[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.
[[Page S3768]]
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
[[Page S3770]]
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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