SPEAKERS CONTENTS INSERTS Tables
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TEMPORARY AGRICULTURAL WORK VISA PROGRAMS
WEDNESDAY, SEPTEMBER 24, 1997
House of Representatives,
Subcommittee on Immigration and Claims,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, at 10:45 a.m., in Room 2226, Rayburn House Office Building, Hon. Lamar Smith (chairman of the subcommittee) presiding.
Present: Representatives Lamar Smith, Sonny Bono, Bill Jenkins, Christopher B. Cannon, Ed Bryant, Melvin L. Watt, Howard L. Berman, and Zoe Lofgren.
Also present: George Fishman, counsel; Judy Knott, staff assistant; Tina Hone, minority counsel.
OPENING STATEMENT OF CHAIRMAN SMITH
Mr. SMITH. The Subcommittee on Immigration and Claims will come to order.
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I appreciate you all waiting for us. As you know, we had a series of two votes but we hope to have a few minutes before the next vote. It is likely to be a very chaotic morning. We will probably need to expedite things in order to get everyone's testimony in and to allow questions for others Members.
Our hearing today is on the subject of temporary agricultural work visa programs, especially the current H–2A program. Since World War II, the United States has had one or more guest worker programs operating to provide seasonal agricultural labor for the Nation's farms. Many aliens have come temporarily to America under these programs. Other legal and illegal immigrants from Mexico, South and Central America, and the Caribbean have migrated permanently to America's fields and orchards.
These foreign workers have helped ensure successful harvests. In fact, the farmers most reliant on farm workers, fruit and vegetable growers, have prospered greatly in recent years. Foreign-born workers now make up a large majority of seasonal agricultural workers, and many of the new workers have come to the United States illegally.
Today we will address issues surrounding the use of aliens in seasonal agricultural labor. To what extent does or can domestic labor meet the needs of farmers growing labor-intensive crops? To what extent does the H–2A program fill the gap and how well does the program serve the needs of farmers and farm workers? Can the program be improved or does it have fundamental flaws? What effect have Congress' efforts at major reform of our immigration laws in 1986, 1990 and 1996 had on labor-intensive agriculture and to what extent have farmers become dependent on illegal aliens? These are the questions for which we need to find answers. I look forward to the testimony of today's distinguished witnesses, who are all experts in their fields.
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Before recognizing the gentleman from North Carolina, I would like to add one more comment. One of the principle reasons we are holding this hearing is the unswerving dedication of Bob Smith, Chairman of the Agriculture Committee, to the success of American farmers. His perseverance and commitment are rare qualities, and they are to be commended. Congress is truly better off for his deciding to return to these halls.
Before I recognize our Ranking Member, I have never done this to him before in public, I have a presentation to make. I can only hope that it will be taken in the spirit with which it is offered.
Before I open it up and show it to Mr. Watt, there is also a message here for our witnesses. That is, that occasionally, just occasionally, our Ranking Member has been known to throw curve questions. The reason for that is because he is so good at throwing curve balls. Mr. Watt was the pitcher for the Democrats in our annual baseball game and this is a blow up of a photograph taken of him on the mound throwing the famous Watt curve ball.
Do you like that? So as a warning to the witnesses, you may get some curve ball questions. The gentleman from North Carolina is recognized.
[The prepared statement of Mr. Smith follows:]
PREPARED STATEMENT OF LAMAR SMITH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS AND CHAIRMAN, SUBCOMMITTEE ON IMMIGRATION AND CLAIMS
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The Subcommittee on Immigration and Claims will come to order.
Our hearing is on the subject of temporary agricultural work visa programs, especially the current H–2A program.
Since World War II, the United States has had one or more guest worker programs operating to provide seasonal agricultural labor for the nation's farms. Many aliens have come temporarily to America under these programs. Other legal and illegal immigrants from Mexico, South and Central America and the Caribbean have migrated permanently to America's fields and orchards.
These foreign workers have helped ensure successful harvests. In fact, the farmers most reliant on foreign workers—fruit and vegetable growers—have prospered greatly in recent years. Foreign-born workers now make up a large majority of seasonal agricultural workers and many of the new workers have come to the United States illegally.
Today we will address issues surrounding the use of aliens in seasonal agricultural labor. To what extent does or can domestic labor meet the needs of farmers growing labor-intensive crops? To what extent does the H–2A program fill the gap and how well does the program serve the needs of farmers and farmworkers? Can the program be improved, or does it have fundamental flaws? What effect have Congress' efforts at major reform of our immigration laws in 1986, 1990, and 1996 had on labor-intensive agriculture and to what extent have farmers become dependent on illegal aliens?
These are the questions for which we need to find answers. I look forward to the testimony of today's distinguished witnesses, who are all experts in this field.
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But first, let me recognize our ranking member, the gentleman from North Carolina, Mr. Watt.
Mr. WATT. Thank you, Mr. Chairman. I have just got to point out to everybody in the audience, do you see that little dot there? That is the ball. This is the aftermath. I think that is Mr. Shimkus' home run that went out of the park there.
I appreciate it. I thank you very much.
I was going to try to speed up this hearing, but I think I will slow it down now you are being so nice to me. I understand that we have a number of votes that are likely to come up on the floor so I will refrain from making an opening statement since if we do not get this hearing done expeditiously, I think we are going to have real time problems.
So I do want to express my thanks to Chairman Smith and the other Chairman, Chairman Smith, for being diligent in pushing for a hearing on this matter. I hope that it will inform us as we try to address this issue. If not this year, then in the next session.
Thank you, Mr. Chairman.
Mr. SMITH. Without objection, the further opening statement will be made a part of the record as will a statement from Chairman, Bob Smith, without objection.
[The prepared statement of Mr. Smith of Oregon follows:]
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PREPARED STATEMENT OF ROBERT F. SMITH, CHAIRMAN OF THE HOUSE COMMITTEE ON AGRICULTURE
I want to thank Chairman Smith for convening this hearing today for the purpose of assessing the labor situation in agriculture and the viability of the nation's only legally mandated guest worker program-H2–A.
Over the past several months I have had the pleasure of discussing immigration policy and its affect on U.S. Agriculture with the Chairman of this sub-committee. I appreciate the genuine concern and candidness has shown throughout these discussions.
Two years ago, the Congress entered into a debate over the need for agricultural guest workers in this country. At this time several members encouraged the agriculture community to wait and see whether or not welfare reform would add workers to the agricultural labor force. Unfortunately, quite the opposite is taking place. Producers are discovering that because of the new rules on welfare benefits, many welfare recipients are no longer available to do seasonal agriculture work.
During the debate, agriculture members repeatedly warned members that immigration reform would severely impact farmers and ranchers. Once again, agriculture was encouraged to hold back to see what affects the reform effort would have on their workforce. The result should come as a surprise to no one. Enormous increases in resources to the INS and U.S. Border Control is creating chaos in rural America as agents targeting agriculture chase groups of migrant workers from job site to job site and from state to state. Immigration control may not be working at the borders, but one thing is certain, the affect of new INS and Border Control resources is being felt by agriculture producers.
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As these and other pressures mount in rural America it is increasingly clear that we must address this issue before it reaches the level of a full crisis. In the past several months I have been contacted by literally hundreds of agricultural producers across the country-from Maine to Georgia to California to Washington. They are under siege. Pressures are mounting around them that, if not relieved, will threaten not only their individual farm operations but also the viability of the entire agricultural industry in this country-an industry which represents a large percentage of the nation's total GNP and a significant share of total U.S. exports. The expanding role of agriculture in the economy represents millions of ancillary upstream and downstream jobs that have been created over the past decade from the planting and harvesting of labor intensive agricultural crops.
The agriculture industry cannot survive without a reliable and legal supply of labor. Some claim that there is an excess of labor—that agriculture should try harder to get domestic workers to the fields of greenhouses. Others believe, that producers should follow the principles of the free market and need only raise wages to attract domestic workers. These individuals have no apparent knowledge or real interest in the free market. If they possessed this appreciation, they would realize that our wages are already far above the countries that will benefit when we lose our agriculture production. Global competition determines how high wages can be set. The only thing that will result from the huge wage increases is a pared back U.S. agriculture industry with a resulting loss in global market share and a loss of millions of U.S. jobs-the same jobs labor advocates seek to improve.
However the U.S. labor market evolves, most reasonable individuals would agree that a viable safety net is critical in the production of perishable agricultural commodities. This safety net currently does not exist. The only legally mandated guest worker program-H2–A, has been litigated to the point that it is no longer an effective tool for producers who have exhausted all possibilities looking for domestic workers. Today, a producer that faces severe worker shortages is up against a double-edged sword. He will either go broke by not getting his crops harvested or he can enter the H2–A program and risk being sued into bankruptcy by advocacy groups who oppose any alien guest worker program.
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With this in mind, I introduced in August of this year, legislation creating a streamlined guest worker pilot program. This program is designed to last only two years and will be limited to a total of 25,000 participants. Mechanisms are included in this bill to ensure that workers return to their countries of origin and that domestic workers rights and living standards are protected. I urge my colleagues on this subcommittee to support this effort.
I want to again thank the Chairman for his attention to this issue and I look forward to working with the Subcommittee to resolve this problem.
Mr. SMITH. The gentleman from California, Mr. Bono, is recognized for an opening statement.
Mr. BONO. Mr. Chairman, I just want to say I support this notion, however it shakes out. I know it is a complicated issue to work out, but there is a big hole in agriculture that will not get filled. Agriculture is a very viable industry in California. If that goes down in the State, that is the last industry we have. This is an issue that has to be dealt with some kind of way. I appreciate your bringing it forward and looking into it to see if we can work something out. Thank you.
Mr. SMITH. The gentleman from Utah, Mr. Cannon.
Mr. CANNON. Thank you. Mr. Chairman, I appreciate the opportunity to express my support for the creation of this pilot program. The United States economy is booming: at 4.9 percent, joblessness is now at a 23-year low; 57 metropolitan areas posted unemployment rates below 3 percent in April, up from 37 the month before. Our immigration laws must not impede the entry of much-needed workers to fuel continued expansion of our successful industries, be they the highly skilled engineers recruited by high-tech companies, physical therapists needed in health care facilities, or migrant workers for the fruit, vegetable or horticultural specialty industries. Lack of skilled workers harms America's competitiveness.
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I look forward to this discussion today to shed light on our needs in a booming economy and the ways we can bring reform to our immigration laws to remove obstacles to that boom.
I have another hearing I will have to go to, but I will try and get back shortly.
[The prepared statement of Mr. Cannon follows:]
PREPARED STATEMENT OF HON. CHRIS CANNON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF UTAH
Mr. Chairman and Members of the Subcommittee, I appreciate this opportunity to express my support for the creation of this pilot program.
The United States economy is booming: at 4.9 percent, joblessness is now at a 23-year low. Fifty-seven metropolitan areas posted unemployment rates below three percent in April, up from 37 areas the month before.
Our immigration laws must not impede the entry of much-needed workers to fuel the continued expansion of our successful industries—be they highly-skilled engineers recruited by high-tech companies, physical therapists needed in health care facilities or migrant workers for the fruit, vegetable and horticultural specialty industries.
Lack of skilled workers harms American competitiveness.
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I look forward to this discussion today to shed light on our needs as a booming economy and the ways in which we can bring reform to our immigration laws to remove obstacles to that boom.
Mr. Chairman, I yield back the balance of my time.
Mr. SMITH. Are there any other opening statements?
If not, we will go to our first panel.
I will introduce the members of the panel who are already sitting down: Bob Vice, President, California Farm Bureau Federation, representing the National Council of Agricultural Employers and the American Farm Bureau Federation; Jim Holt, McGuiness & Williams, on behalf of the National Council of Agricultural Employers; John Hancock; and Bruce Goldstein, Executive Director, Farmworker Justice Fund.
We appreciate you all being here. We will start with Bob Vice.
STATEMENT OF BOB L. VICE, PRESIDENT, CALIFORNIA FARM BUREAU FEDERATION
Mr. VICE. Thank you, Mr. Chairman. My name is Bob vice. I am President of the California Farm Bureau Federation. I am here testifying today on behalf of the National Council of Agricultural Employees, NCAE, as well as the American Farm Bureau Federation on whose board of directors I serve.
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NCAE and the Farm Bureau represent the vast majority of agricultural employers in the U.S. and millions of farm families whose labor supply is affected by immigration policy. When I testified before this subcommittee in December of 1995, I asked you to support an alternative temporary and seasonal alien agricultural worker program, given the historical failure of the H–2A to meet agriculture's labor needs. We anticipated that existing immigration enforcement activities, coupled with the pending reform legislation, would leave agriculture without a significant, sufficient legal authorized work force.
So what has happened in the past 2 years since I last testified before this subcommittee? For the past year, NCAE and AFBF have heard from growers throughout the U.S. to an unprecedented degree about labor problems. NCAE and Farm Bureau members' surveys show that immigration-related labor shortage issues to be a major concern across the country.
There are three major reasons why American agriculture is concerned about its work force and the need for a workable program. For the first time, we are experiencing extensive INS audits and enforcement activities in many agricultural areas throughout the U.S., not just in the border States. This activity typically results in the grower losing a significant part of its work force, creating a labor shortage. We are experiencing nearly a full employment economy which makes it even more difficult than normal to attract domestic workers and, third, for the first time agriculture employees participating in the Social Security Administration's new enumeration verification system, EVS, are receiving reports indicating that a large percentage of their workers listed on their quarterly W–2 computer forms show names and social security numbers that do not agree with Social Security Administration records. When employers go to their workers to correct those numbers, many of the workers simply do not return to work, indicating that they were illegally documented.
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Let me give you a typical example of how INS enforcement activities affects the agriculture labor supply that involved a grower in my State of California within the last few weeks. A vegetable grower in Orange County had most of his workers apprehended by INS creating a major labor shortage at a critical peak harvest time. The grower went to the job service and placed an order for 150 workers to do field work to replace those that were apprehended by INS. Over the next 10 days, the job service referred three people and only one of those showed up to work and he worked for three days. As a result of the loss in labor, the farmer lost 60 acres of beans and 20 acres of cabbage. Variations of this example have occurred throughout the U.S. in the past year with only the crop and the State changing.
Mr. Chairman, I would like to make it clear that we are not complaining about the effectiveness of INS enforcement or the EVS system. In fact, we support and applaud both of those efforts. Our concern is that when these programs screen out unauthorized workers whom employers cannot identify as such because employers do not have access to the government's database, then there must be an effective means to replace those workers. Clearly, the H–2A program is not the means.
I am not going to elaborate on the failures of this program as other witnesses that will follow me will do so. Mr. Chairman, I am here today to tell you unequivocally that the warning lights are flashing. The H–2A engine is belching acrid black smoke. The time for repairs is upon us. Let us make sure of that before the only vehicle for legal agricultural labor supply breaks down completely at the time we have an increasing need.
We believe the solution to this problem is through the enactment of a pilot alternative H–2A program that is of limited duration and scope. House Agricultural Committee Chairman Bob Smith has introduced such a pilot, 2377, and we strongly urge the subcommittee's support of it. Just as Congress adopted a pilot rather than a permanent electronic verification system as part of IIRIRA, a pilot temporary agricultural alien worker program will allow reasonable tests over the next 2 years with limited workers submitted to address the concerns that some have about alien overstays and our domestic worker protections. It is time to develop a new model. H.R. 2377, we believe, is the new model. We ask for a 2-year test drive to see if it meets the challenge.
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Before I conclude, I would like to make clear that agriculture is not sitting back and just wringing its hands. In California, major agricultural groups, including the Farm Bureau, took the initiative to seek ways to make the new welfare reform law provide a new source of workers for agriculture. A task force has been created with the heads of the welfare departments of nine major agricultural counties in the San Joaquin Valley, also with the State welfare officials and with the economic development department. A plan is being finalized, to implement in the spring of 1998, that will involve a coordinated effort to match unemployed persons receiving public assistance with agricultural jobs. We sincerely hope that this initiative will help us with our labor needs.
Mr. Chairman, I believe it would be irresponsible of Congress to wait for the headline-grabbing labor shortage and attendant crop losses before developing a plan. Irreparable harm could be done to our agriculture producers and the competitive position of U.S. agriculture.
Thank you for your time and the importance of a workable temporary program for agriculture.
[The prepared statement of Mr. Vice follows:]
PREPARED STATEMENT OF BOB L. VICE, PRESIDENT, CALIFORNIA FARM BUREAU FEDERATION
Mr. CHAIRMAN: My name is Bob Vice. I am President of the California Farm Bureau Federation (CAFB). I am submitting my comments today on behalf of the National Council of Agricultural Employers and the American Farm Bureau Federation on whose Boards of Directors I serve.
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The National Council of Agricultural Employers (NCAE) is a Washington, DC based national association representing growers and agricultural organizations on agricultural labor, employment and immigration issues. NCAE's membership includes agricultural employers in fifty states who hire about 75 percent of the national agricultural workforce. Its members include farm cooperatives, growers, packers, processors and agricultural associations. NCAE was actively involved in the legislative process that resulted in the enactment of the Immigration Reform and Control Act of 1986 (IRCA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). NCAE's representation of agricultural employers gives it the background and experience to provide meaningful comments and insight into issues concerning immigration policy and how it affects the employment practices of its members' businesses and the availability of an adequate agricultural labor supply.
NCAE is filing this statement jointly with the American Farm Bureau Federation (AFBF). The American Farm Bureau Federation is the nation's largest general farm organization. Farm Bureaus in all 50 states and Puerto Rico represent some 4.4 million member families nationwide. Farm Bureau's farm and ranch members are engaged in the production of virtually every agricultural commodity grown commercially in the United States. AFBF's members are similarly affected by immigration reform policy.
AGRICULTURE'S CONCERNS PRIOR TO ENACTMENT OF IIRIRA
Mr. Chairman, I had the privilege of testifying before you and this Subcommittee in December, 1995 as you considered then pending immigration reform legislation, H.R. 2202. At that time I spoke on behalf of the same organizations that I represent today and provided our industry's view of the likely impact on agriculture of what is now called the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Nearly two years later I am in a position to inform you about the impact of that law and other immigration enforcement efforts on the American agricultural employer. I also am here to report to you that American agriculture still needs, more than ever, a workable alternative to the H–2A temporary and seasonal alien agricultural worker program.
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Before I summarize the current state of employment in agriculture as it relates to immigration policy, let me briefly review the concerns I expressed last time I testified. In 1995, the agricultural workforce was characterized by many seasonal hires of persons of diverse ethnicity and many of them migrant.(see footnote 1) The employer sanctions and anti-discrimination provisions of the Immigration Reform and Control Act of 1986 (IRCA) created an impossible compliance situation for our members. Employers who were too lax in checking employment authorization documents faced sanctions, while those who were too scrupulous in seeking more than the required documents or who specified commonly acceptable documents to workers, faced discrimination or so-called document abuse charges. We believed then, as we do now, that compliance with IRCA needed to be simplified to protect both the worker and employer. We believed at that time, as we do now, that an electronic verification system as proposed in H.R. 2202, had the potential, with proper safeguards, to simplify the hiring process to the benefit of employers.
We would like to compliment this Subcommittee for its leadership in enacting IIRIRA, for it has made some significant improvements to the law that we believe will eventually solve some of the hiring problems posed by IRCA. First, we believe that the reduction in the number of employment authorization documents will simplify the hiring process and cause less confusion. We hope that INS issues its regulations in this regard soon. The 10 day-grace period to correct minor paperwork problems in completing the I–9 Form is a positive step and we also eagerly await INS regulations for this new provision. The elimination of a strict liability standard for employers from the document abuse provisions and its replacement with a discriminatory intent standard is a very positive step. While IIRIRA is only a year old, we are hopeful that these changes will prove to be positive.
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As you know, a major piece of last year's reform effort was a mandatory and universal electronic verification system that would root out the widespread use of fraudulent employment verification documents. We viewed such a proposal as a double-edged sword. If such a system worked, it would simplify the hiring process and provide protection against both employer sanctions and discrimination claims. It would also provide employers with certainty that their work force was legal, and not subject to sudden removal at periods of peak need. On the other hand, we believed that it would screen out a substantial portion of the agricultural workforce and lead to major labor shortages. We believed this based on grower reports of the results of INS audits of the workforce and Department of Labor (DOL) data.(see footnote 2) Both suggest that a large portion of the agricultural workforce provides employers with fraudulent documents that appear genuine.
Congress decided to adopt more modest voluntary and geographically limited electronic verification pilots. While the limited approach enacted as part of IIRIRA removed an immediate threat of the loss of a major part of the agricultural workforce, we expect that a broader mandatory approach has simply been delayed. A few members of our organizations have tried the existing pilot verification system and have found it to be very effective. It simplifies hiring; however, it also eliminates a major part of the job applicant pool by screening out invalid employment documents. If the new pilots are similarly successful, we expect that you will receive recommendations after the four year trial period for a broader and perhaps mandatory program.
In my prior testimony I also expressed our support for broader border interdiction efforts and enforcement of employer sanctions, which had not been widely enforced since IRCA's enactment in 1986. I also indicated, however, that the combined effect of these initiatives, in combination with a mandatory electronic employment verification system, could exclude from employment a substantial portion of the agricultural workforce without an effective means for replacing it. I devoted considerable time to describing the woeful deficiencies of the only means of replacing workers available in 1995 and today—the H–2A program.
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STATUS OF THE AGRICULTURAL WORKFORCE ONE YEAR AFTER IIRIRA'S ENACTMENT
Agricultural Employers Face Unprecedented INS Enforcement Coupled with an Extremely Tight Labor Market
What has happened in the last two years? The answer is clear. The ink had hardly dried after the President signed IIRIRA last September, when AFBF and NCAE started hearing from growers throughout the U.S. about labor problems to an unprecedented degree. Ironically, the passage of IIRIRA seems to be only coincidental. The problems agricultural employers face today generally do not stem from IIRIRA, but from increased enforcement of the employer sanctions provisions of IRCA and through Border Patrol interdiction efforts. The labor problems stem largely from INS enforcement activity in many areas of the county where none had occurred previously to any significant degree. In many areas enforcement and audit activities have been continuous through the year. In addition, our economy is at an almost unprecedented high level of employment, with agricultural employers facing the same problem of other employers in obtaining an adequate number of workers.
Mr. Chairman, I am here to tell you that our industry is beginning to feel the effect of Congress's effort to control persons from working illegally in this country. We cannot provide you with enforcement statistics—INS can give you that data. We cannot quantify exactly how many workers have been apprehended, nor can we tell the total dollar value of crops lost as a result of this enforcement activity. We measure the seriousness of a problem just like members of Congress. We respond to the mail, phone calls, and reports we get from our constituents about their problems. I can tell you emphatically that our members are letting us know that labor is a major problem and that it is going to get worse! The input we are receiving from AFBF and NCAE members far exceeds that which we experienced prior to 1997. While we do not currently have a national crisis, the warning signals are clear.
