SPEAKERS CONTENTS INSERTS
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66–504
2000
AGRICULTURAL OPPORTUNITIES ACT
HEARING
BEFORE THE
SUBCOMMITTEE ON
IMMIGRATION AND CLAIMS
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
ON
H.R. 4548
JUNE 15, 2000
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Serial No. 131
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 S. SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
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MARY BONO, California
SPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida
DAVID VITTER, Louisiana
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
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
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
THOMAS E. MOONEY, SR., General Counsel-Chief of Staff
JULIAN EPSTEIN, Minority Chief Counsel and Staff Director
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Subcommittee on Immigration and Claims
LAMAR S. SMITH, Texas, Chairman
BILL McCOLLUM, Florida
ELTON GALLEGLY, California
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
JOE SCARBOROUGH, Florida
SHEILA JACKSON LEE, Texas
HOWARD L. BERMAN, California
ZOE LOFGREN, California
BARNEY FRANK, Massachusetts
MARTIN T. MEEHAN, Massachusetts
GEORGE FISHMAN, Chief Counsel
JIM WILON, Counsel
LORA RIES, Counsel
CINDY BLACKSTON, Professional Staff
LEON BUCK, Minority Counsel
C O N T E N T S
HEARING DATE
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June 15, 2000
TEXT OF BILL
H.R. 4548
OPENING STATEMENT
Smith, Hon. Lamar S., a Representative in Congress From the State of Texas, and chairman, Subcommittee on Immigration and Claims
WITNESSES
Buchanan, William, executive director, American Council for Immigration Reform
Camacho, Marcos, general counsel, United Farmworkers Union
Dolibois, Robert, executive vice president, American Nursery and Landscape Association
Fagnoni, Cindy, Director, Education, Workforce, and Income Security Issues, Health, Education, and Human Services Division, U.S. General Accounting Office
Fraser, John R., Deputy Administrator, Wage and Hour Division, Employment Standards Administration, U.S. Department of Education
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Holt, James S., senior economist, on Behalf of the National Counsel of Agricultural Employers
Hukill, Dewey L., Labor Advisory Committee, Texas Farm Bureau
Krikorian, Mark, legislative director, Center for Immigration Studies
Muñoz, Cecilia, vice president, National Council of La Raza
Pombo, Hon. Richard W., a Representative in Congress From the State of California
Williamson, Michelle, president, Sleepy Creek Inc., and Williamson Berry Farms
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
American Farm Federation: Prepared statement
Buchanan, William, executive director, American Council for Immigration Reform: Prepared statement
Camacho, Marcos, general counsel, United Farmworkers Union: Prepared statement
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Canady, Hon. Charles T., a Representative in Congress From the State of Florida: Prepared statement
Dolibois, Robert, executive vice president, American Nursery and Landscape Association: Prepared statement
Fagnoni, Cindy, Director, Education, Workforce, and Income Security Issues, Health, Education, and Human Services Division, U.S. General Accounting Office: Prepared statement
Fraser, John R., Deputy Administrator, Wage and Hour Division, Employment Standards Administration, U.S. Department of Education: Prepared statement
Holt, James S., senior economist, on Behalf of the National Counsel of Agricultural Employers: Prepared statement
Hukill, Dewey L., Labor Advisory Committee, Texas Farm Bureau: Prepared statement
Jackson Lee, Hon. Sheila, a Representative in Congress From the State of Texas: Prepared statement
Krikorian, Mark, legislative director, Center for Immigration Studies: Prepared statement
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Lofgren, Hon. Zoe, a Representative in Congress From the State of California: Prepared statement
Muñoz, Cecilia, vice president, National Council of La Raza: Prepared statement
Pombo, Hon. Richard W., a Representative in Congress From the State of California: Prepared statement
Smith, Hon. Lamar S., a Representative in Congress From the State of Texas, and chairman, Subcommittee on Immigration and Claims: Prepared statement
Williamson, Michelle, president, Sleepy Creek Inc., and Williamson Berry Farms: Prepared statement
AGRICULTURAL OPPORTUNITIES ACT
THURSDAY, JUNE 15, 2000
House of Representatives,
Subcommittee on Immigration and Claims,
Committee on the Judiciary,
Washington, DC.
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The subcommittee met, pursuant to notice, at 11:05 a.m., in Room 2226, Rayburn House Office Building, Hon. Lamar Smith, [chairman of the subcommittee], presiding.
Present: Representatives Lamar Smith, Elton Gallegly, Edward A. Pease, Charles Canady, Sheila Jackson Lee and Howard Berman.
Also present: Representative Richard Pombo.
Staff present: George Fishman, majority chief counsel; Jim Wilon, majority counsel; Cindy Blackston, professional staff member; Leon Buck, minority counsel; and Nolan Rappaport, minority counsel.
OPENING STATEMENT OF CHAIRMAN SMITH
Mr. SMITH. The Subcommittee on Immigration and Claims will come to order. We have a most interesting hearing today. I have an opening statement, and I will acknowledge others for their opening statements, and then we will proceed with four panels. I will recognize myself for an opening statement now.
The growers of fruits, vegetables and specialty crops rely heavily on hired farmworkers because their produce is harvested and packed by hand. Their labor costs are higher than those of grain farmers and other producers who use mechanical harvesting and packing machines. The growers rely on seasonal hiring that employs millions of workers annually. Most of this labor is required during relatively brief harvest times. Thus, the growers rely upon a large, flexible and readily available seasonal workforce.
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More than two-thirds of the growers' seasonal workforce is foreign born. Many of these workers, perhaps even a majority, are illegal aliens.
Seasonal farmworkers work for lower wages and working conditions than most other workers in the United States. They generally do not make more than $7 or $8 an hour for work that is very physically demanding. Farmworker advocates argue that they are undercompensated because of their immigration status. Growers respond that their wages are fair and could not be raised without impairing the growers' ability to compete with imported produce.
The H–2A guestworker program allows aliens to enter the United States to perform seasonal agricultural labor. To obtain workers, a grower must certify to the Labor Department that it has taken steps to recruit American workers, but there are none available, and that using alien labor will not adversely affect American workers.
The grower must also provide assurances that it will provide specific wages, transportation, housing and other benefits to its H–2A workers. The Labor Department is supposed to approve workers within 60 days after the grower's application is filed.
The H–2A program has grown substantially in recent years but still provides fewer than 40,000 workers per year, a small fraction of the total workforce. Growers argue that the Labor Department administers the program in a bureaucratic, cumbersome and often adversarial manner, imposing unnecessary costs and sometimes failing to provide needed workers in time.
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Growers also maintain that farmworker advocates employ strategic harassment and litigation against them to discourage use of the H–2A program. Farmworker advocates, on the other hand, reply that the H–2A program is underutilized because growers prefer to employ illegal aliens who will accept substandard wages and working conditions. No doubt the debate will continue.
H.R. 4548, the ''Agricultural Opportunities Act,'' has been introduced by Representative Pombo of California who will be our first witness today. He continues to be a congressional leader on the subject of agricultural guestworkers.
[The bill, H.R. 4548, follows:]
106TH CONGRESS
2D SESSION
H. R. 4548
To establish a pilot program creating a system of registries of temporary agricultural workers to provide for a sufficient supply of such workers, to amend the Immigration and Nationality Act to streamline procedures for the temporary admission and extension of stay of nonimmigrant agricultural workers under the pilot program, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
MAY 25, 2000
Mr. POMBO (for himself, Mr. CHAMBLISS, Mr. HASTINGS of Washington, Mr. PITTS, Mr. CALVERT, Mr. WEXLER, Mr. MARTINEZ, Mr. RADANOVICH, Mr. NUSSLE, Mr. BOEHNER, Mr. MCCOLLUM, Mr. KINGSTON, Mr. DOOLITTLE, Mr. FOLEY, Mrs. CHENOWETH-HAGE, Mrs. BONO, and Mr. KOLBE) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Education and the Workforce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
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A BILL
To establish a pilot program creating a system of registries of temporary agricultural workers to provide for a sufficient supply of such workers, to amend the Immigration and Nationality Act to streamline procedures for the temporary admission and extension of stay of nonimmigrant agricultural workers under the pilot program, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) SHORT TITLE.—This Act may be cited as the ''Agricultural Opportunities Act''.
(b) TABLE OF CONTENTS.—The table of contents of this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
TITLE I—AGRICULTURAL WORKER REGISTRIES
Sec. 101. Agricultural worker registries.
TITLE II—H–2C PROGRAM
Sec. 201. Employer applications and assurances.
Sec. 202. Search of registry.
Sec. 203. Issuance of visas and admission of aliens.
Sec. 204. Employment requirements.
Sec. 205. Program for the admission of temporary H–2C workers.
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TITLE III—MISCELLANEOUS PROVISIONS
Sec. 301. Enhanced worker protections and labor standards enforcement.
Sec. 302. Commission.
Sec. 303. Regulations.
Sec. 304. Determination and use of user fees.
Sec. 305. Funding for startup costs.
Sec. 306. Report to Congress.
Sec. 307. Effective date.
Sec. 308. Termination of program.
SEC. 2. DEFINITIONS.
In this Act:
(1) ADVERSE EFFECT WAGE RATE.—
(A) IN GENERAL.—Except as provided in subparagraph (B), the term ''adverse effect wage rate'' means the rate of pay for an agricultural occupation that is 5 percent above the prevailing rate of pay for that agricultural occupation in an area of intended employment, if the prevailing rate of pay for the occupation is less than the prior year's average hourly earnings of field and livestock workers for the State (or region that includes the State), as determined by the Secretary of Agriculture, provided no adverse effect wage rate shall be more than the prior year's average hourly earnings of field and livestock workers for the State (or region that includes the State), as determined by the Secretary of Agriculture.
(B) EXCEPTION.—If the prevailing rate of pay for an activity is a piece rate, task rate, or group rate, and the average hourly earnings of an employer's workers employed in that activity, taken as a group, are less than the prior year's average hourly earnings of field and livestock workers in the State (or region that includes the State), as determined by the Secretary of Agriculture, the term ''adverse effect wage rate'' means the prevailing piece rate, task rate, or group rate for the activity plus such an amount as is necessary to increase the average hourly earnings of the employer's workers employed in the activity, taken as a group, by 5 percent, or to the prior's years average hourly earnings for field and livestock workers for the State (or region that includes the State) determined by the Secretary of Agriculture, whichever is less.
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(2) AGRICULTURAL EMPLOYMENT.—The term ''agricultural employment'' means any service or activity that is considered to be agriculture under section 3(f) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(f)) or agricultural labor under section 3121(g) of the Internal Revenue Code of 1986. For purposes of this paragraph, agricultural employment in the United States includes, but is not limited to, employment under section 101(a)(15)(H)(ii)(c) of the Immigration and Nationality Act (as added by this Act).
(3) ELIGIBLE.—The term ''eligible'' means, with respect to employment, an individual who is not an unauthorized alien (as defined in section 274A(h)(3) of the Immigration and Nationality Act (8 U.S.C. 1324a(h)(3)) with respect to that employment.
(4) EMPLOYER.—The term ''employer'' means any person or entity, including any farm labor contractor and any agricultural association, that employs workers.
(5) H092C EMPLOYER.—The term ''H–2C employer'' means an employer who seeks to hire one or more nonimmigrant aliens described in section 101(a)(15)(H)(ii)(c) of the Immigration and Nationality Act (as added by this Act).
(6) H092C WORKER.—The term ''H–2C worker'' means a nonimmigrant described in section 101(a)(15)(H)(ii)(c) of the Immigration and Nationality Act (as added by this Act).
(7) JOB OPPORTUNITY.—The term ''job opportunity'' means a specific period of employment provided by an employer to a worker in one or more agricultural activities.
(8) PREVAILING WAGE.—The term ''prevailing wage'' means with respect to an agricultural activity in an area of intended employment, the rate of wages that includes the 51st percentile of employees in that agricultural activity in the area of intended employment, expressed in terms of the prevailing method of pay for the agricultural activity in the area of intended employment.
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(9) REGISTERED WORKER.—The term ''registered worker'' means an individual whose name appears in a registry.
(10) REGISTRY.—The term ''registry'' means an agricultural worker registry established under section 101(a).
(11) SECRETARY.—The term ''Secretary'' means the Secretary of Labor.
(12) UNITED STATES WORKER.—The term ''United States worker'' means any worker, whether a United States citizen or national, a lawfully admitted permanent resident alien, or any other alien who is authorized to work in the job opportunity within the United States other than an alien admitted pursuant to section 101(a)(15)(H)(ii)(c) or section 218A of the Immigration and Nationality Act, as in effect on the effective date of this Act.
TITLE I—AGRICULTURAL WORKER REGISTRIES
SEC. 101. AGRICULTURAL WORKER REGISTRIES.
(a) ESTABLISHMENT OF REGISTRIES.—
(1) IN GENERAL.—The Secretary of Labor shall establish and maintain a system of registries containing a current database of eligible United States workers who seek agricultural employment and the employment status of such workers—
(A) to ensure that eligible United States workers are informed about available agricultural job opportunities and have the right of first refusal for the agricultural jobs available through the registry; and
(B) to provide timely referral of such workers to agricultural job opportunities in the United States.
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(2) GEOGRAPHIC COVERAGE.—
(A) SINGLE STATE.—Each registry established under paragraph (1) shall include the job opportunities in a single State, except that, in the case of New England States, two or more such States may be represented by a single registry in lieu of multiple registries.
(B) REQUESTS FOR INCLUSION.—Each State having any group of agricultural producers seeking to utilize the registry shall be represented by a registry, except that, in the case of a New England State, the State shall be represented by the registry covering the group of States of which the State is a part.
(3) COMPUTER DATABASE.—The Secretary of Labor may establish the registries as part of the computer databases known as ''America's Job Bank'' and ''America's Talent Bank''.
(4) RELATION TO PROCESS FOR IMPORTING H–2C WORKERS.—Notwithstanding section 218A of the Immigration and Nationality Act (as added by this Act), no petition to import an alien as an H–2C worker may be approved by the Attorney General unless the H–2C employer—
(A) has applied to the Secretary to conduct a search of the registry of the State in which the job opportunities for which H–2C workers are sought are located; and
(B) has received a report or approved application described in section 203(a)(1).
(b) REGISTRATION.—
(1) IN GENERAL.—An eligible individual who seeks employment in agricultural work may apply to be included in the registry for the State in which the individual resides. Such application shall include—
(A) the name and address of the individual;
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(B) the period or periods of time (including beginning and ending dates) during which the individual will be available for agricultural work;
(C) the registry or registries on which the individual desires to be included;
(D) the specific qualifications and work experience possessed by the applicant;
(E) the type or types of agricultural work the applicant is willing to perform;
(F) such other information as the applicant wishes to be taken into account in referring the applicant to agricultural job opportunities; and
(G) such other information as may be required by the Secretary.
(2) VALIDATION OF EMPLOYMENT AUTHORIZATION.—No person may be included on any registry unless the Secretary of Labor has requested and obtained from the Attorney General a certification that the person is authorized to be employed in the United States.
(3) EMPLOYMENT VERIFICATION SYSTEM.—The Attorney General shall establish a reliable automated employment eligibility verification system to ensure that an employer who hires an H–2C worker does not hire for employment in the United States an unauthorized alien (as defined in section 274A(h)(3) of the Immigration and Nationality Act).
(4) UNITED STATES WORKERS.—United States workers shall have preference in referral by the registry, and may be referred to any job opportunity nationwide for which they are qualified and make a commitment to be available at the time and place needed.
(5) USE OF REGISTRY.—Any United States agricultural employer may use the registry.
(6) DISCRETIONARY USE FOR NEW HIRES.—An agricultural employer may require prospective employees to register with a registry as a means of assuring that its workers are eligible to be employed in the United States.
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(7) WORKERS REFERRED TO JOB OPPORTUNITIES.—The name of each registered worker who is referred and accepts employment with an employer shall be classified as inactive on each registry on which the worker is included during the period of employment involved in the job to which the worker was referred, unless the worker reports to the Secretary that the worker is no longer employed and is available for referral to another job opportunity. A registered worker classified as inactive shall not be referred.
(8) REMOVAL OF NAMES FROM A REGISTRY.—The Secretary shall remove from the appropriate registry the name of any registered worker who, on
3 separate occasions within a 3-month period, is referred to a job opportunity pursuant to this section, and who declines such referral or fails to report to work in a timely manner.
(9) VOLUNTARY REMOVAL.—A registered worker may request that the worker's name be removed from a registry.
(10) REMOVAL BY EXPIRATION.—The application of a registered worker shall expire, and the Secretary shall remove the name of such worker from the appropriate registry if the worker has not accepted a job opportunity pursuant to this section within the preceding 12-month period.
(11) REINSTATEMENT.—A worker whose name is removed from a registry pursuant to paragraph (8), (9), or (10) may apply to the Secretary for reinstatement to such registry at any time.
(c) CONFIDENTIALITY OF REGISTRIES.—The Secretary shall maintain the confidentiality of the registries established pursuant to this section, and the information in such registries shall not be used for any purposes other than those authorized in this Act.
(d) ADVERTISING OF REGISTRIES.—The Secretary shall widely disseminate, through advertising and other means, the existence of the registries for the purpose of encouraging eligible United States workers seeking agricultural job opportunities to register. The Secretary of Labor shall ensure that the information about the registry is made available to eligible workers through all appropriate means, including appropriate State agencies, groups representing farm workers, and nongovernmental organizations, and shall ensure that the registry is accessible to growers and farm workers.
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TITLE II—H–2C PROGRAM
SEC. 201. EMPLOYER APPLICATIONS AND ASSURANCES.
(a) APPLICATIONS TO THE SECRETARY.—
(1) IN GENERAL.—Not later than 28 days prior to the date on which an H–2C employer desires to employ an H–2C worker in a temporary or seasonal agricultural job opportunity, the employer shall, before petitioning for the admission of such a worker, apply to the Secretary for the referral of a United States worker or nonimmigrant agricultural worker through a search of the appropriate registry, in accordance with section 202. Such application shall—
(A) describe the nature and location of the work to be performed;
(B) list the anticipated period (expected beginning and ending dates) for which workers will be needed;
(C) indicate the number of job opportunities in which the employer seeks to employ workers from the registry;
(D) describe the bona fide occupational qualifications that must be possessed by a worker to be employed in the job opportunity in question;
(E) describe the wages and other terms and conditions of employment the employer will offer, which shall not be less (and are not required to be more) than those required by this section;
(F) contain the assurances required by subsection (c);
(G) specify the foreign country or region thereof from which alien workers should be admitted in the case of a failure to refer United States workers under this Act; and
(H) be accompanied by the payment of a registry user fee determined under section 304(b)(1)(A) for each job opportunity indicated under subparagraph (C).
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(2) APPLICATIONS BY ASSOCIATIONS ON BEHALF OF EMPLOYER MEMBERS.—
(A) IN GENERAL.—An agricultural association may file an application under paragraph (1) for registered workers on behalf of its employer members.
(B) EMPLOYERS.—An application under subparagraph (A) shall cover those employer members of the association that the association certifies in its application have agreed in writing to comply with the requirements of this Act.
(b) AMENDMENT OF APPLICATIONS.—Prior to receiving a referral of workers from a registry, an employer may amend an application under this subsection if the employer's need for workers changes. If an employer makes a material amendment to an application on a date which is later than 28 days prior to the date on which the workers on the amended application are sought to be employed, the Secretary may delay issuance of the report described in section 202(b) by the number of days by which the filing of the amended application is later than 28 days before the date on which the employer desires to employ workers.
(c) ASSURANCES.—The assurances referred to in subsection (a)(1)(F) are the following:
(1) ASSURANCE THAT THE JOB OPPORTUNITY IS NOT A RESULT OF A LABOR DISPUTE.—The employer shall assure that the job opportunity for
which the employer requests a registered worker is not vacant because a worker is involved in a strike, lockout, or work stoppage in the course of a labor dispute involving the job opportunity at the place of employment.
(2) ASSURANCE THAT THE JOB OPPORTUNITY IS TEMPORARY OR SEASONAL.—
(A) REQUIRED ASSURANCE.—The employer shall assure that the job opportunity for which the employer requests a registered worker is temporary or seasonal.
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(B) SEASONAL BASIS.—For purposes of this Act, labor is performed on a seasonal basis where, ordinarily, the employment pertains to or is of the kind exclusively performed at certain seasons or periods of the year and which, from its nature, may not be continuous or carried on throughout the year.
(C) TEMPORARY BASIS.—For purposes of this Act, a worker is employed on a temporary basis where the employment is intended not to exceed 10 months.
(3) ASSURANCE OF PROVISION OF REQUIRED WAGES AND BENEFITS.—The employer shall assure that the employer will provide the wages and benefits required by subsections (a), (b), and (c) of section 204 to all workers employed in job opportunities for which the employer has applied under subsection (a) and to all other workers in the same occupation at the place of employment, and in no case less than the greater of the hourly wage prescribed under section 6(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(a)(1)), or the applicable State minimum wage.
(4) ASSURANCE OF EMPLOYMENT.—The employer shall assure that the employer will not refuse to employ qualified individuals referred under section 202, and will terminate qualified individuals employed pursuant to this Act only for lawful job-related reasons, including lack of work.
(5) ASSURANCE OF COMPLIANCE WITH LABOR LAWS.—
(A) IN GENERAL.—An employer who requests registered workers shall assure that, except as otherwise provided in this Act, the employer will comply with all applicable Federal, State, and local labor laws, including laws affecting migrant and seasonal agricultural workers, with respect to all United States workers and alien workers employed by the employer.
(B) LIMITATIONS.—The disclosure required under section 201(a) of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1821(a)) may be made at any time prior to the time the alien is issued a visa permitting entry into the United States.
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(6) ASSURANCE OF ADVERTISING OF THE REGISTRY.—The employer shall assure that, from the day an application for workers is submitted under subsection (a), and continuing throughout the period of employment of any job opportunity for which the employer has applied for a worker from the registry, post in a conspicuous place a poster to be provided by the Secretary advertising the availability of the registry.
(7) ASSURANCE OF ADVERTISING OF JOB OPPORTUNITIES.—The employer shall assure that not later than 14 days after submitting an application to a registry for workers under subsection (a) the employer will advertise the availability of the job opportunities for which the employer is seeking workers from the registry in a publication in the local labor market that is likely to be patronized by potential farmworkers, if any, and refer interested workers to register with the registry.
(8) ASSURANCE OF CONTACTING FORMER WORKERS.—The employer shall assure that the employer has made reasonable efforts through the sending of a letter by United States Postal Service mail, or otherwise, to contact any eligible worker the employer employed during the previous season in the
occupation at the place of intended employment for which the employer is applying for registered workers, and has made the availability of the employer's job opportunities in the occupation at the place of intended employment known to such previous worker, unless the worker was terminated from employment by the employer for a lawful job-related reason or abandoned the job before the worker completed the period of employment of the job opportunity for which the worker was hired.
(9) ASSURANCE OF PROVISION OF WORKERS COMPENSATION.—The employer shall assure that if the job opportunity is not covered by the State workers' compensation law, that the employer will provide, at no cost to the worker, insurance covering injury and disease arising out of and in the course of the worker's employment which will provide benefits at least equal to those provided under the State workers' compensation law for comparable employment.
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(10) ASSURANCE OF PAYMENT OF ALIEN EMPLOYMENT USER FEE.—The employer shall assure that if the employer receives a notice of insufficient workers under section 202(c), such employer shall promptly pay the alien employment user fee determined under section 304(b)(1)(B) for each job opportunity to be filled by an eligible alien as required under such section.
(d) WITHDRAWAL OF APPLICATIONS.—
(1) IN GENERAL.—An employer may withdraw an application under subsection (a), except that, if the employer is an agricultural association, the association may withdraw an application under subsection (a) with respect to one or more of its members. To withdraw an application, the employer shall notify the Secretary in writing, and the Secretary shall acknowledge in writing the receipt of such withdrawal notice. An employer who withdraws an application under subsection (a), or on whose behalf an application is withdrawn, is relieved of the obligations undertaken in the application.
(2) LIMITATION.—An application may not be withdrawn while any alien provided status under this
Act pursuant to such application is employed by the employer.
(3) OBLIGATIONS UNDER OTHER STATUTES.—Any obligation incurred by an employer under any other law or regulation as a result of recruitment of United States workers under an offer of terms and conditions of employment required as a result of making an application under subsection (a) is unaffected by withdrawal of such application.
(e) REVIEW OF APPLICATION.—
(1) IN GENERAL.—Promptly upon receipt of an application by an employer under subsection (a), the Secretary shall review the application for compliance with the requirements of such subsection.
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(2) APPROVAL OF APPLICATIONS.—If the Secretary determines that an application meets the requirements of subsection (a), and the employer is not ineligible to apply under paragraph (2), (3), or (4) of section 301(b), the Secretary shall, not later than 7 days after the receipt of such application, approve the application and so notify the employer.
(3) REJECTION OF APPLICATIONS.—If the Secretary determines that an application fails to meet 1 or more of the requirements of subsection (a), the Secretary, as expeditiously as possible, but in no case later than 7 days after the receipt of such application, shall—
(A) notify the employer of the rejection of the application and the reasons for such rejection, and provide the opportunity for the prompt resubmission of an amended application; and
(B) offer the applicant an opportunity to request an expedited administrative review or a de novo administrative hearing before an administrative law judge of the rejection of the application.
(4) REJECTION FOR PROGRAM VIOLATIONS.—The Secretary shall reject the application of an employer under this section if—
(A) the employer has been determined to be ineligible to employ workers under section 301(b); or
(B) the employer during the previous two-year period employed H–2C workers or registered workers and the Secretary of Labor has determined, after notice and opportunity for a hearing, that the employer at any time during that period substantially violated a material term or condition of the assurances made with respect to the employment of United States workers or nonimmigrant workers.
No employer may have applications under this section rejected for more than 3 years for any violation described in this paragraph.
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SEC. 202. SEARCH OF REGISTRY.
(a) SEARCH PROCESS AND REFERRAL TO THE EMPLOYER.—Upon the approval of an application under section 201(e), the Secretary shall promptly begin a search of the registry of the State (or States) in which the work is to be performed to identify registered United States workers with the qualifications requested by the employer. The Secretary shall contact such qualified registered workers and determine, in each instance, whether the worker is ready, willing, and able to accept the employer's job opportunity and will make the affirmative commitment to work for the employer at the time and place needed. The Secretary shall provide to each worker who commits to work for the employer the employer's name, address, telephone number, the location where the employer has requested that employees report for employment, and a statement disclosing the terms and conditions of employment.
(b) DEADLINE FOR COMPLETING SEARCH PROCESS; REFERRAL OF WORKERS.—As expeditiously as possible, but not later than 7 days before the date on which an employer desires work to begin, the Secretary shall complete the search under subsection (a) and shall transmit to the employer a report containing the name, address, and social security account number of each registered worker who has made the affirmative commitment described in subsection (a) to work for the employer on the date needed, together with sufficient information to enable the employer to establish contact with the worker. The identification of such registered workers in a report shall constitute a referral of workers under this section.
(c) ACCEPTANCE OF REFERRALS.—H–2C employers shall accept all qualified United States worker referrals who make a commitment to report to work at the time and place needed and to complete the full period of employment offered, on the registry of the State in which the intended employment is located, and the immediately contiguous States. An employer shall not be required to accept more referrals than the number of job opportunities for which the employer applied to the registry.
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(d) NOTICE OF INSUFFICIENT WORKERS.—If the report provided to the employer under subsection (b) does not include referral of a sufficient number of registered workers to fill all of the employer's job opportunities in the occupation for which the employer applied under section 201(a), the Secretary shall indicate in the report the number of job opportunities for which registered workers could not be referred, and shall promptly transmit a copy of the report to the Attorney General and the Secretary of State, by electronic or other means ensuring next day delivery.
(e) USER FEE FOR CERTIFICATION TO EMPLOY ALIEN WORKERS.—With respect to each job opportunity for which a notice of insufficient workers is made, the Secretary shall require the payment of an alien employment user fee determined under section 304(b)(1)(B).
SEC. 203. ISSUANCE OF VISAS AND ADMISSION OF ALIENS.
(a) IN GENERAL.—
(1) NUMBER OF ADMISSIONS.—Subject to paragraph (2), the Secretary of State shall promptly issue visas to, and the Attorney General shall admit, as nonimmigrant aliens described in section 101(a)(15)(H)(ii)(c) of the Immigration and Nationality Act a sufficient number of eligible aliens designated by the employer to fill the job opportunities of the employer—
(A) upon receipt of a copy of the report described in section 202(b);
(B) upon approval of an application (or copy of an application under subsection (b));
(C) upon receipt of the report required by subsection (c)(1)(B); or
(D) upon receipt of a report under subsection (d).
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(2) PROCEDURES.—The admission of aliens under paragraph (1) shall be subject to the procedures of section 218A of the Immigration and Nationality Act, as added by this Act.
(b) DIRECT APPLICATION UPON FAILURE TO ACT.—
(1) APPLICATION TO THE SECRETARY OF STATE.—If the employer has not received a referral of sufficient workers pursuant to section 202(b) or a report of insufficient workers pursuant to section 202(d), by the date that is 7 days before the date on which the work is anticipated to begin, the employer may submit an application for alien workers directly to the Secretary of State, with a copy of the application provided to the Attorney General, seeking the issuance of visas to and the admission of aliens for employment in the job opportunities for which the employer has not received referral of registered workers. Such an application shall include a copy of the employer's application under section 201(a), together with evidence of its timely submission. The Secretary of State may consult with the Secretary of Labor in carrying out this paragraph.
