch to Questions
                     Submitted by Senator Klobuchar

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


                 Responses of Diana Tellefson Torres to
                 Questions Submitted by Senator Hirono

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


                             [all]