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Let me be more specific. At the August 1997 Board of Directors meeting of NCAE, representatives from agricultural organizations from throughout the U.S. from Washington and Oregon to New York and New England almost uniformly reported very tight labor markets in their states and, in most instances, an unprecedented degree of INS and Border Patrol enforcement initiatives in their states. Some reported crop losses due to an inadequate labor supply caused by INS enforcement activity and the inability of the emergency provisions of the H–2A temporary and seasonal agricultural alien program to provide workers when there is an insufficient number of domestic workers. We are receiving these reports from states where labor has not been a significant problem in the past—the midwest, the northern states, the northeast, and mid-south. Certain components of agriculture seem to have been targeted specifically, such as the nursery industry.
At the time I heard these reports, I felt somewhat fortunate that the farmers in my state of California, for whatever reason, had faced little INS enforcement activity and, while labor was tight, we had not faced severe labor shortages this past summer. As I will describe below, my sense of good fortune was short-lived.
What is the effect of INS enforcement activity in agriculture? Let me give you a few examples. In my state of California, the largest user of hired agricultural workers in the U.S., we had a recent incident that illustrates the effect that an INS audit or raid can have on an agricultural employer. A vegetable farmer in Orange County had a majority of his workers apprehended after an INS check of his workers employment eligibility status. The workers were apprehended, creating a major labor shortage during peak harvest time. The grower went to the state Employment Development Department (the state job service charged with referring unemployed workers) and placed an order for 150 workers to do field work and replace those who were apprehended by INS. Over the next 10 days, the job service referred only three persons to work for the farmer. Only one showed for work and that person only worked for three days. As a result, the farmer lost 60 acres of beans and 20 acres of cabbage. These immediate losses are bad enough; however, the lack of an adequate workforce prevented him from planting his next crop and, as a result, he will have no crop to harvest in December. He is facing economic hardship. Variations of this example, with only the crop and state changing, have been reported to us by AFBF and NCAE members throughout the year in a previously unheard of quantity.
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We also are experiencing right now in Glen and Tehama counties in northern California about a 25 percent labor shortage in olive harvesting. This is caused in part by an unusually large and prolonged wine grape harvest in other parts of the state which is providing employment to workers who would otherwise be working in the olive harvest. The delay in harvesting the olive crop will diminish the quality of the crop and lower prices. A similar problem occurred earlier this summer in the cherry harvest in Oregon. The point is that a labor shortage can cause significant economic harm without a major loss of the crop.
Social Security Administration (SSA) Enumeration Verification System is Impacting the Agricultural Labor Supply
During the past six months, AFBF and NCAE members have reported a new development, that while not directly related to INS enforcement of the employer sanctions provisions of IRCA, indirectly has the same effect as an INS audit. To help ensure more accurate reporting of Social Security information, the SSA has promoted the Enumeration verification System (EVS). EVS is intended to ensure that names and Social Security numbers (SSN's) reported on W–2 Forms match SSA records and that employee accounts are properly credited with earnings. In cases where employers hire a large number of workers, SSA encourages employers to submit W–2 information on computer diskettes or magnetic tape.
A number of our members are participating in the EVS system. Many are, for the first time, receiving reports back from SSA indicating that a large percentage of employees show names and/or Social Security numbers that do not agree with SSA records. Some receive letters from SSA indicating that the mismatched information must be corrected and returned within 45 days of the warning letter and further warn that if the employer's report is not corrected after the second filing with SSA, the employer may be penalized.
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A number of employers have received EVS reports indicating that over 50 per cent or higher of their reported workers had mismatched or invalid SSN's. Employers report that efforts to contact employees about the EVS report of an inaccurate SSN often results in the employees abandoning the job. Agricultural employers are concerned that a major reason for mismatches is that employees have submitted fraudulent cards that appear genuine for purposes of meeting IRCA's employment authorization verification requirement, but turn out to be fraudulent when run through SSA's data base.
While the SSA indicates that its EVS reports are to be used only for Social Security purposes, its reports regarding Social Security cards, which are common employment authorization documents, nonetheless put employers in the awkward position of realizing that a large percentage of their workers may not be properly work authorized. The employer thus faces a legal briar patch as to what can and cannot be legally done with SSA's information. In the meanwhile, the employer lives with the fear that an INS audit may result in the loss of a significant portion of its workforce. This concern is with good cause, as we understand that the SSA is sharing the results of its EVS information with the INS. The effectiveness and quick turnaround of the EVS reports to employers, coupled with the inability to obtain workers from the job service, is forcing many agricultural employers to consider their options, including using legal temporary alien workers.
Mr. Chairman, I would like to make clear that we are not complaining in any way about the effectiveness of INS enforcement or EVS. We support and applaud both efforts. Our concern is that when these programs screen out unauthorized workers whom employers can not identify as such because employers do not have access to government's database, then there must be an effective means of replacing those workers. Currently, there are only two means of doing so. Recruitment of workers through the state job service or through the current H–2A program. Unfortunately, neither the job service nor the H–2A program are capable of effectively replacing lost workers.
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Agriculture is Taking Positive Steps to Meet its Labor Needs by Working with State Welfare Officials
While agriculture has not been able to meet its labor needs through domestic recruitment efforts or through the use of state job service offices, it is not giving up in its efforts to do so. In fact, during the debate on IIRIRA, some suggested that agriculture could meet its labor needs as a result of the recently enacted welfare reform legislation. In my state of California, the agricultural industry has accepted this challenge and initiated the creation of a taskforce involving major agricultural organizations, the heads of the welfare departments of the nine major agricultural counties in the San Joaquin Valley of California, state welfare officials and EDD (the state job service). A major summit is scheduled in December 1997 to implement a plan that will begin in the spring of 1998. While the plan is still being developed, its core components involve a coordinated effort between welfare agencies, EDD and an agricultural employer network to match unemployed persons receiving public assistance with agricultural employers seeking workers. Efforts will be made to utilize unused schools as daycare centers during peak labor demand months in the summer. The use of vacationing teachers in the summer at such schools as daycare providers is being explored.
We sincerely hope that this initiative will help with our labor needs. In all candor, welfare officials have tried to moderate our enthusiasm by explaining that the new welfare law creates a strong incentive for unemployed persons to seek year around jobs, rather than the seasonal jobs that are characteristic of agriculture. We have been informed by such officials that a large number of persons receiving public assistance already work in agriculture on a seasonal basis. They simply cannot piece together enough agricultural jobs to work year around and stay off public assistance. As we understand it, the new welfare law forces persons off of public assistance after five years and thus directs persons into full time employment. Nonetheless, we are forging ahead and hope this industry initiative is successful.
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The Tight Labor Market Has Expanded Use of the H–2A Program in the Past Year and Further Exposed its Structural and Administrative Failings
The existing H–2A program has failed to be a reliable source of temporary and seasonal alien agricultural workers for many who have tried to use it. It is characterized by extensive complex regulations that hamstring employers who try to use it and by costly litigation challenging its use when admissions of alien workers are sought. The regulatory burdens leave agricultural employers waiting with uncertainty and anxiety with regard to whether they will be certified by DOL to obtain workers in a timely manner. This is especially important with regard to the production of perishable commodities.
For those employers who would like to use the program because of labor shortages, the regulatory burdens and litigation costs are a major disincentive to program use. Nonetheless, during the past year, increased demand has been placed on the program by desperate employers who could find no alternative means to obtaining a legal workforce. H–2A admissions have increased by several thousand during the past year.
To be frank, those who use the H–2A program do so out of desperation, not because it is viewed as an effective means of obtaining labor. While other witnesses today are H–2A program experts and will elaborate on its current state, I would like to emphasize that the criticisms that I leveled at it in my 1995 statements before this Subcommittee have been underscored by the experiences of those who have tried to use it during the past year. We have heard reports of arbitrary and unconscionable denials of emergency applications for H–2A workers that have resulted in crop losses to growers of perishable commodities. We understand that the Atlanta regional office of the Department of Labor is in a near state of paralysis and incapable of dealing with increased demand for H–2A workers, due in part to institutional bias and indifference to the program and in part to a lack of qualified personnel willing and capable of meeting statutory program requirements in a timely manner.
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CONGRESS SHOULD TAKE STEPS TO ADDRESS AGRICULTURE'S LABOR NEEDS BEFORE, NOT AFTER, THERE IS A CRISIS
As a result of the deficiencies of the H–2A program described to this Subcommittee two years ago and today, a workable program must be adopted that allows growers a reliable mechanism to meet labor needs in situations where domestic workers are unavailable. Mr. Chairman, I am here today to tell you unequivocally that the warning lights are flashing. As the classic T.V. ad for quality motor oil used to say: ''Pay me now or pay me later.'' The H–2A engine is bellowing acrid black smoke. The time for repairs is upon us. Let's make them before the only vehicle for a legal agricultural labor supply breaks down completely.
What we expected would occur in 1995 is starting to occur today and I predict will reach crisis proportions in the next several years—possibly next year. On behalf of American agriculture, I am here to ask this Subcommittee to catch up to and get ahead of this issue before it reaches the crisis stage.
Critics of an alternative to the H–2A temporary agricultural worker program argue that there is not a current shortage of agricultural workers and that a program to address such a need, if it occurs, should await dramatic evidence of a problem. This criticism ignores the fact that there is not now a dramatic shortage of agricultural workers only because immigration control has not been effective prior to 1997 in preventing employment of unauthorized workers. As I have discussed today, it is getting more effective, and I am sure that all of us hope and expect it will get increasingly effective in the future.
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It would be irresponsible for Congress to wait for headline-grabbing labor shortages and attendant crop losses to develop before addressing this problem. Irreparable harm would be done to agricultural producers and the competitive position of U.S. agriculture. Even if the ''need'' manifests itself in a dramatic fashion, with crops rotting in the fields, many producers could not recover from such a financial disaster by the time Congress enacted a temporary worker admission program that works. But the ''need'' is likely to manifest itself in far less dramatic fashion, that is less likely to get the attention of Congress. It is likely to manifest itself in the slow erosion of the competitive position of U.S. producers, who gradually reduce or abandon production of labor intensive commodities, until one day we awake and wonder why the U.S. is no longer competitive in world markets for labor intensive agricultural products, and where all the jobs went that this production used to support.
American Agriculture Supports H.R. 2377, a Pilot Alternative to the H–2A Program of Limited Scope and Duration
For all of the reasons stated above, we believe that an alternative program should be adopted by Congress. Last year, American agriculture strongly supported the Pombo-Chambliss amendment to H.R. 2202 in the House of Representatives. We supported it because it would have provided a structure that eliminated the cumbersome, non-responsive and litigation-prone labor certification process that characterizes the H–2A program. We supported it because it would provide workers in a timely manner to ensure a steady supply of labor for intensive perishable commodities that constitute the fastest growing area of American agricultural production and exports. We supported it because it would ensure that those admitted would return to their countries of origin in a timely manner, while protecting domestic workers and alien workers admitted under the program.
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As I have indicated in my testimony today, the need for such a program is even stronger today as a result of a tight labor market and the loss of agricultural workers caused by INS audits and enforcement activity. The new SSA employment verification system also compels the adoption of a program now. As expected, the H–2A program is not adequately handling the additional pressure placed upon it. Based on last year's congressional debate, we recognize, however, that some in Congress are concerned whether such an alternative program adequately protects domestic workers or will ensure that alien workers will return home in a timely manner. While we believe that such concerns are unwarranted, there is a simple way to determine the truth. Congress should enact as soon as possible a pilot program of limited scope and duration that can test an alternative structure to the H–2A program.
Mr. Chairman, the recently enacted immigration reform legislation that this Subcommittee marshaled through Congress adopts many new concepts on a pilot basis. The pilot electronic employment verification projects are a good example. As you know, there were many concerns regarding those provisions, ranging from invasion of personal privacy to questions about the technological capacity of the government to successfully implement such a program. Congress resolved these concerns by adopting a limited pilot program to test them and mandated a report in four years regarding the results of the pilots and whether they should be expanded and made permanent.
H.R. 2377, sponsored by Committee on Agriculture Chairman, Bob Smith, and many others of both parties, takes a similar approach in proposing a 2-year pilot that would admit no more than 25,000 workers annually during the pilot period. I can assure you that its scope is far too limited to meet the needs of agriculture. However, we are willing to support it to the extent that it allows a fair test of what we believe is a workable structure for the admission of temporary and seasonal alien agricultural workers. For those who fear overstays or a decline in the protection of domestic workers, a pilot is a fair way to test those concerns without the risk of a permanent program.
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Moreover, the enactment of a pilot program by this Congress would allow it to be tested and, if successful, become permanent at about the same time Congress considers recommendations to make the electronic verification pilots mandatory and universal. As we have testified, it will be critical that agriculture have a workable alternative to the H–2A program should a mandatory electronic verification system be adopted.
In addition, at the conclusion of the pilot alternative to the H–2A program, results should be available regarding agriculture's efforts to use welfare reform as a supplement to the agricultural workforce in California. This undoubtedly will be helpful in evaluating the future of the pilot program.
Mr. Chairman, I strongly urge that you and members of this Subcommittee support H.R. 2377 as a reasonable solution to the problems I have discussed today.
Conclusion
Mr. Chairman and members of the Subcommittee, I appreciate your time in considering the importance of developing a workable temporary and seasonal alien worker program for U.S. agriculture. We feel that our industry can be a constructive partner in helping you achieve your objectives in developing and maintaining effective immigration control policies in a manner that maintains a vital and competitive agricultural economy that is the most productive in the world.
September 23, 1997
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Witness Disclosure Requirement ''Truth in Testimony'' Required by House Rule XI, Clause 2(g)
For: Bob L. Vice, President, California Farm Bureau Federation
AMERICAN FARM BUREAU FEDERATION
Pursuant to Rule XI 2(g) of the House of Representatives in the 105th Congress the American Farm Bureau Federation receives no federal grants or contracts.
CALIFORNIA FARM BUREAU FEDERATION
Pursuant to Rule XI 2(g) of the House of Representatives in the 105th Congress the California Farm Bureau Federation receives no federal grants or contracts.
NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS
NCAE received these grants since October 1, 1994:
Grant Number 94–MI–CX–0001 beginning in 10/1/94 for $99,936 from the U.S. Dept of Justice, Office of Special Counsel for Immigration Related Unfair Employment Practices.
Grant Number 95–ME–CX–0007 beginning 10/2/95 for $179,549 from the DOJ–OSC.
Bob L. Vice of Fallbrook, San Diego County, was named president of the California Farm Bureau Federation in May 1989 after serving seven years as vice president. He was reelected to his third term as president in December 1993. He was elected in 1994 to the American Farm Bureau Federation board of directors and was also named to the six-member AFBF executive committee. Vice also serves as chairman of the AFBF International Trade Advisory Committee.
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He was born in Manitou, Okla., in 1939.
Vice is a former president of the San Diego County Farm Bureau and is a member of the California Association of Citrus Nurserymen and the California Avocado Society. He is also a member of the President's Cabinet, California Polytechnic State University, San Luis Obispo and the University of California, Riverside agricultural advisory council.
He was appointed a director of the 22nd Agricultural District Fair Board (Del Mar) in 1984 by Governor George Deukmejian. In 1987, Deukmejian appointed Vice director of the State Race Track Leasing Commission. He was reappointed to both positions by Governor Pete Wilson in 1992.
In 1987, Vice was honored as the San Diego County Farmer of the Year. He is active in community and church activities.
Vice has participated in a number of trade delegations abroad on behalf of California agriculture. He has led trade missions to Europe and Mexico.
He owns and operates a wholesale citrus and avocado nursery, specializing in the development of new orchards. He also farms 35 acres of avocados in Fallbrook.
Vice graduated from high school in Japan, where he traveled throughout the Orient with his school's baseball team. He returned to the United States and played professional baseball for two years with the St. Louis Cardinals' organization. He attended Monterey peninsula College, San Jose State University and the University of Santa Clara.
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He enjoys water sports and restoring old cars.
Bob and his wife, Carilyn, have four children.
Mr. SMITH. Mr. Holt.
STATEMENT OF JIM HOLT, MCMGUINNESS AND WILLIAMS
Mr. HOLT. Mr. Chairman, my name Jim Holt. I am Senior Economist with the management labor law firm of McGuiness & Williams and the Employment Policy Foundation here in Washington. I am an agricultural economist. I have spent my entire professional career dealing with agriculture, labor, human resource and immigration issues, including the H–2A program. I serve as a consultant on labor and immigration matters to the National Council of Agricultural Employers, whose membership includes most of the users of the H–2A temporary agricultural worker program.
Mr. Chairman, the H–2A program is incapable of meeting the need for a legalized agriculture work force. The problems with the program can be categorized under three headings: structural, administrative, and compliance.
Structurally DOL's H–2A regulations have failed to give meaning to key provisions of the H–2A streamlining amendments in the Immigration Reform and Control Act of 1986. The program fails to provide employers access to a work force which is reliable, productive, available at the time the work needs to be done, and at a cost that allows producers to be competitive in the marketplace. DOL makes no meaningful attempt to ensure that domestic workers referred are legally entitled to work in the United States, and many are not. Labor certifications are delayed, reduced, or denied based on promises of domestic worker availability that year after year prove ephemeral.
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Employers are prevented or discouraged from including appropriate job qualifications and performance standards in job orders. Terms and conditions of employment required by the H–2A program, including payment of an adverse affect wage rate, resultant labor costs to participating employers that often make the program noncompetitive.
Additional problems stem from DOL's bureaucratic ineptitude and/or its adversarial approach to the administration of the program. The culture within DOL is that the H–2A is evil and that its users do so with evil intent.
This culture manifests itself throughout the process from failing to provide accurate information to potential H–2A applicants to harassing actual program users in the compliance monitoring process. Although performance time frames for DOL to approve applications and certify employers are spelled out in the statute, they are often missed. Even groups who have used the program in the same occupation for years find their applications nitpicked every year with new demands being made that were not there the year before, and bear in mind that neither the statute nor the regulations have changed in 10 years.
One of the most scandalous aspects of the administration of the program is the domestic recruitment process. The attitude of DOL personnel seems to be to use the domestic recruitment process as a means of delaying or denying certification, either as a means of identifying, in the words of the streamline H–2A provisions, quote, able, willing and qualified workers who will be available at the time and place needed.
After endless nitpicking and wordsmithing of labor certification applications, referred workers arrive at the farms woefully uninformed about the nature of the work and the terms and conditions of employment.
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In a similar manner, compliance monitoring and enforcement actions are used as tools to dissuade H–2A employers from using the program rather than to find real and substantive violators. Although DOL contends to the contrary, it is obvious to H–2A users and nonusers alike that DOL's Wage and Hour Division targets H–2A employers for enforcement actions while ignoring other violators.
Employers describe the atmosphere of H–2A Wage and Hour audits as gestapo like. Wage and Hour, which was given enforcement authority over the H–2A program after the 1986 H–2A amendments to IRCA, has made little apparent effort to coordinate regulatory interpretations with ETA, the agency that actually writes the regulations and for many years enforced them.
In addition to the activities of the Wage and Hour Division, another part of the compliance problem faced by H–2A employers is the huge volume of litigation filed against both DOL and H–2A employers by the taxpayer-supported legal services community. Migrant Legal Services has been a long time foe of the H–2A program. Litigation is clearly designed to discourage employers from getting into or continuing to use the H–2A program.
Mr. Chairman, Congress was right in 1952 when it incorporated the H–2A program in the Immigration and Nationality Act. It was right again in 1986 when it attempted to streamline the program and make it workable. A workable temporary worker program is in the best interest not only of farmers but of farm workers and nonfarm workers. In short, it is in the national interest.
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The time for tinkering is over. The H–2A program needs radical streamlining. H.R. 2377 is such an approach. It replaces the cumbersome resource-intensive and time-consuming labor certification process with an attestation process. It incorporates reasonable labor standards, requires the employer to list his job opportunities for the job service, assures first access to the jobs by domestic farm workers, provides measures for assuring compliance by employers and aliens, and is funded by program users.
It is limited to a 2-year pilot program with a $25,000 annual admission cap. If the critics of the program are right, it will disappear. If the program works, as we are convinced it will, to protect domestic farm workers and admit aliens in a timely and cost-effective manner, we will have demonstrated how to reform the H–2A program and Congress can act on future agricultural labor needs with confidence. We strongly urge this subcommittee to approve H.R. 2377.
Thank you for your time and attention.
[The prepared statement of Mr. Holt follows:]
PREPARED STATEMENT OF JAMES S. HOLT, SENIOR ECONOMIST, MCGUINESS AND WILLIAMS
Mr CHAIRMAN: My name is James S. Holt. I am Senior Economist with the management labor law firm of McGuiness & Williams and the Employment Policy Foundation in Washington, DC. I serve as a consultant on labor and immigration matters to the National Council of Agricultural Employers (NCAE), on behalf of whom I am testifying here today. I am an agricultural economist, and have spent my entire professional career dealing with labor, human resource and immigration issues, primarily with respect to agriculture. I served 16 years on the agricultural economics faculty of The Pennsylvania State University, and for the past 18 years I have been consulting and doing research here in Washington, first with my own firm, and since 1991 with McGuiness & Williams.
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I originally became involved with the H–2A program while I was still on the Penn State faculty, when I was requested by the Labor Department to undertake studies and testify concerning proposed changes in the predecessor H–2 program. Since then I have done technical consulting with most of the current H–2A user associations and I have assisted groups of growers in several states to form associations and use the H–2A program. I am currently the H–2A technical consultant to the NCAE H–2A Users Subcommittee. I was the technical consultant to H–2 employers in attempting to streamline and make the H–2 program more workable during Congressional consideration of the Immigration Reform and Control Act (IRCA) in 1986. I have conducted numerous prevailing wage and practice surveys and have served as an expert witness in H–2A litigation on behalf of agricultural employers. Thus I have experienced the H–2 and H–2A program from the perspective of long-time experienced users and from the perspective of new employers attempting to access the program.