(2) EXPEDITED CONSIDERATION BY SECRETARY OF STATE.—The Secretary of State shall, as expeditiously as possible, but not later than 5 days after the employer files an application under paragraph (1), issue visas to, and the Attorney General shall admit, a sufficient number of eligible aliens designated by the employer to fill the job opportunities for which the employer has applied under that paragraph, if the employer has met the requirements of sections 201 and 202. The employer shall be subject to the alien employment user fee determined under section 304(b)(1)(B) with respect to each job opportunity for which the Secretary of State authorizes the issuance of a visa pursuant to paragraph (2).
(c) REDETERMINATION OF NEED.—
(1) REQUESTS FOR REDETERMINATION.—
(A) IN GENERAL.—An employer may file a request for a redetermination by the Secretary of the employer's need for workers if a worker referred from the registry—
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(i) is not at the place of employment on the date of need shown on the application, or the date the work for which the worker is needed has begun, whichever is later;
(ii) is not ready, willing, able, or qualified to perform the work required; or
(iii) abandons the employment or is terminated for a lawful job-related reason.
(B) ADDITIONAL AUTHORIZATION OF ADMISSIONS.—The Secretary shall expeditiously, but in no case later than 72 hours after a redetermination is requested under subparagraph (A), submit a report to the Secretary of State and the Attorney General providing notice of a need for workers under this subsection, if the employer has met the requirements of sections 201 and 202 and the conditions described in subparagraph (A).
(2) JOB-RELATED REQUIREMENTS.—An employer shall not be required to initially employ a worker who fails to meet lawful job-related employment criteria, nor to continue the employment of a worker who fails to meet lawful, job-related standards of conduct and performance, including failure to meet minimum production standards after a 3-day break-in period.
(d) EMERGENCY APPLICATIONS.—Notwithstanding subsections (b) and (c), the Secretary may promptly transmit a report to the Attorney General and Secretary of State providing notice of a need for workers under this subsection for an employer—
(1) who has not employed aliens under this Act in the occupation in question in the prior year's agricultural season;
(2) who faces an unforeseen need for workers (as determined by the Secretary); and
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(3) with respect to whom the Secretary cannot refer able, willing, and qualified workers from the registry who will commit to be at the employer's place of employment and ready for work within 72 hours or on the date the work for which the worker is needed has begun, whichever is later.
The employer shall be subject to the alien employment user fee determined under section 304(b)(1)(B) with respect to each job opportunity for which a notice of insufficient workers is made pursuant to this subsection.
(e) REGULATIONS.—The Secretary of State shall prescribe regulations to provide for the designation of aliens under this section.
SEC. 204. EMPLOYMENT REQUIREMENTS.
(a) REQUIRED WAGES.—
(1) IN GENERAL.—An employer applying under section 201(a) for workers shall offer to pay, and shall pay, all workers in the occupation or occupations for which the employer has applied for workers from the registry, not less (and is not required to pay more) than the greater of the prevailing wage in the occupation in the area of intended employment or the adverse effect wage rate. No worker shall be paid less than the greater of the hourly wage prescribed under section 6(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(a)(1)), or the applicable State minimum wage.
(2) PAYMENT OF PREVAILING WAGE DETERMINED BY A STATE EMPLOYMENT SECURITY AGENCY SUFFICIENT.—In complying with paragraph (1), an employer may request and obtain a prevailing wage determination from the State employment security agency. If the employer requests such a determination, and pays the wage required by paragraph (1) based upon such a determination, such payment shall be considered sufficient to meet the requirement of paragraph (1).
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(3) RELIANCE ON WAGE SURVEY.—In lieu of the procedure of paragraph (2), an employer may rely on other information, such as an employer-generated prevailing wage survey that the Secretary determines meets criteria specified by the Secretary in regulations.
(4) ALTERNATIVE METHODS OF PAYMENT PERMITTED.—
(A) IN GENERAL.—A prevailing wage may be expressed as an hourly wage, a piece rate, a task rate, or other incentive payment method, including a group rate. The requirement to pay at least the prevailing wage in the occupation and area of intended employment does not require an employer to pay by the method of pay in which the prevailing rate is expressed, except that, if the employer adopts a method of pay other than the prevailing rate, the burden of proof is on the employer to demonstrate that the employer's method of pay is designed to produce earnings equivalent to the earnings that would result from payment of the prevailing rate.
(B) COMPLIANCE WHEN PAYING AN INCENTIVE RATE.—In the case of an employer that pays a piece rate or task rate or uses any other incentive payment method, including a group rate, the employer shall be considered to be in compliance with any applicable hourly wage requirement if the average of the hourly earnings of the workers, taken as a group, in the activity for which a piece rate, task rate, or other incentive payment, including a group rate, is paid, for the pay period, is at least equal to the required hourly wage, except that no worker shall be paid less than the hourly wage prescribed under section 6(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(a)(1)) or the applicable State minimum wage.
(C) TASK RATE.—For purposes of this paragraph, the term ''task rate'' means an incentive payment method based on a unit of work performed such that the incentive rate varies with the level of effort required to perform individual units of work.
(D) GROUP RATE.—For purposes of this paragraph, the term ''group rate'' means an incentive payment method in which the payment is shared among a group of workers working together to perform the task.
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(b) REQUIREMENT TO PROVIDE HOUSING.—
(1) IN GENERAL.—
(A) REQUIREMENT.—An employer applying under section 201(a) for registered workers shall offer to provide housing at no cost (except for charges permitted by paragraph (5)) to all
workers employed in job opportunities to which the employer has applied under that section, and to all other workers in the same occupation at the place of employment, whose place of residence is beyond normal commuting distance.
(B) LIABILITY.—An employer not complying with subparagraph (A) shall be liable to a registered worker for the costs of housing equivalent to the type of housing required to be provided under that subparagraph and shall not be liable for any employment-related obligation solely by reason of such noncompliance.
(2) TYPE OF HOUSING.—In complying with paragraph (1), an employer may, at the employer's election, provide housing that meets applicable Federal standards for temporary labor camps or secure housing that meets applicable local standards for rental or public accommodation housing or other substantially similar class of habitation, or, in the absence of applicable local standards, State standards for rental or public accommodation housing or other substantially similar class of habitation.
(3) WORKERS ENGAGED IN THE RANGE PRODUCTION OF LIVESTOCK.—The Secretary shall issue regulations that address the specific requirements for the provision of housing to workers engaged in the range production of livestock.
(4) LIMITATION.—Nothing in this subsection shall be construed to require an employer to provide or secure housing for persons who were not entitled to such housing under the temporary labor certification regulations in effect on June 1, 1986.
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(5) CHARGES FOR HOUSING.—
(A) UTILITIES AND MAINTENANCE.—An employer who provides housing to a worker pursuant to paragraph (1) may charge an amount equal to the fair market value (but not greater than the employer's actual cost) for maintenance and utilities, or such lesser amount as permitted by law.
(B) SECURITY DEPOSIT.—An employer who provides housing to workers pursuant to paragraph (1) may require, as a condition for providing such housing, a deposit not to exceed $50 from workers occupying such housing to
protect against gross negligence or willful destruction of property.
(C) DAMAGES.—An employer who provides housing to workers pursuant to paragraph (1) may require a worker found to have been responsible for damage to such housing which is not the result of normal wear and tear related to habitation to reimburse the employer for the reasonable cost of repair of such damage.
(6) HOUSING ALLOWANCE AS ALTERNATIVE.—
(A) IN GENERAL.—In lieu of offering housing pursuant to paragraph (1), the employer may provide a reasonable housing allowance during the 3-year period beginning on the effective date of this Act. After the expiration of that period such allowance may be provided only if the requirement of subparagraph (B) is satisfied or, in the case of a certification under subparagraph (B) that is expired, the requirement of subparagraph (C) is satisfied. Upon the request of a worker seeking assistance in locating housing, the employer shall make a good faith effort to assist the worker in identifying and locating housing in the area of intended employment. An employer who offers a housing allowance to a worker, or assists a worker in locating housing which the worker occupies pursuant to this subparagraph, shall not be deemed to be a housing provider under section 203 of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1823) solely by virtue of providing such housing allowance.
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(B) CERTIFICATION.—The requirement of this subparagraph is satisfied if the Governor of the State certifies to the Secretary that there is adequate housing available in an area of intended employment for migrant farm workers, and nonimmigrant aliens described in section 101(a)(15)(H)(ii)(c) of the Immigration and Nationality Act, who are seeking temporary housing while employed at farm work. Such certification shall expire after 3 years unless renewed by the Governor of the State.
(C) EFFECT OF CERTIFICATION.—Notwithstanding the expiration of a certification under subparagraph (B) with respect to an area of intended employment, a housing allowance described in subparagraph (A) may be offered for up to one year after the date of expiration.
(D) AMOUNT OF ALLOWANCE.—The amount of a housing allowance under this paragraph shall be equal to the statewide average fair market rental for existing housing for nonmetropolitan counties for the State in which the employment occurs, as established by the Secretary of Housing and Urban Development pursuant to section 8(c) of the United States Housing Act of 1937 (42 U.S.C. 1437f(c)), based on a 2-bedroom dwelling unit and an assumption of 2 persons per bedroom.
(c) REIMBURSEMENT OF TRANSPORTATION.—
(1) TO PLACE OF EMPLOYMENT.—A worker who is referred to a job opportunity under section 202(a), or an alien employed pursuant to this Act, who completes 50 percent of the period of employment of the job opportunity for which the worker was hired, shall be reimbursed by the employer for the cost of the worker's transportation and subsistence from the worker's permanent place of residence (or place of last employment, if the worker traveled from such place) to the place of employment to which the worker was referred under section 202(a).
(2) FROM PLACE OF EMPLOYMENT.—A worker who is referred to a job opportunity under section 202(a), or an alien employed pursuant to this Act, who completes the period of employment for the job opportunity involved, shall be reimbursed by the employer for the cost of the worker's transportation
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and subsistence from the place of employment to the worker's place of residence, or to the place of next employment, if the worker has contracted with a subsequent employer who has not agreed to provide or pay for the worker's transportation and subsistence to such subsequent employer's place of employment.
(3) LIMITATION.—
(A) AMOUNT OF REIMBURSEMENT.—Except as provided in subparagraph (B), the amount of reimbursement provided under paragraph (1) or (2) to a worker or alien shall not exceed the lesser of—
(i) the actual cost to the worker or alien of the transportation and subsistence involved; or
(ii) the most economical and reasonable common carrier transportation charges and subsistence costs for the distance involved.
(B) DISTANCE TRAVELED.—No reimbursement under paragraph (1) or (2) shall be required if the distance traveled is 100 miles or less, or the worker is not residing in employer-provided housing or housing secured through a housing allowance as provided in subsection (b)(6).
(C) PLACE OF RECRUITMENT.—For the purpose of the reimbursement required under paragraph (1) or (2) to aliens admitted pursuant to this Act, the alien's place of residence shall be deemed to be the place where the alien was issued the visa authorizing admission to the United States or, if no visa was required, the place from which the alien departed the foreign country to travel to the United States.
(d) CONTINUING OBLIGATION TO EMPLOY UNITED STATES WORKERS.—
(1) IN GENERAL.—An employer that applies for registered workers under section 201(a) shall, as a condition for the approval of such application, continue to offer employment to qualified, eligible United States workers who are referred under section 202(b) after the employer receives the report described in section 202(b).
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(2) LIMITATION.—An employer shall not be obligated to comply with paragraph (1)—
(A) after 50 percent of the anticipated period of employment shown on the employer's application under section 201(a) has elapsed; or
(B) during any period in which the employer is employing no H–2C workers in the occupation for which the United States worker was referred; or
(C) during any period when the Secretary is conducting a search of a registry for workers in the occupation and area of intended employment to which the worker has been referred, or in other occupations in the area of intended employment for which the worker that has been referred is qualified and that offer substantially similar terms and conditions of employment.
(3) LIMITATION ON REQUIREMENT TO PROVIDE HOUSING.—Notwithstanding any other provision of this Act, an employer to whom a registered worker is referred pursuant to paragraph (1) may provide a reasonable housing allowance to such referred worker in lieu of providing housing if the employer does not have sufficient housing to accommodate the referred worker and all other workers for whom the employer is providing housing or has committed to provide housing.
(4) REFERRAL OF WORKERS DURING 50-PERCENT PERIOD.—The Secretary shall make all reasonable efforts to place a registered worker in an open job acceptable to the worker, including available jobs not listed on the registry, before referring such worker to an employer for a job opportunity already filled by, or committed to, an alien admitted pursuant to this Act.
SEC. 205. PROGRAM FOR THE ADMISSION OF TEMPORARY H–2C WORKERS.
(a) ESTABLISHMENT OF NEW NONIMMIGRANT CATEGORY FOR PILOT PROGRAM AGRICULTURAL WORKERS.—Section 101(a)(15)(H)(ii) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)) is amended—
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(1) by striking ''or (b)'' and inserting ''(b)''; and
(2) by adding at the end the following:
'' or (c) having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States pursuant to section 218A to perform such agricultural labor or services of a temporary or seasonal nature;''.
(b) NO FAMILY MEMBERS PERMITTED.—Section 101(a)(15)(H) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)) is amended by striking ''specified in this paragraph'' and inserting ''specified in this subparagraph (other than in clause (ii)(c))''.
(c) ALTERNATIVE AGRICULTURAL TEMPORARY WORKER PROGRAM.—
(1) IN GENERAL.—The Immigration and Nationality Act is amended by inserting after section 218 the following:
''ALTERNATIVE AGRICULTURAL TEMPORARY WORKER PROGRAM
''SEC. 218A. (a) PROCEDURE FOR ADMISSION OF ALIENS WHO ARE OUTSIDE THE UNITED STATES.—
''(1) CRITERIA FOR ADMISSIBILITY.—
''(A) IN GENERAL.—An alien described in section 101(a)(15)(H)(ii)(c) of the Immigration and Nationality Act shall be admissible under this section if the alien is designated pursuant to section 203 of the Agricultural Opportunities Act, otherwise admissible under this Act, and the alien is not ineligible under subparagraph (B) or (C).
''(B) DISQUALIFICATION.—An alien shall be ineligible for admission to the United States or being provided status under this section if the alien has, at any time during the past 5 years—
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''(i) violated a material provision of this section, including the requirement to promptly depart the United States when the alien's authorized period of admission under this section has expired; or
''(ii) otherwise violated a term or condition of admission to the United States as a nonimmigrant, including overstaying the period of authorized admission as such a nonimmigrant.
''(C) FOREIGN RESIDENCE REQUIREMENT.—No person admitted under section 101(a)(15)(H)(ii)(c) or acquiring such status after admission shall be eligible to apply for another nonimmigrant visa under such section until it is established that such person has resided and been physically present in the country of his nationality or his last residence for an aggregate of a least 2 months following departure from the United States.
''(D) BURDEN OF PROOF ON UNLAWFUL PRESENCE.—Notwithstanding section 291, in the case of an alien who has not previously been admitted to the United States under this section, is not ineligible under subparagraph (B) or (C), is described in subparagraph (A), and is seeking admission under this section, the alien shall not be considered inadmissible under section 212(a)(9)(B) unless the alien's inadmissibility is established by a preponderance of the evidence.
''(2) PERIOD OF ADMISSION.—The alien shall be admitted for the period requested by the employer not to exceed 10 months, or the ending date of the anticipated period of employment on the employer's application for registered workers, whichever is less.
''(3) ABANDONMENT OF EMPLOYMENT.—
''(A) IN GENERAL.—An alien admitted or provided status under this section who abandons the employment which was the basis for such admission or status shall be considered to have failed to maintain nonimmigrant status as an alien described in section 101(a)(15)(H)(ii)(c) and shall depart the United States or be subject to removal under section 237(a)(1)(C)(i).
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''(B) REPORT BY EMPLOYER.—The employer (or association acting as agent for the
employer) shall notify the Attorney General within 7 days of an alien admitted or provided status under this Act pursuant to an application to the Secretary of Labor under section 201 of the Agricultural Opportunities Act who prematurely abandons the alien's employment.
''(C) REMOVAL BY THE ATTORNEY GENERAL.—The Attorney General shall promptly remove from the United States aliens admitted pursuant to section 101(a)(15)(H)(ii)(c) who have failed to maintain nonimmigrant status or who have otherwise violated the terms of a visa issued under this title.
''(D) VOLUNTARY TERMINATION.—Notwithstanding the provisions of subparagraph (A), an alien may voluntarily terminate his or her employment if the alien promptly departs the United States upon termination of such employment.
''(E) REPLACEMENT OF ALIEN.—Upon presentation of the notice to the attorney General required by subparagraph (B), the Secretary of State shall promptly issue a visa to, and the Attorney General shall admit, an eligible alien designated by the employer to replace an alien who abandons or prematurely terminates employment.
''(4) IDENTIFICATION DOCUMENT AND IDENTIFICATION SYSTEM.—
''(A) IN GENERAL.—Each alien admitted under this section shall, upon receipt of a visa, be given an identification and employment eligibility document to verify eligibility for employment in the United States and verify such person's proper identity.
''(B) REQUIREMENTS.—No identification and employment eligibility document may be issued and no identification system may be implemented which does not meet the following requirements:
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''(i) The document and system shall be capable of reliably determining whether—
''(I) the individual with the identification and employment eligibility document whose eligibility is being verified is in fact eligible for employment,
''(II) the individual whose eligibility is being verified is claiming the identity of another person, and
''(III) the individual whose eligibility is being verified has been properly admitted under this section.
''(ii) The document shall be in the form that is resistant to counterfeiting and to tampering.
''(iii) The document and system shall—
''(I) be compatible with other Immigration and Naturalization Service databases and other Federal government databases for the purpose of excluding aliens from benefits for which they are not eligible and to determine whether the alien is illegally present in the United States, and
''(II) be compatible with law enforcement databases to determine if the alien has been convicted of criminal offenses.
''(b) EXTENSION OF STAY OF ALIENS IN THE UNITED STATES.—
''(1) EXTENSION OF STAY.—If an employer with respect to whom a report or application described in section 203(a)(1) of the Agricultural Opportunities Act has been submitted seeks to employ an alien who has acquired status under this section and who is lawfully present in the United States, the employer shall file with the Attorney General an application for an extension of the alien's stay or a change in the alien's authorized employment. The application shall be accompanied by a copy of the appropriate report or application described in section 203 of the Agricultural Opportunities Act.
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''(2) LIMITATION ON FILING AN APPLICATION FOR EXTENSION OF STAY.—An application may not be filed to extend an alien's stay if the granting of the application would permit the alien's period of physical presence in the United States, under the authority of the most recent nonimmigrant visa (or other document providing nonimmigrant status) issued under section 101(a)(15)(H)(ii)(c), to exceed 12 months (disregarding any period of continuous physical absence from the United States exceeding 2 months during which the alien appears before a consular officer outside of the United States for the purpose of verifying the alien's identity by presenting the identification and employment eligibility document provided under subsection (a)(4)).
''(3) WORK AUTHORIZATION UPON FILING AN APPLICATION FOR EXTENSION OF STAY.—An employer may begin employing an alien who is present in the United States who has acquired status under this Act on the day the employer files an application for extension of stay. For the purpose of this requirement, the term 'filing' means sending the application by certified mail via the United States Postal Service, return receipt requested, or delivered by guaranteed commercial delivery which will provide the employer with a documented acknowledgment of the date of sending and receipt of the application. The employer shall provide a copy of the employer's application to the alien, who shall keep the application with the alien's identification and employment eligibility document as evidence that the application has been filed and that the alien is authorized to work in the United States. Upon approval of an application for an extension of stay or change in the alien's authorized employment, the Attorney General shall provide a new or updated employment eligibility document to the alien indicating the new validity date, after which the alien is not required to retain a copy of the application.
''(4) LIMITATION ON EMPLOYMENT AUTHORIZATION OF ALIENS WITHOUT VALID IDENTIFICATION AND EMPLOYMENT ELIGIBILITY CARD.—An expired identification and employment eligibility document, together with a copy of an application for extension of stay or change in the alien's authorized employment that complies with the requirements of paragraph (1), shall constitute a valid work authorization document for a period of not more than 60 days from the date of application for the extension of stay, after which time only a currently valid identification and employment eligibility document shall be acceptable.
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''(5) LIMITATION ON AN INDIVIDUAL'S STAY IN STATUS.—In the case of a nonimmigrant granted an extension of stay under this section, such extension may not permit the alien's total period of physical presence in the United States, under the authority of the nonimmigrant visa (or other document providing nonimmigrant status) to which the extension applies, to exceed 12 months (disregarding any period of continuous physical absence from the United States exceeding 2 months during which the alien
appears before a consular officer outside of the United States for the purpose of verifying the alien's identity by presenting the identification and employment eligibility document provided under subsection (a)(4)).''.
(2) CLERICAL AMENDMENT.—The table of contents of the Immigration and Nationality Act is amended by inserting after the item relating to section 218 the following new item:
''Sec. 218A. Alternative agricultural temporary worker program.''.
(d) RANGE PRODUCTION OF LIVESTOCK.—Nothing in this title shall preclude the Secretary of Labor and the Attorney General from continuing to apply special procedures to the employment, admission, and extension of aliens in the range production of livestock.
(e) VERIFICATION OF RETURN OF WORKERS TO COUNTRY OF ORIGIN.—The Attorney General shall establish a program to verify that H–2C workers are departing from the United States after the expiration of their authorized period of stay in the United States.
TITLE III—MISCELLANEOUS PROVISIONS
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SEC. 301. ENHANCED WORKER PROTECTIONS AND LABOR STANDARDS ENFORCEMENT.
(a) ENFORCEMENT AUTHORITY.—
(1) INVESTIGATION OF COMPLAINTS.—
(A) AGGRIEVED PERSON OR THIRD PARTY COMPLAINTS.—The Secretary shall establish a process for the receipt, investigation, and disposition of complaints respecting an employer's failure to meet a condition specified in section 201 or an employer's misrepresentation of material facts in an application under that section, or violation of the provisions described in subparagraph (B). Complaints may be filed by any aggrieved person or any organization (including bargaining representatives). No investigation or hearing shall be conducted on a complaint concerning such a failure or misrepresentation unless the complaint was filed not later than 12 months after the date of the failure or misrepresentation, as the case may be. The Secretary shall conduct an investigation under this paragraph if there is reasonable cause to believe that such a failure or misrepresentation has occurred.
(B) EXPEDITED INVESTIGATION OF SERIOUS CHILD LABOR, WAGE, AND HOUSING VIOLATIONS.—The Secretary shall complete an investigation and issue a written determination as to whether or not a violation has been committed within 10 days of the receipt of a complaint pursuant to subparagraph (A) if there is reasonable cause to believe that any of the following serious violations have occurred:
(i) A violation of section 12(c) of the Fair Labor Standards Act of 1938 (29 U.S.C. 212(c)).
(ii) A failure to make a wage payment, except that complaints alleging that an amount less than the wages due has been paid shall be handled pursuant to subparagraph (A).
(iii) A failure to provide the housing allowance required under section 204(b)(6).
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(iv) Providing housing pursuant to section 204(b)(1) that fails to comply with standards under section 204(b)(2) and which poses an immediate threat of serious bodily injury or death to workers.
(C) STATUTORY CONSTRUCTION.—Nothing in this Act limits the authority of the Secretary of Labor to conduct any compliance investigation under any other labor law, including any law affecting migrant and seasonal agricultural workers or, in the absence of a complaint under this paragraph, under this Act.
(2) WRITTEN NOTICE OF FINDING AND OPPORTUNITY FOR APPEAL.—After an investigation has been conducted, the Secretary shall issue a written determination as to whether or not any violation described in subsection (b) has been committed. The Secretary's determination shall be served on the complainant and the employer, and shall provide an
opportunity for an appeal of the Secretary's decision to an administrative law judge, who may conduct a de novo hearing.
(3) ABILITY OF ALIEN WORKERS TO CHANGE EMPLOYERS.—
(A) IN GENERAL.—Pending the completion of an investigation pursuant to paragraph (1)(A), the Secretary may permit the transfer of an aggrieved person who has filed a complaint under such paragraph to an employer that—
(i) has been approved to employ workers under this Act; and
(ii) agrees to accept the person for employment.
(B) REPLACEMENT WORKER.—An aggrieved person may not be transferred under subparagraph (A) until such time as the employer from whom the person is to be transferred receives a requested replacement worker referred by a registry pursuant to section 202 of this Act or provided status under section 101(a)(15)(H)(ii)(c) of the Immigration and Nationality Act.
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(C) LIMITATION.—An employer from whom an aggrieved person has been transferred under this paragraph shall have no obligation to reimburse the person for the cost of transportation prior to the completion of the period of employment referred to in section 204(c).
(D) VOLUNTARY TRANSFER.—Notwithstanding this paragraph, an employer may voluntarily agree to transfer a worker to another employer that—
(i) has been approved to employ workers under this Act; and
(ii) agrees to accept the person for employment.
(b) REMEDIES.—
(1) BACK WAGES.—Upon a final determination that the employer has failed to pay wages as required under this section, the Secretary may assess payment of back wages due to any United States worker or alien described in section 101(a)(15)(H)(ii)(c) of the Immigration and Nationality Act employed by the employer in the specific employment in question. The back wages shall be equal to the difference between the amount that should have been paid and the amount that actually was paid to such worker.
(2) FAILURE TO PAY WAGES.—Upon a final determination that the employer has failed to pay the wages required under this Act, the Secretary may assess a civil money penalty up to $1,000 for each person for whom the employer failed to pay the required wage, and may recommend to the Attorney General the disqualification of the employer from the employment of aliens described in section 101(a)(15)(H)(ii)(c) of the Immigration and Nationality Act for a period of time determined by the Secretary not to exceed 1 year.
(3) OTHER VIOLATIONS.—If the Secretary, as a result of an investigation pursuant to a complaint, determines that an employer covered by an application under section 201(a) has—
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(A) filed an application that misrepresents a material fact;
(B) failed to meet a condition specified in section 201; or
(C) committed a serious violation of subsection (a)(1)(B),
the Secretary may seek a cease and desist order and assess a civil money penalty not to exceed $1,000 for each violation and may recommend to the Attorney General the disqualification of the employer if the Secretary finds it to be a substantial misrepresentation or violation of the requirements for the employment of any United States workers or aliens described in section 101(a)(15)(ii)(c) of the Immigration and Nationality Act for a period of time determined by the Secretary not to exceed 1 year. In determining the amount of civil money penalty to be assessed or whether to recommend disqualification of the employer, the Secretary shall consider the seriousness of the violation, the good faith of the employer, the size of the business of the employer being charged, the history of previous violations by the employer, whether the employer obtained a financial gain from the violation, whether the violation was willful, and other relevant factors.
(4) EXPANDED PROGRAM DISQUALIFICATION.—
(A) 3 YEARS FOR SECOND VIOLATION.—Upon a second final determination that an employer has failed to pay the wages required under this Act, or a second final determination that the employer has committed another substantial violation under paragraph (3) in the same category of violations, with respect to the same alien, the Secretary shall report such determination to the Attorney General and the Attorney General shall disqualify the employer from the employment of aliens described in section 101(a)(15)(H)(ii)(c) of the Immigration and Nationality Act for a period of 3 years.
(B) PERMANENT FOR THIRD VIOLATION.—Upon a third final determination that an employer has failed to pay the wages required under this section or committed other substantial violations under paragraph (3), the Secretary shall report such determination to the Attorney General, and the Attorney General shall disqualify the employer from any subsequent employment of aliens described in section 101(a)(15)(H)(ii)(c) of the Immigration and Nationality Act.
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(c) ROLE OF ASSOCIATIONS.—
(1) VIOLATION BY A MEMBER OF AN ASSOCIATION.—An employer on whose behalf an application is filed by an association acting as its agent is fully responsible for such application, and for complying with the terms and conditions of this Act, as though the employer had filed the application itself. If such an employer is determined to have violated a requirement of this section, the penalty for such violation shall be assessed against the employer who committed the violation and not against the association or other members of the association.
(2) VIOLATION BY AN ASSOCIATION ACTING AS AN EMPLOYER.—If an association filing an application on its own behalf as an employer is determined to have committed a violation under this subsection which results in disqualification from the program under subsection (b), no individual member of such association may be the beneficiary of the services of an alien described in section 101(a)(15)(H)(ii)(c) of the Immigration and Nationality Act in an occupation in which such alien was employed by the association during the period such disqualification is in effect, unless such member files an application as an individual employer or such application is filed on the employer's behalf by an association with which the employer has an agreement that the employer will comply with the requirements of this Act.
(d) STUDY OF AGRICULTURAL LABOR STANDARDS AND ENFORCEMENT.—
(1) COMMISSION ON HOUSING MIGRANT AGRICULTURAL WORKERS.—
(A) ESTABLISHMENT.—There is established the Commission on Housing Migrant Agricultural Workers (in this paragraph referred to as the ''Commission'').
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(B) COMPOSITION.—The Commission shall consist of 12 members, as follows:
(i) Four representatives of agricultural employers and one representative of the Department of Agriculture, each appointed by the Secretary of Agriculture.
(ii) Four representatives of agricultural workers and one representative of the Department of Labor, each appointed by the Secretary of Labor.
(iii) One State or local official knowledgeable about farmworker housing and
one representative of Housing and Urban Development, each appointed by the Secretary of Housing and Urban Development.
(C) FUNCTIONS.—The Commission shall conduct a study of the problem of in-season housing for migrant agricultural workers.
(D) INTERIM REPORTS.—The Commission may at any time submit interim reports to Congress describing the findings made up to that time with respect to the study conducted under subparagraph (C).
(E) FINAL REPORT.—Not later than 3 years after the date of enactment of this Act, the Commission shall submit a report to Congress setting forth the findings of the study conducted under subparagraph (C).
(F) TERMINATION DATE.—The Commission shall terminate upon filing its final report.
(2) STUDY OF RELATIONSHIP BETWEEN CHILD CARE AND CHILD LABOR.—The Secretaries of Labor, Agriculture, and Health and Human Services shall jointly conduct a study of the issues relating to child care of migrant agricultural workers. Such study shall address issues related to the adequacy of educational and day care services for migrant children and the relationship, if any, of child care needs and child labor violations in agriculture. An evaluation of migrant and seasonal Head Start programs (as defined in section 637(12) of the Head Start Act) as they relate to these issues shall be included as a part of the study.
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(3) STUDY OF FIELD SANITATION.—The Secretary of Labor and the Secretary of Agriculture shall jointly conduct a study regarding current field sanitation standards in agriculture and evaluate alternative approaches and innovations that may further compliance with such standards.
(4) STUDY OF COORDINATED AND TARGETED LABOR STANDARDS ENFORCEMENT.—The Secretary, in consultation with the Secretary of Agriculture, shall conduct a study of the most persistent and serious labor standards violations in agriculture and evaluate the most effective means of coordinating enforcement efforts between Federal and State officials. The study shall place primary emphasis on the means by which Federal and State authorities, in consultation with representatives of workers and agricultural employers, may develop more effective methods of targeting resources at repeated and egregious violators of labor standards. The study also shall consider ways of facilitating expanded education among agricultural employers and workers regarding compliance with labor standards and evaluate means of broadening such education on a cooperative basis among employers and workers.
(5) REPORT.—Not later than 3 years after the date of enactment of this Act, with respect to each study required to be conducted under paragraphs (2) through (4), the Secretary or group of Secretaries required to conduct the study shall submit to Congress a report setting forth the findings of the study.
SEC. 302. COMMISSION.
The Attorney General is authorized and requested to establish a commission between the United States and each country not less than 10,000 nationals of which are nonimmigrant aliens described in section 101(a)(15)(H)(ii)(c) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(c)). Such commission shall provide a forum to the governments involved to discuss matters of mutual concern regarding the program for the admission of aliens under section 101(a)(15)(H)(ii)(c) of the Immigration and Nationality Act.
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SEC. 303. REGULATIONS.
(a) REGULATIONS OF THE ATTORNEY GENERAL.—The Attorney General shall consult with the Secretary and the Secretary of Agriculture on all regulations to implement the duties of the Attorney General under this Act.
(b) REGULATIONS OF THE SECRETARY OF STATE.—The Secretary of State shall consult with the Attorney General, the Secretary of Labor, and the Secretary of Agriculture on all regulations to implement the duties of the Secretary of State under this Act.
(c) REGULATIONS OF THE SECRETARY OF LABOR.—The Secretary shall consult with the Secretary of Agriculture and shall obtain the approval of the Attorney General on all regulations to implement the duties of the Secretary under this Act.
(d) DEADLINE FOR ISSUANCE OF REGULATIONS.—All regulations to implement the duties of the Attorney General, the Secretary of State, and the Secretary of Labor shall take effect on the effective date of this Act.
SEC. 304. DETERMINATION AND USE OF USER FEES.
(a) SCHEDULE OF FEES.—The Secretary of Labor shall establish and periodically adjust a schedule for the registry user fee and the alien employment user fee imposed under this Act, and a collection process for such fees from employers participating in the programs provided under this Act. Such fees shall be the only fees chargeable to employers for services provided under this Act.
(b) DETERMINATION OF SCHEDULE.—
(1) IN GENERAL.—The schedule under subsection (a) shall reflect a fee rate based on the number of job opportunities indicated in an employer's application under section 201(a)(1)(C) and sufficient to provide for the reimbursement of the direct costs of providing the following services:
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(A) REGISTRY USER FEE.—Services provided through the agricultural worker registries established under section 101(a), including registration, referral, and validation, but not including services that would otherwise be provided by the Secretary of Labor under related or similar programs if such registries had not been established.
(B) ALIEN EMPLOYMENT USER FEE.—Services related to an employer's authorization to employ eligible aliens pursuant to this Act, including the establishment and certification of eligible employers, the issuance of documentation, and the admission of eligible aliens.
(2) PROCEDURE.—
(A) IN GENERAL.—In establishing and adjusting such schedule, the Secretary of Labor shall comply with Federal cost accounting and fee setting standards.
(B) PUBLICATION AND COMMENT.—The Secretary of Labor shall publish in the Federal Register an initial fee schedule and associated collection process and the cost data or estimates upon which such fee schedule is based, and any subsequent amendments thereto, pursuant to which public comment will be sought and a final rule issued.
(c) USE OF PROCEEDS.—
(1) IN GENERAL.—All proceeds resulting from the payment of registry user fees and alien employment user fees shall be available without further appropriation and shall remain available without fiscal year limitation to reimburse the Secretaries of Labor, State, and Agriculture, and the Attorney General for the costs of carrying out section 218A of the Immigration and Nationality Act and the provisions of this Act.
(2) LIMITATION ON ENFORCEMENT COSTS.—In making a determination of reimbursable costs under paragraph (1), the Secretary of Labor shall provide that reimbursement of the costs of enforcement under section 301 shall not exceed 10 percent of the direct costs of the Secretary described in subparagraphs (A) and (B) of subsection (b)(1).
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SEC. 305. FUNDING FOR STARTUP COSTS.
If additional funds are necessary to pay the startup costs of the agricultural worker registries established under section 101(a), such costs may be paid out of amounts available to Federal or State governmental entities under the Wagner-Peyser Act (29 U.S.C. 49 et seq.). Proceeds described in section 304(c) may be used to reimburse the use of such available amounts.
SEC. 306. REPORT TO CONGRESS.
(a) REQUIREMENT.—Not later than 4 years after the effective date under section 307, the Resources, Community and Economic Development Division, and the Health, Education and Human Services Division, of the Office of the Comptroller General of the United States shall jointly prepare and transmit to the Committee on the Judiciary and the Committee on Agriculture of the House of Representatives and the Committee on the Judiciary and the Committee on Agriculture, Nutrition, and Forestry of the Senate a report describing the results of a review of the implementation of and compliance with this Act. The report shall address—
(1) whether the program has ensured an adequate and timely supply of qualified, eligible workers at the time and place needed by employers;
(2) whether the program has ensured that aliens admitted under this program are employed only in authorized employment, and that they timely depart the United States when their authorized stay ends;
(3) whether the program has ensured that participating employers comply with the requirements of the program with respect to the employment of United States workers and aliens admitted under this program;
(4) whether the program has ensured that aliens admitted under this program are not displacing eligible, qualified United States workers or diminishing the wages and other terms and conditions of employment of eligible United States workers;
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(5) to the extent practicable, compare the wages and other terms of employment of eligible United States workers and aliens employed under this program with the wages and other terms of employment of agricultural workers who are not authorized to work in the United States;
(6) whether the housing provisions of this program ensure that adequate housing is available to workers employed under this program who are required to be provided housing or a housing allowance;
(7) recommendations for improving the operation of the program for the benefit of participating employers, eligible United States workers, participating aliens, and governmental agencies involved in administering the program; and
(8) recommendations for the continuation or termination of the program under this Act.
(b) ADVISORY BOARD.—There shall be established an advisory board to be composed of—
(1) four representatives of agricultural employers to be appointed by the Secretary of Agriculture, including individuals who have experience with the H–2C program; and
(2) four representatives of agricultural workers to be appointed by the Secretary of Labor, including individuals who have experience with the H–2C program,
to provide advice to the Comptroller General in the preparation of the reports required under subsection (a).
SEC. 307. EFFECTIVE DATE.
(a) IN GENERAL.—This Act and the amendments made by this Act shall take effect on the date that is 1 year after the date of the enactment of this Act.
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(b) REPORT.—Not later than 180 days after the date of the enactment of this Act, the Secretary shall prepare and submit to the appropriate committees of Congress a report that described the measures being taken and the progress made in implementing this Act.
SEC. 308. TERMINATION OF PROGRAM.
This Act, and the amendments made by this Act, shall cease to be effective on the date that is 3 years after the effective date under section 307(a).
Mr. SMITH: Our witnesses today were chosen because they bring a variety of relevant perspectives to a complex set of issues. Their contributions will help provide a balanced and thorough legislative hearing.
That concludes my opening statement, and I will recognize the gentleman from California for his.
[The prepared statement of Mr. Smith follows:]
PREPARED STATEMENT OF HON. LAMAR S. SMITH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS, AND CHAIRMAN, SUBCOMMITTEE ON IMMIGRATION AND CLAIMS
The growers of fruits, vegetables, and specialty crops rely heavily on hired farm workers because their produce is harvested and packed by hand. Their labor costs are higher than those of grain farmers and other producers who use mechanical harvesting and packing machines.
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The growers rely on seasonal hiring that employs millions of workers annually. Most of this labor is required during relatively brief harvest times. Thus, the growers rely upon a large, flexible, and readily available seasonal work force.
More than two-thirds of the growers' seasonal work force is foreign-born. Many of these workers, perhaps even a majority, are illegal aliens.
Seasonal farm workers work for lower wages and working conditions than most other workers in the United States. They generally do not make more than $7 or $8 an hour for work that is very physically demanding. Farm worker advocates argue that they are under-compensated because of their immigration status. Growers respond that their wages are fair and could not be raised without impairing the growers' ability to compete with imported produce.
The H–2A guest worker program allows aliens to enter the United States to perform seasonal agricultural labor. To obtain H–2A workers a grower must certify to the Labor Department that it has taken steps to recruit American workers, but there are none available, and that using alien labor will not adversely affect American workers.
The grower must also provide assurances that it will provide specific wages, transportation, housing, and other benefits to its H–2A workers. The Labor Department is supposed to approve H–2A workers within 60 days after the grower's application is filed.
The H–2A program has grown substantially in recent years but still provides fewer than 40,000 workers per year, a small fraction of the total work force. Growers argue that the Labor Department administers the program in a bureaucratic, cumbersome, and often adversarial manner, imposing unnecessary costs and sometimes failing to provide needed workers in time.
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Growers also maintain that farm worker advocates employ strategic harassment and litigation against them to discourage use of the H–2A program. Farm worker advocates reply that the H–2A program is underutilized because growers prefer to employ illegal aliens who will accept substandard wages and working conditions.
H.R. 4548, the ''Agricultural Opportunities Act,'' has been introduced by Representative Pombo of California, who will be our first witness today. And he continues to be a congressional leader on the subject of agricultural guest workers.
Our witnesses today were chosen because they bring a variety of relevant perspectives to a complex set of issues. Their contributions will help provide a balanced and thorough legislative hearing.
Mr. BERMAN. Oh, great, thank you very much, Mr. Chairman. I appreciate your accommodating me. You have put together a couple of very interesting panels on an important issue and I wanted to make note of the appearance of two witnesses in particular. I don't know who could be better to speak to us concerning the effects of H.R. 4548 than Marcos Camacho, a child of farmworkers, a former farmworker himself, and now the respected general counsel of the United Farmworkers of America, which has battled for decades to improve the wages and working conditions for the poorest of American workers, the farmworkers who harvest the food that we eat.
I am also very pleased to see—and she has just walked in—I thought maybe she had just quit, but she hasn't—Cecilia Muñoz, who has been before the committee a number of times, whose sage advice and healing presence have been of such enormous benefit to this subcommittee and to the Congress over the years. I think this may be her first appearance on the Hill since winning one of the most treasured forms of recognition you can have in this country, and that is a MacArthur Foundation grant, and it is a tremendous and well deserved honor, and my congratulations, I am sure the whole subcommittee's, to you.
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It is no secret that I am not a big fan of the H2–A program. It is on the books. Agricultural employers have had no little success in using it. 94 percent of the applications are approved for H–2A guestworkers by the Department of Labor, but at least under the current H–2A program an employer that is seeking H–2A workers must demonstrate that there are not adequate qualified farmworkers at the place and time needed and that the wages and working conditions being offered would not adversely affect the wages and working conditions of similarly employed farmworkers.
What H.R. 4548 proposes instead, in lieu of an obligation to affirmatively recruit domestic farmworkers, is a so-called job registry, which I believe is designed to fail to refer U.S. workers and therefore to justify the issuance of visas to exploitable guest workers. The registry would work only if every domestic farmworker who desperately seeks these jobs had a laptop computer to receive messages about employers seeking workers in the very short turnaround time allotted for the registry referral.
What is worse, H.R. 4548 provides that employers seeking guestworkers could refuse to hire qualified farmworkers who show up for the jobs without going through the registry process. Understand a farmworker who has been at that farm year after year at peak season, under H.R. 4548 could show up the next year, but because he was not aware of the registry, he had not filed for the registry, could be turned down, notwithstanding his citizenship, his experience, his skills and his historical relationship with that grower, the grower thereby going to get an H–2A guestworkers under the terms of this legislation.
And speaking of the laptop computers, I have asked to submit for the record the statement of our colleague, Zoe Lofgren, who is unable to be with us today. I don't know of anyone better to speak to the case that has been made for the H–1B high tech workers but which is sorely lacking with regard to farmworkers and farm labor. So if that testimony could be included in the record, Ms. Lofgren's statement.
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Mr. SMITH. Without objection, it will be made a part of the record.
[The prepared statement of Ms. Lofgren follows:]
PREPARED STATEMENT OF HON. ZOE LOFGREN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Chairman. I regret my absence at this important hearing on agricultural guest worker programs. On Thursday, I will be attending another important event. My daughter, Sheila, will be graduating as the valedictorian of her high school class. On this important day, my place is with my family at her graduation ceremony.
However, I did want to take this opportunity to express my concern about HR 4548 which was recently introduced by Rep. Richard Pombo. As I understand it, the bill would create a new H–2C temporary agricultural guest worker program to supplement the existing H–2A agricultural guest worker program. I also understand that the new program would strip away the minimal protections now afforded agricultural workers in the H–2A program.
I am from San Jose, California and I understand the shortage concept. I understand the need for guest worker programs to bring into our country talented skilled individuals. Along with many of my Democratic and Republican colleagues, I introduced the HI–TECH Act to increase the H–1B cap, make necessary reforms to the INS and improve the permanent employment based program. In San Jose unemployment rates are far below the national average—and that's amazing given that our national unemployment rate is at 4.1%. According to the Bureau of Labor Statistics data, in 1999, the national unemployment rate for engineers was 1.6%. Now that is a shortage!
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I want to make this clear—the ''labor shortage'' agricultural employers are talking about is in NO way similar to our country's talent shortage. High-tech employers in Silicon Valley and across our country are scouring our universities and colleges for the best and brightest students. It doesn't matter what you've majored in if you're bright.
These companies will invest their time and their money to train you, and then they'll pay you more than $50,000 on the national average with benefits to work for them. If you're a really hot prospect, you may even get a car or stock options out of the deal. The starting wages in Silicon Valley are far higher, and wages in the high-tech professions far outpace the national average.
These same companies also hire recruiters to scour their competitors for talent, hiring away the best for much higher salaries and stock options. Let's also remember that H–1B talent employed by US companies actually create jobs for American workers and help grow our economy. H–1B employees often have an opportunity to grab a piece of the pie and live the American dream without taking anything away from Americans.
The debate on the agricultural guest worker program is totally devoid of these elements. These workers lack opportunities to live the American dream. The agricultural workforce is one of the most disadvantaged groups in our country. Agricultural workers are poorly compensated, often work under hazardous conditions and often live in inferior housing. Farm worker's wages, unlike wages of high-tech employees, have been declining for the last decade. According to the California Rural Legal Assistance Foundation, the unemployment rates in California counties where agricultural groups have claimed labor shortages have unemployment rates of between 10%–20% in the last five harvest seasons.
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In this case, I believe improved working conditions and increased wages would attract necessary workers. And if the agricultural industry is insistent on the need for additional workers, individuals who are currently undocumented should be offered an opportunity to obtain legal residence status and allowed an opportunity for family reunification.
Mr. Chairman, I ask for your assistance in ensuring that we work together with growers and interested parties in developing a fair answers to the agribusiness request. I understand that my colleague Mr. Berman has been involved in negotiations on this issue. I urge Mr. Pombo and other Members of Congress interested in this issue to work with Mr. Berman, industry groups and worker advocacy groups in developing a consensus for humane legislative solutions. Thank you.
Mr. BERMAN. And then I will try and bring this to a close and have the whole statement in the record, but it is increasingly evident to me that what agriculture employers are really after is legislation that would eliminate the labor protections in current law, chief among them the wage that must be offered to H–2As to avoid depressing wages for American farmworkers.
I wonder if my colleagues know that it is already far cheaper to hire H–2A workers because an employer doesn't have to pay FICA taxes or FUTA taxes for these workers and now H.R. 4548. So, in other words, there is a massive competitive interest and incentive to get guestworkers just in that omission which could be 13, 14 percent of the same wage. Now, H.R. 4548 proposes to eliminate the key wage protection in the H–2A program.
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I am convinced that proposals to make it easier for agriculture employers to bring in foreign guestworkers will accomplish exactly the opposite, depriving farmworkers of America job opportunities they badly want. More than that, unlike the bill in the Senate which has many of the same problems, this bill does not even deal with a process by which the thousands of undocumented workers now picking the crops in our field could apply for these H–2A slots or more appropriately to me find a way to give them the legal status that they can have some of the privileges and rights that other American workers do.
Unfortunately, it will never be all the privileges and rights because so many of our labor laws and collective bargaining laws don't apply to farmworkers or don't apply in the same fashion to farmworkers as they do to other workers. We will be getting more into this in the panels, so I will yield back my time, but thank you again for allowing me to give this statement.
Mr. SMITH. Thank you, Mr. Berman.
The gentleman from Indiana, Mr. Pease, is recognized.
Mr. PEASE. Thank you, Mr. Chairman. I appreciate your hearing on this bill and I regret that as you made reference earlier, there are a number of simultaneous hearings being conducted now, and I will have to leave so I will not be able to address an issue that concerns me in the bill, though I generally support the bill. I would like to at least raise that subject so that it might be addressed at some point during the hearing, and that is my concern about the provision in title II that deals with documentation of prior unlawful presence in the United States.
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I do understand the due process underpinnings of this provision that would require the INS to affirmatively demonstrate that someone had been in the country unlawfully as a precondition to excluding that person from employment, but the provision, as I understand it, requires the INS to prove that the alien has been illegally present in the United States for at least 6 months, and I wonder why it is that a person who has been illegally present in the United States for 6 months would be eligible (a) and (b) how is it going to be possible for the INS to document that a person has actually been here illegally that long? If he or she has been, why wasn't something done about it 6 months ago?
And so I am concerned about how that provision of this proposal would work. I do understand the balance that is difficult to find here. We have addressed it in the H–1B issue and the chairman and others know that I am tremendously concerned about finding a balance between protection of American workers that may otherwise be eligible for employment in any industry, whether it is this industry or a high tech industry, while still meeting the needs of American employers for a workforce that can do the job that needs to be done.
I think the provisions that require American employers to make every reasonable effort first to find American workers and/or train American workers before we resort to other workers is the appropriate approach for us to take. This bill does that in some respects. It could be strengthened, I think, in others. Generally, I think it provides a framework for us to work from and I appreciate it being brought forward.
Mr. SMITH. Thank you, Mr. Pease. The gentlewoman from Texas, the ranking member, Ms. Jackson Lee, is recognized.
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Ms. JACKSON LEE. Thank you very much, Mr. Chairman. I know the importance of moving forward with the witnesses and might I, Mr. Chairman, ask for your indulgence and an apology if I need to not be able to participate in the entire hearing? I may be able to return, but I have another overlapping meeting on a matter that I must address and so apologies to the witnesses and I would look forward to be able to return once I complete that.
But I do want to acknowledge my colleagues on the subcommittee and particularly Mr. Berman for long-standing leadership on this issue and we are apt to listen to his wise counsel on many of these issues and I appreciate some of the points that he has made.
I also want to acknowledge all of the witnesses, including my colleague, Mr. Pombo, for his presentation here this morning, and might I add, Mr. Chairman, though he is not present in the room, I understand that Mr. Sanford Bishop of Georgia, another of our colleagues, has legislation as well, and I would hope that we would have the opportunity even in my disagreement on the underpinnings of this legislation to consider his legislation or to at least have input from his perspective.
Let me also acknowledge two of the witnesses, as I believe my colleague did. First, I'd like to acknowledge Mr. Marcos Camacho of the United Farmworkers Union, and I do that because they are heros of which many of us from many different perspectives can rally around, and one is Dr. Martin Luther King and Cesar Chavez, and I certainly want to acknowledge the work that has been done over the years.
In addition, Ms. Muñoz, I want to add my congratulations for the genius grant, the MacArthur grant, and for the great work that she is doing.
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Mr. Chairman, let me briefly acknowledge that there has been much debate about this issue and the issue resurfaced in 1996 in the form of the Pombo amendment. That amendment if passed would have modified the current temporary agricultural worker program by creating a 3-year alternative pilot program that would have enabled employers to hire temporary and seasonal workers for no more than 10 months at a time.
The amendment would have phased out the current H–2A guestworker program. I voted no on the Pombo amendment in 1996 for the same reasons that I oppose the bill as written in its current form. Under current law, an agricultural employer who anticipates a labor shortage for seasonal jobs may apply for a labor certification from the Department of Labor. An H–2A labor certification entitles employees to obtain visas for foreign workers who are tied to one employer and do not acquire immigration status.
The H–2A program, which began during World War II and was revised in 1986, contains modest protections against displacement of U.S. workers, exploitation of vulnerable guestworkers, and depression in wage rates and working conditions caused by the hiring of undocumented workers and guestworkers. I think, Mr. Chairman, you saw that that was Congressman Sanford Bishop. I have noted his presence before he came in and I will submit some information into the record. I would ask to have that permission.
H.R. 4548 would establish a new agricultural guestworker or H–2C program by creating a new H–2C temporary foreign agricultural worker pilot program. This bill is problematic because it would remove or weaken major protections in long-standing guestworker programs and it would harm the agricultural labor market for generations into the future.
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Unfortunately, agricultural workers remain one of the most disadvantaged groups of workers in the United States, working in hazardous conditions for low wages, living in substandard housing and lacking labor protections available to nearly all other workers in the United States. While many farmworkers are citizens and legal immigrants a substantial portion are unauthorized workers.
Let me for a moment, Mr. Chairman, I am going to ask that my statement in its entirety be submitted in the record, indicate that I believe that the agricultural industry is one that we must continue to promote and it will be further enhanced by the opportunities that have been created by new trade relationships around the world.
I am an advocate for many of the agricultural issues that come on this House floor, but I would think that as the industry grows and thrives, we must also see that the employment base grows and thrives in a fair manner and also deals with those who are presently here. U.S. growers should not have to either violate the law by hiring illegal workers or go through complicated and expensive legal processes to bring in foreign agricultural workers.
I do agree with the agricultural growers when they say that the H–2A program needs to be reformed. However, these same farmworkers deserve better pay, living and working conditions by the grower industry. This legislation would allow virtually unlimited flow of temporary farmworkers whose visas would be controlled by employers. This current program requires employees to offer housing provided at no cost to the worker. The Pombo H–2C program would eliminate the housing obligation and authorize employers to provide below market rate housing.
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I believe that this problem along with work hours would do great damage to what we have tried to do in the past. There is no need for a new temporary farmworker program. I know that many farmworkers would benefit from a bill that I have sponsored which is H.R. 4172, which would update a long-standing provision of the Immigration act called registry and allow long-time residents, deeply rooted immigrants, who are contributing to our economy, to remain here lawfully.
This bill has the support of the White House. It has a companion in the Senate sponsored by Senator Harry Reid, and I will be interested in hearing from the agricultural growers what their feelings are on this issue. Any bill that originates from this subcommittee, Mr. Chairman, should be a real reform of the H–2A program which increases wages and improves the working conditions of this predominantly immigrant population, reaffirms the value of the agricultural community and industry, enables those workers who are not legally authorized to work to obtain permanent immigration status. At this point, H.R. 4548 does not accomplish these goals.
Mr. Chairman, I do want to thank you for this hearing, along with Mr. Berman. Here we go again some would say. As you well know, I am a strong advocate of the legal amnesty program which in some sense overlaps what we are dealing with today. I hope that we will see a hearing on the legal amnesty but more importantly I hope we get that resolved. With that, Mr. Chairman, I yield back the balance of my time. Might I add my statement in the record in its entirety, Mr. Chairman? And I would certainly like to add a letter from the American Bar Association dated June 13.
Mr. SMITH. Without objection, your complete opening statement will be made a part of the record, along with the letter from the American Bar Association and the statement of Representative Sanford Bishop.
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Ms. JACKSON LEE. Thank you very much, Mr. Chairman, for your kindness.
[The prepared statement of Ms. Jackson Lee and the letter from the American Bar Association follow:]
PREPARED STATEMENT OF HON. SHEILA JACKSON LEE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
Thank-you Mr. Chairman for calling this very important hearing today. The debate surrounding the agricultural guest worker program is not a new one. There has been debate about this program since its inception, and the issue resurfaced in 1996 in the form of the Pombo amendment. That amendment if passed, would have modified the current temporary agriculture worker program by creating a three-year alternative pilot program that would ahve enable employers to hire temporary and seasonal workers for no more that 10 months at a time. The amendment would have phased out the current H–2A guest worker program. I voted no on the Pombo amendment in 1996 for the same reasons that I oppose this bill as written in its current form.
Under current law, an agricultural employer who anticipates a labor shortage for seasonal jobs may apply for a labor certification from the Department of Labor. An ''H–2A labor certification'' entitles employers to obtain temporary visas for foreign workers who are tied to one employer and do not acquire immigration status. The H–2A program, which began during World War II, and was revised in 1986, contains modest protections against displacement of U.S. workers, exploitation of vulnerable guestworkers, and depression in wage rates and working conditions caused by the hiring of undocumented workers and guestworkers.
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H.R. 4548 would establish a new agricultural guestworker or ''H–2C program by creating a new ''H–2C temporary foreign agricultural worker pilot program. This bill is problematic because it would remove or weaken major protections in longstanding guestworker programs and it would harm the agricultural labor market for generations into the future.
Unfortunately, agricultural workers remain one of the most disadvantaged groups of workers in the United States, working in hazardous conditions for low wages, living in substandard housing, and lacking labor protections available to nearly all other workers in the United States. While many farmworkers are citizens and legal immigrants, a substantial portion are unauthorized workers.
I do however agree with the agriculture growers when they say that the H–2A program needs to be reformed. U.S. growers should not have to either violate the law by hiring illegal workers or go through complicated and expensive legal proceses to bring in foreign agricultural workers. However, these U.S. farmworkers deserve better pay, living and working conditions by the grower industry.
This bill H.R. 4548, eliminates important worker protections and this unacceptable.
H.R. 4548 would allow a virtually unlimited flow of temporary foreign workers whose visas would be controlled by employers. No positive recruitment or job service circulation of job offers would be required.
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The current H–2A program requires employers to offer housing and to provide it at no cost to the worker. The Pombo H–2C program would eliminate the housing obligation and authorize employers to provide below-market rate housing allowances.
Under the H–2A program, employers who seek guest workers have been required to offer the opportunity to work at least 3/4 of the workdays in the stated period of employment, except when there is an Act of God. The H–2C program created under H.R. 4548 lacks any minimum work guarantee.
There is no need for a new temporary foreign worker program. Employers have not sought to stabilize the labor market by improving wages and working conditions to attract and retain American workers. Labor-intensive agribusiness can afford to pay a living wage. Agricultural productivity has increased substantially.
I know that many farmworkers would benefit from a bill that I have sponsored which is H.R. 4172, which would update a longstanding provision of the Immigration Act called ''registry'' and allow long-time residents, deeply-rooted immigrants who are contributing to our economy to remain here lawfully. This bill has the support of the White House, and has a companion in the Senate sponsored by Senator Harry Reid. I will be interested in hearing from the agricultural growers what there feelings are on this issue.
Any bill that originates from this subcommittee Mr. Chairman should be about real reform of the H–2A program, which increases wages and improves the working conditions of this predominantly immigrant population and enables those workers who are not legally authorized to work to obtain permanent immigrant status. At this point H.R. 4548 does not accomplish those goals.
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However, I look forward to working with Congressman Pombo, Chairman Smith, and Congressman Berman to work out any differences that might remain.
THANK-YOU MR. CHAIRMAN.
| American Bar Association, |
| Governmental Affairs Office, |
| Washington, DC, June 13, 2000. |
Hon. LAMAR S. SMITH, Chairman,
Subcommittee on Immigration and Claims,
Committee on the Judiciary,
House of Representatives, Washington, DC.
DEAR MR. CHAIRMAN: We are writing to comment on legislation, H.R. 4056, introduced by Rep. Sanford Bishop, and H.R. 4548, introduced by Rep. Richard Pombo. H.R. 4056 is the companion bill to S. 1814 introduced by Sen. Gordon Smith and Sen. Bob Graham. It would revise the current H–2A guestworker program and create a new foreign agricultural worker program. The latest bill, H.R. 4548, would create a new H–2C agricultural guestworker program that would be similar to the H–2A program proposed in H.R. 4056.
Although the sponsors state that these bills are necessary to address an agricultural ''labor shortage,'' the ABA believes that enactment of these proposals would be detrimental to farmworkers who are currently in the U.S. labor force.
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Notwithstanding America's prosperity in the last decades of the twentieth century, agricultural workers remain one of the most disadvantaged groups of workers in the United States, working in hazardous conditions for low wages, living in substandard housing, and lacking labor protections available to nearly all other workers in the United States. While many farmworkers are citizens and legal immigrants, a substantial portion are unauthorized workers. Thousands of farmworkers also are brought into the United States as temporary ''guestworkers'' who have no permanent status and are expected to return home after the seasonal harvest.
The status quo is unacceptable for all parties concerned. U.S. growers should not have to either violate the law by hiring illegal workers or go through complicated and expensive legal processes to bring in foreign agricultural workers. At the same time, U.S. farmworkers deserve better pay, living and working conditions. Rather than amending the H–2A law or creating a new guestworker program to allow more temporary foreign farmworkers into the country on temporary visas, steps should be taken to increase farmworkers' wages and improve their working conditions, to enforce the laws regulating the rights of farmworkers and to legalize the status of farmworkers presently working in this country by granting them actual immigration status.
Despite growers' claims, there appears to be no overall shortage of farmworkers that would warrant overhauling the H–2A program to facilitate the importation of a large number of workers. According to the Department of Labor's National Agricultural Workers Survey (NAWS) released in 1994, ''[t]he U.S. farm labor system is characterized by an oversupply of workers.'' At that time, at any point in the year, at least 190,000, or 12 percent of farmworkers in the United States were not working. Moreover, migrant workers who traveled for work averaged only 25 weeks of farm work annually. See U.S. Department of Labor, Research Report No. 5, Migrant Farmworkers: Pursuing Security in an Unstable Labor Market (1994). Since that time, a recently released survey found that farmworkers averaged only 24 weeks per year in 1996–98. See U.S. Department of Labor, Research Report No. 8, Findings from the National Agricultural Workers Survey: 1997–1998 (March 2000) (hereinafter ''DOL report'')
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Unemployment statistics further support the view that no labor shortage exists. A GAO analysis of the monthly and annual unemployment rates of 20 large agricultural counties found that 13 counties maintain annual double-digit unemployment rates, and 19 had rates above the national average during 1994–1996. As of June 1997, 11 agricultural counties still exhibited monthly unemployment rates double the national average. U.S. General Accounting Office, No. GAO/HEHS–98–20, H–2A Agricultural Guestworker Program: Changes Could Improve Services to Employers and Better Protect Workers (1997).
One would expect wages to increase if the industry were facing a labor shortage; this has not happened in agriculture. According to the GAO, the average hourly wage rate for farmworkers between 1989 and 1995 fell 8.5 percent, to $6.06 an hour. The average hourly wage rate for farmworkers paid by the piece rate fell by 16.9 percent. The New York Times reported in 1997 economists' assessments that farmworkers' real wages dropped by 20 percent over the last twenty years. Steven Greenhouse, U.S. Surveys Find Farm Worker Pay Down for 20 Years, N.Y. Times, Mar. 31, 1997, at Al. The latest DOL report found that, when their earnings are adjusted for inflation, farmworkers lost 11 percent of their purchasing power over the last decade.
The most recent DOL report also found that one half of all individual farmworkers earned less than $7,500 per year and that the median income of farmworker families was less than $ 10,000. Poverty rates among farmworkers had increased from about one-half in 1990 to over three-fifths of farmworker families in 1998. In addition to living in poverty, many farmworkers live in rural areas that offer relatively few social services, and often have to pay inflated prices to farm labor contractors or others.
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Farmworkers also have fewer labor protections. The Fair Labor Standards Act of 1938 (FLSA), which establishes minimum wage, child labor restrictions and overtime protection for most workers, contains special exemptions for agricultural employers. Farmworkers are not entitled to overtime pay after 40 hours of work, for example. Only larger farms are covered by the FLSA's minimum wage provisions. 29 U.S.C. §213(a)(6)(A), (b)(12). Farmworkers also are excluded from coverage under the National Labor Relations Act that affords other workers in the United States the right to collective bargaining. 29 U.S.C. §152(3).
''Agriculture, forestry and fishing'' ranks second only to mining as the industry with the highest rate of occupational fatalities in the United States. Centers for Disease Control and Prevention, Fatal Occupational Injuries—United States, 1980–1994, 17 Morbidity and Mortality Weekly Rev. No. 18 (Apr. 24, 1998). Yet only twelve states, the District of Columbia, Puerto Rico, and the Virgin Islands require farmworkers to be covered by workers' compensation to the same extent as other workers. These serious problems, moreover, are compounded by lax enforcement of the existing laws.
For many years some agricultural employers have obtained legal foreign farm help through the H–2A visa category. Agricultural employers complain that the H–2A program is too restrictive and cumbersome, even though 99 percent of applications by such employers are approved and there has been a steady rise in the number of visas each year during the 1990's. None of the pressing problems faced by U.S. farmworkers today will be solved by streamlining the temporary labor certification process or by repealing or lowering existing H–2A requirements to make the program more attractive to agricultural employers.
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One way to provide a legal workforce to growers while at the same time improving the lives of farmworkers would be to regularize the immigration status of undocumented farmworkers presently working in the United States and give them the same rights as other workers. The present legislative proposals would not accomplish this.
H.R. 4056 would create a program that purports to offer farmworkers an ''adjustment'' to legal status in the future but contains work requirements that most farmworkers would never be able to satisfy. These workers would have to work at least 180 days in agricultural for each of the next five years and leave the U.S. for at least 65 days each year. Farmworkers who have already given years of their life to farm labor and whose families reside in the United States would have no preference over new workers and would also have to depart the U.S. for months each year. Despite its name, the only immediate benefit of the ''adjustment'' program would be a temporary work permit.
Moreover, the program could create a waiting list of several years for those who ultimately qualify, in which case eligible workers may not receive green cards for 10 years and their spouses and children would not be allowed to enter the United States or gain immigration status for many more years. Meanwhile these workers would not be protected by wage, housing and other minimum standards that have been part of the H–2A and old ''bracero'' programs. Although they would be U.S. residents for income tax purposes, they would be ineligible for federally funded legal services and for public benefits.
Besides not offering farmworkers a real opportunity to obtain legal permanent residence any time soon, these requirements would not normalize the working situations of farmworkers in the interim. Farmworkers would be even more beholden to agricultural employers and less likely to assert their legal rights as they compete with new guestworkers for already limited jobs and adjustment slots. This situation would inevitably impact legal and U.S. citizen farmworkers who work beside them in the fields, not to mention their U.S. family members.
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Farmworkers are one of the most vulnerable and exploited groups of workers in the United States. Changing the temporary labor certification process and lowering existing H–2A requirements, either under the H–2A or H–2C designation, to make the guestworker program more attractive to agricultural employers will not improve the workers' situations. Neither will a long, drawn-out conditional residence program.
We oppose the proposed legislation for these reasons and urge real reforms to increase the wages and improve the working conditions of this predominantly immigrant population and to enable those workers who are not legally authorized to work to obtain permanent immigrant status. Such changes will serve the farmworkers and the agricultural employers far better than the proposed bills.
We understand that your Subcommittee will hold hearings June 15, 2000, on the agricultural worker program and we respectfully ask that this letter be made a part of the record of these hearings.
Very truly yours,
| Robert D. Evans, Director. |
cc: Members of Subcommittee on Immigration and Claims
[The prepared statement of Mr. Bishop follows:
[NOTE: The prepared statement of Mr. Bishop is not reprinted here but is on file with the House Judiciary Committee's Subcommittee on Immigration and Claims.]
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Mr. SMITH. The gentleman from Florida, Mr. Canady, is recognized.
Mr. CANADY. Thank you, Mr. Chairman. In recent years, Florida agricultural producers as well as producers in many other States have experienced
extreme difficulty in finding and maintaining adequate labor to harvest perishable farm produce. Untimely shortages of qualified agricultural workers continue to cause concern and financial losses among farmers, not only in my State of Florida, but also throughout the country. Due to the lack of legal available workers, farmers often are forced to leave crops in the field unharvested.
American agriculture needs a legal and predictable workforce. Hence, I believe that it is critical that we consider reform of the current temporary farmworker visa program, the H–2A program. The current H–2A program is extremely complicated, expensive, and I would submit very unresponsive. Among other problems, farmers find it difficult, if not impossible, to gain approval for temporary alien workers from the U.S. Department of Labor in a timely manner. Often approval is not received until well past the time of harvesting, which does no good.
Clearly, this status quo is not acceptable. Mr. Chairman, I want to thank you for conducting this hearing on the bipartisan legislation that has been developed by our colleague, Mr. Pombo, to establish a pilot program to reform the status quo and to address the problems that have been identified with the status quo.
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The ''Agricultural Opportunities Act of 2000'' would streamline the current program by carefully defining obligations of prospective users to recruit domestic and foreign workers and to provide H–2A required benefits such as housing and transportation reimbursements. More efficient automated worker registry that speeds up and simplifies the current labor certification process would be used to conduct domestic labor market searches and provide approval for temporary H–2A workers.
The practical reasonable reforms provided for in the ''Agricultural Opportunities Act'' will, I believe, help ensure that more farmers have an adequate legal workforce and provide a viable mechanism to meet future labor needs.
As a co-sponsor of this legislation, I look forward to working with you, Mr. Chairman, and with the other members of the subcommittee and the full committee and other members of the House as well on this important legislation. I am hopeful that we can see progress on this legislation this year, that we can see something passed into law. This is a critical need in important parts of the agricultural economy that needs to be addressed and it needs to be addressed now.
Mr. SMITH. Thank you, Mr. Canady.
[The prepared statement of Mr. Canady follows:]
PREPARED STATEMENT OF HON. CHARLES T. CANADY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA
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In the last years, agricultural producers have experienced extreme difficulty in finding and maintaining adequate labor to harvest perishable farm produce. Untimely shortages of qualified agricultural workers continue to cause concern and financial losses among farmers in my state and throughout the country. Due to the lack of legal, available workers, farmers often are forced to leave crops in the field unharvested. American agriculture needs a legal and predictable workforce—hence reform of the current temporary farm worker visa program, the H–2A program, is critical.
The current H–2A program is extremely complicated, expensive and unresponsive. Among other problems, farmers find it difficult if not impossible to gain approval for temporary alien workers from the U.S. Department of Labor in a timely manner—often approval is not received until well past the time of harvesting. Clearly, the status quo is unacceptable.
Bipartisan legislation has been developed by Representative Richard Pombo to demonstrate the viability of important reforms to the H–2A program. The Agricultural Opportunities Act of 2000 would streamline the current program by carefully defining the obligations of prospective users to recruit domestic and foreign workers and to provide H–2A required benefits such as housing and transportation reimbursement. A more efficient automated worker registry that speeds up and simplifies the current labor certification process would be used to conduct domestic labor market searches and provide approval for temporary H–2A workers.
Such practical reasonable reforms within the Agricultural Opportunities Act will help to ensure that more farmers have an adequate legal workforce and provide a safety valve for future labor needs. As a cosponsor of this legislation, I look forward to working with my Colleagues on this important measure.
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Mr. SMITH. Thank you, Mr. Canady. We welcome with pleasure our first witness today, Congressman Richard Pombo, from California, and on the way to his testimony let me just say publicly that I appreciate his willingness to discuss with me many of the issues and many of the provisions of his bill. He has made changes that I know he didn't want to make in order to try to accommodate some of my concerns. All I can say is that they are appreciated and I think will enable us to have a good start and have a more balanced approach. So, Richard, with that, we look forward to your testimony.
STATEMENT OF HON. RICHARD W. POMBO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Mr. POMBO. Thank you, Mr. Chairman. I am here today to discuss the ''Agricultural Opportunities Act.'' This legislation is a compromise which the chairman and I have spent numerous hours discussing and negotiating. I thank Chairman Smith for his time and diligence in moving this bill forward.
In the central valley of California where my home town is family farmers produce an enormous amount of fruits and vegetables that feed families in the United States and for that matter throughout the world. For years, central valley family farmers have offered opportunities to agricultural laborers which have proven to be mutually beneficial.
However, the current employment situation for agricultural labor is unacceptable to growers and to agricultural laborers. The current H–2A program which is used to assist in maintaining a stable agricultural workforce is over 50 years old and with so many bureaucratic problems that, in short, it is a nightmare to obtain workers in a timely manner.
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Fewer than 30,000 workers annually are enrolled in the program. This means that only 30,000 workers of the two million agricultural workers are protected by the worker protections included in the H–2A program. Growers are unable to use the program because 40 percent of the time the Department of Labor misses its statutory time lines in approving labor certifications.
Further, GAO has found that many of the applications were not certified until after the date of need. In addition, the cumbersome program often calls for a grower to hire outside counsel just to utilize the program. Our growers are fearful of a lack of workforce. In times when agriculture is facing global competition and most agricultural markets are confronting low prices, it seems unexplainable why Congress is not working to fix an outdated program.
It has been reported that more than 52 percent of the ag workforce lacks legal authorization to work in the United States. Additionally, agriculture employers are increasingly receiving letters from the Social Security Administration after filing W–2 reports that an authorization document is fraudulent.
Our growers cannot determine who is really legal and who is not until the INS audits employers and deprives them of their workforce. Upon finding out that individuals are illegal, employers must fire them. Often this occurs during critical harvest periods. I can speak on knowledge from my growers who live in my district that have been visited by the INS checking for unauthorized aliens.
In regard to agricultural laborers, we have all heard and seen the news stories of individuals fighting their way to come to the United States for an opportunity to work. We have seen the dangers they face. Many have lost their lives. By providing a means to legally come to our country, we will free them of these dangers and provide them with worker protections.
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Today, you will hear from the opposition that there is not a need for more workers, but this position is out of touch with the reality of the market. Citing GAO statistics from 3 years ago do not include the fact that many of the migrant laborers are unauthorized to be here. Agricultural employers cannot attract workers due to the current full employment economy which affords workers more desirable year-round opportunities.
Coordinated efforts by agricultural groups and State welfare and employment departments to attract farmworkers in rural counties, even with comparatively high unemployment, has been unsuccessful.
The chairman of the Federal Reserve, Alan Greenspan, noted that Congress should let more farmworkers into the United States. Greenspan cited the nationwide labor shortage as the greatest threat to the record long economic expansion. Attacking my bill on these grounds only means that you accept the risks and dangers agricultural workers face in entering the United States illegally.
Today I offer this bipartisan and compromise legislation as a starting point to begin negotiations and move the process of finding a solution forward. I believe this bill is a start to produce a win for farmers, a win for guestworkers and a win for immigration control.
It provides a mechanism for a stable and legal workforce and certainty that crops will be harvested in a timely manner. Meanwhile farm workers avoid the dangers of undocumented status and get the protection of U.S. labor law. My bill addresses the needs of the growers as well as the employees in the program. The ''Agricultural Opportunity Act'' is a 3-year pilot program that reforms the unworkable H–2A labor certification system that is over 50 years old by replacing it with a computer-based worker registry. A prevailing wage rate would be guaranteed to domestic and foreign workers.
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In addition, laborers are provided free housing or a housing allowance and transportation benefits. Further, immigration controls are established to verify employment, documentation of the workforce, and departure of temporary workers.
My legislation enhances worker protections and labor standards. The rights of H–2C and U.S. workers would be protected. And existing labor standards issues involving child labor, field sanitation and more effective and coordinated labor standard enforcement would be studied along with the issue of child care.
It is time that we stand together and find a way to address this unjust situation. We can no longer accept the status quo. Turning your head and not addressing the problems is as much as endorsing the status quo. As long as there are jobs here in the United States, individuals will come to the United States for the opportunity. We must work together to find a means to provide a stable workforce for agriculture and a safe passage for the agricultural workers.
Again, I thank you for taking the time to hold a hearing on this bill and I will answer any questions that you may have.
[The prepared statement of Mr. Pombo follows:]
PREPARED STATEMENT OF HON. RICHARD W. POMBO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
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Thank you, Mr. Chairman for holding this hearing today. I am here today to discuss the Agriculture Opportunities Act. This legislation is a compromise which the Chairman and I have spent numerous hours discussing and negotiating. I thank Chairman Smith for his time and diligence in moving this bill forward.
In the Central Valley of California, my hometown, family farmers produce an enormous amount of fruits and vegetables that feed families in the United States and for that matter around the world. For years, Central Valley family farmers have offered opportunities to agriculture labors which have proven to be mutually beneficial. However, the current employment situation for agriculture labor is unacceptable to growers and to agriculture labors.
The current H2–A program, which is used to assist in maintaining a stable agriculture workforce, is over 50 years old with so many bureaucratic problems that in short it is a nightmare to obtain workers in a timely manner. Fewer than 30,000 workers annually are enrolled in the program. These means that only 30,000 workers of the 2 million agriculture workers are protected by the worker protections included in the H2–A program. Growers are unable to use the program because 40% of the time the Department of Labor misses its statutory timelines in approving labor certifications. Further, GAO has found that many of the applications were not certified until after the date of need. In addition, the cumbersome program often calls for a grower to hire outside council just to utilize the program. Our growers are fearful of a lack of workforce. In times when agriculture is facing global competition and most agriculture markets are confronting low prices it seems unexplainable why Congress is not working to fix an outdated program.
It has been reported that more than 52% of the agriculture work force lacks legal authorization to work in the United States. Additionally, agriculture employers are increasingly receiving letters from the Social Security Administration after filing W–2 reports that an authorization document is fraudulent. Our growers cannot determine who is really legal and who is not until the INS audits employers and deprives them of their workforce. Upon finding out the individuals are illegal, employers must fire them. Often this occurs during critical harvest periods. I can speak on knowledge from my growers that live in my district have been visited by the INS checking for unauthorized aliens.
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In regard to agriculture labors, we have all heard and seen the news stories of individuals fighting their way to come to the United States for an opportunity to work. We have seen the dangers they face. Many have lost their lives. By providing a means to legally come to our country we will free them of these dangers and provide them with worker protections.
Today you will hear from the opposition that there is not a need for more workers. But, this position is out of touch with the reality of the market. Cited GAO statistics from three years ago do not include the fact that many of the migrant labors are unauthorized to be here. Agriculture employers cannot attract workers due to the current full employment economy which affords workers more desirable year-round opportunities. Coordinated efforts by agriculture groups and state welfare and employment departments to attract farm workers in rural counties even with comparatively high unemployment have been unsuccessful. The Chairman of the Federal Reserve Alan Greenspan noted that Congress should let more foreign workers into the United States. Greenspan cited the nationwide labor shortage as the greatest threat to the record long economic expansion. Attacking my bill on these grounds only means you accept the risks and dangers agriculture workers face in entering the United States illegally.
Today, I offer this bipartisan and compromise legislation as a starting point to begin negotiations and move the process of finding a solution forward. I believe this bill is a start to produce a win for farmers, a win for guest workers, and a win for immigration control. It provides a mechanism for a stable and legal workforce and certainty that crops will be harvested in a timely manner. Meanwhile farm workers avoid the dangers of undocumented status and get the protection of U.S. labor laws.
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My bill addresses the needs of the growers as well as the employees in the program. The Agricultural Opportunity Act is a three year pilot program that reforms the unworkable H–2A labor certification system (over 50 years old) by replacing it with a computer-based worker registry. A prevailing wage rate (+ up to a 5% premium) would be guaranteed to domestic and foreign workers. In addition, labors are provided free housing or a housing allowance and transportation benefits. Further, immigration controls are established to verify employment documentation of the work force and departure of temporary workers.
My legislation enhances worker protections and labor standards. The rights of H–2C and U.S. workers would be protected. And existing labor standards issues involving, child labor, field sanitation and more effective and coordinated labor standard enforcement would be studied, along with the issue of childcare.
It is time that we stand together and find a way to address this unjust situation. We can no longer accept the status quo. Turning your head and not addressing the problems is as much as endorsing the status quo. As long as there are jobs here in the United States individuals will come to the United States for opportunities. We must work together to find a means to provide a stable work force for agriculture and a safe passage for the agriculture workers.
Again, I thank you for taking the time to have a hearing on my bill. I will answer any questions you may have.
Mr. SMITH. Thank you, Mr. Pombo. I just have a couple of questions. The first is this: isn't it accurate to say that we probably would not be here today, we would not be having this hearing, you would not have felt the necessity to introduce your bill, had the administration properly administered the H–2A program and had growers been able to get access more quickly to the workers when they needed them?
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Mr. POMBO. I would say that if the current H–2A program worked, there would be no necessity for this legislation, but unfortunately the current program is unworkable.
Mr. SMITH. Second question is this. As I understand it, what you are trying to do is to replace an illegal workforce with a legal legitimate workforce? And if that is the goal, it seems to me that that is an improvement over the current situation. Is that your motive as well?
Mr. POMBO. That is the goal of the legislation. We do have a very large skilled/semi-skilled workforce that is present within the United States. In my testimony I talked about recent reports that as much as 52 percent of that workforce are unauthorized workers in this country. I would like to have the possibility of having that workforce be a legal workforce.
Mr. SMITH. Thank you, Mr. Pombo. I don't have any other questions. The gentleman from California, Mr. Berman, is recognized.
Mr. BERMAN. Well, thank you, Mr. Chairman. Congressman Pombo, I agree with some of what you said. The present situation, untenable—I mean it is going on. It is obviously not totally untenable, but it is not a good situation. Your testimony on why the H–2A program is not satisfactory focused on the difficulty growers have in getting quick and adequate responses from the Department of Labor and certifications in timely fashion in ways that can meet their needs for unanticipated workforce requirements with obligations regarding recruitment that my guess are not normal and customary for employers generally and you think are unfeasible to expect of a particular grower, particularly relatively small family farmers. Is that a fair statement?
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Mr. POMBO. Yes.
Mr. BERMAN. So if I were to say to you, all right, let us get away from this procedure, let us trust the grower. He swears under penalty of perjury that he has tried to find U.S. workers, he has not been able to, he has need, INS quickly grants the visas he needs for guestworkers so that they can come in and fill that need. What would your response be in terms of would that be an appropriate action for Congress to take to change the program to operate on that kind of a basis rather than the way the H–2A law works now?
Mr. POMBO. I think it would be inappropriate because there are a number of protections for the U.S. workforce that would be exempted in that scenario.
Mr. BERMAN. What do you mean?
Mr. POMBO. Well, I think that without some kind of a registry system, some kind of a formal system being put in place that would say——
Mr. BERMAN. All right. That I think I can show is a funny notion given the reasons to have appropriate skepticism about the ability of government to handle the action. The notion that the U.S. government will create a registry which will have the available and legal U.S. workers on that registry and will be able—the U.S. government—will be able to at the request of the grower to find a person on that registry in an appropriate time to get him to that grower, which, by the way, under your bill if they can't find them, that guy goes off the registry even if he is working on another farm at that particular time but would be fully available 2 weeks later when this grower who is applying needed him. But let us assume we also had a registry in there like you have proposed in your bill.
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So Congress says we will get away from the Department of Labor certification process. We will get away from national recruitment obligations. We will get away from timed deadlines where a grower is required to do something long before he is sure how many people he needs and whether or not those people will be available. And we contract all of that into a reasonable time frame and we create the registry, what would you think of that proposal?
Mr. POMBO. Well, I think in very simplistic terms, it may work, but unfortunately the more I have looked into this issue, the more questions are raised about what works and what doesn't work. And that is why we end up with something that seems like a very simple situation that ends up being a multi-page bill.
Mr. BERMAN. Well, tell me what wouldn't work about that?
Mr. POMBO. If I had all the answers, this bill would be short.
Mr. BERMAN. What does your bill do that makes it work?
Mr. POMBO. We address a number of different situations that are unforeseen in the legislation that I think in your very simplistic scenario that you described would be overlooked.
Mr. BERMAN. For purposes of this, I accept everything in your bill in terms of procedure and process and registry, every single thing in your bill. How would that do?
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Mr. POMBO. Then I believe that it would be a workable situation here.
Mr. BERMAN. Then why do you in your bill also insist on removing wage protections for these guestworkers and for the other U.S. workers working at the same farm? Why do you remove the obligation to provide housing and substitute an allowance even if it is quite clear that there is no housing available for the people you are hiring? Why do you get rid of the obligation to continue to hire eligible U.S. workers who show up at the farm? Why do you go beyond the process, the procedures, the registry, to dilute every single worker protection that exists, either eliminate or dilute every single worker protection that exists in the H–2A program?
Mr. POMBO. Well, Mr. Berman, I don't believe the bill does that.
Mr. BERMAN. I believe the bill does it very much.
Mr. POMBO. I do not believe that it removes the wage protections. It includes a prevailing wage.
Mr. BERMAN. No, it takes a formula that ensures that the wage doesn't have an adverse effect on you as workers and it substitutes a wage formula which everyone knows is substantially lower. The prevailing wage—I am trying to think if I have it right here—but I had some figures. The prevailing wage—the adverse effect wage rate in California—well, I cannot lay my fingers on it right now, but right now we can determine exactly what the wages are under the formula that exists in existing law and we know what the wages are under the formula that you provide.
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You are taking the lowest paid workers and you are diluting the obligations of the growers to pay them that amount in a market where you yourself have testified 50 percent of the workers are undocumented. Do the laws of supply and demand apply in agriculture? Does the existence of undocumented workforce of 50 percent have a depressive effect on wages? Surely it is clear they do.
Anybody who believes in laws of supply and demand has to assume they do. And you substitute a wage rate that gives full weight to that depressive effect and substitute it for the higher wage rate under the existing law, a wage rate that when I lay my hands on the figures we are not talking $20 an hour here. We are talking $6 and something cents an hour, or $7 and something cents an hour. In California, it is 7.27 an hour.
Mr. SMITH. Mr. Berman, you are coming to the end of your time.
Mr. BERMAN. That is my question.
Mr. SMITH. Do you want to end up with a question?
Mr. POMBO. Mr. Berman, I understand what your concerns are. I do not agree that that is what the legislation does. And we may have a difference of opinion on what would happen under the legislation. I disagree with you on that.
Mr. BERMAN. This is not opinion. There are some absolute facts. It is not opinion. It is words and what they mean and we are not doing it depends on what the meaning of ''is'' is.
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Mr. POMBO. Absolutely not. I don't play that game.
Mr. BERMAN. Okay.
Mr. SMITH. Thank you, Mr. Berman. The gentleman from Florida, Mr. Canady, is recognized for his questions.
Mr. CANADY. Thank you, Mr. Smith. I don't really have a question. I just want to thank the gentleman from California for his persistence and his diligence in working on this difficult issue. I think all of us should be able to acknowledge that there is a problem. If the figures that we have seen are anywhere close to being accurate about the number of illegal workers who are working in the agricultural sector, that is just not acceptable. That is not good for the people who are in that position.
It is not good for the producers and it is not good for our system. So I think we need to focus on the fact that there is a problem here. I know that Mr. Pombo and the chairman have worked hard to address a range of issues. And I respect the work they have done and I think we need to consider all these issues, but I will end my comment simply by thanking Mr. Pombo for his hard work on this difficult issue and say again that I look forward to continuing to work with you and other members on this. I yield back the balance of my time.
Mr. SMITH. Thank you, Mr. Canady. Mr. Pombo, thank you for your testimony, and as we have done before, you are welcome to join us if you would like to and hear the rest of the witnesses, too. Thank you.
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Mr. POMBO. Thank you.
Mr. SMITH. We will now go to our second panel, which will consist of two witnesses: Mr. John R. Fraser, Deputy Administrator, Wage and Hour Division, Employment Standards Administration, United States Department of Labor; and Ms. Cindy Fagnoni, Director, Education, Workforce and Income Security Issues, Health, Education and Human Services Division, U.S. General Accounting Office. We welcome you both and, Mr. Fraser, we will begin with you.
STATEMENT OF JOHN R. FRASER, DEPUTY ADMINISTRATOR, WAGE AND HOUR DIVISION, EMPLOYMENT STANDARDS ADMINISTRATION, U.S. DEPARTMENT OF EDUCATION
Mr. FRASER. Mr. Chairman, thank you. If I may join the members, I would also like to convey congratulations for myself and for Secretary Herman to Ms. Muñoz for a great and well deserved honor recognizing her many talents. She is well respected.
I would also, Mr. Chairman, like to apologize for the late delivery of our testimony. As you know, we have clearance processes that we need to get through and I do apologize that you didn't get it earlier than this morning. I would ask that our written statement be included in its entirety in the record.
Mr. SMITH. Without objection, that will be the case for you and all the witnesses today.
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Mr. FRASER. Thank you, sir. The department and the administration appreciate congressional attention to this important matter. Mr. Canady, I think we would agree that there is indeed a problem. The question presented before the committee today is whether H.R. 4548 is the right solution to that problem?
All of us have a common interest. Agricultural growers, farmworkers, the members here, and the administration have a common interest in bringing greater stability to the agricultural labor market to benefit growers, farmworkers and the agricultural economy. But this bill, which would create another agricultural guestworker program, simply will not accomplish that goal.
Over the last decade, labor intensive agriculture, including tobacco, vegetables, fruits, nuts and berries and greenhouses and nurseries, has done quite well as consolidation of production continues. Fewer farms are planting more acres and production and market value of sales have increased significantly.
For example, from 1987 to 1997, tobacco acreage has increased by 32 percent, but the number of farms has declined by 34 percent. The market values of sales of tobacco has increased by 60 percent and only 7 percent of farms account for 75 percent of the sales.
Vegetable production acreage during that same period has increased by 8 percent, the number of farms has declined by 12 percent, the market values of sales of vegetables have increased by nearly 80 percent, and only 21 percent of farms account for 75 percent of those sales.
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Fruits, nuts and berries acreage has increased by 13 percent, but the number of farms has declined by 11 percent. Market value of sales of fruits, nuts and berries has also increased by 80 percent and only 15 percent of farms account for 75 percent of sales.
These improvements in production have been accomplished with little change in labor inputs, which has remained stable at about 1.8 million crop workers, and with little investment in mechanized agriculture.
Production and sales of labor intensive commodities are up, but farmworkers have not shared in the benefits. The substantial growth in the labor intensive agricultural sector has not resulted in higher real wages or improved working conditions for the Nation's farmworkers, among the poorest and most vulnerable in our society. On the contrary, over the last decade, farmworkers have experienced more than a 10-percent decline in the real value of their wages, losing ground compared to other non-farm private sector workers.
They have experienced less employment each year, over the last decade, down from 29 to 25 weeks of farm work and down from eight to 5 weeks of non-farm work. Farmworkers have experienced decreases in the frequency of employer provided benefits such as paid holidays, health insurance and transportation.
H.R. 4548 would not ameliorate these disturbing trends, but in our firm opinion would certainly make them worse. My written statement poses four questions that lead the administration to this firm conclusion.
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First, will the bill provide growers with stable labor supply they seek? For some it will, because it would substantially ease access to and lower the costs of employing foreign farmworkers. The lower costs largely derive from reduced wages and reduced work related benefits and shift the cost from employers to the workers.
Secondly, will the bill protect legal U.S. farmworkers from unfair competition? It will not. Domestic farmworkers will lose job opportunities and see their wages, their benefits and their working conditions undermined because there would be no reliable test of the labor market and significantly weakened legal preference for hiring domestic farmworkers.
Thirdly, will the bill protect foreign farmworkers from abuse? Again, it will not. Compared to the existing agricultural worker program, which this bill would rapidly replace, foreign workers in this program will earn lower wages, get fewer benefits and have considerably less security in the jobs they travel hundreds of miles to perform.
Finally, will the bill affect illegal immigration into the United States? If experience can be a guide, this new program would encourage rather than discourage more illegal immigration. Mr. Chairman, as Mr. Canady said, there is indeed a problem, but there are other ways to bring greater stability to the agricultural labor market as outlined in my written statement.
We should raise the minimum wage. We should fund AgNet, an administration proposal to build a new agricultural job matching service, based on America's Job Bank, but which would not make the government the temp agency for agricultural employers.
We should complete efforts we have started to simplify and streamline the existing H–2A program including continuing to move forward on implementing the GAO's recommendations, which Cynthia will speak to in a moment, to make it easier for growers to use the program. The status quo is not acceptable and the status quo is not what we are maintaining. We have been moving to improve access to this program.
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We should be encouraging agricultural employers to use available automated employment verification systems. We should increase resources for labor law enforcement. We should identify and eliminate barriers to farmworkers' access to safety net programs for which they are eligible. And we should continue constructive dialogues with the countries from which many foreign farmworkers come to the U.S. to find ways to better protect their legal rights in this country through actions by both our governments.
And Mr. Chairman, we should begin to explore other measures that can, over the longer term, promote greater predictability and reliability in the agricultural labor supply and modernize protections for farmworkers to reflect the agricultural labor market of the 21st century.
Mr. Chairman, in our view, moving instead in the direction of H.R. 4548 would exacerbate the Nation's problems with illegal immigration, adversely affect the employment opportunities, wages and working conditions of nearly one million U.S. farmworkers, and increase, not reduce, the opportunity for abuse of foreign farmworkers.
Mr. SMITH. Mr. Fraser, I know you are getting to the end of your comments.
Mr. FRASER. I am at the last sentence, Mr. Chairman. But it is an important sentence.
Mr. SMITH. I was trying to avoid the last sentence, but go on. [Laughter.]
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Mr. FRASER. For these reasons, Mr. Chairman, the Secretary of Labor would strongly recommend to the President that he veto H.R. 4548 if passed by the Congress. Thank you, Mr. Chairman. That concludes my statement and after Cynthia has given hers, we will be happy to answer questions.
Mr. SMITH. Thank you, Mr. Fraser.
[The prepared statement of Mr. Fraser follows:]
PREPARED STATEMENT OF JOHN R. FRASER, DEPUTY ADMINISTRATOR, WAGE AND HOUR DIVISION, EMPLOYMENT STANDARDS ADMINISTRATION, U.S. DEPARTMENT OF EDUCATION
Mr. Chairman and Members of the Subcommittee:
Thank you for the opportunity to appear today to present the Administration's views on H.R. 4548, which would establish a new 3-year agricultural guestworker program as an alternative to the existing H–2A temporary nonimmigrant agricultural worker program under the Immigration and Nationality Act. We recognize the efforts of Congress to address the challenges facing both agricultural producers and farm workers.
Mr. Chairman, I would like to briefly describe current trends in the agricultural economy and workforce that frame the context in which this bill should be considered. I will then present some of our specific objections to H.R. 4548 and provide recommendations for stabilizing the agricultural labor market that will reduce farmers' risks while simultaneously improving the lives of the Nation's farm workers.
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First let me state that the Administration has acknowledged problems with the current H–2A program and is working administratively (through administrative actions and the regulatory process) to reengineer and streamline the program to better assure growers an adequate, predictable labor supply while protecting U.S. farm workers who are among the poorest and most vulnerable in our society. To this end, the Administration has requested $10 million to fund America's Agricultural Labor Network (''AgNet'') that would benefit growers and workers by having an efficient additional means to match workers with employment opportunities. The Department of Labor has published regulations to reduce the length of time that employers must file an H–2A application from 60 to 45 days before the date when employees are needed; reduce the deadline for when employer-provided housing must be available for inspection before the date of need; and to modify the requirement that certified H–2A employers provide notice of the exact date on which H–2A employees have departed for the place of employment. DOL and the Immigration and Naturalization Service (INS) will soon issue a final regulation that will complete an earlier proposal to delegate authority to adjudicate most H–2A petitions to DOL. This change would significantly reduce the burden to growers when filing for H–2A workers by removing an entire step from the current process. Furthermore, DOL has made additional administrative changes to the H–2A program such as modifications to the positive recruitment requirement. DOL intends to consistently meet the existing 30 day deadline to issue approved certifications for growers.
STATE OF THE AGRICULTURAL ECONOMY AND LABOR MARKET
U.S. agriculture is benefiting economically from increased access to global markets, but farm workers are not sharing in those benefits. Production of labor-intensive commodities like fruits and vegetables has increased and global demand for American produce continues to grow, but farm worker earnings and working conditions are either stagnant or in decline.
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The Administration supports policies that will:
promote greater predictability and reliability in both the labor supply and availability of work;
assure that the system available to growers seeking access to foreign workers is as simple and the least burdensome as possible;
improve farm workers' wages, working and living conditions;
better connect authorized workers to employment opportunities;
increase the number of weeks farm workers are employed each year; and,
in turn, increase farm workers' earnings.
The Congress has heard testimony that labor-intensive agriculture in the U.S.—including tobacco, vegetables, fruits, nuts, berries, horticultural and greenhouse commodities—continues to undergo a dramatic transformation. U.S. farm receipts for fruit and horticultural specialty crops have more than doubled—and, for vegetables, more than tripled—during the last two decades. Labor-intensive agriculture underwent explosive growth between 1987 and 1997. Domestic and foreign demand for its commodities has increased substantially, and technological developments in transportation and storage along with changes in consumer tastes and preferences that favor fruits and vegetables have facilitated the expansion. This market expansion has been accompanied by changes in the structure of the labor-intensive agricultural sector. Fewer and fewer farms are growing these commodities on more and more acreage.
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But while overall production of labor-intensive agricultural commodities is up—as measured by acreage, production and the market value of sales—the number of employed farm workers has remained relatively stable. Recent research reports indicate that the total number of hired and contract farm workers in the U.S. decreased slightly between 1990 and 1998, but agriculture's use of hired labor has remained relatively constant over the last ten years—at an estimated 1.8 million workers.
Labor in agriculture has become more productive. And the increased output was apparently accomplished with little investment in mechanized agriculture. But this increased productivity has not resulted in higher wages. Rather, according to both the National Agricultural Worker Survey (NAWS) and the National Agricultural Statistics Survey (NASS), farm worker wages declined over the last decade in real terms.
While the level of employment has remained stable, the NAWS data from 1989 through 1998 reveal that the demographic and employment characteristics of farm workers have changed substantially. Compared to 1988, farm workers in 1998:
found fewer weeks of employment;
earned less per hour in real terms;
continued to have poverty level earnings; and
were less likely to utilize public assistance/programs designed to help ameliorate the effects of poverty on the working poor.
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NAWS findings of falling real wages, less employment, and low annual incomes of U.S. crop workers are all indicators of a national oversupply of farm labor. These same factors contribute to the higher turnover in the agricultural labor market, as workers exit farm labor in search of jobs paying higher wages, offering more hours of work, and offering more steady and predictable employment. Instability in this labor market is due, in part, to agriculture's failure to create the working and living conditions necessary to attract and retain skilled, experienced and authorized workers. Over the last decade, agriculture's ability to retain workers has dwindled. The agricultural sector has replaced many authorized workers with unauthorized workers. Today, only about one-half of the agricultural labor force is authorized to work in the U.S.
Examining farm worker wage, earnings and poverty trends more generally from 1989 to 1998, one finds that over the period of the 1990s—with a strong economy and greater, increasingly widespread prosperity—farm worker wages have lost ground relative to those of workers in the private, non-farm sector. Between 1989 and 1998, the average nominal hourly wage of farm workers rose 18 percent (from $5.24 to $6.18), while the wages of workers in the private non-farm sector increased by 32 percent. Consequently, farm workers went from earning 54 percent of the average hourly wage for all production workers in 1989 to earning just 48 percent of that wage in 1998. Adjusted for inflation, the average real hourly wage paid to farm workers—in 1998 dollars—dropped from $6.89 to $6.18—over a 10 percent loss in purchasing power.
Compounding the effect of falling real wages is the inability of farm workers to find enough employment. Over the ten-year period 1989–1998, the amount of agricultural employment that farm workers were able to obtain per year declined. In 1989–1990, farm workers were employed, on average, 29.3 weeks per year in agriculture. In 1997–1998, the average number of weeks dropped to 24.9. Even during months in which the demand for farm labor peaks, many farm workers are not employed in agriculture—in July 1997, only 56 percent of all crop workers had a farm job. Earning less per hour (in real wages) and working fewer weeks per year, it is not surprising that the median personal and family incomes of farm workers have remained low since 1989–1990.
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Instability in the farm labor market is also reflected in other changes in the demographic and employment characteristics of farm workers. The market is increasingly young, and migrant. These demographic changes have occurred at the same time farm worker employment, wages and earnings have declined:
the average number of years working for the current agricultural employer has declined;
the percentage of workers employed seasonally, rather than full-time, increased;
use of farm labor contractors in labor-intensive agricultural commodities increased; and
other employer-provided benefits that could help stabilize the workforce and induce workers to remain in the industry—such as paid holidays and vacations, health insurance and paid transportation—are also in decline.
All of the above trends paint a picture of the conditions under which farm workers live and work. Low wages, sub-poverty annual earnings, significant periods of un- and under-employment, low utilization of safety net programs all add up to a labor force in significant economic distress. In addition, the continued oversupply of workers will not allow the market conditions necessary to give farm workers sufficient labor market leverage to substantially change these conditions.
VIEWS ON H.R. 4548
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Mr. Chairman, it is the Administration's view that H.R. 4548 will not ameliorate these serious problems in the agricultural labor market, but rather—if enacted—it would almost certainly make them worse. The Administration has been and remains opposed to establishing a new agricultural guestworker program that further increases the supply of agricultural workers and reduces their legal protections.
We have raised serious concerns that legislation like H.R. 4548 would almost certainly:
increase illegal immigration;
reduce work opportunities for U.S. citizens and other legal residents; and
depress wages and work standards for American workers.
The Administration's position on this issue is consistent with the conclusions of two Congressionally-created commissions—the bipartisan Commission on Immigration Reform, chaired by the late Barbara Jordan, and the Commission on Agricultural Workers, which examined this issue in the early 1990s—as well as the more recent Binational Study on Migration, a joint study by highly respected scholars from both Mexico and the U.S. which issued its report in September 1997.
Mr. Chairman, let me explain the Administration's opposition to H.R. 4548 by posing and answering four questions that we would urge the Congress to carefully consider. I believe the answers we present demonstrate that H.R. 4548's proposed new guestworker program will have the harmful effects we would expect and is, therefore, not the solution to problems besetting the agricultural labor market.
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First, would H.R. 4548 provide growers the stable labor supply they seek? H.R. 4548 would permit admission of an unlimited number of new ''H–2C'' foreign agricultural guestworkers without any reliable determination that a labor shortage actually exists. So the answer to this question may be ''yes'' in the short-term and for some growers. Growers currently using the H–2A program would likely move over to the new program envisioned by H.R. 4548 because unquestionably their labor costs would be lower. And many other growers may want to use the program as well.
Making use of the new H–2C program even more appealing is the fact that this program—for the first time, and in contrast to all other employment situations in the country—would shift the burden of finding workers from the employer to the government. Agricultural employers desiring to hire foreign guestworkers would have no obligation to find U.S. workers on their own behalf except to apply to the government-operated registry, advertise (on behalf of the registry) in a local publication, and make ''reasonable efforts'' to contact workers employed in the previous season. Under H.R. 4548, the government would only have 14 days to find an employer's workers, may only search for such workers registered in the State where the work is to be performed, and must contact each potentially qualified worker to obtain a commitment to accept the offered job. Failure to overcome the obstacles to effectively operating an electronic job matching service in the agricultural labor market would allow the employer to obtain its workforce abroad.
The second question is whether H.R. 4548 will protect U.S. agricultural workers from unfair competition? It would not. Domestic farm workers will see their employment opportunities further reduced and farm workers generally will see their wages, benefits and working conditions undermined because of the inferior protections provided by the proposed H–2C program.
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As noted, the bill contains no requirement for employers to develop and implement an affirmative or effective domestic farm worker recruitment plan. Nor does it ensure U.S. farm workers their current right to be hired by employers using H–2A workers if they make themselves available for work. Unless they are referred through the registry, those appearing in person for the work offered by the employer could be turned away because this legislation would no longer require the hiring of any U.S. worker who makes him/herself available for work during the first half of the employer's contract period. Moreover, farm workers would also lose their guarantee of pay for at least three-quarters of the work hours/days offered in the employer's contract and could be terminated without pay at any time for ''lack of work.''
Farm workers would lose rights under current law and no longer be guaranteed any wage higher than the Federal or State minimum wage—unless the employer decides to pay by-the-hour and offers a higher hourly wage. Any employer would have to promise to pay the locally prevailing wage or the (new) adverse effect wage rate—that is, the locally prevailing wage plus up to 5 percent. But any employer offering any ''incentive payment method''—that is, piece-rate, task-rate, or group-rate—would only have to meet this obligation on average for the group of workers as a whole; no individual worker would be guaranteed any higher minimum wage.
Under the current H–2A program, each H–2A worker and similarly-employed U.S. worker must be paid the higher of the State or Federal minimum wage, the locally prevailing wage, or the ''adverse effect wage rate''—which is the average State or regional wage for farm jobs. With the disparity between pay requirements in current law and H.R. 4548, tens of thousands of farm workers would be very likely to experience pay cuts. For example, we estimate that in North Carolina alone, more than ten thousand farm workers—H–2A and similarly-employed U.S. workers—could experience a nearly 20 percent pay cut under the wage provisions of the proposed H–2C program.
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Under H.R. 4548, some farm workers who benefit from employer-provided housing now might lose their housing since their employers could substitute a voucher for housing. Moreover, compared to current law, the proposed new program would shift travel costs from growers to low-wage workers. For example, in a change from current law, workers would not have to be reimbursed for travel costs at all if they travel less than 100 miles or if—for some reason—they do not reside in housing provided directly or secured through a voucher. Furthermore, domestic farm workers hired through the registry, who work along side H–2A workers, would not be entitled to receive prevailing benefits and working conditions as required under current law.
The third question is whether H.R. 4548 will adequately protect foreign agricultural workers from abuse? Again, the answer is clearly ''no.'' For the reasons just discussed with regard to domestic farm workers, foreign workers admitted under the H–2C program would lose rights under current law with regard to wages paid and other benefits. In addition, the bill weakens the current housing requirement by allowing growers to provide a housing voucher in lieu of actual housing. One likely result of this approach is if the voucher is convertible to cash, foreign workers may not obtain housing thereby leading to adverse impacts on local communities.
Also, instead of being fully reimbursed for travel expenses, the new H–2C workers would at most only have to be reimbursed for their travel from the border to the place of employment if they complete 50 percent of the contract period, and back to the border if they complete the contract. The current H–2A program requires reimbursement from/to the place where the worker was recruited. Again, under H.R. 4548, there need be no travel reimbursement for distances under 100 miles. Also, like domestic farm workers, the H–2C workers would not be entitled to receive prevailing benefits and working conditions.
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Finally, we must consider how H.R. 4548 will affect illegal immigration to the U.S.? The substantially reduced worker benefits and protections afforded under the new H–2C program will provide powerful incentives for many more U.S. agricultural employers to actively reach out to recruit labor from abroad. Experts and academics who study migration flows generally agree that guestworker programs establish migratory networks and paths that increase illegal immigration. Guestworkers tend to come and stay in the receiving country. The program resulting from H.R. 4548 would be no different. And it would make it easier for foreign agricultural workers admitted under the program to become illegal workers by overstaying in this country. And it appears that H.R. 4548 would put the employer under no obligation to ensure the workers it imported leave the U.S. upon completion of the work.
In sum, the cost of this proposed new H–2C program could be enormous to the Nation. In our view, this proposed new guestworker program would exacerbate the Nation's problem with illegal immigration, adversely impact the employment opportunities, wages and working conditions of U.S. farm workers, and increase—not reduce—the opportunity for abuse of foreign agricultural workers.
POLICY RECOMMENDATIONS FOR STABILIZING THE AGRICULTURAL LABOR MARKET
Mr. Chairman, there are ways to stabilize the agricultural labor market. We need to implement near-term policies that will address the known problems in the labor market and begin to explore additional steps that may be appropriate to promote greater predictability and reliability in the labor supply and to modernize protections for farm workers to reflect the agricultural labor market of the 21st century. We believe the following recommendations can establish a foundation for progress:
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Policy Recommendations
Increase the minimum wage. Congress should raise the minimum wage by $1 an hour over two years. This increase would make a significant difference in the ability of many migrant and seasonal farm workers who work for wages at or near the minimum wage to earn enough to support themselves and their families.
Provide funding for ''AgNet''. Congress should fund ''AgNet,'' an Internet-based, on-line job matching system to help connect agricultural employers and workers. In its FY 2001 budget request, the Administration has again asked for $10 million to build and implement AgNet. Even though Congress did not provide that funding when requested for FY 2000, the Department of Labor has developed a prototype and is ready to move forward with the program if appropriations are made available. AgNet will be both an information system and a voluntary labor exchange tailored to the needs of the agricultural sector. Workers will be able to post work experience and the types of opportunities they seek; search for jobs; and have the system match worker information against that submitted by employers. Employers will be able to post jobs and search for workers. We believe AgNet holds the potential to be a new and powerful resource for employers seeking farm workers and for those seeking agricultural jobs. But it will not be the exclusive labor matching service envisioned in H.R. 4548.
Continue to streamline and reengineer the current H–2A program. We are committed to complete current efforts and continue to streamline the H–2A program without weakening protections for U.S. and foreign farm workers. The Department has been working to reengineer and streamline the H–2A program to ease application burdens on growers while maintaining effective worker protections. This includes a change in the regulations to reduce the deadline for when employers must file H–2A applications from 60 to 45 days before the date when workers are needed, and another change—which will be published as a final rule in the Federal Register within the next few weeks—to delegate from INS to the Department of Labor authority to adjudicate certain H–2A petitions—those filed on behalf of workers located outside the U.S. Additionally, the McConnell Amendment requires that certifications now be issued 30 days before the date of need. The Department has also established a section on its web site for H–2A employers, who can now access information about the H–2A program and the necessary forms for processing an H–2A application on-line.
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Encourage use of available verification systems. We should work together to increase growers' use of automated verification systems thereby increasing growers' confidence in and reducing their business risk associated with their workers' immigration status.
Increase resources for domestic enforcement. Congress should support increased resources for stronger enforcement of U.S. labor laws. Increased funding and Congressional support for strong labor law enforcement will ensure that the Department can effectively focus on and deploy adequate resources to address those employers which pay less than legal wages and provide substandard work environments.
Identify and eliminate barriers for U.S. farm workers accessing ''safety net'' programs. We should identify barriers U.S. farm workers face in accessing ''safety net'' programs they are currently eligible for including the Earned Income Tax Credit (EITC), and farm worker health, housing, and educational assistance.
Continue discussions with other countries. The United States must continue to pursue bi-lateral and (under the terms of the NAFTA labor side agreement) tri-lateral discussions with countries that send farm workers to the U.S. to explore ways in which the workers legal rights can be better protected.
CONCLUSION
This Administration has consistently opposed proposals similar to H.R. 4548 to supplement or replace the current H–2A program with a new agricultural guestworker program for the reasons stated in this testimony. Indeed, during the 105th Congress, the Secretary of Labor recommended that the President veto H.R. 3410 which was similar to the legislation you are considering today. For these reasons, the Administration strongly recommends that Congress reject this proposal and, if passed by the Congress, the Secretary of Labor would strongly recommend that the President veto H.R. 4548. We urge Congress to examine and give favorable consideration to the recommendations I just outlined as ways to establish a foundation for progress towards stabilizing the agricultural labor market.
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I appreciate the attention given by the Subcommittee members and staff to our views, and their consideration. The Department looks forward to continuing to work closely and cooperatively with you and your staff.
Mr. Chairman, that concludes my statement and I will be pleased to respond to questions.
Mr. SMITH. Ms. Fagnoni, I understand you are accompanied by Mr. Charlie Jeszeck as well.
Ms. FAGNONI. That is correct.
Mr. SMITH. We will look forward to your testimony.
STATEMENT OF CINDY FAGNONI, DIRECTOR, EDUCATION, WORKFORCE, AND INCOME SECURITY ISSUES, HEALTH, EDUCATION, AND HUMAN SERVICES DIVISION, U.S. GENERAL ACCOUNTING OFFICE
Ms. FAGNONI. Thank you, Mr. Chairman, and members of the subcommittee. I am pleased to be here today to contribute to the ongoing discussion regarding our Nation's immigration policy and the role guestworker programs should play in that policy.
I would first like to review the key findings and conclusions of our December 1997 report which assessed the H–2A program's ability to meet the needs of agricultural employers while protecting U.S. and foreign agricultural workers. I will also discuss the progress that the cognizant agencies and the Congress have made in implementing recommendations we made in our report. We believe that the principal conclusions of our 1997 report continue to be valid. More specifically, a sudden widespread farm labor shortage requiring the entry of large numbers of foreign workers continues to be unlikely now or in the near future.
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Localized shortages could emerge for specific crops or geographic areas. Based on available evidence from a recent Congressional Research Service report, recent survey and current INS policy initiatives, we believe that our earlier conclusions about the workforce remain valid.
Since our report, the national economy has continued to prosper. National unemployment has declined to 4.2 percent in 1999. Nevertheless, recent CRS work suggests that our earlier assessment accurately captures the current conditions of the national agricultural labor market. CRS based its conclusion on a variety of economic data that are inconsistent with an agricultural labor shortage scenario such as the sustained high level of unemployment of hired farmworkers, the substantial underemployment of farmworkers and the continued low farmworkers' average hourly wages compared with workers in the non-farm sector.
The CRS study concluded that the supply-demand conditions of labor are generally inconsistent with the existence of a nationwide shortage of domestically available farmworkers at the present time. Again, consistent with our earlier conclusions, the CRS report did not preclude the potential for localized farmworker shortages.
Data from the latest National Agricultural Workers Survey also are consistent with the conclusions from our 1997 report. Under a labor shortage scenario, one might expect larger than average increases in hourly agricultural wage rates. Although real wage rates for crop workers increased between 1997 and '98, the latest years for comparison, they remain 10 percent lower than the average agricultural wage rates in 1989.
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Despite the large number of farmworkers believed to lack the legal authorization to work, it is still unlikely that INS' enforcement efforts will have any significant impact on the availability of agricultural workers. Very few of INS' worksite enforcement actions continue to be targeted at agricultural employers. In fiscal year 1999, INS completed about 3,900 investigations of employers with about 7 percent directed at agricultural workplaces.
In addition, INS has started implementing a new worksite enforcement strategy that among other things appears to focus its limited resources on employers suspected of criminal activities and educating and fostering cooperation with the employer community rather than through the raids of employer worksites that has more traditionally focused on.
Because INS plans to implement its plan over 5 years, it is too soon to know how the proposed changes will be implemented or to assess their impact on the employment of unauthorized agricultural workers and as we reported in 1997 and again 1999, despite several ongoing INS initiatives, the employment verification process still remains susceptible to fraud. INS continues to test three pilot programs in which employers electronically verify employee's eligibility to work. However, employer participation in the pilot programs underway has been significantly less than INS anticipated with fewer than 1,700 employers participating.
Also, INS has made little progress toward its goal of reducing the number of documents that employers can accept for determining employment eligibility. Aliens are statutorily permitted to show employers widely used documents such as Social Security cards and birth certificates that do not have the security features of the documents INS recently began to issue.
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That summarizes the conclusions of our report and the status of the workforce. Let me now turn briefly to the concerns we raised in the report about the operations of the H–2A program, the recommendations we made and actions that have been taken on those recommendations.
We noted a number of concerns about the operation of the H–2A program in our report. These concerns included Labor's inability to process applications in a timely manner, multiple agency involvement in the approval of H–2A petitions which added little value to the process, multiple agency involvement in program administration, and insufficient information in general, and worker protection provisions that are difficult to enforce.
We made several recommendations and Labor and INS have made some progress in taking the steps we recommended to improve the program's operations. For example, Labor has amended its regulations to allow H–2A applications to be submitted up to 45 rather than 60 days before the date of need, reducing growers' uncertainty in estimating how much labor they will need.
In addition, a regulation delegating authority for approval of H–2A applications from INS to Labor has been finalized and is expected to be released shortly. This change will also work to streamline the application process. However, other key changes remain to be implemented, particularly those that would permit Labor to assess the timeliness of its applications processing and to improve protections for domestic and H–2A agricultural workers.
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Mr. Chairman, this concludes my prepared statement. Charlie and I would be happy to answer any questions you may have. Thank you.
Mr. SMITH. Thank you, Ms. Fagnoni.
[The prepared statement of Ms. Fagnoni follows:]
PREPARED STATEMENT OF CINDY FAGNONI, DIRECTOR, EDUCATION, WORKFORCE, AND INCOME SECURITY ISSUES, HEALTH, EDUCATION, AND HUMAN SERVICES DIVISION, U.S. GENERAL ACCOUNTING OFFICE
Mr. Chairman and Members of the Subcommittee:
We are pleased to be here today to contribute to the ongoing discussion regarding our nation's immigration policy and the role guestworker programs should play in that policy. Immigration is a tense and controversial subject, with the H–2A agricultural guestworker program representing some of the most passionate as well as complex aspects of this issue. The H–2A program provides a vehicle for U.S. agricultural employers to bring legal, nonimmigrant foreign workers into the United States to perform temporary seasonal agricultural work when domestic workers are unavailable. As we reported in 1997, about 15,000 workers, or less than 1 percent of the total agricultural workforce, were admitted under the H–2A program in 1996. Comparable data are not yet available for fiscal year 1999. However, the Department of Labor certified 41,827 workers in fiscal year 1999, compared with 17,557 workers in fiscal year 1996, suggesting a significant growth in the use of the program.
Today, I would like to review the key findings and conclusions of our December 1997 report, which assessed the H–2A program's ability to meet the needs of agricultural employers while protecting U.S. and foreign agricultural workers, both in the present and if a significant number of guestworkers were to be needed in the future. I will also review the steps we recommended to reduce the burden of the H–2A program on agricultural employers while better protecting domestic and H–2A workers and the progress that the cognizant agencies have made in implementing those recommendations.
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In summary, we believe that the principal conclusions of our 1997 report continue to be valid. More specifically, a sudden, widespread farm labor shortage requiring the entry of large numbers of foreign workers continues to be unlikely now or in the near future, although localized shortages could emerge for specific crops or geographic areas. Although many farmworkers are not legally authorized to work in the United States, INS enforcement efforts are still unlikely to significantly reduce the aggregate number of unauthorized farm workers. While comparatively few agricultural employers seek workers through the H–2A program, those that do continue to be generally successful in obtaining workers. In 1997, we determined that poor information on H–2A program access and the involvement of many agencies in the program could result in redundant oversight and confuse employers that are considering participation and that Labor was not always processing applications in a timely manner. While Labor and INS have made progress in taking the steps we recommended to improve the program's operations, key changes remain to be implemented, particularly those that would permit Labor to assess the timeliness of its applications processing and to improve protections for domestic and H–2A agricultural workers.
BACKGROUND
The Immigration Reform and Control Act of 1986 created the program, commonly referred to as the ''H–2A'' program, under which employers may bring agricultural workers into the country on a temporary, nonimmigrant basis. The program's purpose is to ensure agricultural employers an adequate labor supply while also protecting the jobs, as well as the wages and working conditions, of domestic farmworkers. Under the program, agricultural employers that anticipate a shortage of domestic workers can request nonimmigrant foreign workers. The Department of State issues nonimmigrant visas for H–2A workers only after the Department of Justice, through its INS, has approved an employer's petition for authorization to bring in workers. Justice does not approve the petition until Labor has approved the employer's application for certification that a labor shortage exists and that the wages and working conditions of U.S. workers similarly employed will not be adversely affected by bringing in guestworkers. This certification is based on, among other things, proof that the employer has actively recruited domestic workers, that the state employment service has certified a shortage of farm labor, and that housing for the workers meets health and safety requirements. The Department of Agriculture acts in an advisory role that includes conducting wage surveys for Labor's determination of the minimum wage rates to be paid by employers of H–2A workers—the so called ''adverse effect wage rate''—which are designed to mitigate any negative effect their employment may have on domestic workers similarly employed.
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Labor is also responsible for ensuring that agricultural employers comply with their contractual obligations to H–2A workers and for enforcing labor laws covering domestic workers, including the wage, housing, and transportation provisions of the Migrant and Seasonal Agricultural Worker Protection Act. For example, workers who complete 50 percent of the contract period are due reimbursement for transportation from the place of recruitment, while those who complete the entire contract are guaranteed work or wages for a minimum of three-quarters of the contract period and reimbursement for transportation home. Agricultural employers must provide the same wages, benefits, and working conditions to H–2A workers that are provided to domestic workers employed in ''corresponding employment.''
WIDESPREAD FARM LABOR SHORTAGE IS UNLIKELY IN THE NEAR FUTURE, ALTHOUGH LOCALIZED SHORTAGES ARE POSSIBLE
In our 1997 report, we concluded that a widespread farm labor shortage did not appear to exist and was unlikely in the near future. Although there was widespread agreement that a significant portion of the farm labor force was not legally authorized to work, INS enforcement activity was unlikely to generate significant farm labor shortages. Based on available evidence from a Congressional Research Service (CRS) report that recently examined this issue, data from the National Agricultural Workers Survey (NAWS) released in March 2000, and recent INS policy, we believe that our earlier conclusions remain correct.
Ample Supplies of Farm Labor Appear to Be Available in Most Areas of the Nation
As we noted in our 1997 report, although data limitations made the direct measurement of a labor shortage difficult, our own analysis suggested that a widespread farm labor shortage had not occurred in recent years and did not then exist. Our conclusion was based on the combination of (1) the large number of illegal immigrant farmworkers granted amnesty in the 1980s, (2) persistently high unemployment rates in key agricultural areas, (3) state and federal designations of agricultural areas as labor surplus areas, (4) stagnant or declining farm labor wage rates as adjusted for inflation, and (5) continued investments by growers in agricultural production. For example, our analysis of the monthly and annual unemployment rates of 20 large agricultural counties—those that contain large amounts of fruit, tree nut, and vegetable production in dollar value—found that 13 counties maintained annual double digit unemployment rates and that 19 had rates above the national average during 1994 through 1996. As of June 1997, 11 counties still exhibited monthly unemployment rates double the national average of 5.2 percent, and 15 of the 20 counties had rates at least 2 percentage points higher than the national rate. We also noted that the lack of evidence of widespread farm labor shortages does not preclude the existence or potential for more localized shortages in a specific crop or remote geographic area.
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Since our report, the national economy has continued to prosper. National unemployment declined from 4.9 percent in 1997 to 4.2 percent in 1999. Nevertheless, recent CRS work on this issue suggests that our earlier assessment accurately captures the current conditions of the national agricultural labor market. CRS based its conclusion on a variety of economic data that are inconsistent with an agricultural labor shortage scenario: (1) employment of hired farmworkers, including contract workers, fluctuated erratically during the 1990s and actually declined in 1998 by 1.2 to 1.4 percent, in contrast to the growth in total U.S. employment; (2) the national unemployment rate for hired farmworkers has remained above 10 percent since 1994, has increased since 1997, and at 11.8 in 1998, has remained well above the national average; (3) there was no discernable variation in the average number of weekly hours that hired farmworkers were employed in crop or livestock production throughout the 1990s; (4) the underemployment of farmworkers remains substantial, with the number of days crop workers employed on farms diminishing from an average of 186 days per worker in fiscal years 1993–95 to 174 days per worker in fiscal years 1996–98; and (5) while farmworkers' average hourly wages increased at a slightly faster rate than those in the nonfarm private sector between 1990 and 1998, farmworkers continue to earn little more than $0.50 for every dollar earned by other private sector workers. The CRS study concluded that ''indicators of supply-demand conditions generally are inconsistent with the existence of a nationwide shortage of domestically available farmworkers at the present time. . . .'' Again consistent with our conclusions, the CRS report did not preclude the potential for localized farmworker shortages during various times of the year.
Data from the latest NAWS survey are also consistent with the conclusions of our 1997 report. If a labor shortage existed, one might expect larger than average increases in hourly agricultural wages rates. Although real wage rates for crop workers increased between 1997 and 1998, the latest years for comparison, they remain 10 percent lower than the average agricultural wage rates in 1989.
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INS Enforcement Efforts Are Unlikely to Significantly Reduce the Number of Unauthorized Farmworkers
In our 1997 report, we estimated that approximately 37 percent of the agricultural labor force—about 600,000 farmworkers—in the United States lacked legal authorization to work. Since then, the estimated number of unauthorized agricultural workers has increased. The latest NAWS has estimated that, as of fiscal year 1998, the proportion of the agricultural labor force that lacked legal authorization to work was more than 52 percent.
The prevalence of such a large number of unauthorized and fraudulently documented farmworkers would leave individual employers vulnerable to sudden labor shortages if INS were to target enforcement efforts at their individual establishments. At the time of our 1997 report, fears of such targeting appeared to be unfounded. INS officials around the country were unanimous in their statements that they did not expect their enforcement efforts to have any general effect on the supply of farm labor, either nationally or regionally, given the large number of fraudulently documented farmworkers and competing enforcement priorities. At that time, most of INS' investigation resources were focused on identifying aliens who have committed criminal acts, including violent criminal alien gang and drug-related activity, and on detecting and deterring fraud and smuggling. Few investigations involved agricultural employers, and INS officials did not expect a significant increase in enforcement efforts directed at agriculture in the near future. We also acknowledged that although INS efforts were under way to improve employers' ability to identify fraudulent documents, these efforts were still in the early stages and were not likely to have any significant effect on the availability of illegally documented farmworkers in the near future. The degree to which these initiatives, if fully implemented, would affect the number of unauthorized workers and the supply of agricultural workers was unknown.
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We believe this conclusion remains accurate for several reasons. Since our report, the percentage of INS' investigations dedicated to worksite enforcement programs has not changed significantly. As we reported in 1997, about 5 percent of the 4,600 investigations completed in fiscal year 1996 involved employers in agricultural production or services, with 40 percent of these involving employers in industries not associated with H–2A, landscapers, lawn maintenance firms, and veterinarians. In fiscal year 1999, INS completed about 3,900 investigations of employers, with about 7 percent directed at agricultural workplaces.
INS is also in the process of changing its approach to worksite enforcement. It has developed a new interior enforcement strategy with two worksite enforcement priorities—one calling for INS to pursue the criminal investigation of employers that are flagrant or grave violators and the other aimed at blocking and removing employers' access to unauthorized workers. With respect to this second priority, INS acknowledged the limitations of worksite investigations—''raids''—and is focusing on the crucial employer role in creating an effective deterrent to illegal immigration. It will now work to educate and foster employer cooperation to deny employment to unauthorized workers. INS has not specified how many resources it intends to devote to such employer compliance efforts. Since INS plans to implement its strategy over the next 5 years, it is too soon to know how the proposed changes will be implemented or to assess their effect on the employment of unauthorized workers in agriculture.
In addition, as we reported in 1999, despite several ongoing INS initiatives, the employment verification process still remains susceptible to fraud. INS continues to test three pilot programs in which employers electronically verify employees' eligibility to work. However, employer participation in the pilot programs under way has been significantly less than INS anticipated—only 1,658 employers in all industries as of June 2000 are participating, and only 425 of these are employers in agricultural production or services.
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Finally, INS has made little progress toward its goal of reducing the number of documents that employers can accept for determining employment eligibility. In February 1998, INS issued proposed regulations to reduce the number of documents that can be used from 27 to 14. However, INS received numerous comments on the proposed regulations and INS officials do not know when these regulations will be finalized. INS has also begun issuing new documents with increased security features, which it hopes will make it easier for employers to verify the documents' authenticity. However, aliens are statutorily permitted to show employers various documents other than the INS documents that authorize them to work, and other widely used documents (e.g., Social Security cards and birth certificates) do not have the security features of the INS documents.
It should be noted that the high percentage of fraudulently documented workers means that an employer may hire workers not legally authorized to work in this country without violating the law. An employer that hires illegal aliens who present documentation will be abiding by the law unless the employer knows or should know based on an apparent irregularity in the alien's documentation that the alien is in this country illegally. The Immigration and Nationality Act allows an employer to rely on documentation that reasonably appears on its face to be genuine. Thus, over 600,000 illegal aliens could be working in agriculture without any agricultural employers violating the law with respect to their responsibilities under federal immigration law.
GAO RECOMMENDATIONS TARGETED AT PROBLEMS IN H–2A PROGRAM OPERATIONS PARTIALLY IMPLEMENTED
In our 1997 report, we identified a number of concerns with the operation of the H–2A program. These concerns included (1) Labor's inability to process applications in a timely manner, (2) multiple agency involvement in the approval of H–2A petitions that added little value to the process, (3) multiple agency involvement in program administration and insufficient information generally, and (4) worker protection provisions that are difficult to enforce. We made recommendations to the cognizant agencies that would address each of these concerns. Most of these recommendations are still in process or no action has yet been taken.
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Although Employers Obtain H–2A Workers, Applications May Not be Processed in a Timely Manner
In 1997, Labor issued certifications for most of the workers whom agricultural employers requested through the H–2A program, and agency officials reported that they could handle a major increase in program workload with additional resources. However, Labor did not generally process applications in a timely manner and the lack of data made it difficult to monitor timeliness and oversee the program. Labor continues to approve the overwhelming majority of applications, certifying 2,948 out of 3,130, or over 94 percent, of all applications submitted during fiscal year 1999 and accounting for 88 percent of the 47,300 worker certifications requested.
The H–2A application process sets very specific time requirements that employers and Labor must meet. At the time of our report, these statutory and regulatory deadlines included a requirement that employers file an application for workers at least 60 days before they are needed and that Labor issue a decision on the certification of a labor shortage at least 20 days before the date of need. In 1997, we determined that Labor did not always process applications on time, making it difficult to ensure that employers were able to get workers when they needed them. Although no data were available on how many employers failed to obtain the required workers by the date of need, we identified some applications that were not certified by Labor until after the date of need. Because Labor did not have data on program operations, we could not assess the explanations Labor provided us for its inability to process applications in a timely fashion. In response, we recommended that Labor regularly collect data on its performance in meeting H–2A regulatory and statutory deadlines for processing H–2A applications and that it use these data to monitor and improve its performance. Labor is currently developing such as system and hopes to have it in place by October 2000.
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Multiple Agency Involvement in Petition Approval Added Little Value to the Process
After receiving Labor's certification, INS must approve an employer's petition for H–2A visas before workers can apply to the State Department for visas, a procedure that can add up to 3 weeks to processing time. INS officials agreed that the INS petition approval process adds little value to the process because petitions for H–2A visas, unlike other visa petitions, do not generally identify individual workers. Therefore, INS examiners check only to make sure that Labor has issued a certification and that an employer has submitted the correct fees for the petition. To simplify the H–2A application process and reduce the burden on agricultural employers, we recommended that the Attorney General delegate authority for approval of H–2A visa petitions from INS to the Secretary of Labor or his or her designee and revise corresponding regulations as necessary to implement and facilitate such an agreement, including a revision of visa extension and appeals procedures. According to an INS official, the Office of Management and Budget recently cleared and finalized the regulation, and it will be released after final administrative details are completed.
Even if all processing deadlines are met, agricultural employers, their advocates, and state employment officials told us that the workers may not be available when needed. This is because the weather and other factors make it hard to estimate 60 days in advance when workers will be needed. This is especially true for crops with short harvest periods. The 60-day deadline may also encourage employers to estimate the earliest possible date, which can have negative consequences for workers who arrive before the employer has work for them: they are left with no income until work is available. To address this problem, we recommended that the Secretary of Labor amend the regulations to allow H–2A applications to be submitted up to 45 rather than 60 days before the date of need, if INS' role in the petition approval process was eliminated as we recommended. Labor implemented our recommendation and employers now need to apply only 45 days before the date of need.
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Finally, to protect work opportunities for domestic workers by ensuring that sufficient time is available for agricultural employers to positively recruit domestic workers while reducing the total processing time, we recommended that Congress amend the Immigration and Nationality Act so that, as long as the authority for approval of H–2A visa petitions remains with Labor, Labor would be required to complete all applications at least 7 days before the date of need, rather than 20 days. However, rather than requiring Labor to complete all applications at least 7 days before the date of need, the Congress changed the requirement that Labor complete all applications from 20 days to no later than 30 days before the date of need (P.L. 106–78).
Insufficient Information and Multiple Agencies Administering the H–2A Program Can Make Program Participation More Difficult
As we reported in 1997, employers, advocates, and agency officials expressed frustration about the poor information on H–2A procedures. Labor's handbook on the H–2A Labor certification process included information that was outdated, hard to understand, and incomplete. Program participants can also be confused by the multiple agencies and levels of government involved in the H–2A program, which fosters redundant agency oversight and the inability to determine compliance with program requirements. In some states, for example, employer-provided farmworker housing is subject to federal, state, and local housing regulations and must be inspected by multiple agencies. To address this issue, we recommended that Labor update and revise the H–2A handbook to include the procedures for all agencies involved and key contact points, both in Labor and other agencies. Labor has not yet taken action on this recommendation, preferring to wait until other regulations related to our recommendations have been promulgated.
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Worker Protection Provisions Are Difficult to Enforce
Violations of H–2A worker protection provisions, including the requirement that foreign guestworkers be guaranteed wages equivalent to at least three-quarters of the amount specified for the entire contract period, are difficult to identify and enforce. H–2A guestworkers may be less aware of U.S. laws and protections than domestic workers, and they are unlikely to complain about worker protection violations, such as the three-quarter guarantee, fearing they will lose their jobs or will not be hired in the future.
Labor officials noted operational impediments in enforcing these protections. For example, the three-quarter guarantee applies only to the end of the contract period, and H–2A workers must leave the country soon after the contract ends. Labor officials said that monitoring the three-quarter guarantee is difficult because they cannot interview workers after they return to Mexico to confirm their work hours and earnings. Such enforcement difficulties create an incentive for less scrupulous employers to request contract periods longer than necessary: If workers leave the worksite before the contract period ends, the employer is not obligated to honor the three-quarter guarantee or pay for the workers' transportation home. And if a worker abandons the contract, it can be very difficult to determine whether he or she has left the country or is instead remaining and taking jobs that might otherwise go to domestic workers.
In general, Labor's Wage and Hour Division (WHD) of the Employment Standards Administration is the primary agency for enforcing existing H–2A contracts and other labor standard provisions, while the Employment and Training Administration (ETA) administers the H–2A program, working with state job services and agricultural employers to facilitate the application process. However, under current law, ETA exercises Labor's authority to suspend an employer's participation in the H–2A program in the event that the employer has committed a serious labor standard or contract violation, and WHD, when conducting an enforcement action, must request that ETA consider using this authority. Given the overall separation of program functions between WHD and ETA, placing this suspension authority in ETA seems incongruent. Consolidating this suspension authority in WHD would permit ETA to concentrate more effectively on the H–2A program's crucial duties and possibly increase the effectiveness of WHD enforcement.
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The H–2A program also requires that agricultural employers provide H–2A workers the same minimum wages, benefits, and working conditions as those provided to domestic workers employed in ''corresponding employment.'' Current Labor regulations guarantee wages for the first week of work to domestic workers who are referred to agricultural employers through the interstate clearance system of the Employment Service, unless the employer informs the state employment service of a delay in the date of need at least 10 days in advance. However, no provisions are made to provide the same guarantee to H–2A workers, resulting in a disparity of treatment and the potential for personal hardship for foreign workers.
To address these issues, we recommended that Labor transfer the authority to suspend employers with serious labor standard or H–2A contract violations from ETA to WHD, revise its regulations to require agricultural employers to guarantee H–2A workers wages for the first week after the date of need, pay workers those wages no later than 7 days after the date of need, and revise regulations to apply the three-quarter guarantee incrementally during the duration of the H–2A contract in a manner that would improve the protection afforded to H–2A workers but also minimize any additional administrative burdens on agricultural employers. At this time, Labor has not determined how best to take action in each of these areas.
Mr. Chairman, this concludes my prepared statement. I would be pleased to respond to any questions you or Members of the Subcommittee may have.
RELATED GAO PRODUCTS
Illegal Aliens: Significant Obstacles to Reducing Unauthorized Alien Employment Exist (GAO/GGD–99–33, Apr. 2, 1999).
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H–2A Agricultural Guestworker Program: Experiences of Individual Vidalia Onion Growers (GAO/HEHS–98–236R, Sept. 10, 1998).
H–2A Agricultural Guestworker Program: Changes Could Improve Services to Employers and Better Protect Workers (GAO/T–HEHS–98–200, June 24, 1998).
H–2A Agricultural Guestworker Program: Response to Additional Questions (GAO/HEHS–98–120R, Apr. 2, 1998).
H–2A Agricultural Guestworker Program: Changes Could Improve Services to Employers and Better Protect Workers (GAO/HEHS–98–20, Dec. 31, 1997).
Illegal Immigration: Southwest Border Strategy Results Inconclusive; More Evaluation Needed (GAO/GGD–98–21, Dec. 11, 1997).
Passports and Visas: Status of Efforts to Reduce Fraud (GAO/NSIAD–96–99, May 9, 1996).
Border Patrol: Staffing and Enforcement Activities (GAO/GGD–96–65, Mar. 11, 1996).
Immigration and the Labor Market: Nonimmigrant Alien Workers in the United States (GAO/PEMD–92–17, Apr. 28, 1992).
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The H–2A Program: Protections for U.S. Farmworkers (GAO/PEMD–89–3, Oct. 21, 1988).
Mr. SMITH. My first question is really addressed to both you and Mr. Fraser, and it is this. The GAO has been making recommendations since 1997, sort of a rolling recommendation process, on how the administration might improve the H–2A program. What good reason is there for why the administration has not implemented the recommendations of the GAO over the last 3 years?
Ms. FAGNONI. Well, let me summarize first by saying there have been a few recommendations that have been implemented such as moving from the 60 to 45 days.
Mr. SMITH. Right. Your exact words were some have been implemented.
Ms. FAGNONI. Right. Many of them have not.
Mr. SMITH. Many remain unimplemented.
Ms. FAGNONI. That is right.
Mr. SMITH. So with all the years, with the importance of getting workers where there are spot shortages, why hasn't the administration done a better job? No, no, no. Ms. Fagnoni, I would like for you to answer first, if you will.
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Ms. FAGNONI. In updating our work, we got different responses on different parts of our recommendations. Some had to do with internal discussions within the Department of Labor still deciding how best to approach some of our recommendations. That was several of them.
Mr. SMITH. But is there any good reason why the administration hasn't been responsive?
Ms. FAGNONI. Well, certainly when we make recommendations, we would like to see fairly prompt action on those recommendations.
Mr. SMITH. Okay. Thank you very much. Mr. Fraser.
Mr. FRASER. Mr. Chairman, we have been moving to implement these recommendations. We have, as Cynthia indicated, reduced the lead time for application filing from 60 to 45 days. We have implemented legislation to change the lead time for issuing certification from 20 to 30 days. The GAO recommended going from 20 to 7 days, but the Congress went in the opposite direction.
We have published proposed rules to consolidate the application process by eliminating one step in that process so that the Department of Labor would be delegated authority, as GAO recommended, to approve both the labor certification and the petition. We issued a proposed rule. INS issued a proposed rule. The final rule to implement that change is on its way to the Federal Register. It has gone through the clearance process and is about to be finalized.
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GAO recommended that the responsibility for debarring employers found in violation of this program be shifted from the Employment and Training Administration to Wage and Hour. The President's budget last year requested consolidation of all immigration responsibilities, including that responsibility, in the Wage and Hour Division in Labor. The Congress rejected that proposal, which would have accomplished the GAO recommendation, so we are now exploring whether we can deal with that narrower issue.
If I recall correctly the list of recommendations, the two that are still in process have to do with updating the H–2A handbook. We have started that process. We have put H–2A application information and forms up on a Website. We did that several months ago so that there is greater access to employers.
The other recommendation, and again I am not looking at the complete list here so Cynthia you can help me if I miss something.
Mr. SMITH. Mr. Fraser, let me interrupt you because I want to follow up on a couple of things that you mentioned before my time has expired. The first provision you mentioned is an improvement. You and Ms. Fagnoni both mentioned the reduction in the length of time that employers have to file an H–2A application from 60 to 45 days. We have a witness later on who will testify that that is not a substantive improvement because weather conditions can change, and all of a sudden the time period when they really need somebody is over, or it does not arrive as soon as expected. So I do not know if 45 days is that much of an improvement.
The other part of my question goes to the H–2A program itself. As you know, it provides just a minuscule amount, somewhere around one or 2 percent of the total number of workers that may be needed. It seems to me if the recommendations were implemented, the program would better be able to respond to the legitimate needs of the agricultural community, and it clearly is not doing so. So the proof is very much, I think, in the low number of applicants, that the program is still not working. You can respond to the last point and to the 45 days, if you would.
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Mr. FRASER. I will do the latter first, if I may, Mr. Chairman. We would agree the usage of this program is small compared to the overall agricultural workforce. However, it is noteworthy that usage of the program has increased from about 15,000 workers just a few years ago to a little more than 40,000. So there has been fairly substantial growth, especially over the last 3 years.
But while you hear a lot about obstacles in the application process as an impediment to growers using this program, I think Mr. Berman's questions before made it pretty clear that the issue is really not about—or it is as much about—the cost of paying decent wages and providing decent benefits to farmworkers as it is about the application process.
We have been working very hard to simplify the application process, to inform people who are interested in using this program about how to do it, and provide assistance to them. The way the current application time frames work, an employer has to submit its application to the department no more than 45 days before the date of need, and the department must issue labor certification no less than 30 days before the date of need.
That means there is a 2-week window. At this point, there is a 2-week window for recruitment of U.S. workers, supervised by the department. That is a substantial reduction of the time we used to have of almost a month to encourage growers. We have indicated a willingness to reduce that lead time very substantially once we have eliminated the two-step process, which we are very close to having completed. The problem is you can't then still issue certification 30 days before the date of need. You have to slide that closer to the date of need.
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Mr. SMITH. Okay. Thank you, Mr. Fraser. The gentleman from California, Mr. Berman.
Mr. BERMAN. Thank you, Mr. Chairman. I would just like to follow up on that. Because I think the present situation—I don't want to say untenable, but it is not healthy. It is not a good situation. I think it is real important to isolate the factors. We have heard from independent sources, the GAO. We have Commission on Agricultural Workers. This is not a problem of a shortage, a fundamental shortage, of people willing to do farm work. It is not a problem of shortage. If anything I would argue there is a large surplus in huge areas of people willing to do farm work.
The issue is that we all know that employer sanctions are fiction and we decided in Congress this would be a key part of the strategy for dealing with and deterring illegal immigration, but we also decided the onus should not be on the back of the employer and growers are employers and there are a variety of processes by which the growers very understandably, and I think probably in technical compliance with the law, hire people who are undocumented but they happen to have the documents or use farm labor contractors who bring in people who have documents or are given documents, sometimes given to them by the very people that are bringing them to the farm.
But I just want to go back to what Mr. Fraser said, and in a sense what Mr. Pombo didn't say. If you took 30, 60 windows, 2 weeks, 4 weeks, national recruitment, supervised by the Department of Labor, on their own, put it all aside, at the heart of the effort of agriculture is to be able to hire these guestworkers cheaper than they are now and to pay their labor force less than they now pay them, and I cannot believe that once people think about that, and if they are willing to isolate that and use a little bit of detachment, independent judgment, that they are going to conclude that is the reason to pass sweeping legislation.
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Let us isolate the problem and deal with the problem of what goes on now but not use it as an excuse to do something which if it stood on its own would be just unacceptable to, I think, to objective people of goodwill which is an erosion of the wages and working conditions of the people who are at the bottom end of the wage and working condition scale in this country.
I would like to ask the GAO to talk a little bit about a report that you did with respect to why it is growers would rather have from a cost point of view in terms of paying employment fees and recruitment fees and all that stuff, why the H–2A program is better than a domestic recruitment program in terms of spending less money?
Mr. JESZECK. Well, in our 1997 report—maybe I should better understand your question. Why would they prefer the H–2A program as——
Mr. BERMAN. It is in the follow-up study that you did. In the follow-up study, you took one particular case, Vidalia onions——
Mr. JESZECK. Ah, yes.
Mr. BERMAN. And you pointed out the way the program worked and why it is cheaper to bring in H–2A workers from Mexico than not—forgetting wages and working conditions, just the recruitment process is so much nicer to get those guestworkers from Mexico than those domestic workers from Texas.
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Mr. JESZECK. That is correct. This is in reference to follow-up work we did in 1998 where we looked at the situation or the labor market conditions in Vidalia, Georgia, with regard to a number of Vidalia onion growers and the way Congressman Berman presented the information, is correct.
The growers there would have preferred to use the H–2A program in a variety of cases as opposed to getting domestic workers through labor contractors from the Rio Grande Valley, who were able to pick similar crops during the same time.
Mr. BERMAN. Why?
Mr. JESZECK. Unfortunately I do not have the study in front of me, as I recall, it would have been cheaper for them to do so.
Mr. BERMAN. Because the recruitment fees, first of all, for the recruitment, are taken out of the workers, the worker, the H–2 worker in Mexico has to pay the money to the recruiter to get the visa.
Mr. JESZECK. That is correct.
Mr. BERMAN. To qualify.
Mr. JESZECK. That is correct.
Mr. BERMAN. The grower has to pay it when they are going to the Rio Grande Valley in Texas.
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Mr. SMITH. Mr. Berman, no fair coaching the witnesses. [Laughter.]
Mr. BERMAN. I am simply reading what he wrote. I mean it is a little unfair. I just read it. I didn't write it.
Mr. SMITH. I want to get to Mr. Canady and give him a chance to ask questions before we go to this vote. Mr. Canady is recognized.
Mr. CANADY. We do have a vote so I am not going to take long, but I appreciate your testimony. But I am quite frankly puzzled by the underpinning here. Let me ask this question. If the INS was successful in enforcing the law of the United States, what impact would that have on the agricultural sector of the economy? That is if there were no illegal farmworkers in the country, what would the impact of that be?
Ms. FAGNONI. I will answer first and then give a little bit of information. There is a disagreement over what would happen.
Mr. CANADY. Hold on just a second. Let me just say this.
Ms. FAGNONI. Okay.
Mr. CANADY. Now I have heard what you have said already. But I would like to ask you to focus on the question that I ask and answer that.
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Ms. FAGNONI. Right. That is why I will deal with that second question about the premise. There is real disagreement about what would happen if the 600,000 plus people who are now estimated to be working in the agricultural industry and not here legally would disappear. Agricultural growers say that they are very concerned about any efforts that INS would take that would be more effective, because they would lose an important source of workers.
Others, for example, advocates for agricultural workers, would argue that if agricultural employers would raise only their wage rates they could draw more workers. The question is an untested premise. This is an untested argument because there have not been more successful efforts to reduce the numbers of illegal aliens working in this country.
Mr. CANADY. So you don't really have an opinion on what the impact would be?
Mr. BERMAN. Would the gentleman yield on that question though? Just on the question you asked? It is a fascinating question. But it is if the moon were made of green cheese question because the notion that the INS is effective——
Mr. CANADY. Well, reclaiming my time, I think the point is here that it should be the objective of all of us to have a legal workforce in the agricultural sector. And the evidence seems to be that we have a workforce that is at least half not legal, maybe more than that. So I think we need to focus on that and try to figure out how to fix it and I understand that people of good faith have differences of opinion about how to fix that and I respect that and I understand there is inevitable controversy in an area like this, but I think we need to keep that in mind that this is not acceptable and we need to continue our work on it. I will yield back the balance of my time.
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Mr. SMITH. Thank you, Mr. Canady. We are going to stand in recess so that we can go vote and we will reconvene at one o'clock for the third panel. Meanwhile we thank both of you all for being witnesses today.
Ms. FAGNONI. Thank you.
Mr. FRASER. Thank you, Mr. Chairman.
[Recess]
Mr. SMITH. We welcome our next four witnesses on the third panel: Dr. James S. Holt, senior economist on behalf of the National Council of Agricultural Employers; Mr Robert Dolibois, executive vice president, American Nursery and Landscape Association; Mr. Mark Krikorian, executive director, Center for Immigration Studies; and Mr. Marcos Camacho, general counsel, United Farmworkers Union.
We appreciate you all being here and the members of the subcommittee being here as well, and we will proceed, if we may, Dr. Holt, with your testimony.
STATEMENT OF JAMES S. HOLT, SENIOR ECONOMIST, ON BEHALF OF THE NATIONAL COUNSEL OF AGRICULTURAL EMPLOYERS
Mr. HOLT. Thank you, Mr. Chairman, and members of the subcommittee. I appreciate the opportunity to testify on behalf of the National Council of Agricultural Employers on the need to reform the H–2A temporary alien worker program and H.R. 4548, the ''Agricultural Opportunities Act.''
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NCAE represents growers and agricultural organizations on agricultural and labor employment issues. NCAE's membership includes agricultural employers in all 50 States who apply approximately 75 percent of the Nation's hired farm labor. I am an agricultural economist and the technical consultant to the NCAE on the H–2A program and on labor and immigration matters.
At the outset we want to acknowledge the gratitude of the NCAE and, indeed, the entire agricultural industry to Representative Richard Pombo for his dedication, courage and leadership in once again attempting to address the problem of illegal employment in agriculture and of an H–2A program which is unworkable and uneconomical for most agricultural growers.
We believe the reforms of the H–2A program contained in the proposed H2–C program are balanced and effective reforms. They will enable farmers to access the needed foreign labor on a timely and efficient manner while protecting access of domestic farmworkers to U.S. agricultural jobs and protecting and improving the wages and working conditions of both domestic and foreign workers who work in U.S. agriculture.
Mr. Chairman, despite the fact that foreign workers have been a significant source of agricultural labor in the United States, at least for the last century, some still believe that foreign workers should not be legally permitted to work in the United States. They oppose any legislation directly or by advocating conditions for admission of foreign workers that assure that they cannot be used.
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We believe that an objective examination of U.S. agriculture renders this closed border view absurd. Similarly, we hear prescriptions that farmers need to increase their productivity and mechanize their way out of the problem or that agriculture should raise wages and working conditions and domestic workers will respond by becoming migrant and seasonal farmworkers or that if farmworkers were represented by unions, the problems would be resolved.
The fact is that agricultural production, technology and worker productivity have increased dramatically and continue to increase. The fact is that over the past decade, hourly earnings in agriculture have increased more rapidly than non-agricultural earnings. The fact is that U.S. production of labor intensive agricultural products has more than doubled and in some cases tripled since 1980 while hired agricultural employment in the U.S. remain essentially level.
But the fact remains that the seasonal farm workforce is largely illegal. Farm employers are vulnerable to the INS, to Social Security Administration and the IRS. Alien farmworkers are also vulnerable. They are exploited by coyotes, risk their lives to get into the U.S. and spend the entire time they are here looking over their shoulders. This situation is untenable. To suggest that we should ignore it because the INS does not have the resources or the political will to apprehend illegal aliens is grossly irresponsible.
The current H–2A program is not only unworkable for growers. Its quote ''protections'' are illusory and cosmetic for workers. Less than 2 percent of the agricultural workforce is covered by the current H–2A program. For the other 98 percent of the agricultural workforce, both domestic and foreign, the current H–2A protections are meaningless. By preventing growers from participating in a legal program, these protections are preventing them from achieving real protections that actually could change lives.
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The H–2A program and the Immigration and Nationality Act is unworkable and in a state of paralysis. It is administratively cumbersome and imposes uncompetitive requirements on employers. H.R. 4548 replaces the slow cumbersome paperwork process with modern computer technology. It assures that domestic workers will have first access to U.S. agricultural jobs and that there is widespread and easy access to information about these jobs.
The bill protects wages by making the prevailing wage the minimum wage. The bill assures free housing or housing allowance and transportation benefits to migrant farmworkers who have no such assurance at present. In short, it will raise the standard for domestic farmworkers and all H–2C approved occupations. Moreover, these benefits will be real benefits because employers will actually be able to use the program, not the cosmetic benefits offered by the current H–2A program.
The H–2A reforms of H.R. 4548 will also benefit illegal alien farmworkers, the majority of the seasonal agricultural workforce, by providing employers with a legal means to secure their services. It will free them from the fear, indignity and economic costs being thrown out of work on a moment's notice. It will free them from dependence on coyotes and on the costs and physical dangers of illegal entry.
Domestic workers in the upstream and downstream jobs created and sustained by U.S. agricultural production will also be assured continued job growth and employment. And finally, agricultural employers will be assured an adequate legal workforce and the certainty that will enable them to plan their businesses and make investments effectively. Thank you, Mr. Chairman.
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Mr. SMITH. Thank you, Dr. Holt.
[The prepared statement of Mr. Holt follows:]
PREPARED STATEMENT OF JAMES S. HOLT, SENIOR ECONOMIST, ON BEHALF OF THE NATIONAL COUNSEL OF AGRICULTURAL EMPLOYERS
Mr. Chairman and members of the Subcommittee:
I appreciate the opportunity to testify on behalf of the National Council of Agricultural Employers on the need to reform the H–2A alien agricultural worker program and H.R. 4548, the ''Agricultural Opportunities Act''.
The National Council of Agricultural Employers (NCAE) is a Washington, D.C. based national association representing growers and agricultural organizations on agricultural labor and employment issues. NCAE's membership includes agricultural employers in all fifty states who employ approximately 75 percent of the nation's hired farm labor. Its members are growers, farm cooperatives, 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 (IRCA) of 1986, and for the past five years has been actively advocating for legislation to address the current shortage of qualified legal labor for U.S. agriculture and the problems faced by the illegal alien workers upon whom the U.S. agricultural industry now heavily depends. NCAE's representation of agricultural employers and its long history of involvement with national immigration policy for farm workers and legal alien worker programs gives it the background and experience to provide meaningful comments and insights into the current U.S. farm labor system, the problems with the current H–2A program, and how S. 1814 will affect agricultural employers and farm workers.
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My name is James S. Holt. I am Senior Economist with the management labor law firm of McGuiness, Norris & Williams and the Employment Policy Foundation in Washington D.C. I serve as a consultant on labor and immigration matters to the NCAE. I am an agricultural economist, and have spent my entire professional career of more than 35 years 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 20 years have been a consultant in Washington D.C. I serve as the technical consultant to most of the current users of the H–2A program, and to employers and associations who are attempting to access the program. I was the principal H–2 technical consultant to the H–2A employer community during congressional consideration of the Immigration Reform and Control Act of 1986, and I have played a similar role for the NCAE for the nearly 5 years that Congress has again been considering legislation to deal with the shortage of legal farm labor.
For reasons that have been discussed before this Subcommittee and your counterpart committee in the Senate for more than 5 years, the procedures under which alien workers are brought into the United States and employed in seasonal agricultural jobs are desperately in need of reform. Rep. Pombo has been a leading voice in the House of Representatives for trying to accomplish H–2A reform. The agricultural industry and, indeed, the Nation owes Rep. Pombo an enormous debt of gratitude for his dedication, courage and leadership on this issue, which is so vital to the U.S. agricultural industry.
H.R. 4548 is another attempt to address the need for H–2A reform. It provides for a 3-year pilot of a reformed procedure for admission and employment of alien agricultural workers. We believe the reforms of the H–2A program contained in the proposed H–2C program, which are very similar to H–2A reforms enacted with broad bipartisan support in the Senate in the last Congress and which are included in legislation on which your Senate counterparts held a hearing last month, are balanced and effective reforms. They will enable farmers access to needed foreign labor in a timely and efficient manner while protecting access of domestic farm workers to U.S. agricultural jobs and protecting and improving the wages and working conditions of both domestic and foreign workers who work in U.S. agriculture.
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THE CURRENT STATUS OF AGRICULTURAL LABOR IN THE UNITED STATES.
While the United States agricultural industry is overwhelmingly an industry of family farms and small businesses, it is also heavily dependent on hired labor. Labor is an essential input in farming, and essentially all commercial farms rely to a greater or lesser degree on hiring labor to perform certain essential tasks. The 1997 Census of Agriculture reported more than 650 thousand farms hiring labor directly, and reported 3.4 million hires by farmers. More than 225 thousand farms also hired contract labor. Total expenditures for hired and contract labor in 1997 were $17.8 billion. This was 12 percent of total farm production expenses, or $1 of every $8 spent by farmers. Farmers spent more for hired labor in 1997 than they spent for seed, fertilizer, agricultural chemicals, petroleum products, interest or property taxes. In fact, after purchases for livestock and feed, hired labor accounted for greater farm production expenses than any other category of expenses reported in the Census of Agriculture. In the labor intensive fruit, vegetable and horticultural sectors, hired labor costs average 25 to 35 percent of total production costs, and in some individual commodities the percentage is much higher.
Aliens have always been a significant source of agricultural labor in the United States. In particular, labor from Mexico has supported the development of irrigated agriculture in the western states from the inception of the industry. As the U.S. economy has expanded, generating millions of new job opportunities, and as domestic farm workers have been freed from the necessity to migrate by the extension of unemployment insurance to agricultural workers in 1976, and the federal government has spent billions of dollars to settle domestic migratory farm workers out of the migrant stream and train them for permanent jobs in their home communities, domestic farm workers have moved out of the hired agricultural work force, especially the migrant work force,. These domestic workers have been replaced by alien workers, largely from Mexico, Central America and the Caribbean.
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As a result, the U.S. agricultural work force has become increasingly alien and increasingly undocumented. The U.S. Department of Labor's National Agricultural Worker Survey (NAWS) reported in its 1998–99 survey that 52 percent of seasonal agricultural workers working in the United States self-identified as not authorized to work in the United States. This was an increase from 37 percent in the previous survey only 3 years earlier, and from only about 12 percent a decade earlier. More than 70 percent of the new seasonal agricultural labor force entrants in the NAWS survey self identified as not authorized to work. Most experts agree that the statistics based on self-identification in the NAWS survey are likely very conservative. Evidence based on INS enforcement actions and verification of Social Security cards by the Social Security Administration often results in 60 to 80 percent or more of workers' documents being determined to be invalid or not pertaining to the person who presented them.
The combination of increased INS enforcement activity, the verification programs of the Social Security Administration, shortages of legal U.S. workers of unprecedented proportions and an unworkable program for the legal admission of alien workers are having serious negative consequences on the agricultural industry and the agricultural work force. Increased border enforcement, increased interior enforcement and increased SSA verification activity have led to reductions in labor availability and destabilization of the agricultural work force. These trends will continue. The increase in border enforcement personnel authorized by IRRIRA will not be complete until FY 2002. The SSA plans to continue lowering its threshold for rejection of employer tax returns due to name/number mismatches. These factors, coupled with the extraordinarily high levels of nonagricultural employment, have resulted in increasing frequency of farm labor shortages and crop losses and precipitated a problem which is rapidly reaching crisis proportions.
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Some opponents of alien agricultural worker programs argue that reform of the H–2A program is not needed because employer sanctions cannot be effectively enforced no matter what the government tries to do. The implication of this argument is that employers should endure the uncertainties and potential economic catastrophe of losing a workforce, and workers should continue to endure the uncertainties of being chased from job to job on a moment's notice. We find such reasoning unacceptable. It is an argument for the status quo, which all agree is unacceptable. Furthermore, it is unacceptable to refuse to address one public policy problem on the grounds that another accepted and enacted public policy will be ineffective. We must honestly face the issues that our policy of immigration control and employer sanctions confronts us with. We believe that calls for a workable alien agricultural worker program.
ARE THERE VIABLE ALTERNATIVES TO AN ALIEN AGRICULTURAL WORKER PROGRAM?
Opponents of the employment of an alien agricultural worker program suggest there are other ways to address the problem that would result from the removal of the illegal alien agricultural work force than the legal admission of alien agricultural workers.
One approach that is suggested is that agricultural employers should be ''left to compete in the labor market just like other employers have to do''. Under this scenario there would be no alien guestworkers. To secure legal workers and remain in business, agricultural employers would attract sufficient workers away from competing nonagricultural employers by raising wages and benefits. Those who could not afford to compete would go out of business or move their production outside the United States. Meanwhile, according to this scenario, those domestic persons remaining in farm work would enjoy higher wages and improved working conditions.
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There are several observations one must make about this ''solution''.
No informed person seriously contends that wages, benefits and working conditions in seasonal agricultural jobs can be raised sufficiently to attract workers away from their permanent nonagricultural jobs in the numbers needed to replace the illegal alien agricultural work force and maintain the economic competitiveness of U.S. producers. Thus this scenario predicates that U.S. agricultural production would decline. In fact, given that the U.S. hired agricultural work force is, by most estimates, about 70 percent illegal, it would decline dramatically.
Seasonal farm jobs have attributes which make them inherently noncompetitive with non-farm work. First and foremost is that they are seasonal. Many workers who could do seasonal farm work accepted less than the average field and livestock worker earnings of $7.22 per hour in 1999 because they preferred the stability of a permanent job. Secondly, many seasonal farm jobs are located in rural areas away from centers of population. Furthermore, to extend the period of employment, workers must work at several such jobs in different areas. That is, they must become migrants. It is highly unlikely that many U.S. workers would be willing to become migrant farm workers at any wage, or for that matter that, as a matter of public policy, we would want to encourage them to do so. In fact, the U.S. government has spent billions of dollars over the past several decades attempting to settle domestic workers out of the migratory stream. The success of these efforts is one of the factors that has led to the expansion in illegal alien employment. In addition to seasonality and migrancy, most farm jobs are subject to the vicissitudes of weather, both hot and cold, and require physical strength and stamina. Thus it is highly unlikely that a significant domestic worker response would result even from substantial increases in wages and benefits for seasonal farm work.
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However, substantial increases in current U.S. farm worker wages and benefits can not occur for economic reasons. U.S. growers are in competition in the markets for most agricultural commodities, including most labor intensive commodities, with actual and potential growers around the globe. Since hired labor constitutes approximately 35 percent of total production costs of labor intensive agricultural commodities, and 1 in 8 dollars of production costs for agricultural commodities generally, substantial increases in wage and/or benefit costs will have a substantial impact on growers' over-all production costs. U.S. growers are in an economically competitive equilibrium with foreign producers at approximately current production costs. Growers with substantially higher costs can not compete. If U.S. producers' production costs are forced up by, for example, restricting the supply of labor, U.S. production will become noncompetitive in world markets (including domestic markets in which foreign producers compete). U.S. producers will begin to be forced out of business. In fact, U.S. producers will continue to be forced out of business until the competition for domestic farm workers has diminished to the point where the remaining U.S. producers' production costs are approximately at current global equilibrium levels. The end result of this process will be that domestic farm worker wages and working conditions (and the production costs of surviving producers) are at approximately current levels and the volume of domestic production has declined sufficiently that there is no longer upward pressure on domestic worker wages.
These same global economic forces, of course, affect all businesses. But nonagricultural employers have some options for responding to domestic labor shortages that agricultural employers do not have. Many nonagricultural employers can ''foreign source'' the labor intensive components of their product or service without losing the good jobs. Since agricultural production is tied to the land, the labor intensive functions of the agricultural production process cannot be foreign-sourced. We cannot, for example, send the harvesting process or the thinning process overseas. Either the entire product is grown, harvested, transported and in many cases initially processed in the United States, or all these functions are done somewhere else, even though only one or two steps in the production process may be highly labor intensive. When the product is grown, harvested, transported and processed somewhere else, all the jobs associated with these functions are exported, not just the seasonal field jobs. These are the so-called ''upstream'' and ''downstream'' jobs that support, and are created by, the growing of agricultural products. U.S. Department of Agriculture studies indicate that there are about 3.1 such upstream and downstream jobs for every on-farm job. Most of these upstream and downstream jobs are ''good'' jobs, i.e. permanent, average or better paying jobs held by citizens and permanent residents. Thus we would be exporting about three times as many jobs of U.S. citizens and permanent residents as we would farm jobs if we shut off access to alien agricultural workers.
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Another suggestion has been that recruitment of welfare recipients and the unemployed could replace the illegal aliens. Growers themselves, most notably the Neisi Farmers League in the San Joaquin valley, have tried to augment their labor supply by recruiting welfare recipients. While these efforts have resulted in some former welfare recipients moving into jobs on farms, the magnitude of this movement has been insignificant. In fact, welfare directors suggest that the long term impact of welfare reform is likely to exacerbate rather than reduce the shortage of domestic farm labor. Some seasonal farm workers currently depend on the combination of farm work in-season and welfare assistance during the off season. As limitations are set on persons' lifetime welfare entitlement, this pattern will no longer be viable. Seasonal farm workers who supplement their earnings with welfare will be forced into permanent nonagricultural jobs. Other attributes of seasonal farm work are also deterrents. The preponderance of those now remaining on the welfare rolls are single mothers with young children. Many are not physically capable of doing farm work, do not have transportation into the rural areas and are occupied with the care of young children.
The unemployed also make, at best, a marginal contribution to the hired farm work force. Currently, the U.S. is enjoying historically low levels of unemployment and many labor markets are essentially at or above full employment. However, relatively high unemployment rates in some rural agricultural counties are often cited as evidence of an available labor supply or even of a farm worker surplus. First it should be noted that labor markets with a heavy presence of seasonal agriculture will always have higher unemployment rates than labor markets with a higher proportion of year round employment. By the very nature of the fact that farm work is seasonal, many seasonal farm workers spend a portion of the year unemployed. Second, unemployed workers tend to share the same values as employed workers. They prefer permanent employment which is not physically demanding and takes place in an inside environment. They share an aversion to migrancy, and often have transportation and other limitations that restrict their access to jobs. The coexistence of unemployed workers and employers with labor shortages in the same labor markets means only that we have a system that enables workers to exercise choices.
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Many welfare recipients and unemployed workers can not or will not do agricultural work. It is reasonable to expect an alien worker program to have a credible mechanism to assure that domestic workers who are willing and able to do farm work have first access to agricultural jobs, and that aliens do not displace U.S. workers. It is not reasonable to expect or insist that welfare and unemployment rolls fall to zero as a condition for the admission of alien workers.
A third alternative to alien workers often suggested is to replace labor with technology, including mechanization. This argument holds that if agricultural employers were denied access to alien labor they would have an incentive to develop mechanization to replace the alien labor. Alternatively, it is argued that the availability of alien labor retards mechanization and growth in worker productivity.
The argument that availability of alien labor creates a disincentive for mechanization is belied by the history of the past two decades. From 1980 to the present the output of labor intensive agricultural commodities has risen dramatically while hired agricultural employment has declined. The only way this could have happened is as a result of significant agricultural labor productivity increases. Yet this was also the period of perhaps the greatest influx of illegal alien farm workers in our history.
It does not appear that there has been a great deal of increase in agricultural mechanization in fruit and vegetable farming since a spasm of innovation and development in the 1960's and 1970's. Indeed, some of the mechanization developed during that period, specifically mechanical apple harvesters, have proven to be uneconomical in the long term because of tree damage as well as fruit damage. Agricultural engineers claim the reason for this is the withdrawal of support for agricultural mechanization research by the U.S. Department of Agriculture following protests and litigation by farm workers in California that such research was taking away their jobs.
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But productivity increases can result from many different factors, of which mechanization is only one. Smaller fruit trees, which require less ladder climbing, trellised trees, and changes in the way trees or vines are pruned are also technological developments which improve labor productivity. The switch from boxes and small containers to bulk bins and pallets in the field has significantly improved labor productivity of some harvesting activities. Use of production techniques and crop varieties that increase yields also improves field labor productivity by making harvesting and other operations more efficient. These appear to be the techniques that farmers have used to achieve the large productivity increases obtained in the 1980's and 1990's. The fact that there appears to have been a slowing down in the pace of mechanization itself does not mean that growth in worker productivity has slowed.
The argument that alien employment retards productivity increases is also belied by logic. The incentive for the adoption of mechanization or any other productivity increasing innovation is to reduce unit production costs. If the innovation results in a net savings in production costs it will be adopted. It doesn't matter whether the dollar saved is a dollar of domestic worker wages or a dollar of alien worker wages. On the other hand, if the innovation results in a net increase in production costs, it will not be adopted. The only way one can argue that a reduction in alien labor will increase the incentive to mechanize is to argue that the reduction in alien labor will first increase production costs. But if, as is argued elsewhere in this testimony, the tendency for domestic producers costs to rise in response to a withdrawal of labor is offset by shifting domestic market share to foreign producers, the incentive for additional domestic mechanization will never occur. In a global market, the profitability of mechanization, just like the profitability of everything else, is determined by global production costs, not by domestic production costs.
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A fourth alternative to the importation of alien farm workers which has been suggested is the unionization of the farm work force. The implication of this scenario is that unionization would augment the supply of legal seasonal farm workers and make alien farm workers unnecessary. Alternatively, it is argued that an alien agricultural worker program will make it more difficult for domestic farm workers to unionize and improve their economic welfare.
First it should be noted that use of the H–2A program as a strike breaking tool is expressly prohibited. H–2A workers may not be employed in any job opportunity which is vacant because the former occupant of the job is on strike or involved in a labor dispute. Secondly, there is no impediment to an H–2A worker becoming a union member. Indeed, the H–2A program has been used for decades in unionized citrus operations in Arizona. Recently, a farm worker union supported a grower's H2–A application as a means of providing legal status for its own members. If an employer seeking labor certification has a collective bargaining agreement and a union shop, the H–2A aliens, like all other employees, can be required to pay union dues and may become union members.
But there is no reason to believe that unionization will result in an increase in the availability of legal labor, nor, indeed, any reason to believe that the membership of farm worker unions is more legal than the rest of the agricultural work force. Farm worker unions and farm employers are fishing out of the same labor force pool. The argument that increased farm worker unionization will increase the supply of legal labor is based on the supposition that farm worker unions will be successful in negotiating higher wages and more attractive working conditions than in nonunion settings, and that this will attract more domestic legal labor. Yet wages and working conditions in union and nonunion settings are not (and in competitive global markets cannot be) significantly different. Furthermore, the same reasons described above why higher wages and benefits for seasonal agricultural work, even if they were economically feasible, would not attract significantly more legal workers into seasonal agricultural work, are as applicable in a union setting as in a nonunion setting.
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The reality is that an alien agricultural worker program is probably union-neutral. Existence of such a program will probably not make it significantly more difficult or easier to organize farm workers.
WHY DOES THE H–2A PROGRAM NEED TO BE REFORMED?
There are two broad reasons why the H–2A program needs to be reformed.
First, the program is administratively cumbersome and costly. Even at its present level of admission, fewer than 30,000 workers annually, the program is nearly paralyzed. Secondly, the program sets minimum wage and benefit standards that many employers cannot afford or cannot qualify for. As a result, the program's ''worker protections'' are cosmetic. They ''protect'' only about 30,000 job opportunities in an agricultural work force estimated at more than 2 million. The vast majority of agricultural workers, legal and illegal, get little or no benefit from the H–2A ''protections''.
Administrative and procedural problems.
The first reason why the current H–2A program must be reformed is that it is administratively cumbersome and costly. The regulations governing the program cover 33 pages of the Code of Federal Regulations. ETA Handbook No. 398, the compendium of guidance on program operation, is more than 300 pages. Employers must apply for workers a minimum of 645 days in advance of the date workers are needed. Applications, which often run more than a dozen pages, are wordsmithed by employers, by the Labor Department and by legal services attorneys. Endless discussions and arguments occur over sentences, phrases and words. After all this fine tuning, workers see an abbreviated summary of the order if they see anything at all. In hearings in Oregon last year workers often testified that they were referred to H–2A jobs without even being told the wage rate that was offered.
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Each employer applicant goes through a prescribed recruitment and advertising procedure, regardless of whether the same process has been undertaken for the same occupation by another employer only days earlier. The required advertising is strictly controlled by the regulations and looks more like a legal notice than a help wanted ad. Increasingly, the Labor Department is requiring that advertising be placed in major metropolitan dailies, rather than the local newspapers that farm job seekers are most likely to read, if they look for farm work in help wanted ads at all. The advertisements rarely result in responses, yet they are repeated over and over again, year in and year out.
Certifications are required by law to be issued not less than 30 days before the date of need. Yet the GAO reported in 1997 that H–2A labor certifications were issued late more than 40 percent of the time, when the law required that they be issued only 20 days before the date of need.
Even after all this, the employer has no assurance that the ''domestic'' workers referred to it are, in fact, legal. Most state job services refuse even to request employment verification documents, much less verify that they are valid. It is the experience of H–2A employers that a substantial and increasing proportion of the ''domestic'' workers referred, and on the basis of which certification to employ legal alien workers is denied, are in fact illegal aliens themselves. State employment service officials have even been known to suggest to H–2A growers that they should go back to employing illegal aliens and save themselves and the employment service all the hassle.
Finally, a high proportion of the workers referred to H–2A employers and on the basis of which the employer is denied labor certification for a job opportunity, either fail to report for work or quit within a few hours or days. This then forces the employer to file with the Labor Department for a ''re-determination of need''. Even though re-determinations are usually processed within a few days, the petition and admission process after re-determination means that aliens will, at best, arrive about 2 weeks late.
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Inflexible and uneconomical employment standards.
The second reason why reform is needed is that the current H–2A program requires wage and benefit standards that are unreasonably rigid or not economically feasible in many agricultural jobs, and effectively exclude those jobs from participating in the H–2A program.
The so-called Adverse Effect Wage Rate (AEWR) is one such standard. The Adverse Effect Wage Rate is a minimum wage set on a state-by-state basis by regulation, and is applicable to workers employed in job opportunities for which an employer has received a labor certification. The Adverse Effect Wage Rate standard is unique to the H–2A program and does not exist in any other immigration or labor certification program. It was established to create a minimum wage standard in jobs where foreign workers were employed, because the federal minimum wage law did not cover agriculture at that time. AEWRs were initially set at the level of the then non-agricultural federal minimum wage. Over time, AEWRs were adjusted by a variety of methodologies. Since 1987, each state's AEWR is set at the average hourly earnings of field and livestock workers for the previous year in the state or a small region of contiguous states. For the 2000 season, AEWRs range from $6.39 per hour in Kentucky, Tennessee and West Virginia to $7.76 per hour in Iowa and Missouri. The average AEWR is $7.22 per hour.
The AEWR sets a minimum wage standard that makes it uneconomical to use the H–2A program in many agricultural occupations. The AEWR standard, in effect, makes the average wage in one year the minimum wage in the ensuing year. Since the AEWR is set at the average of the wages for all agricultural workers in the state, it will be above the actual wages paid for about half of the agricultural employment in the state, and below the actual wage for about half of all agricultural employment in the state. Obviously, this standard will not be a deterrent in using the H–2A program in occupations in which the actual wage is above the average wage for all agricultural occupations. But it can be a noncompetitive and unrealistic standard for an occupation in which the actual wage is below the average of all agricultural wages in the state. Since, by definition, half of all employment will always have an actual wage below the average wage, this standard will always set a noncompetitive wage for some occupations, no matter how much agricultural wages rise.
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Another example of an unreasonably rigid standard is the requirement to provide housing. The current H–2A program requires an employer to have housing for all the job opportunities for which an employer applies for labor certification except those job opportunities from which local workers will commute daily from their permanent residences, and to provide that housing at no charge to the workers. Agricultural employers are only required to provide housing to workers if they participate in the H–2A program or use the Department of Labor's interstate clearance system to recruit workers. Only a tiny fraction of U.S. agricultural employers do either.
The U.S. Department of Agriculture stopped reporting the percentage of hired agricultural employment that included employer-provided housing after 1995. But up to that time only about 15 percent of agricultural employment included employer-provided housing, either free or at a charge. Given that this percentage had remained relatively unchanged for many years, it probably reflects current practice reasonably accurately. Since many employers who provide housing do so only for year round employees such as foremen and supervisors, it is likely that the proportion of seasonal workers provided housing is even lower. In other words, the vast majority of seasonal agricultural workers currently arrange their own housing. Employer-provided housing tends to be provided to seasonal workers only in those areas dependent on migrant workers that are so remote that community-based housing is unavailable.
The requirement for employer-provided housing is one of the greatest current obstacles to expanded use of the legal alien agricultural worker program. Providing housing is extremely expensive, and there are many other community obstacles to overcome as well. In areas where the housing stock is already adequate to accommodate the seasonal agricultural work force, agricultural employers are understandably reluctant to invest large sums to construct employer-provided housing. Even where the housing stock is not currently adequate, employers are reluctant to invest in housing unless there is assurance of a workable program for securing labor to live in the housing.
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There certainly can be no disputing the proposition that there must be adequate housing for both domestic and alien seasonal agricultural workers. The policy question then is under what conditions this housing should be employer-provided, and in those circumstances how we get from where we are now to a situation where there is adequate employer-provided housing.
The wage and housing standards of the current H–2A program are but two of the many provisions in the current program that make it cumbersome, costly, untimely and unworkable. There are many others, a number of which are addressed in the H–2C reforms of H.R. 4548.
H.R. 4548'S REFORMS OF THE H–2A PROGRAM.
The H–2C provisions of H.R. 4548 are intended to modernize and streamline the administrative procedures for domestic worker recruitment and admission of alien agricultural workers and to reform the terms and conditions employers must offer to secure the services of legal alien workers. These reforms provide real benefits and protections for both domestic and alien farm workers rather than the illusory and cosmetic protections of the current H–2A program, which have the result of perpetuating the status quo in which alien workers are forced to enter and work in the U.S. illegally.
The Agricultural Worker Registries
H.R. 4548 replaces the archaic, labor intensive and time consuming labor certification process currently used to determine the availability of U.S. workers with a computer-based agricultural worker registry administered by the Secretary of Labor. Workers legally entitled to work in the United States who are interested in undertaking seasonal agricultural work could register with the registry. They would indicate the kinds of agricultural work experience they had and the kinds of jobs they were interested in as well as the geographic areas they were willing to consider, the time of year they wanted work and any other specific requirements. The Secretary of Labor would determine that the applicant was eligible to work in the United States and put the worker's information in a computerized data bank. Employers seeking seasonal agricultural workers would list the specifications of their jobs with the registry. All agricultural employers would be entitled to list their job opportunities with the registry. However, employers seeking permission to employ H–2C aliens if sufficient U.S. workers could not be found would be required to list their jobs with the registry, and the jobs would be required to meet the specific terms and conditions of employment required for H–2C occupations by H.R. 4548.
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When an employer's job was accepted by the registry, the data bank would be searched to identify registered workers who meet the specifications of the job. The registry would contact registered workers who met the specifications of the job and inform the registrant of the specific job opportunity. The registrant would, of course, be free to accept or decline the job opportunity. The employer would be provided with the names, social security numbers and contact information of the workers who accepted the employer's job opportunity, and the workers would be provided with the information about when and where to report for the job.
If an employer seeking workers from the registry indicates on the application that the employer desires to employ H–2C aliens in job opportunities that could not be filled with U.S. workers, and the employer's job opportunities meet the terms of the H–2C program required by H.R. 4548, then if sufficient qualified workers can not be found on the registry who accept the employer's job offer, the registry will issue a ''shortage report'' which authorizes the employer to employ up to the number of H–2C aliens for which sufficient U.S. workers could not be found. Based on the shortage report, the employer could either seek admission of H–2C workers from outside the United States, or employ H–2C workers already in the United States who had completed their work contracts and were eligible to undertake additional employment.
The registry mechanism offers significant improvements over the current labor certification system. One of the most important of these is timeliness. Currently, employers seeking H–2A workers are required to file a labor certification application a minimum of 45 days in advance of the date workers are needed. This is followed by the cumbersome procedures for processing job orders and recruiting U.S. workers described in the preceding section. The Labor Department is currently required by statute to issue the labor certification 30 days in advance of the date workers are needed, but this rarely occurs. Even when certification was required only 20 days before the date of need, a GAO study showed that the DOL was late issuing certifications at least 40 percent of the time.
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The registry mechanism is based on searching a computerized data bank of workers who have already indicated their interest in agricultural employment. H.R. 4548 requires the Secretary of Labor to advertise the availability of the registry widely to prospective agricultural workers to maximize the number of registrants. Employers are required to list their job opportunities with the registry only 28 days before the date workers are needed. The shortage report must be issued a minimum of 7 days before the workers are needed, and is transmitted directly to the consulate where the employer's workers will apply for their visas if the employer is seeking newly admitted aliens. H.R. 4548 also provides for emergency applications after the 28-day application deadline in cases of unforeseen need, and authority for the admission of H–2C aliens if the DOL fails to act on an application within the statutory time frames.
The registry also assures that the workers referred to the employer are, in fact, legally entitled to work in the United States. One of the ironies of the current H–2A program is that employers have no assurance that the ''U.S.'' workers referred by the Department of Labor are legally entitled to work in the United States, and experience has shown that a high proportion of them are fraudulently documented. Thus the current program provides no assurance of legal workers even after the employer has met all of the H–2A program requirements. Since the employment eligibility of all workers referred through the registry would be assured, the employer is guaranteed a legal work force by using the registry.
Terms and Conditions for the Employment of H–2A Aliens
H.R. 4548 requires terms and conditions of employment that substantially exceed those required of employers who do not employ legal alien labor and substantially exceed the terms and conditions of employment required by all non-agricultural alien employment programs, whether for temporary or permanent employment. These terms and conditions of employment also substantially exceed those actually provided to most domestic and alien farm workers at the present time. Furthermore, the required terms and conditions of employment apply to all workers in the occupation for which the employer applies to employ H–2C aliens, and apply even if all the employers' job opportunities are filled with U.S. workers. Thus, if H–2C employment increases as a result of the reforms of H.R. 4548, it will lead to improvements for farm workers generally, not just for H–2A farm workers.
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To qualify to employ H–2C workers, H.R. 4548 requires that the employer offer the higher of the prevailing wage for the occupation and area of intended employment, or the applicable federal, state or local statutory minimum wage, in any occupation for which H–2C workers are sought. This is the same wage standard used in the H–1B and H–2B programs as well as for employment-based permanent immigrants. It is also the wage standard used in the Davis-Bacon Act and the Service Contract Act. H.R. 4548 also includes a provision that goes beyond the prevailing wage standards in other legislation, and assures that prevailing wages do not stagnate. The bill provides that if the prevailing wage in an agricultural occupation is below the average wage for all field and livestock workers in the state or groups of states, the wage offered must be at least 5 percent above the prevailing wage, or such lesser amount as would make the wage equal to the average field and livestock worker wage rate for the state or group of states.
Critics of H–2A reform are fond of dismissing agricultural work as minimum wage work, though they almost never cite actual wage rates. That is because agricultural work is not minimum wage work. The average hourly cash wages of non-supervisory field and livestock workers in 1999 were $7.22 per hour, and for all hired farm workers were $7.77 per hour. This is higher than the wages for many unskilled and low skill occupations in the same labor markets. Critics also charge that agricultural wages have declined in recent years in real terms. This is also a very misleading criticism. The fact is that agricultural wages have risen more rapidly than non-agricultural wages. Using the current CPI wage deflators, now widely conceded by economists to overstate inflation, all wages have declined in real terms in recent years. However, agricultural wages have risen more in dollar terms, and declined less in real terms, than non-agricultural wages.
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Critics of H.R. 4548 also claim that the bill would result in a reduction in wages. This is patently untrue. If the prevailing wage in any given year becomes the minimum wage for the next year, wages cannot possibly decline, and will always rise. Furthermore, since the prevailing wage is defined in H.R. 4548 as the 51st percentile of wages in the occupation in the area of intended employment, this means that wages at the bottom end of the wage distribution will always be above the previous year's prevailing wage for those occupations, and the average wage will always rise. To the extent that there is a legitimate concern about this wage standard, it is that it is inflationary, not that it would result in wage declines. While agricultural employers are concerned about the potentially inflationary impact of H.R. 4548's wage standard, the NCAE is willing to accept this wage standard if employer's can be assured an adequate supply of legal labor at a total employment cost that is acceptable.
Current law merely provides that the wages and working conditions offered by applicants for H–2A workers may not ''adversely affect'' United States workers similarly employed. The current ''adverse effect wage rate'' (AEWR) requirements of the H–2A program are a regulatory construct of the Department of Labor, not a statutory requirement. As with so many of the existing H–2A regulations, the adverse effect wage rate regulations prevent workers from obtaining real wage protections rather than providing such protections.
The current AEWR regulations set the average wage for all agricultural occupations in a state or region as the minimum wage for all H–2A employment. If the prevailing wage in the occupation and area of employment is higher than this average wage, then the prevailing wage in the occupation and area of employment becomes the minimum. Thus, in occupations where the prevailing wage in the occupation is above the average wage for all occupations (roughly half of all agricultural employment), the current AEWR has no effect at all, and the prevailing wage is the minimum wage for H–2A employment. But in occupations in which the prevailing wage is below the average wage for all agricultural workers (again, by definition, roughly half of all agricultural employment), the current AEWR sets a wage standard that can make use of the H–2A program uneconomical and preclude employers from using it in that occupation.
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That is what has happened in the current H–2A program. The AEWR regulations offer purely cosmetic ''protection'', because where the AEWR sets a wage standard appreciably above the prevailing competitive wage employers cannot afford to use the program. Currently there are fewer than 50 thousand H–2A certified job opportunities, yet the U.S. Census of Agriculture shows that there are well over 3 million ''hires'' by agricultural employers in the United States each year. About 2.5 million people are employed at some time during the year in hired agricultural employment. The more than 98 percent of agricultural workers working outside the H–2A program are protected only by the statutory minimum wage. Virtually all of the miniscule amount of agricultural employment current in the H–2A program and covered by the AEWR standard is in occupations where the prevailing wage is near, at, or above the average wage, and therefore the AEWR has no effect on such employment. By creating a program that, in its totality, creates an administrative structure and terms and conditions of employment that employers can actually use, H.R. 4548 creates wage and other protections that are real rather than cosmetic, and that will actually protect farm workers.
The housing provisions of H.R. 4548 also represent a significant reform of the current H–2A regulations that have been mischaracterize by critics of the bill. H.R. 4548 requires that workers recruited from outside the local area be provided with housing or, under controlled circumstances, a monetary housing allowance. If the employer provides housing, it must meet applicable federal farm worker labor camp standards or, if it is public accommodation housing such as a hotel, motel or apartment, the applicable standards for such public accommodation housing. In order for the monetary housing allowance to be an option (after a 3-year initial transition period), the state must certify that there is sufficient in-season housing available in the area of intended employment. The amount of the monetary allowance is set on a state-by-state basis based on the allowances for non-metropolitan counties in the Department of Housing and Urban Development's section 8 housing voucher program.
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At present most farm workers are not provided with housing by their employers and must find their own housing. The requirement to provide housing imposes substantial costs and management burdens on employers. It also takes time to obtain the necessary approvals, financing and undertake the construction. Although the public seems to favor employers providing housing for their migrant workers, when specific projects are proposed the ''not-in-my-backyard'' scenario is frequently triggered. Agricultural employers are reluctant to confront the formidable expenses and other obstacles to employer-provided housing without reasonable assurance that there is an adequate source of legal workers available through a reformed foreign worker program. In an attempt to end this ''chicken-egg'' standoff, H.R. 4548 provides a 3-year transition period during which employers can provide a monetary housing allowance in lieu of housing in H–2C occupations. We believe this is a reasonable provision that will ultimately result in more and better housing for farm workers.
Critics of H.R. 4548 claim that H.R. 4548 eliminates the requirement to provide housing. The bill, of course, does no such thing. Instead, it provides the flexibility to utilize housing in the community when an independent determination is made that sufficient housing exists in the community.
H.R. 4548 also requires employers to reimburse in-bound transportation of migrant workers who complete at least half of the period of employment of the job opportunity, and provide or pay for return transportation of workers who complete the period of employment. This requirement applies to all trips of more than 100 miles. They must also be reimbursed for subsistence costs en route. This requirement is similar to the current H–2A regulations.
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Job opportunities for which an employer applies to employ H–2C workers must also be covered by workers' compensation.
H.R. 4548 also provides other important protections for U.S. and alien workers employed in occupations approved for H–2C employment. No qualified U.S. worker may be refused employment for other than a lawful job-related reason, and no worker may be terminated prior to the end of the job except for a lawful job-related reason. An H–2C alien may not be employed in a job opportunity which is vacant because the previous occupant of the job is on strike or involved in a labor dispute. Employers must comply with all employment-related laws, and the provisions of the federal Migrant and Seasonal Agricultural Worker Protection Act (MSPA) are extended to H–2C aliens who are provided only limited coverage under current law. To effectuate the preference for U.S. workers, employers must advertise the job opportunities available through the registry and must inform workers and prospective workers of the availability of the registry. The employer must also make reasonable efforts to contact workers employed in the occupation in the previous season and make them aware of the availability of the job opportunities. The bill also provides for enhanced worker protections and labor standards enforcement, including back wages, civil money penalties, and program disqualification for repeated violators. Finally, both the registry and the H–2C admission program are funded by employer-paid user fees.
CRITICISMS OF THE REFORMS PROPOSED IN H.R. 4548.
Critics of the reforms in the H–2C provisions of H.R. 4548, and the corresponding provisions of the Senate legislation have grossly misrepresent the reform provisions of the bills in a shameless attempt to forestall a workable alien foreign worker program. In the guise of protecting farm workers, they argue for a system that keeps alien farm workers in illegal status while providing no actual benefits or protections to U.S. farm workers because farmers are unable to use the program. The principal criticisms of the H–2A reform provisions of H.R. 4548 are discussed in the following paragraphs. This discussion is based on a document ''Analysis of Pombo H–2C Guestworker Proposal, H.R. 4548'' distributed to congressional staff shortly after the introduction of H.R. 4548 by the Farmworker Justice Fund, Inc. The italicized quotations below are from that document.
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Time and space limitations do not permit detailed response to all the inaccuracies and misrepresentations of the critics of H.R. 4548. The fact that a statement is not responded to below should not be taken as to indicate that it is true. The following is merely a sampling of the more important misrepresentation of the critics. The National Council of Agricultural Employers will be happy to respond to other issues in which the Subcommittee may have an interest.
Protecting domestic farmworkers' access to U.S. agricultural jobs.
''No positive recruitment or Job Service circulation of job offers would be required by the Pombo bill''.
H.R. 4548 provides that no H–2C workers can be authorized unless the employer has listed the job opportunities with the new agricultural worker registry which would be created by the legislation. When workers list themselves with the registry they can indicate all the types of jobs for which they are qualified and are interested, and all the areas of the country in which they are willing to work. Thus a worker can indicate that he or she wishes to be considered for jobs anywhere in the U.S., if that is the worker's desire. Available qualified workers from anywhere in the U.S. can be referred to the employer, and the availability of such worker prevents that job opportunity from being approved for H–2C employment unless the U.S. workers subsequently fails to report for work. Employers are also required to advertise the registry and to advertise their job opportunities in the local media.
''The new system of state job registries is designed to fail to refer U.S. workers to such employers and thereby justify the issuance of visas to exploitable guestworkers.''
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The domestic worker registry contained in Sec. 101 is a computerized system for matching workers and jobs. It is clearly designed to accomplish that, and basis for the assertion that is designed to fail is provided. After the registry concept was first proposed in the 105th Congress the U.S. Department of Labor proposed ''AgNet'', which is essentially the same computerized job matching concept for farm workers and agricultural employers. Earlier this month, the Department of Labor sponsored a briefing to tout the benefits of AgNet, and is asking Congress to appropriate funds for it.
It is also important to note that even after permission is granted to employ foreign workers is granted, employers are obligated to employ any qualified U.S. worker who becomes available if another similar job offering substantially similar wages and benefits is not available on the registry in the area of intended employment.
''Under this proposal, all agricultural employers could reject qualified U.S. workers who applied for a job directly to the employer, or through a non-profit group, a union, or a farm labor contractor.''
Sec. 201(c)(4) of H.R. 4548 requires the employer to ''assure that the employer will not refuse to employ qualified individuals referred under section 202'', which is the section referring to referral of domestic workers by the registry. Domestic workers must be given preference in employment both before and after permission to employ H–2C aliens is granted. This criticism apparently refers to the fact that an employer can require prospective employees to register with the registry, thus assuring that the prospective employee is legally entitled to work in the United States. Since all legal workers can register with the registry, this objection can only be interpreted as intended to protect access to jobs by workers not legally entitled to work in the United States.
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Housing.
''The Pombo H–2C program would eliminate the housing obligation and authorize employers to provide below-market-rate housing allowances (at least for three years)''
The requirement to provide housing is contained in Sec. 204(b) of H.R. 4548. This section requires that an employer who applies for H–2C workers in an occupation must provide free housing or a monetary housing allowance to all workers in the occupation (including domestic workers) whose place of residence is beyond normal commuting distance. After a 3-year transitional period, the provision of a monetary housing allowance would only be permitted in areas where the governor of the state certified that ''there is adequate housing available in an area of intended employment for migrant farm workers, and nonimmigrant aliens [. . .] who are seeking temporary housing while employed at farm work.'' This certification expires if not renewed at least every third year. The amount of the housing allowance, if an allowance is provided, must be equal to the statewide average fair market value for existing housing for non-metropolitan counties for the State established by the Secretary of Housing and Urban Development under the so-called Section 8 housing voucher program. The allowance includes rent and utilities.
The present H–2A program requires employers to acquire and maintain housing units for all alien and domestic employees in the certified occupation, whether the workers occupy it or not. In many areas off-farm housing for migrants does exist, and many farm workers prefer to live off the farm. Under the current H–2A program, an employer can be in the absurd position of having to maintain housing merely to qualify for the H–2A program, while the workers live off the farm at their own expense. Furthermore, when they are not busy opposing the H–2A program, farmworker advocates often argue that off-farm housing not under the control of the employer is preferable. It does not make sense to require employers to build housing in areas where migrant housing is already available. It is also likely that if farmers elect to provide housing allowances in lieu of housing the local housing market would respond to this demand for housing backed by monetary housing allowances.
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Finally, it should be noted that current law does not require employers to provide housing except in H–2A certified job opportunities, and most agricultural employers do not currently provide housing. In 1995 when the USDA stopped reporting the percentage of hired agricultural employment that included employer-provide housing (either free or at a charge), only about 15 percent of agricultural employment was provided housing. Thus the vast majority of farm workers are not now provided housing. The employers currently utilizing the H–2A program obviously are among those who already had housing or they could not have entered the program. The H–2A program is ''providing housing'' for at most fewer than 50,000 H–2A certified job opportunities in a hired agricultural work force estimated at 2.5 million. Many more farmworkers than that are being ''protected'' from receiving housing or a housing allowance by the farm workers advocates' insistence on an unworkable and uneconomical H–2A program. Farmers are not going to spend millions to build housing for a program that is burdensome, costly, and do not produced workers on a timely basis when it works at all, or that will only provide workers at a cost at which the grower cannot afford to employ them.
Housing is one of the most difficult issues in making the H–2A program workable and accessible to farmers. Since the overwhelming majority (85 percent) of agricultural employment is not currently provided housing, it will take a huge investment and take several years, to significantly expand the stock of employer-provided housing, and many farmers will be reluctant to make the investment without some assurance of a workable and economical program. It certainly is not beneficial to current farm workers, who are not being provided either housing or an allowance, to be ''protected'' from receipt of a housing allowance by keeping their employers out of the H–2C program during this transition. The 3-year transitional housing allowance provision is one of the most important reforms in the H–2C provisions of H.R. 4548.
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Work Guarantees
''The H–2C program would lack any minimum work guarantees.''
Sec. 201 (c)(4) of the H–2C program provides that (1) U.S. workers may not be denied employment for other than a lawful job-related reason, and that (2) a U.S. worker may not be terminated for other than a lawful job-related reason, including lack of work. These employment guarantees replace the so-called ''three-quarters guarantee'' of the H–2A program.
The three-quarters guarantee of the H–2A program requires an employer to predict more than 45 days in advance of the date work begins, exactly how long the will last, and then guarantee workers pay for at least three-quarters of that period, even if there is no work available. Only ''acts of God'', as determined by a U.S. Labor Department official on a case-by-case basis, cancels the guarantee. This is a prime example of an unreasonable and unworkable provision of the current H–2A program, given the uncertainty and unpredictability of agriculture. H.R. 4548 does the reasonable thing, and guarantees workers access to employment and that they will not be unlawfully terminated while there is work available.
Wage protections.
''Farmworkers' wages have been declining in real terms for the last decade. This wage depression is caused partly by the presence of economically and politically weak guestworkers and undocumented workers (whose presence has increased to 52% of the labor force''.
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This statement is demonstrably misleading and therefore false. Farmworker wages have outperformed non-farm worker wages over the past decade, even as the proportion of the seasonal agricultural work force which is undocumented has risen dramatically. Average hourly earning of non-supervisory field and livestock workers (as reported by the U.S. Department of Agriculture) have risen faster in dollar terms, and declined less in real terms than non-supervisory non-agricultural production workers (as determined by the Bureau of Labor Statistics) over the past decade.
The first U.S. Department of Labor National Agricultural Worker Survey (NAWS), which was undertaken as a result of the passage of the Immigration Reform and Control Act of 1986, reported that 12 percent of U.S. seasonal agricultural workers were not legally entitled to work in the United States. By the 1998–1999 survey that percentage had increased to 52 percent. Given the fact that agricultural wages outperformed nonagricultural worker wages during that period, it is ludicrous to argue that agricultural earning are depressed by the presence of illegal aliens. In fact, the presence of the aliens has enabled the expansion of U.S. agricultural production of labor intensive agricultural commodities and led to the creation of thousands of good paying long term seasonal and year round jobs in upstream and downstream activites created by the growth in agricultural production.
''Wage provisions would lower H–2A wage rates.''
As explained in a previous section of this testimony, the adverse effect wage rate provisions of the current H–2A program are such that they offer only cosmetic protection to workers. In the current H–2A program the employer is required to pay the higher of the prevailing wage or the adverse effect wage rate. Most of the less than 2 percent of U.S. agricultural employment covered by the H–2A program is in occupations and areas of employment where the prevailing wage in the occupation is near, at or above the adverse effect wage and therefore the adverse effect wage has no effect. In occupations where the prevailing wage is appreciably lower than the adverse effect wage rate the H–2A program becomes uneconomical and therefore is not used. Thus, the workers involved receive no protection from the adverse effect wage rate.
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Sec. 204(a) of H.R. 4548 makes the prevailing wage in the occupation and area of intended employment the minimum wage which an employer must offer who employs H–2C workers. This is a wage standard that an employer can afford to pay. To the extent that a realistic wage standard results in increased H–2C coverage of agricultural employment, it will raise wages for many workers and result in actual protection. It will not lower H–2A wage rates, because those wages are already at or above prevailing rates.
''[S]ince the local prevailing rate is often an artificially low ''piece rate'', in many cases the only effective base wage rate will be the minimum wage . . .''.
Whether the prevailing wage is expressed as an hourly rate, a piece rate, or on some other basis is determined by what method of pay is prevailing for the crop activity in the area. (Sec. 204(a)(4). If the prevailing method of pay is a piece rate, the minimum the employer may pay is the prevailing piece rate. There is nothing ''artificially low'' about prevailing piece rates. Until 1995 the USDA reported hourly farm worker earnings by method of pay. Average hourly earnings of piece rate paid workers were almost always higher than the earnings of workers paid by any other method of pay. For example, in October 1994, the last time earning were reported by method of pay, piece rate paid workers averaged $7.55 per hour while workers paid by all other methods of pay averaged $6.93 per hour. Most farm workers strongly prefer being paid piece rates, and object if the employer wants to use a different method of pay in crop activities that normally are paid by piece rates.
Sec. 204(a)(4) of H.R. 4548 does permit employers to pay by a different method of pay than that in which the prevailing wage is expressed. For example, an employer would be permitted to offer a piece rate even if the prevailing wage were expressed as an hourly rate. However the bill expressly provides that if an employer chooses to pay by a different method of pay than the method of pay that is determined to be prevailing, ''the burden of proof is on the employer to demonstrate that the employer's method of pay is designed to produce earnings equivalent to the earnings that would result from payment of the prevailing rate.'' The Labor Department must review and approve employers' applications for the registry before any foreign workers are authorized. The employer's application for workers will not be accepted, and the employer will not be authorized to employ H–2C alien labor, if the employer's pay rate does not meet the requirements or if any other required condition of the program is not met.
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''Employers could increase productivity standards to overcome the effects of any potential increases in prevailing wage rates. Such speed-ups would no longer be regulated.''
This criticism relies on a complicated argument. It goes like this. When the prevailing wage is an hourly wage, the employer will attempt to evade the effects of an increase in the hourly rate by electing to pay at a piece rate instead, and then increasing the minimum productivity standards that workers must meet to offset the increase in the prevailing hourly rate. (This is not possible when the prevailing wage is a piece rate, because the employer must pay at least the prevailing piece rate.). As noted above, H.R. 4548 does give employers' flexibility to pay by a different method of pay than the method of pay determined to be prevailing, but, as also noted above, ''the burden of proof is on the employer to demonstrate that the employer's method of pay is designed to produce earnings equivalent to the earnings tht would result from payment of the prevailing rate.'' Thus, the Labor Department can require the employer to prove that the employer's piece rate is not designed to evade an increase in the prevailing hourly rate.
CONCLUSION
The reforms to the H–2A program proposed in H.R. 4548 assure that domestic farmworkers will have first access to all agricultural jobs before they are filled by legal H–2C alien labor. They also assure that this access is real, by assuring that there is widespread and easy assess to information about the available jobs. The wage provisions of H.R. 4548 protect the wages in jobs approved for the employment of H–2C aliens by making the prevailing wage the minimum wage. H.R. 4548 assures free housing or a housing allowance and transportation benefits to migrant farmworkers who have no such assurance at present. In short, it will raise the standards for domestic farmworkers in all H–2C-approved occupations. Moreover these benefits will be real benefits because employers will actually be able to use the program—not the cosmetic benefit offered by the current H–2A program.
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H.R. 4548 will also benefit currently illegal alien farmworkers, the majority of the seasonal agricultural work force, who do not work in H–2A occupations. By providing employers with a legal means to secure their services it will free them from the fear, indignity and economic costs of apprehension and removal, or of being thrown out of work on a moment's notice. It will also free them from dependence on ''coyotes'' and the costs and physical dangers of illegal entry.
For domestic workers in the upstream and downstream jobs that are created and sustained by U.S. agricultural production, it will assure the continuation and growth in these employment opportunities.
For agricultural employers, it will assure them an adequate, legal work force if they are willing and able to meet the requirements of the program. It will give employers the certainty that will enable them to plan their businesses and make investments more effectively.
Thank you.
Mr. SMITH. Mr. Dolibois.
STATEMENT OF ROBERT DOLIBOIS, EXECUTIVE VICE PRESIDENT, AMERICAN NURSERY AND LANDSCAPE ASSOCIATION
Mr. DOLIBOIS. Mr. Chairman and members of the committee, it is an honor to appear here this afternoon. My name is Bob Dolibois and I am the Executive Vice President of the American Nursery and Landscape Association. ANLA is the national trade association for the nursery and landscape industry. We represent 2,500 production nurseries, landscape firms, retail garden centers, and horticultural distribution centers as well as 16,000 additional family farm and small business members of State and regional nursery and landscape associations.
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Mr. Chairman, the H–2A temporary alien labor program must be reformed this year. The reasons are simple. Despite good faith efforts to hire only legal workers, recent government enforcement activity has shown that agriculture does not have an adequate legal labor supply.
The problem has become a crisis for several reasons, one, low unemployment. Our thriving economy has reduced the number of applicants available for hire. Even Federal Reserve Chairman Alan Greenspan, as was said earlier this morning, has acknowledged the clear and present threat to the U.S. economic prosperity posed by the growing shortage of workers in sectors such as agriculture and the service industries.
Number two, stepped up activity by the Immigration and Naturalization Services apprehending undocumented workers. Number three is heightened Social Security Administration activity requesting verification of name and Social Security number mismatches. The Social Security administration enumeration verification system, EVS, is impacting the agricultural labor supply. Growers using EVS throughout the country are receiving letters from SSA informing them that large percentages of their W–2 names and Social Security numbers do not match.
ANLA members across the country are letting us know that finding adequate legal labor is a major problem that in many cases is getting to an economic breaking point. Several months ago, a nursery in the Northwest announced that it lost 260 employees in a single year due to mismatched names and Social Security numbers and faced an I–9 audit. The nursery was forced to recruit and train nearly an entirely new workforce at one of its locations. It also learned through the process that even some of the workers whose names and numbers had been verified by the Social Security Administration were actually undocumented. Another nursery in the South lost 150 workers, many of them older, long-time trained and productive employees.
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ANLA does not oppose INS enforcement activity or the EVS verification system. Our concern is that when these programs screen out unauthorized workers, there must be an effective way of replacing these workers. Employers are caught between a rock and a hard place when hiring. A sudden loss of workers puts them in a difficult position to grow, maintain, and harvest crops.
The H–2A agricultural guestworker program must be fixed. As the domestic labor supply dwindles, agricultural employers' only legal recourse is to recruit temporary alien workers under the H–2A program. The existing H–2A program is not 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 can lead to costly litigation challenging its use when alien seasonal workers are sought. The regulatory burdens leave growers waiting with uncertainty and anxiety with regard to whether they will be certified by the Department of Labor to obtain workers in a timely manner.
The whole problem comes down to the people. The American people need the products produced by agricultural workers. If we do not have seasonal workers, our production will have to move to countries that have the labor workforce available. When we bring seasonal workers to local communities, we keep the money there at the local hardware store, the agricultural equipment dealer and all the other businesses.
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How many more jobs are created because of the money we bring in to our community by growing and selling our agricultural products? If growers are able to hire more seasonal workers, they will be able to expand their businesses. As a result of that expansion, more of our rural communities will survive and grow as well. In conclusion, Mr. Chairman, ANLA applauds your efforts and especially those of Congressman Pombo for continuing to advance legislation to reform the badly broken H–2A temporary and seasonal work program. We must work together to get the job done in 2000. The nursery industry and American agriculture cannot wait another year to find a solution to this rapidly expanding labor problem.
The health and survival of our businesses depends on it. I want to thank you and the committee for the opportunity to address this issue and the members of ANLA look forward to working with you over the next few weeks to finally pass H–2A reform in the 106th Congress.
Mr. SMITH. Thank you, Mr. Dolibois.
[The prepared statement of Mr. