[Congressional Record Volume 151, Number 46 (Monday, April 18, 2005)]
[Senate]
[Pages S3767-S3770]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




           BLUE CARD ALTERNATIVE TO H-2A GUEST WORKER PROGRAM

  Mr. CHAMBLISS. Mr. President, I rise to discuss an amendment that I, 
along with my friend from Arizona, Senator Jon Kyl, have introduced. 
This amendment represents a practical alternative to S. 359, which has 
been introduced by Senator Craig, commonly known as the AgJOBS bill. My 
hometown of Moultrie, GA, is located in Colquitt County. It is one of 
the most diversified agricultural counties in the country and often 
referred to as the most diversified agricultural county east of the 
Mississippi River. During my 26 years of practicing law, before I came 
to Congress I represented farmers who grow almost every kind of crop 
there is. These farmers, as do most farmers in America, depend very 
heavily upon migrant labor for their means of planting, harvesting, and 
getting their crops to market.
  Up the road from my hometown is the Georgia peach growing area, which 
also produces most of the pecans that are grown in the country today. 
So, firsthand, I recognize the need for a stable and legal agricultural 
workforce.
  From my perspective as a former member of the House Permanent Select 
Committee on Intelligence and my present position as chairman of the 
Senate Agricultural Committee, I understand that our country's need for 
a secure and reliable domestic food supply is an issue of national 
security. This legislation addresses those needs without providing 
amnesty to our current illegal agricultural workforce. Instead, we take 
a two-pronged approach. First, this legislation modernizes and 
streamlines the current H-2A program. Secondly, it creates a temporary 
agricultural guest worker program called the blue card program.

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  Let me give a little background on the present H-2A program and why 
so few agricultural employers utilize it.
  The H-2A program is a program for non-immigrant, work-related, 
temporary visas authorized by the Immigration and Naturalization Act. 
It is regulated and administered by the United States Department of 
Labor. Although its purpose is to allow producers to have access to an 
adequate legal seasonal workforce when domestic workers are 
unavailable, participation in the H-2A program is time consuming, 
bureaucratic, and inefficient.
  A producer must complete a complicated application process which 
involves sequential approval by a State agency and three Federal 
agencies. As presently designed, administered, and enforced, H-2A 
employers must complete a great deal of paperwork during the 
application process. They must then coordinate and track their workers 
through a Bureau of Customs and Immigration Services and State 
Department visa approval system. Once the workers are present on the 
farm, these employers must also comply with all aspects of the 
Immigration and Naturalization Act, the Migrant Seasonal Protection 
Worker Act, the Fair Labor Standards Act, and various OSHA regulations 
regarding housing and field sanitation.
  Redtape aside, another serious issue with the current H-2A program is 
that it requires employers to pay the Adverse Effect Wage Rate, which 
is determined by an archaic survey conducted since the 1930s. This 
survey was never designed to capture prevailing wages within a specific 
geographical area nor does it specify the type of work that is being 
done for that wage. In my home State of Georgia, the present wage an 
employer must pay for an unskilled farm worker is $8.30 per hour. This 
wage is in addition to free housing and reimbursement for all 
transportation costs. All of these expenses make it very difficult for 
these H-2A employers to compete with producers who do not or cannot use 
the program and who then pay workers they are able to find between 
$5.15 and $6.15 per hour.
  We have millions of illegal workers on farms in this country. We have 
a program that will allow growers to use legal workers. The fact so few 
agricultural employers take advantage of H-2A is simple. It is too 
complicated, too costly, and much too litigious.
  The legislation that Senator Kyl and I have introduced simplifies the 
H-2A program by streamlining the application process to involve fewer 
Government entities in the final approval. Under this bill, employers 
who wish to use H-2A workers will go through an attestation process, 
rather than a lengthy bureaucratic labor certification process. 
Employers will be allowed to attest to the Department of Homeland 
Security that they have conducted the required recruitment and were 
unable to find an adequate number of domestic workers to fill their 
labor needs. The Department of Labor will maintain its roll as an 
auditor to punish those employers who willfully violate the conditions 
that must be met in the attestation process to obtain H-2A workers. We 
have increased the penalties to ensure those who continue to employ 
illegal workers rather than utilize this updated program will pay the 
costs.
  This legislation also addresses the Adverse Effect Wage rate, which 
many contend has discouraged employers from using the H-2A program. 
Instead, we move to a wage rate that is more market-oriented and a 
prevailing wage for each region of the country.
  Another important aspect of this legislation is it clearly states 
that the Legal Services Corporation cannot represent or provide 
services to a person or entity representing any alien, unless that 
alien is physically present in the United States. This clarification is 
needed because of the longstanding and well-documented abuses by the 
Legal Services Corporation in filing frivolous lawsuits against 
producers who employ H-2A workers.