I am testifying today on behalf of the National Council of Agricultural Employers. NCAE is a Washington, DC based national association representing growers and agricultural organizations on agricultural labor and employment issues. NCAE's membership includes agricultural employers in all fifty states. Our membership employs about 75 percent of the nation's agricultural workforce. NCAE's members include farm cooperatives, growers, packers, processors and agricultural associations. NCAE has historically taken a strong interest in immigration policy as it affects agricultural employers. Our membership includes most users of the H–2A temporary agricultural worker program. NCAE was actively involved in the legislative process that resulted in the enactment of the Immigration Reform and Control Act of 1986 (IRCA), including the attempt to ''streamline'' the H–2A program. NCAE's representation of agricultural employers gives it the background and experience to provide meaningful comments and insight into issues concerning immigration policy and how it affects the employment practices of its members' businesses and the availability of an adequate labor supply.
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Mr. Chairman, I believe we all can acknowledge that American agriculture, particularly the labor intensive segment of the industry—fruits, vegetable and horticultural specialties—is heavily dependent on immigrant labor. That dependence is of long standing, and has almost surely increased in recent years as U.S. production of labor intensive commodities has increased, domestic migrancy has dwindled, and the domestic seasonal farm work force has responded to better economic alternatives. Because of the failure of U.S. immigration policy, both before and since the enactment of IRCA, U.S. agriculture is now heavily dependent not only on an immigrant work force, but on a work force in which many participants use fraudulent work documents that appear genuine and which employers must accept, but who are not legally entitled to work in the United States. Congress is now taking action to correct these deficiencies in U.S. immigration policy. The fundamental public policy question this poses for the Congress is whether it is in the national interest to provide a workable program for the temporary admission and employment of legally admitted alien agricultural workers to replace the illegal immigrant work force that now sustains the industry, or whether the large scale employment of immigrant labor in American agriculture should be ended. The thrust of my testimony is that a workable alien seasonal agricultural worker program is in the national interest. Further, the current mechanism for admitting and employing such workers, the H–2A program, is not working, and a new approach is needed. H.R. 2377 is a workable, responsible approach that should be tested.
A WORKABLE TEMPORARY ALIEN WORKER PROGRAM IS IN THE NATIONAL INTEREST
Hired labor is a necessary input in farming. While it is a significant cost of production in all farm products, it is particularly significant as an input and cost factor in the production of fruits, vegetables and horticultural specialties, the commodities we define as ''labor intensive''. These labor intensive commodities are a significant component of U.S. agricultural production, in fact they are the fastest growing sector of U.S. agriculture.
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All agricultural commodities, including labor intensive commodities, now trade in world markets. Both U.S. imports and exports of these commodities have increased dramatically in recent years, and now constitute a significant component of our agricultural trade. The availability of adequate seasonal labor for farm production has enabled U.S. agricultural producers to expand production of labor intensive commodities in the United States and participate in the growth of U.S. and world markets for these commodities. This expansion has, in turn, created thousands of additional jobs on farms and in the ''upstream'' and ''downstream'' occupations dependent on the production and handling of farm products.
Immigrant labor has been the mainstay of the U.S. seasonal agricultural labor supply for decades. More recently it has become an objective of U.S. public policy to control illegal immigration. Effective control of illegal immigration will significantly reduce the seasonal labor supply currently available to American farmers. Employment of U.S. workers can not be expanded to replace the alien labor currently employed in U.S. agriculture at costs that will enable the current level of U.S. agricultural production to be maintained in competitive world markets. If sufficient labor is not available to U.S. producers to compete in world markets, the economic system will reallocate production from labor-short producers in the U.S. to producers in other countries with adequate labor, until the U.S. market share of labor intensive commodities has been reduced to the level where U.S. producers are again competitive in world markets with the reduced supply of available labor. This will result in a lower level of U.S. production, but approximately the same level of U.S. farm wages and commodity production costs, as before the adjustment. The reduced level of U.S. agricultural production will also reduce concomitant employment in the upstream and downstream activities supported by that production. The end result of a failure to provide a workable temporary alien worker admission program for U.S. agriculture will be to reduce U.S. farm production and agribusiness employment with little or no change in domestic farmworker employment or wages.
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In this scenario, the desirable public policy choice for the U.S. is clear. We should enact a temporary agricultural worker program that provides sufficient safeguards to prevent depressing U.S. farm wages and labor standards below those that prevail in the current competitive market, and that provides sufficient controls to prevent the program from becoming an avenue for illegal immigration, but that otherwise provides ready access to adequate farm labor.
THE CURRENT PROGRAM FOR LEGALLY ADMITTING AND EMPLOYING ALIEN AGRICULTURAL WORKERS—THE H–2A PROGRAM—IS NOT WORKING
The current H–2A temporary agricultural worker program is not working for three principal reasons. One is the structural problems built into the program. DOL ignored some of the most important of the H–2A streamlining provisions of the Immigration Reform and Control Act when the current H–2A regulations were written in 1987. These regulations were issued as interim final regulations in 1987 to meet the IRCA regulatory deadline, and have never been amended. The second reason the program is not working is the way it is administered by DOL. The program is administered in a highly adversarial fashion. DOL regards H–2A applicants as potential, if not actual, lawbreakers and acts as though its mission is to keep employers out of the program rather than to help them use this program which Congress provided. The third reason the program is not working has to do with compliance enforcement and litigation. So-called farmworker advocates have for years strongly opposed the H–2A program. They have made both DOL and H–2A users targets for harassment and litigation. They have attempted to accomplish in the courts what they were unable to accomplish in Congress. Unfortunately the U.S. Department of Labor seems to have adopted the same attitude, and in some cases it appears that the two groups have been working together to try to intimidate employers into not using the program or abandoning it.
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Structural Problems
Mr. Chairman, as you know, the H–2A program is an extremely highly regulated program, with many specific regulatory requirements and deadlines. Rather than describe the regulatory structure in detail here, I have appended a brief description of how the program works. The Employment and Training Administration's H–2A program regulations at 20 CFR 655, Subpart B and the agricultural clearance order regulations at 20 CFR 653, Subpart F occupy no less than 32 pages of the Code of Federal Regulations, and this does not include the regulations pertaining to enforcement and penalties promulgated by the Employment Standards Administration. (In contrast, the regulations governing certification of temporary and seasonal nonagricultural jobs occupy less than one page of the Code.)
This regulatory structure itself can create significant problems for employers trying to obtain reliable, productive workers in a timely manner at a cost they can afford to harvest their crops. Let me emphasize these four criteria, because they are the critical ones for any employer, but especially agricultural employers whose production processes are subject to the vagaries of natural phenomena. Employers need workers who are (1) reliable, (2) productive, (3) available at the time the work needs to be done, and (4) available at a cost that enables the producer to be competitive in the marketplace. Employers are seeking reasonable assurance of a labor supply that meets these criteria. They are not interested in the where these workers come from. All the employers I know would prefer to be able to employ domestic workers, and they certainly want to employ workers that are legally entitled to work in the United States.
I believe Congress thought when it enacted the H–2 program in 1952 and streamlined it and redesignated it H–2A in 1986 that they were enacting a program that would provide a reliable, productive, timely temporary and seasonal labor supply to agricultural employers at competitive cost, while protecting access to jobs for domestic farmworkers and assuring that wages and labor standards were not depressed. Unfortunately it has not worked out that way. Both the program and those who depend on it for labor are struggling.
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Under the statute, one of the criteria to which the Secretary of Labor must certify is that sufficient United States workers are not available. To try to improve the reliability and timeliness of the program, Congress made an important change in the statutory language defining available United States workers in the H–2A streamlining amendments of IRCA. Prior to the passage of IRCA, the Immigration and Nationality Act (INA) required only that sufficient ''qualified'' United States workers not be available. The term ''qualified'' was not defined. IRCA changed that to read that sufficient ''able, willing and qualified United States workers will be available at the time and place needed''. Furthermore, IRCA defined the term ''qualified'' to mean persons who were legally entitled to work in the United States. This was an important change, and its purpose was obvious. Employers were complaining that DOL was denying employers certification to employ alien workers on the basis of vague promises of domestic workers that they would take the jobs, and on the reported ''availability'' of workers whose interest in and ability to do the job and availability for work when the crops were ready was highly suspect, based on past experience.
In the interim final H–2A regulations issued in 1987, under which the program still operates, this new statutory wording has been given virtually no effect. All of the same problems still exist and have gotten worse. Employers' certification requests are denied, reduced or delayed based on the availability of domestic workers who fail to report to the job. Year after year only a small percentage, usually less than half, of the workers on the basis of whom job opportunities are denied certification, fail to report to work on the date of need. Certifications are denied even though workers will not be available for days or even weeks after the date of need. When a referred worker whose availability was the basis for denial of certification fails to report for work or abandons his employment after a few days, the employer must resort to a process called ''redetermination of need''. Even when this process works like clockwork, it means that certifications are not issued until after the date the work is scheduled to begin. And, of course, receipt of a certification as a result of a redetermination of need still requires that the employer petition the INS to admit the aliens, get their visas issued, and transport them to the farm, a process which takes a minimum of 10 days to 2 weeks. In other words, DOL has ignored the words ''available at the time and place needed'' in the statute.
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Similarly, DOL has ignored the words ''able, willing and qualified''. As is discussed more extensively below, DOL does little or nothing to assure that workers fully understand the nature of the jobs to which they are being referred and that they are able and willing to do the work. As a consequence, many referred workers who do report for work abandon their jobs after only a brief period of employment. This has been an especially egregious problem with referrals from the Commonwealth of Puerto Rico, where many workers have arrived on the mainland not even knowing the crops in which they would be working. Workers have repeatedly told employers stories of being threatened by Puerto Rican employment service personnel with termination of their unemployment benefits if they did not accept the H–2A jobs. Not surprisingly, many of these workers arrived at the job site neither able nor willing to do the work.
Even more outrageous is DOL's refusal to take reasonable steps to assure that the workers they refer are ''qualified'', that is, that they are legally entitled to work in the United States. The statutory definition of the word ''qualified'' strongly supports an argument that DOL should at least examine the work authorization documents of workers on the basis of whose referral a certification is denied. Most DOL referral agencies flatly refuse to do even that. Workers arrive without documents, with documents that are clearly not genuine, and with documents that turn out to be false. Some have even had their transportation to the job financed with Job Training Partnership Act (JTPA) funds. The agricultural employer community has raised this issue with DOL and been told DOL does not intend to address the issue. The attitude of the agency is perhaps best reflected in the comment of a referring official in a state job service office to an H–2A association employee when she said ''Why don't you just hire illegal aliens like everybody else does?'' We know of at least one case where a worker was referred even after directly informing the referring official that he was an illegal alien. This simply underscores a point I make later, that DOL views the referral process not as a way of providing reliable, productive legal workers but as a way of denying labor certifications.
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It is also difficult for H–2A employers to assure a productive work force. DOL takes the position that every job qualification and performance standard must be spelled out in the employer's H–2A job order. If an employer takes an action against a poorly performing employee, and the basis for the action is not spelled out in the job order, the employer runs the risks of penalties and litigation. As a result, H–2A job orders have grown to the proportions of legal briefs. Many of them are now in excess of a dozen single spaced pages, and a complete H–2A application package can be a half inch thick. But at the same time that DOL insists that the job orders contain every qualification and condition of employment, they strongly resist the addition of job qualifications and performance standards, arguing that by inserting them employers are really trying to disqualify or screen out domestic workers. As a result, trying to secure approval of a job order that contains reasonable productivity and performance standards becomes an arm wrestling contest between the employer and DOL, and the resulting application is often a compromise document that forces employers to accept employment standards they never would settle for outside the H–2A program. Perhaps the most extreme example of this I can think of occurred when I was preparing an H–2A application for apple growers in a state which does not use the H–2A program. DOL took the position that in the absence of a minimum productivity standard in the job order, an employer could not dismiss a worker for poor production, no matter how little the worker produced, and that in the absence of a minimum performance standard for bruising, the employer could not dismiss a worker no matter how badly the picker damaged the fruit. However, when we tried to put minimum productivity and performance standards in the job order, DOL rejected them on the grounds that there was no documentable prevailing practice that growers imposed specific performance standards on apple pickers. Facing what was clearly going to be a long and expensive negotiation, and probably litigation, on this and other issues in their job order, the growers elected, unsurprisingly, to abandon their application. Another manifestation of this problem is the constant complaint of H–2A employers that they have to keep unproductive workers on their payroll and occupying their housing because of their fear of DOL sanctions, or costly litigation, if they discipline or dismiss a worker.
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Another important structural problem is the cumulative impact of the wage standards and other H–2A required labor standards on H–2A users' labor costs. Employers must pay the higher of an Adverse Effect Wage Rate for the state or the prevailing rate in the occupation and area of intended employment. In addition, H–2A employers must provide free housing and kitchen facilities, reimburse workers' inbound and return transportation costs if they fulfill their work contract, and provide other benefits and work guarantees described in the attachment to this testimony. This package of wages and benefits far exceeds what non H–2A employers provide. Far from seeking ''cheap labor'', a charge often leveled at H–2A applicants, H–2A employers pay a substantial premium to participate in the program. Together with the costs of administering an H–2A program and paying the legal fees associated with defending the program, which I will discuss in more detail later, the cost of participation in the H–2A program is prohibitive for many farmers.
The Adverse Effect Wage Rate is a particular problem for growers of many commodities. The AEWR is set each year at the level of the average hourly earnings of all field and livestock workers, as determined by USDA surveys, in the region of which the particular state is a part. For example, North Carolina and Virginia are combined in USDA's Appalachian I region for wage survey purposes. The AEWRs for 1996 range from $5.68 to $6.87 per hour, and are the minimum hourly rates that H–2A employers may pay their workers in occupations certified for H–2A employment. Since the AEWR is set at the average hourly earnings for all field and livestock occupations in the region, it is well above the prevailing rate in many specific occupations. H–2A employers of workers in occupations where the prevailing wage is below the AEWR are finding it increasingly difficult to compete with their non–H–2A counterparts. There is no corresponding benefit for employers of workers in occupations that pay above the AEWR, because they are required to pay the prevailing rate in the occupation if it is higher than the AEWR. It should be pointed out that even the prevailing wage represents a super wage, since it guarantees workers in H–2A occupations a minimum rate of pay at least equal to the average rate of pay of other workers in that occupation.
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This may be an appropriate place to discuss agricultural wages, because there has been much misinformation disseminated on this issue in the debate about agricultural guestworkers, including the allegation that agricultural wages have ''stagnated'' as a result of the substantial presence of illegal aliens in the U.S. seasonal agricultural work force. During the decade since the passage of IRCA in 1986 the hourly earnings of nonsupervisory production workers in agriculture (field and livestock workers) have increased 43.2% according to the U.S. Department of Agriculture's farm employment and wage survey. During the same period the nonagricultural nonsupervisory production worker hourly earnings have risen only 34.5% according the Bureau of Labor Statistics. Now depending on where you come out in the current national debate on how to properly measure inflation, real wages (i.e. money wages adjusted for inflation) have either declined slightly or risen slightly over the past decade. Using the current CPI measure, they have declined slightly. Using CPI measures that many economists think are more appropriate, they have risen slightly. But no matter how you decide to adjust for inflation, real wages of U.S. farmworkers have outperformed real wages of U.S. nonfarm workers over at least the past decade. The average hourly earnings of U.S. nonsupervisory field and livestock workers in 1996 were $6.33. So far in 1997 hourly earnings of farmworkers are rising at about a 5% annual rate, while nonfarmworker earnings are rising at less than a 4% annual rate.
Administrative Problems
By no means all of the problems H–2A employers and employer associations experience result from the regulatory requirements. Many stem from bureaucratic ineptitude and/or an adversarial approach to the administration of the H–2A program. Often it is hard to separate the two.
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The culture within the DOL is that the H–2A program is evil and that its users do so with evil motives. This culture reflects itself in the attitude of many of the federal and state personnel toward users and potential users of the program. The problem starts when employers inquire about the program or seek ''help'' from federal and state personnel in accessing the program. Many inquiring employers either get little or no information, or get misinformation which seems intended to discourage them from using the program. It is hard to tell how much of this failure to provide information is merely ineptitude and how much as a purposeful effort to dissuade employers from applying for H–2A certification, but either way the public is not being well served. Many employers give up at this stage, if they do not have a local growers association to help them or are not large enough to be able to afford attorneys and consultants. One employer who didn't give up was the Texas rancher who finally got certified to employ ranch hands under the H–2A program. You may remember his dramatic testimony before a joint hearing of the Subcommittee and the Agriculture Committee in 1995, when he piled on the hearing table all 24 pounds of paper he had accumulated in three years of using the H–2A program to employ about a dozen ranch workers!
The administrative problems and antagonistic attitudes continue when an employer files an application. Although the law requires that DOL review and accept or reject H–2A applications for consideration within 7 days, many times such action does not occur within the required time frames. While the Atlanta office has clearly been the worst this year, it is not the only place where such problems have occurred. Timelines in certification, which is even more critical because it does not occur until 20 days before the date the work is scheduled to begin, has been an even greater problem. Employers throughout the country have experienced delays in receipt of certifications, either for no apparent reasons or caused by issues that should have been raised long before the certification date was upon the agency.
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Delays in processing applications are caused by inconsequential issues, or by imposing demands on employers that have no basis in regulations. One of the most frustrating problems for employers and associations who have used the program over a period of years is the constant nit picking of the application. Even though some of these groups have used the program in the same occupation for years, each year when they file the application approved last year new problems are ''discovered''. Mr. Chairman, when these problems are ''discovered'' less than 60 days before the date workers are needed, the employer has a gun to his head. There is no reason that new problems should surface at the last minute when the identical application is filed and DOL knows the same application is going to be filed. Most of the problems that delay acceptance of applications for occupations and employers that have been certified in past years (and that is the vast majority of the applications) seem to be raised for the purpose of harassment and delay rather than to address genuine problems.
In the 1996 season there have been an unusual number of ''emergency'' applications from first-time users of the program. These have resulted, in part, from the booming economy and low levels of unemployment which sometimes presents farm workers with more lucrative and longer term nonfarm alternatives which cause them to alter long established farm employment relationships or even to change employment part way through a season. They have also resulted in part from the increasing levels of border and interior enforcement by the INS. DOL regulations permit DOL to certify such employers without the normal domestic recruiting period or with a shortened period. Employers and H–2A associations have experienced unprecedented difficulties getting DOL to act in a timely manner on such applications. In some cases large crop losses have been narrowly averted.
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Certifications have been delayed because of bureaucratic bungling and purposeful creation of obstacles. For example one employer's certification was delayed more than a week because his fields, and therefore the work, was in one state but his labor camp was across a foot bridge which happened also to cross the state line and the agencies involved could not agree on who should inspect and certify the housing. In another state the agency this year, for the first time, decided to certify the labor camps it inspected only for occupancy by the number of workers requested on the certification application rather then the number of workers the camp could actually accommodate under the housing regulations. This necessitated recertification of the housing each time any additional workers became available. No rational explanation was ever given for the change in inspection policy. The change in policy appeared designed to try to force employers to discharge H–2A workers whenever a domestic worker became available after the employer was certified and his or her alien workers are on site, even though the U.S. workers rarely work more than a few days and leave.
Perhaps one of the most scandalous aspects of the administration of the H–2A program is the area of domestic worker recruitment. The attitude of DOL personnel seems to be to use the process of recruiting domestic workers as a means of delaying certification and increasing the cost to the employer rather than as a means of identifying qualified and willing workers. Year after year employers are put through the same expensive and unavailing domestic recruitment drills. DOL personnel nit pick the language of job orders, often delaying acceptance of applications, on the grounds that workers need to be fully and accurately informed, but then fail to circulate the orders that they so carefully wordsmithed and instead circulate heroically abbreviated summaries. Often domestic workers appear at the place of employment with vague and inaccurate notions of what the job is and report that they were not informed about even the most basic job requirements by the referring DOL office. It is not surprising under such circumstances that many domestic referrals leave the job after performing only a few days or hours of work. Yet DOL officials regard employers' attempts to inform workers of the nature of the work in pre-employment interviews as attempts to discourage the workers from taking the jobs.
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Most state job services, the source for domestic worker referrals, make no attempt to check the work authorization documents of workers referred. It has become especially apparent this season that a significant number of the ''domestic'' workers referred by the job services are persons with fraudulent documents who are not authorized to work in the United States. It is particularly frustrating to employers who have gone to great expense to use the H–2A program to assure that their work force is legal to discover or suspect that the ''domestic'' workers referred to them by government agencies as an alternative to legal aliens may be illegal aliens.
We believe that the agencies charged with administration of programs authorized by Congress have a duty to efficiently administer these programs, to be well informed about the programs they administer, and to help citizens and taxpayers to access the programs Congress has provided. We also believe that the job service agencies have a duty to assure that the workers they refer and on the basis of which certification to employ legal alien labor is denied, meet the statutory requirement that they be authorized to work in the United States.
Compliance Enforcement and Litigation
Although DOL contends to the contrary, it is obvious to H–2A users and nonusers alike that DOL's Wage and Hour Division targets enforcement on H–2A applicants. H–2A users are subject to frequent and unusually harsh H–2A, MSPA and FLSA compliance audits. The perception among agricultural employers is that filing an H–2A application is ''like wearing a target on your back''. I have had many employers tell me they never experienced a DOL audit in their entire business careers until they applied for H–2A certification, and that only the H–2A users in a given area are audited, while nonusers, including some outrageous violators go unchecked. I have, on repeated occasions, been told by H–2A users and association personnel that out of frustration they have called Wage and Hour Division personnel themselves to report particularly outrageous violations by non–H–2A users, only to be met with indifference and inaction or to be told that the agency does not have the resources to follow up on the information.
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The atmosphere of Wage and Hour audits of H–2A employers is often very negative. Employers describe the attitude and demeanor of auditors in many cases as ''Gestapo-like''. Auditors have come on to farms and interviewed workers without even making their presence known to the employer. Employers report that auditors ask leading and suggestive questions of workers, and have suggested to workers at the outset of interviews that their employers are not treating them fairly or giving them all the money to which they are entitled and that the auditors are there to help them get money. Many H–2A Wage and Hour audits could be described as ''white glove'' reviews, with citations for such ''serious'' violations as dishes in the sink or plates on the table when the workers returned to the fields after lunch.
Another problem has to do with inconsistency in interpretation of what constitutes compliance with the H–2A regulations. Prior to the issuance of the interim final H–2A regulations in 1986, the Employment and Training Administration (ETA) had responsibility both for approving Temporary Labor Certification Applications and issuing labor certifications, and also for enforcing compliance with what were then the H–2 regulations applicable to agricultural employers. In 1987, with the passage of IRCA, the compliance enforcement responsibility was transferred to the Employment Standards Administration's Wage and Hour Division. ETA still writes the H–2A regulations, approves H–2A applications and issues the labor certifications. When the Wage and Hour Division began undertaking H–2A compliance audits, there apparently was little or no communication with ETA concerning how the regulations, which were written by ETA and had been enforced by them for years, had been interpreted. Instead Wage and Hour began reinterpreting the regulations and citing employers for practices that for years had been considered compliance.
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One example has to do with employers obligations to reimburse workers' inbound transportation costs. Under the current H–2A regulations, and the H–2 regulations before them, H–2A employers are obligated to reimburse the inbound transportation costs of H–2A workers who provide or pay for their own inbound transportation when the worker completes 50 percent of the work contract period. A few years ago, out of a clear blue sky, Wage and Hour Division auditors began threatening employers with citations if they did not reimburse workers' inbound transportation costs at the end of the first pay period to the extent that a worker's first pay period earnings, minus the entire cost of inbound transportation, brought the worker's pay below the minimum wage. Auditors took the position that even if a worker worked only a few hours and then quit, the employer was obligated to reimburse the worker's inbound transportation cost. Not only is this requirement unreasonable on its face, it is in direct conflict with the H–2A regulations. After much argument, including appeals by many employers to their Members of Congress, the Wage and Hour Division has said they will not assert violations in this area pending further review, but have not backed away from asserting the interpretation itself. It could reemerge at any time.
Mr. Chairman, we are not objecting to full and fair enforcement of agricultural labor laws. There are employers who are bad actors and they should be punished. Some of them are H–2A users and many are not. But the enforcement process should not be used as a means for pursuing other agendas, and particularly not for discouraging employers from taking advantage of government programs specifically provided by Congress, just because an agency may not agree with the Congressional act.
The other part of the compliance problem faced by H–2A employers is the huge volume of litigation filed against both DOL and H–2A employers by the taxpayer-supported legal service community. The migrant legal service community has been a long-time foe of the H–2A program. They fought the continuation and streamlining of the program during the Congressional consideration of IRCA and then sought to load the regulations with hamstringing provisions. They have filed numerous lawsuits against DOL challenging DOL's H–2A regulations, its interpretation of the regulations, and the decisions DOL makes under the regulations. Because employers are the real parties at interest in these lawsuits, H–2A employers are forced to join many of these suits, at great expense, to protect their interests.
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In addition to lawsuits filed against DOL, there has been a huge body of litigation brought against employer-users of the H–2A program. While occasionally one of these suits is justified, most of the litigation is filed to harass H–2A users and discourage other employers from using the program. And it has been effective. One of the primary reasons that H–2A usage is still under 25,000 workers annually in the United States is not because there is not a need, but because employers are afraid of and cannot afford what they regard as the inevitable litigation gauntlet they must run to establish and maintain a program. The tens of millions of dollars devoted by the legal services community to H–2A litigation would be absurd if it were viewed only in light of the size of the current program. But it begins to make sense when viewed in the light of the avowed opposition of the legal services community to the H–2A program and its desire to prevent H–2A usage from expanding.
H.R. 2377 IS A REASONABLE APPROACH TO STREAMLINING THE ADMISSION AND EMPLOYMENT OF ALIEN SEASONAL AGRICULTURAL WORKERS AND SHOULD BE TESTED
Mr. Chairman, the time for tinkering is over. Despite a yeoman effort in 1986 to ''streamline'' the H–2A program, it has not worked. A broader approach to streamlining the process for admission and employment of alien seasonal agricultural workers is needed. H.R. 2377 represents such an approach. It is not a new and untested approach. It replaces the cumbersome, resource intensive and time consuming labor certification process with an attestation process in which the participating employer provides notice to the Department of Labor, its employees and the public that it may need to employ alien labor and commits to abide by the requirements for doing so. The Department of Labor still has responsibility for enforcing compliance with the program requirements, as well as all other applicable labor laws, and has effective tools for punishing noncompliers.
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This is the same approach adopted by this Subcommittee and the Congress in 1990 and 1991 under Chairman Morrison in reforming the process for admission of nonimmigrant aliens in the H–1A and H–1B categories. Nonagricultural business and academic institutions had the same problems with the labor certification process that agriculture has experienced. Agriculture's problems are, if anything, more compelling, because of the timelines burden that agricultural production imposes. H.R. 2377 replaces labor certification with labor attestation, but includes the most important and practical worker protections of the current program, to assure a mechanism which is timely and cost effective for employers and adequately protects domestic and alien farm workers. It also includes effective mechanisms to assure that employers and aliens comply with their responsibilities.
Labor Standards
H.R. 2377 requires that participating employers pay at least the prevailing wage (i.e. in the upper 50 percent of the wage distribution) for the occupation in the area of employment, and provide housing or a housing allowance on the same basis as is prevailing practice in the occupation and area of employment. Transportation assistance must be provided to domestic workers if it is provided to aliens. Workers must be covered by workers compensation (which is not required by law for agricultural workers in all states). Most importantly, employers must comply with all applicable federal, state and local labor laws with respect to both domestic workers and aliens. Alien workers may be employed only in job opportunities which are seasonal, i.e. lasting 10 months or less.
Domestic Worker Recruitment
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The program requires that employers file a job order with the local job service office for each occupation covered by an attestation before employing any aliens in the occupation. The program also specifically authorizes the Department of Labor to disseminate information about potential labor needs covered by accepted attestations, so that domestic farmworkers have a way of learning about the available job opportunities.
Providing First Access by Domestic Farmworkers to Jobs
Domestic workers are assured first access to all job opportunities in which aliens are employed by a domestic worker preference provision that requires employers to offer to employ able, willing and qualified U.S. workers who apply to the employer for the first 25 days after a job order for workers is filed with the local job service or until 5 days before the date work is to begin, whichever occurs later. This preference prevails even if an employer already has hired aliens, so long as the 25 day preference period is in effect.
Assurance of Compliance By Employers
Employers are obligated to comply with all applicable labor laws as well as the specific requirements of the program. The Labor Department is authorized to investigate allegations of noncompliance with the requirements of the program by affected workers or any other party. Penalties for noncompliance include back pay, civil money penalties, and, for repeat violators, disqualification from participating in the program.
Assurance of Compliance By Aliens
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Similarly, the program includes measures to assure compliance with the program requirements by aliens. Aliens are admitted, or their stay is extended, on a job-by-job basis and they are authorized to be employed only in the specific job opportunity and employer for which they were admitted or extended. Thus, an alien participating in the program would be an illegal alien not authorized to work for any purpose other than the specific job opportunity. The program provides for the issuance of a counterfeit resistant identification document with a biometric identifier such as a fingerprint to assure positive identification of the alien. The program includes debarrment penalties for aliens who violate program requirements. Finally the program includes a provision that 25 percent of the alien's wages are withheld in an interest-bearing trust fund to be repaid to the worker in the worker's home country when they make a timely return.
User-fee Funded
The program provides, as does the current H–2A program, that alien's wages are not subject to FICA and FUTA taxes, and bars aliens from benefits under these programs. However, it requires that employers pay into a trust fund an amount equivalent to the FICA and FUTA taxes as a user fee to pay the cost of administration of the program.
Pilot Basis
Finally, H.R. 2377 establishes this program only on a pilot basis for a limited time period. The program is limited to 25,000 visas in each of two years, and ends after the 2 year period. This will allow time to test the various concerns of Members of Congress as to whether the program works, adequately protects U.S. workers, assures compliance, and assures that participating aliens comply with the requirements of the program and depart the country in a timely manner. The General Accounting Office is mandated to conduct a study of the program and report to Congress. Congress would have to specifically act to reauthorize the program and to raise or remove the cap.
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CONCLUSION
Mr. Chairman and members of the Subcommittee, American agriculture is experiencing a serious problem as a result of the reform of U.S. immigration policy. It is in the interest not only of U.S. farmers, but of farm and nonfarm workers and the nation, that this problem be addressed promptly and effectively. The current temporary alien agricultural worker admission policy does not work, and attempts to reform and streamline it have been unavailing. It is imperative that this problem be remedied. What has been proposed is a modest, short lived pilot of what gives promise of being a workable alternative mechanism. We strongly urge this Committee and the Congress to proceed with this important pilot program.
INSERT OFFSET RING FOLIOS 1 HERE
| McGuiness & Williams, |
| Washington, DC. |
RESUME, DR. JAMES S. HOLT, SENIOR ECONOMIST
Education
B.S. The Pennsylvania State University, 1959 Graduate Work, University of Minnesota, 1961–62 Ph.D. The Pennsylvania State University, 1963.
Occupational Record
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1961–63Instructor in Agricultural Economics, The Pennsylvania State University
1963–70Assistant Professor of Agricultural Economics, The Pennsylvania State University
1970–75Associate Professor of Agricultural Economics, The Pennsylvania State University
1975–79Professor of Agricultural Economics, The Pennsylvania State University
1978–79Visiting Scholar, Economic Development Division, U.S. Department of Agriculture
1979–87Consulting Agricultural Economist in private practice, Washington, DC
1987–91Partner—Holt, Miller & Associates, Arlington, VA
1991–PresentSenior Economist, McGuiness & Williams; Vice President for Research, Employment Policy Foundation; Senior Economist, Employment Advisory Services, Inc., Washington, DC
Publications
More than 60 articles in academic journals, monographs, technical bulletins, chapters in books, semi-technical and popular articles and reports. (Publication list upon request)
Memberships
American Agricultural Economics Association
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American Society of Agricultural Consultants (Certified)
Agricultural Personnel Management Association (Charter)
Public Consultancies
U.S. Department of Agriculture
U.S. Department of Labor
Minimum Wage Study Commission (Federal)
National Commission on Employment and Unemployment Statistics
National Commission on Unemployment Compensation
University of Florida
Cornell University
University of Texas at Austin
Board of Directors, Legal Services Corporation
Commission on Agricultural Workers (Federal)
Private Consultancies
(A representative list will be provided upon request'
Specific Experience in Immigration and H–2A
Extensive consulting experience with business firms, employer associations and as litigation consultant on H–2A and other non-immigrant alien admission programs, labor certification procedures, prevailing wage and practice determinations.
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Technical consultant to the National Council of Agricultural Employers for the national coalition of agricultural employer associations who administer H–2A programs.
Principal technical consultant to agricultural employers on H–2A provisions during enactment of the Immigration Reform and control Act (IRCA).
Extensive experience in preparing and reviewing temporary and permanent labor certification applications and immigrant and nonimmigrant admission applications for agricultural and non agricultural employers.
Extensive experience in organization and start up of new H–2A programs.
Consultant and expert witness in Federal litigation on behalf of H–2A employers.
Extensive experience in designing and conducting prevailing wage and practice surveys for private clients challenging U.S. Department of Labor prevailing wage findings.
Developed and conducted employer training programs on employment eligibility verification and preventing immigration-related employment discrimination under Department of Justice educational grant programs.
Consultant to the U.S. Departments of Labor and Agriculture and numerous Federal commissions on agricultural labor and H–2A program matters.
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Ph.D. in agricultural economics and 16 years on the farm management faculty of The Pennsylvania State University specializing in human resource management and agricultural labor policy, followed by 16 years as a consultant specializing in agricultural labor and immigration matters in Washington, DC.
Specific Experience in Emplonnent and Wage Rate Statistics and Surveys:
Sixteen years experience while on the faculty of Penn State University and 16 years experience in private practice in designing and conducting survey research.
Extensive consulting experience with business firms, employer associations and as litigation consultant on non-immigrant alien admission programs, labor certification procedures, prevailing wage and practice determinations and adverse effect wage rate determinations .
Extensive experience in designing and conducting prevailing wage and practices surveys for private clients to support applications for alien labor certification or to challenge U.S. Department of Labor prevailing wage findings.
Expert witness in Federal District Court on litigation challenging U.S. Department of Labor adverse effect wage rate methodology.
Consultant to National Commission on Employment and Unemployment Statistics on federal employment and wage statistical programs.
Consultant to Economics and Statistics Service, U.S. Department of Agriculture, on agricultural employment and wage statistical programs.
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Consultant to Minimum Wage Study Commission (Federal) on agricultural wage survey program and agricultural coverage under federal minimum wage statutes.
Chairman of Joint Task Force of the American Agricultural Economics Associations and U.S. Department of Agriculture to evaluate federal statistical programs for measurement of agricultural employment and wages.
Project Director and member of Executive Committee for $1.8 million 15-state survey of employment and earnings for the U.S. Department of Labor, Unemployment Insurance Service, to develop options for Federal unemployment insurance coverage.
Mr. SMITH. Mr. Hancock.
STATEMENT OF JOHN R. HANCOCK, FORMER ADMINISTRATOR OF AGRICULTURAL LABOR CERTIFICATIONS EMPLOYMENT AND TRAINING ADMINISTRATION, DEPARTMENT OF LABOR
Mr. HANCOCK. Mr. Chairman, I retired in 1995 from the U.S. Department of Labor after 37 years of Federal service. During the period 1982 through 1994, I was in charge of the agricultural labor certification unit within the Employment and Training Administration of the department. I am presently serving as a consultant to McGuiness & Williams on issues related to agricultural labor and immigration programs impacting upon such labor, in particular the H–2A program.
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It is my opinion that the H–2A program is not equipped to deal adequately with any new demands that might be placed upon it by U.S. employers who should choose to seek labor certification for any substantial numbers of farm workers. Regrettably, the program hardly ever works as simply as the original framers of the immigration statutes may have contemplated. The program is indeed cumbersome, enforcement driven and litigation prone as its critics have pointed out. Employers must wade through a regulatory maze in order to achieve some sort of basic understanding of what is required of them. With its multiple regulations and related requirements, it is too complex for the average grower to comprehend and use without the aid of a good lawyer or experienced expert.
Aside from problems with the H–2A program's administrative and adjudicative headaches, the simple fact is that the mechanisms in place within the Department of Labor system that are put into play in order to help employers try to find sufficient U.S. workers are not up to the task. When an employer submits an application for H–2A labor certification, the employer agrees to cooperate with the U.S. Employment Service and its affiliated State employment service agencies and offices in working through this interlocking system to try to find U.S. workers.
The role of the Employment Service in matching farm workers with farm jobs once was considerable. During the periods 1955 through 1959, an average of 9.1 million farm labor placements were made each year by the Employment Service. The activity reached its peak in 1960 when about 9.5 million farm placements were made. However, starting in the early 1970s, the entire agricultural placement activity of the Employment Service became the object of extensive litigation. This litigation went on for several years, culminating in a consent decree between the Department of Labor and the farm worker advocate plaintiffs in the case. DOL agreed to engage in extensive oversight of the entire State system and to eventually develop the regulations governing the system that now exist. As the result of this litigation, many States simply got out of farm labor business in late 1970s. They did not see any reason to become subject to the extensive oversight that was required as a result of various court orders.
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Many employers who used the system prior to the litigation stopped doing so because placing their job orders with the Employment Service under the conditions that existed in the 1970s rendered them subject to extensive oversight as well. Agricultural recruitment activities subsequently declined considerably. The number of individuals placed in agricultural jobs by the Employment Service system declined to about 140,000 in 1982 from a peak of 9.5 million in the 1950s.
Because DOL later decided it was no longer necessary to continue collecting data on the number of people placed in agricultural jobs, it is now no longer possible to even reasonably estimate for how many people the ES system finds jobs in farm work. Due to the disincentives associated with agricultural placement activities that have evolved over the years, most State agencies have not maintained any visible employer relations programs insofar as agricultural employers are concerned. As a result, along with countless other factors, agricultural employers have for many years not viewed the Employment Service as a resource for finding agricultural workers.
As a flip side to this, because there are so few agricultural job opportunities listed with the Employment Service, most farm workers have ceased to view the ES system as a vehicle for helping them to find employment in agriculture. Only about 10 to 15 percent of the job openings available with H–2A employers have been filled by workers referred by the Employment Service in recent years.
The numbers of such workers who stay on the job to complete a total contract period has been extremely small. In the last year, budget cuts imposed on the State agencies have resulted in a reduction of staff designated for labor certification activities by 40 to 50 percent. This general cut, when examined in conjunction with a continued deemphasis on agricultural placement activity, gives one a fairly good idea of where the already limited State agency ability to assist potential H–2A program users is headed. Further, the role of the Department of Labor in administering the program from the Federal end has become exclusively almost enforcement and compliance oriented. The Department of Labor's responsiveness to employer needs in terms of timeliness and competent processing of employer certification applications is token at best.
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DOL's unwritten policy is that the program is a pain, and it would be better for all concerned if it would simply go away. This policy has resulted in active discouragement of employers who persist in trying to use the program. Staff competence within DOL has been eroded by constant reductions in staffing and turnover. Experienced and knowledgeable people have left and not been replaced as a result of overall downsizing in the last 2 years. The regional offices in particular have experienced constant turnover. It is often very difficult to find staff in these offices who can explain the program, let alone administer it.
In summary, Mr. Chairman, the H–2A program does not work. The program has become compliance and enforcement oriented rather than offering a service to employers and workers in need. It lacks a sense of balance.
Thank you for your attention.
[The prepared statement of Mr. Hancock follows:]
PREPARED STATEMENT OF JOHN R. HANCOCK, FORMER ADMINISTRATOR OF AGRICULTURAL LABOR CERTIFICATIONS EMPLOYMENT AND TRAINING ADMINISTRATION, DEPARTMENT OF LABOR
Mr. CHAIRMAN: In 1995 I retired from the U.S. Department of Labor (DOL) after 37 years of Federal service. During the period 1982 through 1994, I was in charge of the agricultural labor certification unit within the Employment and Training Administration of the DOL. Prior to 1982, 1 spent considerable time over a period of twelve years working in program areas having to do with the recruitment of domestic agricultural workers. I am presently serving as a consultant to McGuiness and Williams on issues related to agricultural labor and immigration programs impacting upon such labor, in particular, the H–2A temporary alien agricultural worker program.
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As an experienced hand in agricultural labor recruitment matters, it is my opinion that the H–2A program as presently constituted is not equipped to deal adequately with any new demands that might be placed upon it by U.S. employers who, for whatever reason, should choose to seek labor certification for any substantial numbers of farmworkers.
The present H–2A program operates on the basic assumption that there are times when the supply of domestic labor is not sufficient to meet the needs of some U.S. agricultural employers. When such times occur, employers with a shortfall of domestic workers are afforded the opportunity to petition the U.S. government for permission to import foreign agricultural workers into the U.S. on a temporary basis to fill a specific temporary need. If the employer's job opportunity complies with labor standards required to be offered by DOL regulations, and the job opportunities are first given to U.S. workers to accept or reject, the employer can (theoretically, at least) receive a labor certification from DOL and apply to the INS for visas to import temporary foreign workers.
Regrettably, the program hardly every works as simply as the original framers of the immigration statutes may have contemplated or the original regulation writers may have intended.
Representatives of the employer community have recently testified to their perception that the H–2A program is not workable because it is too cumbersome, enforcement driven, and litigation-prone. Specific examples have been cited of the bureaucratic minefield that employers often must crawl through in order to have their labor certification applications objectively acted upon. As someone who has been in a position to take the heat from such criticism, I must admit that a great deal of it is justified. That is not to say that there are not often very legitimate and supportable reasons why bureaucrats must say and do certain things the way they do, because such reasons exist. Nonetheless, the end result is that the program is indeed cumbersome and litigation-prone. Employers must wade through a regulatory maze in order to achieve some sort of basic understanding of what is required of them. The current regulations reflect leftovers from treaties with foreign nations going back to the 1940's, court mandated requirements stemming from years of litigation, and legislative hurdles imposed by the Immigration Reform and Control Act of 1986. The current program with its multiple regulations and related requirements is too complex for the average grower to comprehend and use without the aid of a good lawyer or experienced expert. The H–2A program is not currently a reliable mechanism to meet labor needs in situations where domestic workers are not available.
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Aside from problems with the H–2A program as an administrative and adjudicative headache, the simple fact is that the mechanisms in place within the DOL system that are put into play in order to help applying employers try to find sufficient U.S. workers are not up to the task.
When an employer submits an application for H–2A labor certification, one of the primary reasons for doing so is that the employer, through its own efforts and networking, is not able to identify available, qualified and willing U.S. workers. By applying for H–2A certification, the employer agrees to cooperate with the U.S. Employment Service and its affiliated State employment service agencies and offices in working through this interlocking system to try to find U.S. workers. This interstate mechanism for finding farmworkers was historically known as the Interstate Clearance System. In recent years it has come to be known as the Agricultural Recruitment System (ARS).
The role of the Employment Service in matching farmworkers with farm jobs once was considerable. Within the Department of Labor in Washington and its regional offices and many of state Employment Service agencies, there was a separately identifiable Farm Labor Service which existed exclusively for the purpose of matching agricultural workers with agricultural jobs.
HISTORY OF THE H–2A PROGRAM
The height of the activity of this Farm Labor Service was in the 20 years after World War II. During World War II, the War Manpower Commission was created to control most of the labor exchange functions throughout the United States in conjunction with the war effort. The U.S. Department of Agriculture had a considerable role in agricultural labor, particularly, the massive importation of farmworkers during World War II to work in agriculture in the United States. The Farm Labor Service had a very active role in the operation of P.L. 78, the so-called Bracero program, a special agreement between the United States and Mexico. This program reached its peak in 1956 through 1959 when about 450 thousand Mexican workers were sent to the United States each year to work in agriculture.
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During the period 1955 through 1959, an average of 9.1 million farm labor placements were made each year by the Employment Service system. The activity reached its peak in 1960, when about 9.5 million farm placements were made by the Employment Service system.
With the increased use of mechanization and shifting population patterns, things changed considerably in the 1960's. After the Bracero program expired in 1964, the Employment Service system began to place more emphasis on the utilization of the Interstate Clearance System to fill labor shortages where former contract Mexican workers had once been employed. At that time there were no extensive regulations issued by the Department of Labor to govern this system.
It is estimated that the peak of the agricultural Clearance System occurred in 1966 and 1967 when about 5,000 clearance job orders were used to actively recruit U.S. workers from other areas for employers who had a shortage of local workers. Most of these clearance orders were sent through the Clearance System to Texas and Florida, the primary labor supply states in the United States.
OVER-REGULATION, LITIGATION AND ENFORCEMENT, RATHER THAN JOB SERVICE ATTITUDE, HAVE SEVERELY LIMITED THE USE OF THE H–2A PROGRAM
Starting in 1971, the Farm Labor Service and the entire agricultural placement activity of the Employment Service became the object of extensive litigation. In 1972 and 1973 a court in the District of Columbia found the Department of Labor guilty of permitting State Employment Service agencies to engage in a number of violations of the Wagner-Peyser Act and violations of the Civil Rights Act which denied farmworkers the full range of employability services primarily by stereotyping them for only farm labor jobs and failing to enforce protective legislation. This litigation went on for several years, culminating in a consent decree between the Department of Labor and the plaintiffs in the case.
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In 1974 the Department of Labor agreed to make many internal changes in its operations, to engage in extensive oversight of the entire State Employment Service system and to eventually develop the regulations governing the system that now exist.
As a result of this litigation many states got out of the farm labor business in the late 1970's. They did not see any reason to become subject to the extensive oversight that was required as a result of these various court orders. Many employers who had used the Employment Service prior to the litigation stopped doing so because placing their job orders with the Employment Service under the conditions that existed in the 1970's rendered them subject to extensive oversight as well.
Agricultural recruitment activity declined considerably in the 1970's. By 1982, nationwide clearance orders had declined to about 300 from the peak of 5,000 in 1966, and many of these were job orders submitted by H–2 employers who were required to use the Employment Service system in order to recruit U.S. workers as a pre-condition for getting labor certification from the Department of Labor. The number of individuals placed in agricultural jobs by the Employment Service system declined to about 140,000 in 1982 from a peak of nine and a half million in the 1950's.
The role of the ES in placing farmworkers in agricultural jobs continued to decline in the 1980's to the point where DOL decided it was no longer necessary to continue collecting data on the number of people placed in agricultural jobs. It is, therefore, no longer possible to even reasonably estimate for how many people the ES system finds jobs in farmwork.
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Due to the disincentives associated with agricultural placement activity that have evolved over the years, most state agencies have not maintained any visible employer relations programs insofar as agricultural employers are concerned. As a result, along with countless other factors, agricultural employers have, for many years, not viewed the ES as a resource for finding agricultural workers when they have a need for them. As a flip side to this, because there are so few agricultural job opportunities listed with the ES, most farmworkers have ceased to view the ES system as a vehicle for helping them to find employment in agriculture.
Some state agencies do maintain a quasi-farm placement operation in order to comply with their responsibilities under the H–2A program. However, the results achieved have been minimal. Only about 10 to 15 percent of the job openings available with H–2A employers have been filled by workers referred by the ES in recent years, and the numbers of such workers who stay on the job to complete a total contract period has been extremely small.
In recent years (and before current budget cuts), there was some talk within DOL (coupled with a few pilot efforts) aimed toward revitalizing the agricultural worker placement capability of the Employment Service. None of this produced any appreciable results. In the last year, budget cuts imposed on the state agencies have resulted in a reduction of staff designated for labor certification activities by 40–50%. This general cut, when examined in conjunction with continued de-emphasis on agricultural placement activity, gives one a fairly good idea of where the already limited state agency ability to assist potential H–2A program users is headed. An example of this occurred in Ohio this past year. As a condition for receiving labor certification, employers must provide housing that meets certain health and safety standards and must pass an inspection conducted to insure compliance with those standards. While those particular employers' certification applications otherwise complied with all applicable regulatory requirements, their certifications were delayed for weeks beyond the statutory deadline because the state agency was incapable of identifying on a timely basis staff capable of conducting the housing inspections.
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Further, the role of DOL in administering the program from the Federal end has become almost exclusively enforcement/compliance oriented. DOL's responsiveness to employer needs in terms of timeliness and competent processing of employer certification applications is token, at best. DOL's unwritten policy is that the program is a pain, and it would be better for all concerned if it would simply go away. This policy, which favors organized labor's position that all foreign worker programs are bad, has resulted in active discouragement of employers who persist in trying to use the program. Staff competence within DOL has been eroded by constant reductions in staffing and turnover. Experienced and knowledgeable people have left and not been replaced as the result of overall downsizing in the last few years. The regional offices, in particular, have experienced constant turnover, and it is often very difficult to find staff in these offices who can explain the program, let alone administer it.
This past year, for example, in one regional office, remaining labor certification staff were supposedly so pressed to deal with non-agricultural applications that they completely ignored H–2A certifications requiring action within legislatively mandated timeframes. It took a special effort from the national office to actually go into the regional office to clean up the backlog of about 75 applications before order could be restored. So much for timeliness.
CONCLUSION
In summary, Mr. Chairman, the H–2A does not work. Because of the program problems described above, the role of the Employment Service, the centerpiece of DOL's labor certification function, has declined to the point that its has stopped collecting data on farm job placements. Both employers and workers consider the Employment Service as an ineffective source of jobs.
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H–2A program requirements mandate that users of that program use the Employment Service to seek domestic workers before alien workers are admitted; however, only 10 to 15% of job openings are filled by ES referrals and only a small percentage of the referrals remain through the completion of the jobs to which they are referred.
A major reason for the H–2A program's ineffectiveness in meeting its statutory purpose is that those who administer it either ignore or are incapable of complying with Congress's mandate that employers with legitimate needs for workers have those needs met in a timely manner that protects the domestic worker. There are few, if any, DOL employer relations programs that seek to assist employers in using the program. To the contrary, the mindset at DOL is to discourage the use of the H–2A, often through arbitrary and unwritten program requirements that discourage and impede its use. The program has become compliance and enforcement oriented rather than offering a service to employers and workers in need. There is no sense of balance.
This bad situation is getting worse. Those with program expertise and knowledge are leaving. Staff cutbacks during the past several years have been 40 to 50%. Unfortunately, employers seeking to use the H–2A face the worst of all possible situations—an agency with an institutional bias that discourages use of the H–2A program that now has fewer people to administer it—and those who remain with the program often lack the willingness, knowledge or competence to do so properly.
INSERT OFFSET RING FOLIOS 2 TO 3 HERE
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Mr. SMITH. Mr. Goldstein.
STATEMENT OF BRUCE GOLDSTEIN, EXECUTIVE DIRECTOR, FARMWORKER JUSTICE FUND
Mr. GOLDSTEIN. Mr. Chairman, my name is Bruce Goldstein. I am a co-executive director of the Farmworker Justice Fund, an advocacy group in Washington, D.C.
Thank you, Mr. Chairman, for the opportunity to present testimony today.
There is no valid justification for a new temporary foreign agricultural worker program. There is no shortage of labor, only a shortage of jobs. The oversupply of agricultural labor in the United States and its ill-effects continue.
Double-digit unemployment rates persist in farm labor counties in California, Florida, and Texas, as our exhibits illustrate. Washington State reports more than two farm workers for every job. These statistics do not yet reflect the impact of last year's welfare reform legislation which will force public benefit recipients into low-wage jobs.
That there is no actual or impending labor shortage in agriculture is evident from the behavior of employers. Companies expecting a labor shortage would respond by improving recruitment techniques, raising wages, and taking other actions to attract and retain workers.
We have seen little evidence of employers attempting to stabilize the work force. Real wages of migrants and seasonal farm workers have declined or stagnated, even though U.S. fruit and vegetable production and exports have dramatically expanded.
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Employee turnover remains high. The rate of farm workers' poverty has increased as documented by the Department of Labor. Growers have increasingly turned to farm labor contractors, the intermediaries, who are known for bringing in vulnerable unauthorized immigrants whose status causes them to work hard without complaint for lower wages. The Department of Labor reports that the percentage of crop workers who are unauthorized immigrants increased from 7 percent, just after the 1986 immigration amnesty law, to 37 percent during 1994 and 1995. Nonetheless, the Commission on Immigration Reform reported that the agricultural labor supply would remain adequate even if every unauthorized immigrant were removed from the United States. Even with increased resources, however, the INS will not stop agricultural employers from continuing to hire undocumented foreign workers.
There is no need for a new guestworker program in addition because we already have the H–2A temporary foreign agricultural worker program. In fact, the Department of Labor has been all too willing to approve H–2A guestworkers even when employers have obviously discriminated against the United States farm workers.
Before taking action, Congress should review the General Accounting Office's upcoming report about the H–2A program.
A new guestworker program is also inconsistent with our attempts to control our borders. The Commission on Immigration Reform and others have found that guestworker programs cause illegal migration during and long after their existence.
For all these and other reasons, three government commissions during the last 5 years have recommended against any new agricultural guestworker program. The particular guestworker proposal in H.R. 2377 is extreme. It would be worse than the scandalous bracero program. It would cede control over government visas to private employers in the industry that is most identified with violating immigration and labor laws. It would also allow every danger inherent in guestworker programs to become a reality. Employers would not be required to test the U.S. labor market before hiring foreign workers. They could freely recruit in foreign countries without recruiting in the United States. They could reject U.S. workers who fail to apply for jobs during a narrow window of time. More importantly, U.S. workers could be rejected if they demanded more than the low wages and inadequate benefits that this bill authorizes. The lack of obligations to provide housing for these workers is especially inhumane.
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The foreign workers would justifiably fear being fired or blacklisted if they challenged unfair or illegal practices because they would be tied to the employer that secured their temporary visa. The bill also sharply restricts the government and the courts from protecting workers' rights.
The House of Representatives soundly defeated a virtually identical guestworker proposal during last year's debate over the immigration bill. The lower numerical limit on guestworkers in this year's proposal does not make it anymore reasonable.
In conclusion, this guestworker proposal is not about a labor shortage. It is about granting agribusiness a Federal exemption from the economic laws of competition so that employers may impose subpoverty level wages and working conditions. Thank you.
Mr. SMITH. Thank you, Mr. Goldstein.
[The prepared statement of Mr. Goldstein follows:]
PREPARED STATEMENT OF BRUCE GOLDSTEIN, CO-EXECUTIVE DIRECTOR, FARMWORKER JUSTICE FUND, INC.
My name is Bruce Goldstein. I am co-executive director of the Farmworker Justice Fund, Inc., an advocacy group in Washington, D.C. for migrant and seasonal farmworkers. Thank you, Mr. Chairman, for the opportunity to testify about H.R. 2377.
INTRODUCTION
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Major agribusiness organizations have been lobbying Congress for radical changes to the H–2A temporary foreign agricultural worker program. Pending proposals in the House (H.R. 2377) and Senate (S. 169) would enable agricultural employers to bring in large numbers of temporary foreign workers with minimal government oversight. Standards for wages, housing and working conditions that exist in the current law would be substantially lowered or eliminated. No valid justification exists for a new agricultural guestworker program.
The agricultural employer groups variously claim that there is an actual or imminent shortage of citizens and authorized immigrants willing to do farm work. Contending that a majority of farmworkers are unauthorized immigrants, and that increased enforcement by the Immigration and Naturalization Service will reduce the farm labor force, the employers claim that they will lose much of their labor force. Agribusiness organizations also claim that the current H–2A agricultural guestworker program is too bureaucratic, slow and subject to litigation.
Farmworker advocates, supported by numerous government and academic studies, argue that there is no actual or impending shortage of farm labor in the United States. Rather, there is double-digit unemployment in farm labor supply counties. There would be no labor shortage even in the unlikely event that the INS enforcement on the border and in the interior were to remove many undocumented farmworkers. Moreover, the H–2A guestworker program—which has been manipulated for many years for the benefit of growers—continues to serve as a safety valve if shortages were to develop.
In any event, the issue is not a labor shortage; the issue is the level of wages and working conditions. Other industries that actually are facing a tighter labor market are responding by improving their job offers and their workplaces. Agribusiness, despite its years of predicting labor shortages, has not acted like an industry facing a labor shortage. Farmworkers' wages have not kept pace with inflation. Conditions have not improved. Agricultural employers have not adopted recommendations by government commissions on ways to stabilize the labor force. Rather, agribusiness has perpetuated a low-wage, high turnover strategy made possible by increasing employment of vulnerable undocumented workers. Now the industry wants legislation that would guarantee a constant flow of non-immigrant workers at inadequate wages and working conditions.
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Agribusiness seeks a legislative exemption from the economic law of supply and demand at the expense of the poorest of the working poor. Congress should reject the industry's request.
A BRIEF HISTORICAL BACKGROUND
The longstanding ''plight'' of migrant and seasonal farmworkers is associated with America's history of granting agricultural employers access to foreign workers, including slaves, contract laborers, newly-arrived immigrants and vulnerable undocumented workers. In California's large-scale agriculture, employers secured access to significant pools of foreign workers beginning in the mid-1800's. Chinese workers were eventually followed by Japanese, Filipino, and Mexican citizens, among others. At the turn of this century, Italian contract laborers worked in agriculture in the eastern United States under the padrone system. See Cletus E. Daniel, Bitter Harvest: A History of California Farmworkers, 1870–1941 (Univ. of Calif. Press 1981), ch. 2; Cindy Hahamovitch, The Fruits of Their Labor: Atlantic Coast Farmworkers and the Making of Migrant Poverty, 1870–1945 (Univ. of North Carolina Press 1997), ch. 2.
During the Great Depression's internal migration of native-born whites, made famous in John Steinbeck's Grapes of Wrath (1939), some observers thought that the farm labor force would stabilize and conditions would improve:
. . . ''Okies'' and ''Texicans'' were not another minority alien racial group (although they were treated as such) but American citizens familiar with the usages of democracy. With the arrival of the dust-bowl refugees a day of reckoning approaches for the California farm industrialists. The jig, in other words, is about up.
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Carey McWilliams, Factories in the Fields: The Story of Migratory Farm Labor in California (1939) at 306; Daniel, at 283. Such optimism proved unfounded.
The guestworker system known as ''the bracero program'' began during World War II as a government-to-government agreement between Mexico and the United States. It was extended several times through congressional action until it ended in 1964 amid great controversy. The program was focused on California and states in the Southwest and Northwest. Between 4 and 5 million Mexican citizens were admitted on temporary visas as seasonal workers during the 22 years the program remained in place; at the peak, about 400,000 workers per year entered the country or had their status adjusted.
A large undocumented migration accompanied the guestworker program, leading to the massive enforcement effort in the mid-1950's known as ''Operation Wetback.'' U.S. Commission on Agricultural Workers, Report of the Commission on Agricultural Workers (1992) at 17–19; Ernesto Galarza, Merchants of Labor: The Bracero Story (McNally & Loftin 1964), ch. 7.
BACKGROUND ON THE H–2A PROGRAM
The present H–2A temporary foreign agricultural worker program originated in 1943. The United States Sugar Corporation gained government permission to employ Caribbean workers on temporary visas to hand-cut Florida sugar cane. This program later became know as the ''H–2 program'' after its subsection in the Immigration and Nationality Act of 1952. The H–2 program remained only a fraction of the size of the bracero program and stayed focused in sugar cane and east coast apples. Report of Commission of Agricultural Workers at 19–20; Alec Wilkinson, Big Sugar (Knopf 1989).
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The Immigration Reform and Control Act of 1986 (''IRCA''), Public Law 99–603, amended the Immigration and Nationality Act to separate the agricultural and non-agricultural temporary foreign worker provisions into the H–2A and H–2B programs; to streamline the program's procedures for the benefit of employers; and to codify labor protections that the Department of Labor had issued as regulations. 8 U.S.C. §1101(a)(15)(H)(ii)(A), 1184, 1188; 20 CFR Part 655 (Dept. of Labor regulations); 8 CFR §214.2(h) (INS regulations). See House Judiciary Report No. 99–682(I) (July 16, 1986); Stephen Yale-Loehr, ''Foreign Farm Workers in the U.S.: The Impact of the Immigration Reform and Control Act of 1986,'' 15 New York Univ. Review of Law and Social Change (1986–87) at 333.
The H–2A program's legal standards are discussed later in this article. Briefly stated, an employer seeking temporary foreign agricultural workers must apply for a labor certification from the Department of Labor that there is a shortage of labor for the employer's jobs and that the wages and working conditions offered would not adversely affect similarly employed United States workers.
Since the 1986 amendments, use of the H–2A program has changed. The Florida sugar cane companies, which had employed about 9,000 H–2A workers each year, gradually mechanized the harvest and then stopped using H–2A workers. The program continues to be concentrated in apples in several states on the east coast. It has expanded during the last 8 years to hundreds of tobacco growers in Virginia, North Carolina (where many cucumber growers also use the program), Kentucky, Tennessee and Connecticut, as well as others. About 1,500 sheepherders, mostly in the West, come in under the H–2A program.
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The Department of Labor Employment and Training Administration (''ETA'') estimated that it certified about 19,000 H–2A positions in 1996. It rejects very few H–2A applications filed by employers. However, very few employers, as a percentage of all agricultural employers, have attempted to use the H–2A program.
The H–2A program's failure to protect workers' labor standards and U.S. workers' jobs is discussed further below.
THE SAW AMNESTY PROGRAM AND THE LEGALIZATION OF THE LABOR SUPPLY
The immigration law of 1986 dramatically affected America's labor-intensive agricultural sector. IRCA offered a legalization, or amnesty, program specifically to ensure agribusiness access to experienced farm workers who had held undocumented, or unauthorized, immigration status. In return, agribusiness was expected to stabilize the labor force and end its addiction to foreign labor.
Under this ''special agricultural worker'' or ''SAW'' program, applicants had to show that they had worked at least 90 days in fruits, vegetables or other perishable commodities during the one year ending May 1, 1986. 8 U.S.C. §1160; 8 CFR Part 210. Most of the SAWs became permanent resident aliens effective December 1990 and eligible for citizenship five years later. See Report of Commission on Agricultural Workers at 59–64; Philip L. Martin and J. Edward Taylor, ''Introduction,'' in Martin et al., Immigration Reform and U.S. Agriculture (Univ. Of Calif. Div. Of Agriculture and Natural Resources, Publication No. 3358) (1995).
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The SAW program granted permanent resident alien status to 1.1 million farmworkers. IRCA's ''replenishment agricultural worker'' or ''RAW'' program would have admitted additional ''SAWs'' had the Departments of Labor and Agriculture concluded that there was a shortage of seasonal farm labor. During the four-year RAW program that ended in 1993, those agencies annually determined that there was no labor shortage. See 8 U.S.C. §1161. Commission on Agricultural Workers at 64–65; Martin et al. at 7.
In addition to the H–2A program amendments, the SAW program and the RAW program, another legacy of the 1986 immigration law was the U.S. Commission on Agricultural Workers (''CAW''). Although CAW's membership was dominated by employer representatives, its report and data yielded valuable information about farmworkers, an inadequately studied group.
THE ECONOMIC STATUS OF MIGRANT AND SEASONAL FARMWORKERS
Recent studies confirm that migrant and seasonal farmworkers—the people who earn wages by planting, cultivating and harvesting our fruits, vegetables, nuts and horticultural varieties—continue to be the poorest of the working poor. Perhaps more surprising, the treatment of farmworkers generally has worsened.
Researchers estimate that there are 1.6 million migrant and seasonal farmworkers (excluding livestock workers) in the United States. Approximately half (800,000 to 900,000) are in California, vying for many fewer jobs. U.S. Department of Labor, Migrant Farmworkers: Pursuing Security in an Unstable Labor Market, Based on Data from the National Agricultural Workers Survey (NAWS), Research Report No. 5 (1994) at 2; Philip L. Martin, ''California's Farm Labor Market and Immigration Reform,'' in U.S. Commission on Immigration Reform, Temporary Migrants in the United States (ed. B. Lindsay Lowell) (1996) at 200.
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The California market is highly concentrated: ''The largest 1,250 farm employers—just 5 percent—pay about two-thirds of California's farm wages.'' Id. at 201. More broadly, there has been a ''weakening of family businesses nationwide'' and ''increasing numbers of highly capitalized, large scale units.'' CAW at 28.
DECLINING REAL WAGES AND EARNINGS AND INCREASING POVERTY RATES
Farmworkers' real wages have declined. An ongoing study of migrant and seasonal farmworkers commissioned by the Department of Labor recently found that ''median personal incomes have remained between $5,000 and $7,500 since 1988, which means that personal incomes, in inflation-adjusted dollars, likely fell during this period.'' U.S. Department of Labor, A Profile of U.S. Farm Workers: Demographics, Household Composition, Income and Use of Services, Based on Data from the National Agricultural Workers Survey (April 1997) at 18.
The New York Times reported economists' assessment that farmworkers' real wages during the last twenty years have decreased by 20% or more. Steven Greenhouse, ''U.S. Surveys Find Farm Worker Pay Down for 20 Years,'' New York Times, March 31, 1997 (exhibit 1 attached to this testimony). Time Magazine reported that California's strawberry workers experienced a decline in real earnings from $9.00 per hour a decade ago to $6.00 per hour in 1996 (November 25, 1996).
The Department of Agriculture, whose studies include higher-wage agricultural jobs, reported that real U.S. farm hourly wages between 1986 and 1991 decreased by 2 percent, and by 13 percent in California. CAW at 93–94.
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According to the Commission, real farm wages peaked in 1977, then fell for 8 years, increased in 1986, and then sloped gently downward during the post-IRCA period. CAW (1992) at 95.
The Commission on Agricultural Workers found that the piece rates paid to farmworkers decreased between 1989 and 1991 by 10% and that hourly rates decreased by 6%. CAW at 97. Some wage rates increased, of course, but many did not. The Commission's case study of Florida vegetables found, ''There has been no significant changes in piece rates for at least 10 years.'' CAW at 99. Obviously, workers earning such piece rates suffered decreased real wages. In California raisins, the average piece rate per tray was 16 cents in 1991, an increase of only 1 cent from 1986. CAW at 99. Philip Martin reported in 1995 that the raisin piece rate ranged from 15 cents to 18 cents per tray. Martin, California's Farm Labor Market and Immigration Reform, in Temporary Migrants in the United States at 203 (1996). This would suggest that between 1986 and 1995, some workers may have experienced a decline in the piece rate, some experienced no change, and perhaps some received an increase of 3 cents, or possibly an average annual increase of 2%, less than inflation.
Not surprisingly, then, the portion of farmworkers living below the poverty level has increased during the last few years to well over one-half the population. NAWS (1997) at 25.(see footnote 3)
Farmworkers have devised various strategies to survive such incomes. Some sleep in pesticide-laden fields or caves, along river banks and in other unsafe and dangerous locations. Some farmworkers—including many permanent resident aliens—return to their homeland (usually Mexico) for part of the year. NAWS (1994) at 13–18. For this reason, one cannot assume that a farmworker arriving from Mexico to perform farmwork is unauthorized.
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UNEMPLOYMENT AND UNDEREMPLOYMENT: THE OVERSUPPLY OF LABOR
Farmworkers continue to experience high unemployment and underemployment. There is no need for a guestworker program. The National Agricultural Workers Survey found that:
The U.S. farm labor system is characterized by an oversupply of workers. At any point in the year, there is a plentiful supply of farmworkers (at least 190,000, or 12% of farmworkers) in the United States who are not working. . . . Furthermore, there are many workers who are out of the country but may be available for work.
U.S. Dept. of Labor, ''Migrant Farmworkers: Pursuing Security in an Unstable Labor Market, Based on Data from the National Agricultural Workers Survey (NAWS),'' Research Report No. 5 (May 1994) at p. 38. The 1992 Report of the U.S. Commission of Agricultural Workers had earlier found a ''general oversupply of farm labor nationwide'' (p. xx) resulting in declines in real wages, annual earnings and living and working conditions for farmworkers. Id. at xxii. In pungent language, the U.S. Commission on Immigration Reform said the same thing:
. . . only 61 percent of farmworkers are employed in farm work. If the supply of illegal farmworkers dried up tomorrow (or if growers chose to stop hiring illegal workers), the supply of work-authorized farmworkers is ample, even in peak harvest months.
U.S. Commission on Immigration Reform, Legal Immigration: Setting Priorities (1995) at 173.
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Employers for many years have been predicting labor shortages that have not materialized. Even agribusiness representatives admit, despite an alleged ''feeling'' that there will be labor shortages, in fact there are ample workers. See ''Growers feel squeeze of tighter labor,'' Capital Press, Agriculture Weekly (Ore.-Wash. Ed.), July 18, 1997 at 1:
Washington State Farm Bureau official Julie Murray said this summer, ''At $5 per hour, you're not being competitive. . . . If you raise wages, you get more workers.''
Roy Gabriel, a long-time official with the California Farm Bureau, said, ''We're not suffering from labor shortages, and no one's losing crops yet. But there is a great deal of anxiety about this.''
''In Idaho, Farm Bureau officials say they haven't heard of any problems when it comes to labor.''
''For now, there seems to be enough workers to harvest crops in Oregon, Schellenberg said.'' Don Schellenberg is an official of the Oregon Farm Bureau.
Rural unemployment rates remain stubbornly high in states that supply migrant farmworkers. A glance at rural America's unemployment rates reveals a shocking disparity in the effects of the national recovery that has brought the general unemployment rate down to the relatively low level of about 5%.
California
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California state government data show high unemployment rates among citizens and legal immigrants in rural counties. Average unemployment rates in 18 farm labor counties in California during January 1996, June 1996, January 1997 and June 1997, respectively, were 17.6%, 13.3%, 16.8% and 12.4%. Some of the individual California county unemployment rates during the last two years were as follows:
A recent study of these statistics concluded:
As in 1995, we have found that the persistent high unemployment rates in these counties have shown little change, despite a broad-based economic recovery throughout the state in recent months, and despite the fact that labor-intensive acreage is up in many of these counties.
Mark S. Schacht and Cynthia L. Rice, ''Joblessness in the California Heartland'' (California Rural Legal Assistance Foundation, September 1997) (attached as exhibit 2).
A recent article in the Los Angeles Times examined these unemployment rates and their consequences. Experts predicted that the removal of many families from public benefits programs under the new welfare reform law will have serious negative impacts for such communities and could set off a major migration to urban areas in search of jobs. ''To Phase Out Aid, Farm Belt Needs New Crop of Jobs,'' Los Angeles Times (June 2, 1997).
Texas
Texas historically has been a major supplier of migrant labor. The Texas Workforce Commission, in cooperation with the Bureau of Labor Statistics recently issued the following unemployment statistics for Texas counties where many farmworkers live and/or work (attached as exhibit 4). The data show the following:
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The McAllen, Texas newspaper recently wrote:
The effects of federal welfare reform are trickling down to the Rio Grande Valley. Nearly 22,000 resident aliens in the four-county area have lost their food stamp benefits. . . . That has resulted in increased demands on the Food Bank of the Rio Grande Valley, which helps distribute edibles to the needy. . . . [T]he demand on canned goods has been particularly acute, and the agency is calling on groups and businesses to sponsor food drives to increase stocks. This is the first time it has made a special call for such efforts. The impact has been particularly strong in Hidalgo, Cameron, Willacy and Starr counties.
''Food Bank Issues Call for Donations of Canned Goods,'' The Monitor, Sept. 9, 1997 at p. 1A.
Jobs are difficult to find and they are often pay below $5.00 per hour. The following table describes migrant and seasonal farmworkers who applied for job referrals and other services through the United States Employment Service offices in Texas between July 1, 1996 and June 30, 1997.
Source, U.S. Department of Labor, Employment and Training Administration-Texas Workforce Commission data (attached in Exhibit 4). See also, ''Migrants Wait for Work: Need for Farm Workers Keeps Dwindling,'' Herald, Brownsville, Texas, June 4, 1997.
Florida
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Florida's farmworkers, many of whom migrate to locations in the Midwest and the East Coast, also have lacked adequate jobs in and out of Florida. In major agricultural counties, unemployment rates are extraordinarily high, especially during the summer (the off-season for the state's huge citrus harvest), when northern employers from Georgia to Maine need workers.
Source: Florida Department of Labor and Employment Security, Bureau of Labor Market Information, and Florida Legal Services, ''Despite a Strong Economy, Unemployment Remains High in Florida's Citrus Belt'' (1997) (attached as exhibit 3).
Some Florida counties, such as Palm Beach County and Dade County, have lower overall unemployment rates of between 6% and 8% due to the availability of non-agricultural work, but the many farmworkers who live or work in those counties experience disproportionately high unemployment and underemployment.
The welfare reform law is placing pressure on Florida's farm labor market by either forcing welfare recipients to seek farm jobs or causing former farmworkers to return to agricultural work. For example, Chinisher Lane, a 28-year old Pahokee, Florida woman who had been receiving welfare benefits began searching for work. Because she could not find work at fast food restaurants, she turned to agricultural work. ''For eight months, she picked radishes for $4.80 [per] hour and could earn more by working extra time.'' Note, however, that as an agricultural worker, she was not entitled to time-and-one-half-pay for such overtime work. See, ''In Search of Openings: Rural Recipients of Welfare Hunt for Elusive Jobs,'' Florida Sun-Sentinel (August 18, 1997).
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A fundamental problem is that the advantages of foreign guestworkers and unauthorized immigrants often cause employers to discriminate against U.S. farmworkers.
This summer, a Florida vegetable grower, Pero Family Farms, filed an application seeking 370 H–2A workers claiming that it did not have sufficient numbers of citizens or legal immigrants applying for jobs. As part of the application process, Pero Farms was obligated to recruit workers in Florida. Sufficient workers applied and Pero Farms withdrew its H–2A application. However, several U.S. workers charged that Pero Farms had discriminated against them during the hiring process due to a preference for foreign workers, and the State of Florida has issued a decision to terminate public employment services to the company due to its violations of the law. As a Palm Beach Post editorial wrote after the incident: ''A Palm Beach County farm's experience shows that failure to find home-grown employees usually is just a dodge.''(see footnote 4)
Washington State
A Washington State government report reveals that there are twice as many workers as jobs in agriculture.
While there was an average of 67,100 jobs for hired farm workers in 1995, the CWBH database, which tracks workers by individual social security number, reveals that those jobs were filled by approximately 139,000 workers.
Washington State Employment Security, Agricultural Work Force in Washington State 1996 at 21 (June 1997). The State concluded that farmworkers average earnings are low ''because many agricultural jobs are relatively unskilled [and] there is normally a plentiful supply of workers at relatively low wage rates.'' Id. at 20.
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The lack of work also poses a problem for workers seeking unemployment compensation. In Washington State, workers need 680 hours of work in covered employment to secure unemployment compensation. ''However, it is difficult to find 680 hours of work in seasonal agricultural jobs, so to qualify most farm worker need jobs in other industries as well.'' But only 30% of farmworkers also obtained a nonfarm job. Id. at 22.
The most recent report also noted the high employee turnover in agriculture: ''many workers leave farm work because of relatively low wages and uncertain hours of work.'' Id. at 24. The size of the labor supply, however, grew slightly between 1990 and 1995. Id.
One year earlier, the conditions in Washington State were similar. The State report then said:
Average earnings of farm workers are low relative to those of most other workers for a variety of reasons. First there is a large supply of workers available for much of the farm work which can be learned on the job in a relatively short period of time. Then there is the seasonal nature of many agricultural jobs. Seasonal workers are often not employed full time even during harvest periods.
Washington State Employment Security, Agricultural Employment in Washington State 1995 (Published May 1996) at 19.
Average annual earnings for crop workers decreased slightly in 1995 to $6,664. Average number of hours worked annually also dipped. June 1997 Report at 22. Average wage rates for workers in vegetables, berries, grapes and tree fruits ranged between $7.12 per hour and $7.45. Id. at 23. Nursery production workers averaged $8.70 per hour apparently because most nurseries ''are located in western Washington where growers must compete with higher paying nonfarm employers for workers.'' Id. (1995 Report) at 21. Thus, the competition for labor that produces higher wage rates for agricultural workers does not exist as much in the eastern part of the state, where there are lower wages.
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ILLEGAL EMPLOYMENT PRACTICES IN AGRICULTURE
An industry widely known for mistreatment of its employees cannot expect to attract and retain workers. Agriculture's reputation is one of rampant violations of minimum wage and other basic protections.
In 1995, the Department of Labor's Wage and Hour Division conducted just 2376 investigations under the Agricultural Worker Protection Act (about half the number conducted a decade earlier), but found violations in 1337, or 63%, of those cases. U.S. Department of Labor, Wage and Hour Division, Selected Farm Labor Statistics, Fiscal Year 1995.
Even the Commission on Agricultural Workers, led by the president of the California Farm Bureau, said, ''The Commission was made aware of numerous violations of worker protective statutes in both research and hearings. Clearly this must stop.'' Rep. at xxx.
The Helsinki Commission recommended major improvements in labor law enforcement in agriculture. Commission on Security and Cooperation in Europe, Migrant Farmworkers in the United States (May 1993) at v-vii.
Wages are not paid. Social Security deductions are not sent by employers to the Social Security Administration. Housing is non-existent, decrepit or reminiscent of concentration camps (the Westover Camp on the eastern shore of Maryland was a World War II prisoner-of-war compound). Farmworkers are forced to pay exorbitant prices for food and other items provided by contractors and growers. Many farmworkers are killed or injured while being transported in unsafe, uninsured motor vehicles. Toilets are not provided in the fields when required. Sexual harassment occurs on the job. Women are denied access to jobs: for example, the H–2A temporary foreign worker program is 100% male. The list goes on.
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UNDER-UTILIZATION OF PUBLIC BENEFITS
Agricultural employers historically have enjoyed subsidies in the form of public benefits provided to farmworkers due to their low incomes. Yet through all their adversity, farmworkers continue to under-utilize government services and public benefits. DOL's study found that only 20% of farmworkers (citizens and authorized immigrants) reported using Food Stamps and only 20% used Medicaid, but even fewer used cash assistance programs or the WIC Program (Special Supplemental Food Program for Women, Infants, and Children). NAWS (1997) at 29.
The 1996 welfare reform law—which restricts access to public benefits generally but especially for legal immigrants—will have a substantial effect on permanent resident alien farmworkers. Although most of the 1.1 million SAWs under the 1986 immigration amnesty became permanent resident aliens as of 1990 and are now eligible for citizenship, farmworker advocates expect that their clients' naturalization rates will remain low in part due to economic, geographic and logistical obstacles. Such persons ordinarily come within an exception to the welfare law's anti-immigrant provisions based on their long work experience in the United States, but many will have difficulty proving their employment history due to the employers' failure to report earnings to the Government.
EXPANSION OF AGRIBUSINESS PRODUCTION
Farmworkers' conditions may have deteriorated but the production of labor-intensive fruits and vegetables in the United States has been expanding for 25 years. An economist who works for the law firm that has been lobbying for a new guestworker program on behalf of the National Council of Agricultural Employers and other groups conceded:
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With rising incomes worldwide, and changes in consumers' tastes and preferences favoring fruits and vegetables, the demand for labor intensive agricultural commodities is growing rapidly. The United States agricultural producers have participated in that growth. The 1992 United States Census of Agriculture reported that fruits, vegetables and horticultural specialties accounted for more than $23 billion of agricultural sales in 1992, a 32 percent increase from that reported in the previous agricultural census five years earlier. Most economists expect demand for labor intensive agricultural commodities to continue a strong growth pattern.
Statement of James S. Holt, Senior Economist, McGuiness & Williams, Hearing before the Subcommittee on Immigration and Claims of the Committee on the Judiciary, House of Representatives, ''Guest Worker Programs,'' December 7, 1995, 104th Cong., 1st Sess. at 178.
Despite increased international competition, exports in labor-intensive crops have been growing. For example, between 1970 and 1991, U.S. vegetable exports grew 5 percent per year to reach $1.8 billion. The real value of fruit and tree nut exports grew 4 percent per year during the same time to reach $2.1 billion. Hamm, Oliveira, Zepp and Duffield, ''Trends in Labor-Intensive Agriculture,'' in Philip L. Martin, et al., Immigration Reform and U.S. Agriculture at 39–40, 47–48 (authors are USDA employees).
Rarely does an employer admit that it can afford a wage increase, and agribusiness is no exception. But the industry can afford to treat its workers better. The slight price increases that might result from improving the wages and working conditions of the people who harvest our food can be absorbed by the industry and consumers. Mechanization of tasks might occur in some crops if labor costs were to rise, but the result can be to replace low-skilled work with better-quality, higher paying agricultural jobs. See Philip Martin, ''California's Farm Labor Market and Immigration Reform,'' in U.S. Commission on Immigration Reform, Temporary Migrants in the U.S. at 207 (1995), Wallace Huffman and Alan McCunn, ''How Much is that Tomato in the Window?: Retail Produce Prices Without Illegal Farmworkers,'' (Center for Immigration Studies 1996).
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The United Farm Workers, for example, has argued that California strawberry workers' wages could double if consumers paid 5 cents more per pint of strawberries in the store and the price increase was passed on to the growers and shippers.
THE LABOR CONTRACTOR SYSTEM: DESTABILIZING THE LABOR SUPPLY
Growers' use of farm labor contractors, or ''crewleaders,'' to recruit, hire, transport, house and supervise farmworkers has been a long standing problem and has been getting worse. The use of labor contractors spread as agricultural employers sought to evade the 1986 immigration law's ''employer sanctions'' against hiring vulnerable undocumented workers.
Use of labor contractors has been associated with low wages, bad working conditions, illegal employment practices, high turnover, use of unauthorized immigrants and even slavery. Philip L. Martin and J. Edward Taylor, Merchants of Labor: Farm Labor Contractors and Immigration Reform (The Urban Institute 1995) at 15.; Report of Commission of Agricultural Workers 119–125, 135; U.S. Department of Labor, U.S. Farmworkers in the Post-IRCA Period, Research Report No. 4, National Agricultural Workers Survey, March 1993 at 34; Steven Greenhouse, ''3 Plead Guilty to Enslaving Migrant Workers in South Carolina,'' The New York Times, May 8, 1997 at p. A20.
Many growers hope to keep their labor costs low by hiring labor contractors and then disclaiming any responsibility as an ''employer'' for the inevitable labor law violations. The courts have usually, but not always, rejected such shams and found that growers are indeed employers of their farmworkers. Recent cases holding that a grower and a labor contractor jointly employed the farmworkers and were jointly responsible for complying with the minimum wage include Antenor v. D&S Farms, 88 F.3d 925 (11th Cir. 1996) and Torres-Lopez v. May, 111 F.3d 633 (9th Cir. 1997). The Department of Labor recently updated its ''joint employer'' regulation to clarify court decisions during the last 14 years and provide employers with greater certainty. See 20 C.F.R. §500.20 (as amended March 12, 1997). Agribusiness has responded to these developments with a bill offered by Rep. Canady of Florida, H.R. 2038 (June 25, 1997), to substantially weaken existing law regarding labor contractors, transportation safety and farmworker housing.
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The crewleader problem has been getting worse. The ''major farm labor story of the 1980s and 1990s is the growing importance of [farm labor contractors] in seasonal labor markets.'' Fifty percent or more of California's seasonal farm jobs are now filled through farm labor contractors, rather than through direct hiring. Philip L. Martin and J. Edward Taylor, Merchants of Labor: Farm Labor Contractors and Immigration Reform (The Urban Institute 1995) at 6, 15; Report of the Commission on Agricultural Workers (1992) at 135.
INCREASED USE OF UNDOCUMENTED WORKERS
Agricultural employers' use of unauthorized immigrants is increasing. A Department of Labor study concluded that the percentage of undocumented farmworkers had risen from about 7% just after IRCA took effect to about 37% during 1994. See NAWS (1997) at 33. Employers claim that the percentage is much higher.
Hypocrisy is evident in the growers' statements about undocumented workers. The employers claim that they can detect fraudulent proof of immigration status or citizenship for purposes of their self-serving estimates of the percentage of unauthorized workers in the labor force. Yet they claim that they are not violating the law against hiring unauthorized immigrants because they don't know whether the documents are fraudulent. (In addition, many growers claim that their farm labor contractors are solely responsible for hiring the unauthorized workers.)
While we all can agree that the employers are hiring more undocumented workers, there is not much evidence to support their claim that the supply of undocumented workers is about to dry up.
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The principal author of the immigration legislation of 1996, Rep. Lamar Smith, has criticized this prediction: ''if the immigration reform bill works beyond our wildest dreams,'' it would only reduce ''the number of illegal aliens coming into the country in half,'' and there would not be a ''significant impact'' on the farm labor force. ''Agricultural Guest Worker Programs,'' Joint Hearing before the Subcommittee on Risk Management and Specialty Crops of the Committee on Agriculture and the Subcommittee on Immigration and Claims of the Committee on the Judiciary, House of Representatives, 104th Cong. 1st Sess., Dec. 14, 1995, at 54. The number of deportations, which indicates the Government's ability to remove undocumented workers from the labor force, is expected to remain under 100,00 nationally, and relatively few occur in agriculture.
There is no end in sight to employers' hiring of undocumented workers. Fear of the 1986 law's employer sanctions did not prevent such employment and it is highly doubtful that the 1996 law will change that fact. The undocumented workers' vulnerability is an irresistible attraction for agricultural businesses.
UNDOCUMENTED WORKER STATUS V. GUESTWORKER STATUS
One can purposelessly and endlessly debate who is treated worse (or better): undocumented farmworkers or guestworkers. It is a false choice and one that workers should not have to make. But the growers often contend that guestworkers are better off, and their opinion is not necessarily correct.
Under the bracero program, ''The Wetback [undocumented worker] himself as he gained experience was constantly shopping in the black labor market, for he generally considered himself a ''libre'' (free worker) in contrast with the bracero, who was restricted to a named employer'' and who was paid according to a ''uniform wage level . . . set by the associations to keep good neighbors from under cutting one another. . . .'' Galarza, Merchants of Labor at 58.
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SOME REMEDIES TO MEET GROWERS' NEEDS AND IMPROVE FARMWORKERS' LIVES
Growers Should Compete for Labor in the Modern Economy
Agribusiness must stop engaging in a low-wage, high-turnover strategy based on new migrations of foreign labor. Studies of farm labor have been remarkably consistent in their recommendation that agribusiness should be expected to compete in the United States to attract and retain workers. The President's Commission on Migratory Labor in 1951 concluded,
We have used the institutions of government to procure alien labor willing to work under obsolete and backward conditions and thus to perpetuate those very conditions.
Migratory Labor in American Agriculture (1951) at 22–23.
Forty-one years later, the U.S. Commission on Agricultural Workers concluded that American agriculture must ''modernize'' and ''improve its labor management practices'' to develop ''a more structured and stable domestic agricultural labor market with increasingly productive workers.'' CAW at xxxi and 139. Decent wages and working conditions, provision of housing, and incentives to return the following season would enable growers to attract and retain its labor force.
Labor Unions and Collective Bargaining
Labor organizing has probably served farmworkers better than any other solution to their problems. Collective bargaining agreements, though too few in number, have improved wages and working conditions and increased job security. See generally, Maralyn Edid, Farmworker Organizing: Trends and Prospects (Cornell Univ. ILR Press 1994).
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Agricultural labor unions, like many others, have suffered serious setbacks, but the future may be brightening. Organizing campaigns by the United Farm Workers and the Farm Labor Organizing Committee, both supported by the AFL–CIO, and other organizations, offer some modest hope that the targeted employers will come to the bargaining table. The UFW's strawberry workers campaign in California has drawn significant attention from workers, the public and the media. Success in that effort and others could make a significant difference in the lives of farmworkers at the affected employers and at non-union employers.
Guestworker programs impede this important method of improving farmworkers' lives because temporary foreign workers have limited economic and immigration-law rights and work in fear. Indeed, the current guestworker proposals are in part a response to union organizing. One of the signatories to an August 1997 letter to members of Congress requesting support of guestworker legislation is Mt. Olive Pickle Co. of Mt. Olive, North Carolina, a major processor of cucumbers. Mt. Olive does not employ any farmworkers, but the growers who supply the company with cucumbers are the subject of a union organizing campaign by the Farm Labor Organizing Committee, led by Baldemar Velasquez. See ''Union Targets Pickle Plants: Mount Olive migrant workers focus of organizing,'' The News and Observer (Raleigh, North Carolina), May 29, 1997. Mt. Olive apparently agrees that guestworker legislation could help thwart the labor organizing campaign.
Enforce the Labor Laws
How can we simultaneously (1) limit illegal immigration, (2) improve farmworkers' conditions, and (3) stop law-abiding employers from suffering unfair competition? Enforce the labor laws.
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More vigorous enforcement of the minimum wage requirement and other employment laws would reduce employers' incentive to hire undocumented workers and therefore help limit illegal immigration. See, e.g., Demetrios Papademetriou, ''A Solution Under Our Noses: To control illegal immigration enforce the labor laws,'' Washington Post op-ed page, August 6, 1997. Congress apparently accepted this concept and, after years of declining resources, the Wage and Division received a modest increase in funding for labor law enforcement in high-immigration states. With only 950 investigators nationwide, however, the Labor Department's impact will be very limited.
Law-abiding employers benefit by more effective labor law enforcement. When Congress passed the minimum wage law in 1938 it declared that substandard labor conditions constitute ''an unfair method of competition in commerce.'' 29 U.S.C. §202(a)(3); United States v. Darby, 312 U.S. 100, 115 (1941). Growers who comply with the law should not have to compete against law-breakers.
The Department of Labor's unwillingness to enforce the protections for U.S. and foreign workers under the H–2A program led the Helsinki Commission to recommend its abolishment. Absent that, the Helsinki Commission said, ''If the program is to continue, the Department of Labor must be required to improve enforcement of existing protections and revise policies to prevent future abuses.'' Neither recommendation has been followed. Commission on Security and Cooperation in Europe, Migrant Farmworkers in the United States (1993) at v.
RECOMMENDATIONS ABOUT GUESTWORKER PROGRAMS
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Just as there is no shortage of workers willing to perform low-wage farm work, there is no dearth of timely recommendations against a new guestworker program.
First, the November 1992 Report of the U.S. Commission on Agricultural Workers specifically recommended against any new guestworker or supplemental labor program. Its conclusions were bolstered by a thick volume of academic studies that it funded and an equally thick book containing the transcripts of hearings held around the country. The Commission, although dominated by agribusiness representatives, recommended that growers modernize and improve employment policies to attract and retain U.S. farmworkers. The Commission concluded that stabilization of the workforce would be repaid with increased productivity that would improve employers' international competitiveness. See Report at xxxi, 133, 135, 139.
Second, the U.S. Commission on Immigration Reform in 1995 (then chaired by Barbara Jordan) considered the agricultural guestworker issue and ''unanimously and strongly agree[d] that such a program would be a grievous mistake,'' due to the oversupply of authorized U.S. farm labor, high unemployment and underemployment among farmworkers, inadequate wages and working conditions, and the fact that guestworker programs increase unlawful immigration. That commission also said:
If the supply of illegal farmworkers dried up tomorrow (or if growers chose to stop hiring illegal workers), the supply of work-authorized farmworkers is ample, even in peak harvest months.
U.S. Commission on Immigration Reform, Legal Immigration: Setting Priorities at 173 (June 1995). Confirming that guestworker programs produce illegal immigration, that Commission said, '' 'temporary' guestworkers tend to become permanent residents, de facto or even de jure.''
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The following year the U.S. Commission on Immigration Reform published a series of papers in which several authors criticized the H–2A program for failing to protect workers. No support for a new guestworker program was offered and any policy responses which were discussed differed markedly from those sought by agribusiness. See, e.g., David S. North, ''Some Thoughts on Nonimmigrant Student and Worker Programs'' (recommending against any agricultural guestworker program); Philip Martin, ''California's Farm and Labor Market and Immigration Reform,'' in U.S. Commission on Immigration Reform, Temporary Migrants in the United States (1996).
Third, a Congressional Research Service report to Congress on the agricultural guestworker issue noted ''the lack of evidence that a labor shortage exists'' as one indication that Congress would not act to expand the use of agricultural guestworkers. (The other indication was ''past opposition by both the Administration and the Chairman of the House Judiciary Immigration Subcommittee.'') Joyce C. Vialet, Maria D. Gutierrez, ''Immigration: The 'H–2A' Temporary Agricultural Worker Program,'' Congressional Research Service (July 18, 1997).
Fourth, this month (September 1997), the Bi-National Study on Migration issued its report, Migration Between Mexico and the United States, in which it recommended against a new guestworker initiative. It specifically noted that illegal immigration tends to supplement, not be replaced, by guestworker programs.
Another major report ordered by Congress is forthcoming. By December 31, 1997, the General Accounting Office of Congress will report the results of a study of the H–2A guestworker program. In 1996 Congress ordered the GAO to analyze the ability of the H–2A program to meet the needs of employers and protect the rights of workers in the event of a significant labor shortage. The introduction of legislation for a new guestworker program prior to the GAO report is, among other things, premature.
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THE H–2A PROGRAM: THE CURRENT PROCEDURES AND REQUIREMENTS
The agribusiness proposals seek ''radical reform'' in the H–2A program or an entirely new program.(see footnote 5) The present H–2A program is based on the 1986 immigration act but many of the provisions existed under the earlier H–2 and bracero programs.
The H–2A law and regulations recognize problems inherent in guestworker programs, especially those concerning low-wage, low-skill jobs. Guestworkers hold temporary ''non-immigrant'' status. They are tied to their employer and ordinarily must leave the country when their job ends. They almost always come from poorer countries and view almost any American wage as advantageous. Such temporary foreign workers generally do what they are told without complaint. Consequently, guestworkers are an easily controllable, highly productive labor force. With these and other advantages, employers often prefer guestworkers over U.S. workers.(see footnote 6)
To deter employers from exploiting the advantages of hiring guestworkers, the H–2A law requires employers to apply to the Department of Labor for a labor certification stating that there is a shortage of labor and that the wages and working conditions offered by the employer will not ''adversely affect'' the wages and working conditions of similarly employed U.S. workers. 8 U.S.C. §1188(a)(1).
The H–2A application must be filed at least 60 days before the first date of work. DOL examines the employer's job offer and, within 7 days, determines whether it meets the law's standards. During the next 33 days or so, the employer is obligated to recruit workers. Twenty days before the date of need the DOL must determine the extent of any labor shortage and, if one exists, issue the labor certification to fill the job vacancies. The employer then arranges for the INS visas and delivery of them by the American consulate in the appropriate country (usually Mexico or Jamaica) to the waiting workers.
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Several specific measures exist to prevent employers from creating artificial labor shortages, discriminating against U.S. workers, or exploiting the foreign workers.
One of the most basic protections is the employer's obligation to disclose all material terms of the employment during recruitment and comply with those terms. Workers have an employment contract. This is probably why guestworkers historically have been called ''contract workers.'' The workers currently have the right to go to state court or the Department of Labor to enforce their work contracts. See 8 U.S.C. 1188(f)(2); 29 C.F.R. Part 501.
In addition, employers who claim a labor shortage are supposed to recruit workers using private-market methods as well as the interstate job service. 8 U.S.C. §1188(b)(4). The regulations contain a job preference which requires employers to hire qualified U.S. workers who apply by the season's mid-point (even if it would require displacement of the foreign worker). This so-called 50% rule was the subject of a Congressionally-mandated study which concluded that the rule provided U.S. workers with important job protections at minimal costs to employers. 8 U.S.C. §1188(c)(3)(B); 20 C.F.R. §655.103(e).
Employers must provide free housing; reimburse the in-bound transportation costs of workers who complete half the season; and pay for the return trip home upon completion of the season. The three-fourths guarantee requires that workers be offered work for at least three-fourths of the stated season (absent an ''Act of God''). It assures workers of a reasonable minimum amount of work opportunities for their long-distance travel, and dissuades employers from recruiting too many workers to drive down wages. See 20 CFR §655.102(b). Workers may not be discharged in the absence of a job-related reason. Id. at §655.103(b)-(c). Although domestic farmworkers are covered by the Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. §1801 et seq., which is the principal employment law for farmworkers, that law excludes from coverage H–2A workers. Id. at 1803(10)(B)(iii).
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The wage must be the higher of the state or federal minimum wage, the local ''prevailing'' wage rate for that work, or the ''adverse effect wage rate'' (the average agricultural/livestock worker wage as determined in regional surveys by the Department of Agriculture). Id. at §655.102(b)(9).
THE H–2A PROGRAM IN REALITY: A HISTORY OF ABUSES
Employers' criticisms of the H–2A program largely are baseless. Indeed, these criticisms ordinarily are made by (a) employers who have consistently secured approval for guestworkers for many years, even when no credible person offered the argument that there was a labor shortage, or (b) employers who have never applied for H–2A workers.
DOL routinely approves illegal job offers and ignores mistreatment of U.S. workers by employers who blatantly prefer guestworkers. We recognize the growers' valid concern over the lack of certainty on a few policy issues, but the employers have successfully taken advantage of almost every ambiguity.
Highly-paid lawyers and consultants for the growers have devised clever techniques to circumvent the law and DOL generally has let them get away with it. For example,
Season lengths have been manipulated to discourage longtime U.S. workers from wanting the jobs in the first place, and to prevent workers from ''completing the season'' so that they can be denied the transportation funds to which they are entitled.
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Despite using labor contractors to find foreign workers, the growers, with DOL's permission, do not use labor contractors to secure U.S. workers and engage in no other meaningful recruitment.
H–2A employers only hire male foreign workers and discriminate on the basis of sex in the hiring of U.S. workers as well.
Growers are permitted to impose special ''qualifications'' and ''productivity standards'' on U.S. workers once they decide to seek foreign workers so that they can find justifications for rejecting or firing the U.S. workers.
Several former federal and state officials who have acceded to growers' demands have left government to work as consultants to the H–2A growers, including as paid expert witnesses in litigation, to facilitate such scams. The person who headed the H–2A program at DOL from 1982 through 1994, John Hancock, retired in 1995 from the agency and less than one year later testified as a consultant for the H–2A growers' lobbying firm in a hearing jointly sponsored by this Subcommittee. See December 14, 1995 Hearing on Agricultural Guestworker Programs at 81. Undoubtedly, others in the program know that they can expect to be hired by the growers if they are deemed acceptable during their government tenure.
Abuses by employers and the Government under the H–2A program have been documented in official reports. See General Accounting Office, Foreign Farm Workers in U.S.: Department of Labor Action Needed to Protect Florida Sugar Cane Workers (GAO/HRD–92–95) (June 1992). The H–2A program has been the subject of litigation by employers as well as farmworkers, who have won millions of dollars in backpay from H–2A employers. See, e.g., Frederick County Fruit Growers Association v. Martin, 968 F.2d 1265 (D.C. Cir. 1992) (in suit brought by H–2A growers, court awarded farmworkers backpay on counterclaim). The public has learned about the H–2A program through numerous media reports, documentary films such as Stephanie Black's ''H–2 Worker'' (which won a Sundance Film Festival Award), and even a novel by Carl Hiassen, ''Striptease,'' which became a movie featuring actress Demi Moore.
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Rather than repeat recent testimony about the H–2A program, we refer the Subcommittee to testimony in three recent hearings before this Subcommittee (December 7, 1995), before this Subcommittee and the Subcommittee on Risk Management and Specialty Crops (December 14, 1995) and the Senate Subcommittee on Immigration (September 28, 1995), especially testimony by Dolores Huerta, Robert A. Williams, Mark S. Schacht, and Bruce Goldstein.(see footnote 7)
There are many examples of recent abuses, including the case of Pero Family Farms mentioned above. Of special concern is the spread of the practices of the North Carolina Growers Association, whose executive has set up additional corporations to secure foreign workers in other states as well, using the same tactics that should have been stopped a long time ago.
The Farmworker Justice Fund, in January 1994 submitted extensive recommendations to the Department of Labor to reform the H–2A program to protect U.S. workers and temporary foreign workers. None of those recommendations has been adopted. Instead, the Department has weakened protections based on growers' demands to reduce ''red tape.''
Farmworkers' lawyers have played a major role in minimizing the damage caused by government's inappropriate conduct, but they are a declining population due to cutbacks in funding and permissible activities for the Legal Services Corporation.
The ''Monitor Advocates'' inside the U.S. Employment Service, which includes the Department of Labor and state employment security agencies, are supposed to ensure that farmworkers are referred to jobs in compliance with the law, including under the H–2A program. See 20 C.F.R. §658.602–658.605, 658.702. This system was established after litigation in the early 1970's established that the Department had discriminated against farmworkers in the provision of services. See Ronald L. Goldfarb, Caste of Despair (1981) (Goldfarb was appointed the court monitor in the NAACP v. Brennan case that caused the establishment of the Monitor-Advocate system).
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The Monitor-Advocate system has failed to prevent major abuses. On April 17, 1996, a consultant, the Technical Assistance and Training Corporation, issued a ''draft'' report to DOL concluding that the agency had relegated the Monitor Advocates to meaningless status with no resources. DOL never permitted the consultant to issue a final report, however, and has not responded to the strong criticisms or recommended solutions in the report. See ''Monitor Advocate Program Review Report'' (April 17, 1996). Thus, multiple levels of watchdogs have been unable to persuade DOL, especially the Employment and Training Administration, to comply with the law.
We are hopeful that the upcoming General Accounting Office report on the H–2A program will inform Congress of some of the problems that workers have under the program and recommend solutions.
The Growers' Legislative Proposals
GUESTWORKER PROPOSALS DEFEATED IN 1995–96
In the 104th Congress, agribusiness unsuccessfully sought a new guestworker program. At the request of the National Council of Agricultural Employers, the California Farm Bureau, the Florida Fruit and Vegetable Association and others, hearings were held in both houses of Congress in late 1995. In 1996, Congressional supporters of the employers proposed legislation that would have been included in the 1996 immigration act.
Sen. Larry Craig of Idaho introduced a bill to ''reform'' the H–2A program in drastic ways but made no progress last year. See S. 2174, 142 Cong. Rec. S11973–02.
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Rep. Richard Pombo of California and Rep. Saxby Chambliss of Georgia, among others, led the fight in the House for a new ''pilot program.'' In early 1996, the Agriculture Committee voted in favor that proposal but imposed a limit of 250,000 temporary foreign farmworkers. The proposal was treated by the Rules Committee as a proposed amendment to the immigration legislation.
The Clinton Administration threatened to veto the entire immigration bill if the Pombo/Chambliss guestworker proposal was included, but promised to consider ways to ''streamline'' the H–2A program to aid the growers. The Administration believed that there was an adequate supply of farm labor, that the proposal would weaken wage and other protections for U.S. farmworkers, and that it would actually increase illegal migration. Guestworker programs enable foreign workers to establish networks inside the United States that can facilitate illegal migration. In addition, some guestworkers overstay their visas. When guestworker programs become concentrated in geographic areas (as the H–2A program has), they tend to restrain wage increases and the employment terms therefore attract mostly guestworkers and unauthorized immigrants.
On March 21, 1996, the House debated the amendment and defeated it by a margin of 242–180. Cong. Rec. H2605–2621. Rep. Lamar Smith, the Republican who chairs the immigration subcommittee and is a strong immigration restrictionist, opposed the amendment and 75 Republicans joined him. He and Rep. Robert Goodlatte of Virginia supported an alternative guestworker proposal. That amendment would have altered the H–2A program and placed a 100,000 worker annual cap. It was unacceptable to both agribusiness and farmworker supporters, and that amendment was defeated by an even larger margin. H2621–2626.
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CURRENT LEGISLATIVE PROPOSALS IN THE 105TH CONGRESS
Nothing that occurred between 1996 and 1997 would justify a reconsideration by Congress of guestworker issues except intense lobbying by agribusiness. Such lobbying, however, has been enough. Two proposals have been made, one in the House and one in the Senate. We understand that Rep. Saxby Chambliss (a co-sponsor of the House bill) intends to offer yet another guestworker proposal, called the Farmers' Temporary Employee Assistance Act.
SENATOR CRAIG'S BILL: S. 169
In the 105th Congress, Sen. Craig introduced S.169, named ''The Agricultural Work Force Stability and Protection Act.'' (January 21, 1997). It would amend the H–2A program for the benefit of employers by, among other things:
eliminating the safeguards against false claims of labor shortages,
lowering wage rates for both U.S. farmworkers and guestworkers,
exempting employers from state minimum wage laws,
ending the housing requirement,
overriding state and local housing codes,
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ending the 50% rule job preference for U.S. workers,
in effect ending the minimum work guarantee,
granting employers, but not affected workers, expedited appeals of decisions,
prohibiting effective judicial and agency oversight.
This completely one-sided bill would further de-stabilize the U.S. farm labor force and permit exploitation of hundreds of thousands of vulnerable guestworkers, as there would be no numerical limitation. Senator Spencer Abraham, the chair of the immigration subcommittee, has not revealed a public opinion about that legislation. No hearings have been held on the bill.
REP. BOB SMITH'S BILL: H.R. 2377
Rep. Robert Smith of Oregon on August 1, 1997 introduced H.R. 2377 to create an H–2C program. The bill is very similar to the proposed ''pilot program'' in the 1996 Pombo/Chambliss amendment that was defeated on the House floor by 62 votes on March 21, 1996 during the immigration law debate.
The major difference between last year's bill and this year's proposal is that the new bill nominally would be a 24-month pilot program limited to 25,000 visas per fiscal year. Due to the availability of visa extensions, in the third fiscal year there could be 75,000 guestworkers in U.S. agriculture, in addition to the guestworkers under the H–2A program. The H–2A program currently approves about 19,000 guestworker jobs. Because many employers would immediately secure H–2C workers, the number of agricultural guestworkers would soon quintuple.
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The proposed H–2C pilot program is a long, highly-detailed bill. Its most striking characteristic is its methodical effort to exempt employers from capitalism's basic law of supply and demand. Employers would be set free to impose labor standards that only foreign workers in developing nations could afford to accept. Here is how the H–2C program would work:
An employer would submit a seven-sentence form to a local office of the state job service announcing that it would be hiring temporary foreign workers. There is no deadline for doing this. The submission, a ''labor condition attestation,'' would not contain the terms and conditions of employment.
The employer would then submit a brief form to the INS district office asking for as many H–2C visas as it wanted, and the INS must approve those visas within ''3 working days.'' Still, no terms and conditions of employment are disclosed. No labor shortage need exist.
Then the company would submit a specially-limited ''job order'' to the local office of the state job service. Any information in the job order ''shall create no obligations for employers except as provided in this section.'' These job orders could not be circulated through either the intrastate or interstate job service system. The job service (if it took any action at all) could only provide ''non-employer-specific information'' about such job orders, and only to the local community.
There would be no requirement that the employer engage in private recruitment efforts to find U.S. workers (other than to post a notice at the place of employment that foreign workers were being recruited); the employers could recruit solely in foreign countries.
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While recruiting foreign workers, the bill provides, the employers need not disclose information to job applicants about terms and conditions of employment.
The employer would only need to accept U.S. workers as job applicants during a period of 25 days. If the employer filed the job order 30 days before the first day of work, the employer could refuse to hire U.S. job applicants beginning 5 days before the season begins, while continuing to hire foreign workers.
The law would theoretically require employers to pay the ''prevailing wage.'' The ''prevailing wage'' is an inadequate wage rate. By definition, it is usually the median wage rate paid in the area for that kind of work, meaning that about half the workers performing that same work in the local area are being paid more than that wage rate. Employers who claim that they cannot find U.S. workers should compete for workers with the top half of employers. To overcome the depression in wage rates caused by the presence of foreign workers, the H–2A and bracero programs augment the prevailing wage requirement with an ''adverse effect wage rate. This bill eliminates the ''AEWR'' and contains exceptions to the prevailing wage requirement. For example, employers would be permitted to establish an ''incentive system'' that did not pay the ''prevailing wage'' but was merely '''designed'' to yield the prevailing wage.
The law would prohibit employers from using foreign workers to cause adverse effects to U.S. workers' ''working conditions'' but the bill contains a peculiarly narrow definition of the phrase ''working conditions.'' As a practical matter, employers would be obligated to provide U.S. workers with workers' compensation coverage but would not be obligated to compete for workers by providing a minimal set of benefits that are required under current H–2A law or by matching the working conditions of employers who successfully recruit U.S. workers. The H–2C employers could deter U.S. workers from applying for jobs by refusing to offer such benefits as housing, minimum work guarantees, reimbursement of transportation costs, availability of food or kitchens, transportation to town to buy food, freedom from arbitrary firings, or reasonable hours.
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The H–2C worker would be tied to a single employer or an association that could switch the worker among employers. If the job ended, the worker would have to return home unless another employer decided to seek an extension of the visa for that worker. However, an employer could not seek an extension of a visa while the worker is employed at another company.
The employers would not pay any fees for the program.
The employers would deduct and pay the equivalent of Social Security and unemployment taxes but these would be placed in a fund to pay for the cost of the program. The employers also would withhold 25% of the workers' wages. These sums would be returned to the worker, minus any costs for the program's operation, only if the worker returns home on time and applies to the U.S. Treasury for the money within 30 days.
The bill appears to limit the Secretary of Labor's enforcement powers to enforcing the limited terms of employment required in the statute, rather than enforcing the terms of employment that the employer may have promised the worker or may be required under other laws. The bill limits monetary remedies to ''back wages'' and apparently excludes interest or liquidated damages that are available for other workers under federal and state laws. Civil money penalties would be limited to $1000 per violation.
The bill would grant employers extraordinary power. Employers could tell their current U.S. farmworkers that they will lose their current jobs to temporary foreign workers unless they agree to the abysmal terms of employment that the bill allows employers to impose. The only persons likely to accept such onerous standards are economically-desperate foreign workers. As ''non-immigrants,'' moreover, these workers would never develop the right to vote or other democratic rights necessary to secure redress of their grievances from the Government. They would be indentured servants with no hope of future freedom.
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CONCLUSION
The current legislative proposals by the agricultural industry perpetuate more than one hundred years of demands for exemptions from the laws of the marketplace and the laws of government. The time for government policies that feed agribusiness' addiction to exploitable foreign labor has ended. There is no valid justification for a new guestworker program.
STATEMENT
My name is Bruce Goldstein. I am co-executive director of the Farmworker Justice Fund, Inc., an advocacy group in Washington, D.C. for migrant and seasonal farmworkers. Thank you, Mr. Chairman, for the opportunity to present testimony.
There is no valid justification for a new temporary foreign agricultural worker program.
There is no shortage of labor; only a shortage of jobs. The oversupply of agricultural labor in the United States and its ill effects continue. Double-digit unemployment rates persist in farm labor counties in California, Florida and Texas, as our exhibits illustrate. Washington State reports more than 2 farmworkers for every job. These statistics do not yet reflect the impact of last year's welfare reform legislation, which will force public-benefits recipients into low-wage jobs.
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That there is no actual or impending labor shortage in agriculture is evident from the behavior of employers. Companies expecting a labor shortage would respond by improving recruitment techniques, raising wages, and taking other actions to attract and retain workers.
We have seen little evidence of employers attempting to stabilize the work force. Real wages of migrant and seasonal farmworkers have declined or stagnated, even though U.S. fruit and vegetable production and exports have dramatically expanded. Employee turnover remains high. The rate of farmworkers' poverty has increased, as documented by the Department of Labor. Growers have increasingly turned to ''farm labor contractors,'' the intermediaries who are known for bringing in vulnerable, unauthorized immigrants whose status causes them to work hard without complaint for lower wages. The Department of Labor reports that the percentage of crop workers who are unauthorized immigrants increased from 7%, just after the 1986 immigration amnesty law took effect, to 37% during 1994–95.
Nonetheless, the Commission on Immigration Reform reported that the agricultural labor supply would remain adequate even if every unauthorized immigrant were removed from the United States. Even with increased resources, however, the Immigration and Naturalization Service will not stop agricultural employers from continuing to hire undocumented foreign workers.
There is no need for new guestworker legislation, in addition, because we already have the H–2A temporary foreign agricultural worker program. In fact, the Department of Labor has been all too willing to approve H–2A guestworkers even when employers have obviously discriminated against available United States farmworkers. Before taking action, Congress should review the General Accounting Office's upcoming report about the H–2A program.
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A new guestworker program is also inconsistent with our attempts to control our borders. The Commission on Immigration Reform and others have found that guestworker programs cause illegal migration during and long after their existence.
For all these and other reasons, three government commissions during the last five years have recommended against any new agricultural guestworker program.
The particular guestworker proposal in H.R. 2377 is extreme. It would be worse than the scandalous bracero program. It would cede control over government visas to private employers in the industry that is most identified with violating immigration and labor laws. It would also allow every danger inherent in guestworker programs to become a reality.
Employers would not be required to test the U.S. labor market before hiring foreign workers. They could freely recruit in foreign countries without recruiting in the United States, and could reject U.S. workers who failed to apply for jobs during a narrow window of time. More importantly, U.S. workers could be rejected if they demanded more than the low wages and inadequate benefits that this bill authorizes. The lack of obligation to provide housing for these workers is inhumane. The foreign workers would justifiably fear being fired or blacklisted if they challenged unfair or illegal practices because they would be tied to the employer that secured their temporary visa. The bill also sharply restricts Government and the courts from protecting workers' rights.
The House of Representatives soundly defeated a virtually identical guestworker proposal during last year's debate over the immigration bill. The lower numerical limit on guestworkers in this year's proposal does not make it any more sensible.
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In conclusion, this guestworker proposal is not about a labor shortage. It is about granting agribusiness a federal exemption from the economic laws of competition so that employers may impose sub-poverty-level wages and working conditions. Thank you.
Mr. SMITH. Let me direct my first question to Mr. Hancock.
Let me say at the outset that I think this is an especially good panel. Every one of you brings I think a unique perspective, whether it is as an economist, as a grower, or whether it is as a member of an advocacy group. You all are experts. All of you have appeared before us previously and we appreciate your coming back.
Mr. Hancock, is there any way to fix the current H–2A program or in your opinion do we need a new program?
Mr. HANCOCK. Well, Mr. Chairman, I suppose theoretically there are certainly many ways to try to fix the H–2A program. However, the H–2A program as presently constituted represents a fix of the predecessor H–2 program. Congress, with the Immigration Reform and Control Act of 1986, attempted to streamline and otherwise improve the program to make it more accessible to employers and to improve protections for U.S. workers. In many ways they succeeded. I think in many ways the Immigration Reform and Control Act changes represented a patchwork of compromise. The program still, as it is presently constituted, obviously does not work. So I guess personally I think an attempt to change the program again would probably be subject to more compromise and could create an even bigger regulatory mess than we have right now. I suppose my answer to the latter part of your question would be, why do we not try something new.
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Mr. SMITH. Mr. Hancock, you were with the Department of Labor and were in charge of the H–2A program at one point. In what years were you in charge of the program?
Mr. HANCOCK. From 1982 through 1994.
Mr. SMITH. I knew you had longtime experience in the program.
Mr. Holt, just to follow up on my first question, are there any particular parts of the current H–2A program that you find completely unworkable and, if so, why?
Mr. HOLT. I think H.R. 2377, the approach of H.R. 2377 is really an attempt to fix the H–2A program. Basically, what it does is it reforms the labor standards and makes them more competitive, enables users to be more competitive on the labor standards end and leaves the compliance provisions there. The big improvement that it makes is it takes this cumbersome, labor-intensive and bureaucratic certification process at the front end and replaces that with a very streamlined attestation process. That, I think, is the key to improving the program, just as nonag business, just as this committee did with nonagricultural businesses in 1991 in H–1B, is to replace that labor certification process with an attestation process.
Mr. SMITH. Thank you, Mr. Holt.
Mr. Vice, we talked about this before but I just wanted to get your perspective. As you know, legal immigration for the first 90 years of the century, from 1900 to 1990, averaged a little over 400,000 legal immigrants. From 1991 on, it has been upwards of the 900,000, many of whom generally do not have the skills and the upper education that would allow them to land high-tech jobs. In other words, a good chunk of the legal immigrants who we have been admitting, one would think would be candidates, perhaps, for helping out in the agricultural field. That number, as I have just pointed out, has more than doubled in the last 5 or 6 years. Why is it that those folks are not working in agriculture? Why is it we have a labor shortage if, in fact, we are admitting hundreds of thousands of people more than we used to who might be able to work in agriculture?
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Mr. VICE. I think we have seen the expansion of the economy over the last decade for a lot of jobs in urban areas that were not there. Let us face it, in agriculture, we are a temporary work category, you might say. There is a peak harvest time and you have to move around. So it is not only hard work, it is working in the field. It is hot; it is difficult labor. You are bending over, climbing ladders. It is not easy work. I think there is a natural migration into the city for full-time work rather than seasonal work. We have seen some of that happening, whether it is in construction as the economy has boomed, whether it is in factories, light industrial work, a lot of areas that can take semiskilled labor, and we have lost a lot of our people to that.
Mr. SMITH. Thank you, Mr. Vice.
Mr. Goldstein, I have some additional questions. I will come back to those in a minute since my time has expired.
The gentleman from North Carolina, Mr. Watt, is recognized.
Mr. WATT. Mr. Chairman, I have some questions, but I will defer to Mr. Berman since he has been associated with this issue for a long, long time.
Mr. BERMAN. Thank you, Mr. Chairman.
I guess the evidence of how long I have been involved with it is that I know Mr. Vice and I know Mr. Holt and during the time he was enforcing the H–2A program, had a lot of correspondence with Mr. Hancock and people in the Labor Department about all of this.
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Just a little bit of my perspective, this is a form of a subsidy that apparently goes beyond the H–2A program. It does not matter what you call all of this, I think as Mr. Holt indicated, what you are talking about is trying to change the H–2A program to benefit some growers are desirous of getting more foreign workers to work for them.
I just want to give a little bit of background. At least in Western agriculture, there has been, as Mr. Goldstein pointed out, a heavy reliance on undocumented workers. In 1986, when we passed employer sanctions, the growers came to Congress very concerned about this legislation because of their heavy reliance on undocumented farm workers. They were not claiming that there was a shortage but they thought, ''oh, my heavens, when employer sanctions goes into effect, there will be a shortage.''
The result of that was that we worked out a compromise. We created a seasonal agricultural worker adjustment program. If Mr. Smith had been here at the time we might not have been able to enact that program. The program allowed 1.1 million seasonal agricultural workers, people that had worked in agriculture at least 90 days, to adjust their status and become lawful permanent residents. That was in addition to the regular legalization program which legalized an additional 1.8 million workers.
In addition, employer sanctions turned out not to be much of a deterrent because of the way the statute was written. Once an applicant for a job presented prima facie credentials of legal status, whether they were authentic or not, the growers, as were all other employers, were under no obligation to look behind those documents. So you had a huge adjustment of status for millions of farm workers. And in addition, you had a continued reliance on more undocumented farm workers, to such a great extent that some of the workers who were adjusted, the professional farm workers who were now lawful permanent residents and now in many cases becoming citizens of this country, were displaced by new waves of undocumented workers, now savvy to the system, and whose agents and recruiters knew how to perfect their ostensible status to allow them to be hired by farm labor contractors or growers directly.
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The result was independent commissions, heavily weighted towards agriculture, concluded there is no labor shortage for farm workers in the United States. In fact, when you take a look at the statistics of unemployment rates in agricultural counties throughout the West Coast, the unemployment rates are, in off season, three to four times as high and, in peak season, twice as high as the average of those States. That is particularly true in California.
Now you add to this existing oversupply of farm workers the continued flow of undocumented workers because of the ineffectiveness of employer sanctions and you add the welfare reform bill, which has essentially told people, including people in urban areas close to agricultural farmland, that they are no longer going to be eligible for benefits after a certain period of time, and you have created a large new pool of potential workers.
I would suggest that what we are really being asked to do is to ensure that without doing anything to attract workers through better wages, through better working conditions, through adequate housing, through all of the other things that can make the jobs meaningful and useful, we are being asked to now authorize a new guestworker program that does not have the restrictions of the existing H–2A program which any grower can petition for at any time if they meet the conditions under law.
We are being asked to provide this new flow of foreign guestworkers who will come in and who, as was mentioned by Mr. Goldstein, are going to be, as sure as we are sitting here, one-way immigrants. They will come in to take those authorized jobs. They will not go back at the end of those jobs. The growers will say, but they won't be rehired for the following year if they do not go back. And the farmworkers will say, I now have overcome the one great obstacle to coming to this country, crossing the border. I am legal coming in. My chances of of getting caught now are slim with the continued ineffectiveness of employer sanctions. These workers will not be going back. Their chances of getting jobs either in agriculture or in other parts of the economy will be even greater.
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So I think it would be a terrible mistake for us, at this particular time, to add to that surplus. I think laws of supply and demand and free enterprise should apply, and we should do what we can to help agriculture improve the work of the Employment Service, create the conditions that let people know there are opportunities here. To the extent that it is very hard work and it is difficult work, to the extent we can do things to provide, help provide training and recruitment responsibilities by the government, we ought to focus on that.
There is a market out there for these jobs. The question of why they are not getting them is both a problem of what the growers are offering and, to the extent we have government agencies in charge of matching willing workers with open jobs, the inability of the government to perform that role effectively. That is what we ought to focus on.
Mr. SMITH. I am going to ask Mr. Bono and whoever might be asking questions next if you would each take 3 minutes we can perhaps squeeze in a couple of people with their questions.
Mr. Bono is recognized.
Mr. BONO. This is somewhat baffling because the industry is saying we cannot get workers and some of us are saying you can. You just have to market to get these workers.
Mr. Vice, where is the gap in this communication, because I owned a restaurant. I knew when I couldn't get busboys and I couldn't sometimes——
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Mr. BERMAN. Would the gentleman yield?
Mr. BONO. Sure.
Mr. BERMAN. I would just repeat my offer of last year that at the right price I am willing to leave this job and work as a busboy in your restaurant.
Mr. BONO. Well, that is all very well, but if you own a business, I can tell you that if you own a restaurant, you can only allocate so many dollars to busboys. And that is it. If you are, then close the place. Buy stocks and bonds. Because you can't run a business and have runaway labor costs. It just won't pencil out. It is not an issue of being hard-nosed about a situation. Just the numbers won't work.
Mr. BERMAN. But agriculture is more productive than ever. They are getting more yield per person than they ever did before. There is mechanization going on. There are all kinds of tools to allow agriculture to increase its efficiency. New trade opportunities.
Mr. BONO. I would like to hear that portion of the discrepancy of this conversation. Apparently, Mr. Vice, some of these gentlemen do not agree with that. Could you fill the gap?
Mr. VICE. When I testified, I am sorry Congressman Berman was not in the room during my testimony, but one of the things you said back in December of 1995 that I took to heart was a suggestion that maybe we ought to be working more closely with those entities that would have potential employees for us.
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We now have a pilot program, as I indicated in my testimony, based somewhat on your suggestion. Right now in nine counties in the middle of San Joaquin Valley, we have a pilot program going with our job placement service through the welfare departments of those nine counties, along with the EDD, to try to see if there is some way that we can coordinate those people that are on public assistance that might work in agriculture. That is an ongoing program. We hope by the spring of 1998 to have all these possibilities worked out.
But I can tell you that in working with those three agencies that are responsible, that they are warning us, do not look for us to supply all the workers. Because, quite frankly, within the welfare rolls, we are looking for full-time work for these people, not seasonal work. It looks like we will be able to cover some of our work force with that, but certainly not all. So we are trying to work within the existing system to identify as much labor as we can get from anywhere we can get it.
Mr. BONO. Thank you, Mr. Chairman.
Mr. SMITH. The gentlewoman from California, Ms. Lofgren.
Ms. LOFGREN. Thank you, Mr. Chairman. I will try to be quick.
I guess this question would be for Mr. Hancock, as someone who worked in the Department of Labor for so many years.
In your judgment, what amount of education and training is required to be an acceptable farm worker?
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Mr. HANCOCK. Most of the jobs that I reviewed in labor certification applications were not very highly skilled in nature. The training and preparation would be minimal.
Ms. LOFGREN. So basically anyone could do it? I just came in yesterday from Silicon Valley. There are huge billboards up. All the billboards are for software programmers, but you can't get software programmers because it takes years and years and years of training and there is a worldwide shortage. But that would not be the case with farm workers would it? I could do it; you could do it.
Mr. HANCOCK. Not right off the bat, but maybe after 3 months. You must not lose sight of the fact that agriculture work is very hard, and not everybody would be capable of doing it, irrespective of training.
Ms. LOFGREN. Anybody who is physically able could do it, basically?
Mr. HANCOCK. Not anybody, but I would say, by and large, again, the training period would not be too long in nature, but the physical nature of the job would repel a lot of people and consistently does. Many people who are unemployed, for example, are not willing certainly to even consider taking agricultural jobs because of the very nature of the work.
Ms. LOFGREN. I remember, it was late last year when we repealed the special nonimmigrant visa provision for nurses that had been initiated when there was a huge nursing shortage in America. That shortage no longer exists. That was repealed because we have enough nurses. Here we have a situation where in rural California we have double-digit unemployment.
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A job, where it does not take 2 years of graduate school in order to fill the job, I just can't see any justification for having a temporary agricultural worker whatsoever, let alone one that is easier to comply with.
I talk a lot about Silicon Valley, which I represent. In the southern part of my district, however, I have garlic crops in Gilroy and some other agricultural areas. I spent a whole day with the Farm Bureau. None of them suggested that we should change our immigration laws to me. In fact, they were proud that they were paying $8 and $10 an hour with medical benefits for their employees. They think that is the way it ought to be. I credit them for that.
With that, I yield back the balance of my time.
Mr. SMITH. Let me explain to our panelists that we have been told we are going to have a series of procedural votes. I don't know how long that will take. It would be fair to say at least an hour. So I think it is in the best interest of us all to probably have me submit my questions, written questions to you, Mr. Goldstein, that I had remaining, either that or you can walk with me over to the floor.
We appreciate the distance many of you have come, the time you have put into this questioning. Clearly, we will not resolve all the issues today. There is clearly a difference of opinion as to whether there is a labor shortage or a labor surplus. There is clearly a difference of opinion as to whether wages are too low or whether they are more than adequate.
I might remind everybody that we are expecting a GAO report by the end of the year on the H–2A program. I have no idea what it is going to say, but perhaps that report will point us in some directions that we should take. Of course, we will have a hearing on that when it comes up as well.
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Again, you are all experts. Your perspective is appreciated, and we thank you for being here today.
[Whereupon, at 11:35 a.m., the subcommittee adjourned.]
A P P E N D I X
Material Submitted for the Hearing
STATEMENT BY HON. SAXBY CHAMBLISS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF GEORGIA
First, let me take this opportunity to thank Chairman Smith and commend the subcommittee for holding this hearing on issues related to agricultural labor and immigration programs. The topic is vital to farmers around the country and in Georgia's 8th district.
The current H–2A program was intended to assist U.S. employers, who face a shortage of domestic workers, by permitting the temporary assistance of migrant employees. The program however, has failed to perform as expected due to the burdensome requirements placed upon the employers. Farmers are in desperate need of a program that allows workers to enter the country legally to perform agricultural work and then return to their native country.
Hired labor is a critical component in farming and farmers rely on the availability of this resource to plant and harvest their crops successfully. For decades, migrant labor has been the primary source of the seasonal agricultural labor supply. The availability of this supply has contributed to the success of U.S. agricultural producers and their expansion into world markets. But, as our economy continues to thrive and unemployment approaches a record low, our farmers are experiencing labor shortages now more than ever. Consequently, farmers in virtually every region of the country have experienced serious difficulties planting and harvesting their crops because they were unable to secure the help they required.
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In addition, food quality and safety issues are of increasing concern to American consumers and have attracted widespread public attention. The availability of temporary migrant labor will assure that U.S. producers are able to meet agricultural demands with domestically produced items which meet the stringent requirements of the USDA and FDA.
The current H–2A program is simply ill-conceived and impractical for both producers and participants. Given the program's ineffectiveness, and the Department of Labor's inability to amend this program sufficiently, the establishment of a new guest worker program is the only viable course of action. Once again, I commend the subcommittee for exploring this issue.
48–933 CC
1997
TEMPORARY AGRICULTURAL WORK VISA PROGRAMS
HEARING
BEFORE THE
SUBCOMMITTEE ON
IMMIGRATION AND CLAIMS
OF THE
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COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
FIRST SESSION
September 24, 1997
Serial No. 49
Printed for the use of the Committee on the Judiciary
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
STEVEN SCHIFF, New Mexico
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
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BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
SONNY BONO, California
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRISTOPHER B. CANNON, Utah
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
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ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
THOMAS E. MOONEY, Chief of Staff-General Counsel
JULIAN EPSTEIN, Minority Staff Director
Subcommittee on Immigration and Claims
LAMAR SMITH, Texas, Chairman
ELTON GALLEGLY, California
SONNY BONO, California
WILLIAM L. JENKINS, Tennessee
EDWARD A. PEASE, Indiana
CHRISTOPHER B. CANNON, Utah
ED BRYANT, Tennessee
MELVIN L. WATT, North Carolina
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
ZOE LOFGREN, California
ROBERT WEXLER, Florida
CORDIA A. STROM, Chief Counsel
EDWARD R. GRANT, Counsel
GEORGE FISHMAN, Counsel
MARTINA HONE, Minority Counsel
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C O N T E N T S
HEARING DATE
September 24, 1997
OPENING STATEMENT
Smith, Hon. Lamar, a Representative in Congress from the State of Texas, and chairman, Subcommittee on Immigration and Claims
WITNESSES
Goldstein, Burce, Executive Director, Farmworker Justice Fund
Hancock, John, Former Administrator of Agricultural Labor Certifications Employment and Training Administration, Department of Labor
Holt, Jim, McGuinness and Williams
Vice, Bob L., President, California Farm Bureau Federation
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Cannon, Hon. Christopher B., a Representative in Congress from the State of Utah: Prepared statement
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Goldstein, Burce, Executive Director, Farmworker Justice Fund: Prepared statement
Hancock, John, Former Administrator of Agricultural Labor Certifications Employment and Training Administration, Department of Labor: Prepared statement
Holt, Jim, McGuinness and Williams: Prepared statement
Smith, Hon. Lamar, a Representative in Congress from the State of Texas, and chairman, Subcommittee on Immigration and Claims: Prepared statement
Smith, Hon. Robert F., Chairman of the House Committee on Agriculture
Vice, Bob L., President, California Farm Bureau Federation: Prepared statement
APPENDIX
Statement by Hon. Saxby Chambliss, a Representative in Congress from the State of Georgia
(Footnote 1 return)
The 1982 Census of Agriculture, which reported roughly the same number of farms hiring labor as were reported in 1987, reported 4.856 million ''hires'' during the year. This statistic reflects the large amount of seasonal employment and multiple job holding which occurs in agriculture.
(Footnote 2 return)
Data released by DOL this year indicate that over 30 percent of the agricultural workforce self-identifies itself as illegal. Obviously, the correct number of illegal workers is much higher.
(Footnote 3 return)
For other recent analyses, see David Griffith and Ed Kissam, Working Poor: Farmworkers in the United States (Temple Univ. Press 1995); Commission on Security and Cooperation in Europe, Implementation of the Helsinki Accords: Migrant Farmworkers in the United States (Gov't. Printing Office May 1993); U.S. Commission on Agricultural Workers, Case Studies and Research Reports, 1989–1993, and Hearings and Workshops (Appendix I and Appendix II, respectively, to Report of the Commission on Agricultural Workers; Department of Labor, U.S. Farmworkers in the Post-IRCA Period, Based on Data from the National Agricultural Workers Survey (NAWS), Research Report No. 4 (March 1993); Maralyn Edid, Farm Labor Organizing: Trends & Prospects (Cornell University ILR Press 1994); Carol Zabin et al., Mixtec Migrants in California Agriculture: A New Cycle of Poverty (Calif. Institute for Rural Studies 1993). See also Ronald L. Goldfarb, Migrant Farm Workers: A Caste of Despair (Iowa State Univ. Press 1981).
(Footnote 4 return)
''Work to Find Workers,'' Palm Beach Post, Sunday, July 6, 1997 at p. 2E; ''Delray-based farm withdraws request for 370 foreign workers,'' Palm Beach Post, June 25, 1997 at p. 4B; ''Several apply to work for Pero Family Farms; few interviewed,'' Palm Beach Post, June 13, 1997 at 4B. Letter from Florida Department of Labor and Employment Security, Office of Inspector General to Donald L. Summers, Attorney for Pero Family Farms, Inc. (September 8, 1997); ''Pero Family Farms Violated Rules in Recruiting Workers, State Says,'' Palm Beach Post, September 19, 1997 at p. 6B.
(Footnote 5 return)
The demand for ''radical reform'' was made by John Young, then President of the National Council of Agricultural Employers. He testified that the H–2A program was ''unworkable in meeting the need for temporary and seasonal agricultural labor. . . .'' Yet, he is an east coast apple grower who consistently has received H–2A workers for 30 years, even during times when virtually all agreed that there was no farm labor shortage. Committee on the Judiciary Subcommittee on Immigration and Claims, ''Guest Worker Programs,'' Hearing, December 7, 1995, 104th Cong., 1st Sess. at 85–87. For this reason alone, NCAE's complaints should be rejected.
(Footnote 6 return)
Employers often exhibit national-origin and racial stereotyping, suggesting that one ethnic group has ''good'' workers and that another has ''bad'' or ''lazy'' workers.
(Footnote 7 return)
For additional information regarding the history of the H–2A program, especially in Florida sugar cane, see House Education and Labor Committee, U.S. Congress, Report on the Use of Temporary Foreign Workers in the Florida Sugar Cane Industry, Serial No. 102–J (July 1991); U.S. General Accounting Office, Foreign Farm Workers in the U.S.: Department of Labor Action Needed to Protect Sugar Cane Workers, GAO/HRD–92–95 (June 1992); U.S. General Accounting Office, The H–2A Program: Protections for U.S. Farmworkers, GAO/PEMD–89–3 (Oct. 1988); Phyllis Berman, ''The Family with the Sweet Tooth,'' Forbes (May 14, 1990); Jane Mayer and Jose de Cordoba, ''First Family of Sugar is Tough on Workers, Generous to Politicians,'' Wall Street Journal (July 29, 1991); Barnaby J. Feder, ''Labor Peace in Florida's Sugar Fields,'' New York Times (Sept. 20, 1992); Lisa Shuchman, ''Machines Don't Sue: Big Sugar Cuts Back on Foreign Labor,'' Palm Beach Post (Oct. 28 1992); Robert McCabe, ''Firms Cutting Cutters: Sugar Companies to Use Machines,'' Sun-Sentinel (Ft. Lauderdale, Fla. Apr. 28, 1993).