  By streamlining and modernizing the H-2A program, we can make it 
easier and more attractive to U.S. agricultural employers and minimize 
the attraction of using illegal labor.
  The second part of our legislation targets the illegal population in 
this country with the creation of a blue card program. The blue card 
program is an innovative, new temporary guest worker program. The idea 
of it is to allow employers who cannot find an adequate domestic 
workforce to petition on behalf of an immigrant who is currently 
illegally here to receive a blue card or a temporary status in this 
country. The petitioning process will require the alien to submit his 
or her biographical information along with two biometric identifiers to 
the Department of Homeland Security. This way, we can be sure we are 
not bestowing the blue card status on a potential terrorist or an alien 
with a criminal past.
  The blue card itself will be a machine-readable, tamper-resistant 
document that will be capable of confirming, for any immigration 
official who needs to know, the person holding the blue card is who the 
card claims he or she is, and the blue card worker is authorized to 
work in agricultural employment in the United States and the 
authorization has not expired.
  Because the blue card workers will maintain these secure 
identification documents, they can freely travel between the United 
States and their home countries. This will allow the blue card workers 
to maintain ties to their lives and families at home.
  It is important to note that by setting the Blue Card Program up on 
an employer-petition basis, the program has a natural cap built in--one 
that responds to the U.S. market and our agricultural labor needs. 
Employers will only petition for as many workers as needed to fill 
their labor needs. This is unlike the AgJOBS bill which allows illegal 
aliens to self-petition.
  Once an alien receives a blue card, he or she is eligible to work in 
the United States for up to three years. The blue card may be renewed 
up to two times, each at an employer's petitioning. At the end of the 
second renewal, the blue card worker must return to his or her home 
country, or country of last residence. This is important. The blue card 
provides no path to U.S. citizenship, which is contrary to what the 
AgJOBS bill does. Any blue card worker who wishes to become a U.S. 
citizen is certainly allowed to do so. All that worker has to do is 
revoke his or her blue card, return to his or her home country or 
country of last residence for at least 1 year and apply through the 
normal process just like everyone else.
  An approved blue card worker will receive all the protections U.S. 
workers will receive. While blue cards are available only to those 
aliens who work in the agricultural field, this legislation expands a 
traditional definition of agriculture in recognition of the 
interdependence on various occupations within the field of agriculture. 
By including packagers, processors, and landscapers, we not only 
encourage a larger percentage of our illegal population to come 
forward, submit to Homeland Security background checks, and get legal 
work authorization, we also provide some relief to those occupations 
that have traditionally relied on H-2B visas for foreign workers. As we 
all know, H-2B visas are in short supply and high demand.
  This legislation is important, and I urge the support of my 
colleagues.
  The PRESIDENT pro tempore. The Senator from Arizona is recognized.
  Mr. KYL. Mr. President, I first wish to express appreciation to the 
Senator from Georgia for explaining very well both the need for and the 
description of the legislation on which we will be voting tomorrow, 
which is our version of the legislation that will help employers in our 
agricultural sector by including immigration reform which will make it 
easier for them to obtain workers from both the illegal immigrants who 
are in the country today as well as those legal immigrants who would be 
applying under our legislation.
  Let me go back to kind of a 30,000-foot elevation view here and 
describe the reasons we put this legislation together and are offering 
it at this time. As we have said before, the supplemental 
appropriations bill, which will be debated again tomorrow as well as 
later today and which will help pay for our war efforts in Iraq and 
Afghanistan, is not the appropriate place to be debating immigration. 
Unfortunately, some of our colleagues saw fit to bring amendments to 
the Senate floor which related to that subject. One of those amendments 
is this amendment that deals with agricultural labor. It was at that 
point that Senator Chambliss and

[[Page S3769]]

I had no alternative but to present the alternative view of how to 
serve those agricultural needs.
  The basic difference between the bill Senator Chambliss just 
described and the other bill, the bill that is primarily offered by 
Senators Kennedy and Craig, is the difference between a bill that 
provides amnesty, in the case of their legislation, for illegal 
immigrants here, and our bill, which provides the workforce within the 
legal construct of the law but does not grant amnesty to the illegal 
immigrants who are here. There are a lot of other differences, but that 
is the prime difference.
  Both of us recognize that there is a significant need for a workforce 
in this country, willing and able to work in agriculture and related 
occupations, and that cannot be satisfied solely with people who are 
American citizens today.
  The difference is in the way we treat those people who are here 
illegally today. What the Craig and Kennedy legislation does is to 
grant those people, very early on, a legal status which permits them to 
become legal permanent residents. ``Legal permanent residents'' is a 
term of art under our immigration law. Some people refer to it as a 
green card. As little as 100 hours' work for 3\1/2\ months entitles 
someone under their legislation to get a green card. A green card is 
like gold because it enables you to live for the rest of your life in 
the United States of America and work here.
  But it also means something else. If you have a green card, you can 
also apply to become a citizen of the United States of America. It is a 
wonderful thing for people from other countries to get to be citizens 
of the United States of America. We are very much in support of 
immigration to this country. As my grandparents came here and as almost 
all the rest of us have relatives who came to this country from another 
country, we all support legal immigration. But we do not believe that 
great opportunity to become a citizen of the United States should be 
granted to someone on the basis of their illegality; because they came 
here illegally, because they used counterfeit documents, because they 
got a job illegally--that on the basis of those factors they should get 
an advantage over those who are abiding by the law and who want to 
become U.S. citizens. It is that with which we disagree.
  What we say is if a person who is in the country illegally today 
wants to work in U.S. agriculture or related industries, and the 
employer needs that person--and there are certainly a lot of them in 
that category--the employer petitions and that individual can get a 
different kind of status, a blue card, as Senator Chambliss said. That 
blue card status enables them to work here, to live here, to travel 
back and forth to their country of origin. They can go back and forth 
every weekend, if they desire. There are no restrictions there. They 
are in the Social Security system. They are protected by our laws. They 
have to be paid a specific kind of wage, and they have all of the other 
kinds of protections one would think of in this context, but their 
status is different from that of a legal permanent resident, a green 
card holder.
  Not only are they not entitled to live here the rest of their lives--
eventually they are going to have to return home--but if they want to 
become citizens they have to go home and apply for it just like anybody 
else. What does that mean? They have to be petitioned for by somebody, 
by an employer in this country. It takes about a year for them to 
acquire this status of legal permanent resident. That is how long it 
takes to get it. But once you get it, you can apply to become a U.S. 
citizen.
  We are not punishing people for having violated our laws. Some would 
say you should not give them the opportunity to become citizens because 
they broke our laws. As Senator Chambliss pointed out, we are not 
saying that. If they want to become legal permanent residents and apply 
for U.S. citizenship, they would have that right. All we ask is that 
they be treated just like anybody else who wants that right, which is 
to say they apply from their own country, not from the United States; 
that they wait the same period of time you would have to wait 
otherwise, a year; and then, if it is granted, they can apply for 
citizenship, and all the rest of it works just the same as it would for 
anybody legal.

  What we say is that you cannot use the fact that you came to the 
United States illegally to get to stay here and stay here during the 
entire process that you are applying for legal permanent residency and 
U.S. citizenship. That gives you a big advantage, a leg up over those 
who are abiding by the law and who did not violate the law and come 
here illegally in the first place. There are other differences, but 
that is the most critical difference.
  From our colleagues' standpoint, what we are saying is you can vote 
for a bill which grants a very simple, convenient, economical way for 
us to get the agricultural labor we need in this country, with all the 
protections for the laborers which one would expect, without having to 
grant amnesty to these individuals, and that is a big deal.
  The second way the Kennedy-Craig legislation provides for amnesty is 
that it even provides for someone who came to this country illegally 
and is employed illegally here and who then went back to their home 
country to come back into the United States and get those same 
advantages as those who would otherwise have to wait a year for legal 
permanent residency and then later for citizenship. So it not only 
would apply to those who are here illegally today but those who claimed 
they worked in the United States illegally in the past. And who knows 
what kind of claims we are going to get there? Because, of course, the 
counterfeit documents, Social Security cards, driver's licenses, and 
other kinds of documents used to gain employment in the first instance 
can also be used to demonstrate the previous status of having illegally 
worked in the United States of America.
  (Mr. CHAMBLISS assumed the chair.)
  Mr. KYL. One of the reasons I believe our bill has more support is 
that it is more likely to become law, whether it is a stand-alone 
provision that relates only to agricultural workers or is part of a 
broader kind of immigration reform. I do not think many people believe 
the House of Representatives is going to pass a bill with amnesty, so 
we are trying to be practical about it. We would like to get something 
done, not simply run an ideological position up the flag pole in order 
to get a vote on it here in the Senate. That is why the American Farm 
Bureau is so strongly in support of our legislation and in opposition 
to our colleagues' legislation.
  I ask unanimous consent to have printed in the Record a letter from 
the American Farm Bureau Federation dated April 13 to the Presiding 
Officer and myself.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                              American Farm Bureau Federation,

                                   Washington, DC, April 13, 2005.
     Hon. Saxby Chambliss,
     U.S. Senate,
     Washington, DC.
     Hon. Jon L. Kyl,
     U.S. Senate,
     Washington, DC.
       Dear Senators Chambliss and Kyl: The American Farm Bureau 
     Federation strongly supports the Chambliss-Kyl Amendment and 
     urges its adoption when it is considered on the Senate floor.
       This amendment would provide U.S. agriculture a clear, 
     simple, timely and efficient H-2a program to fill seasonal 
     and temporary jobs for which there is a limited U.S. labor 
     supply. In order to recruit a worker from abroad, an employer 
     would first have to make every reasonable effort to find an 
     American worker. This is exactly the kind of meaningful 
     reform that is necessary to provide all sectors of 
     agriculture with a workable program while protecting American 
     workers.
       The measure also deals sensibly and fairly with illegal 
     immigrants who are now working in agriculture, who meet 
     strict criteria and who pose no security threat. Employers 
     would petition to have such workers granted ``blue card'' 
     temporary worker status. Once granted, a blue card would be 
     valid for three years and could be renewed a maximum of two 
     times (exceptions may be considered for supervisory 
     employees.)
       This amendment does not grant amnesty to illegal aliens. 
     Blue card workers would have the right to change jobs, earn a 
     fair wage and enjoy the same working conditions the law 
     requires for American workers. Blue card workers would be 
     protected by all labor laws. Blue card workers could travel 
     freely and legally back and forth to their home country.
       The Chambliss-Kyl proposal strikes a reasonable balance 
     among employers, hard-working employees who are striving to 
     better themselves and the need and obligation

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     of our country to control the flow of immigrants.
       AFBF supports the Chambliss-Kyl amendment and we urge your 
     fellow Senators to vote for this proposal when it is 
     considered in the Senate.
           Sincerely,
                                                     Bob Stallman,
                                                        President.
  Mr. KYL. Let me read the opening to give a flavor of what the 
American Farm Bureau Federation is saying:

       The American Farm Bureau Federation strongly supports the 
     Chambliss-Kyl amendment and urges its adoption when it is 
     considered on the Senate floor. This amendment would provide 
     U.S. agriculture a clear, simple, timely and efficient H-2a 
     program to fill seasonal and temporary jobs for which there 
     is a limited U.S. labor supply. . . .
       This measure also deals sensibly and fairly with illegal 
     immigrants who are now working in agriculture, who meet 
     strict criteria and pose no security threat.
       This amendment does not grant amnesty to illegal aliens. . 
     . .
       The Chambliss-Kyl proposal strikes a reasonable balance 
     among employers, hard-working employees who are striving to 
     better themselves and the need and obligation of our country 
     to control the flow of immigrants.
       The American Farm Bureau Federation supports the Chambliss-
     Kyl amendment and we urge your fellow Senators to vote for 
     this proposal when it is considered in the Senate.

  In summary, we are going to have two proposals before us, one offered 
by the Senators from Massachusetts and Idaho. We urge you reject that 
proposal because it is not something that is ever going to become law. 
It provides amnesty for illegal immigrants here. The other is our 
proposal, which enables us to have a good, workable system for 
agricultural labor. It can pass both bodies, and it does not include 
amnesty.
  I note when we begin debate on the supplemental appropriations we 
will have more of an explanation of what we have offered to our 
colleagues, but at least this way we have opened up the subject.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Florida.

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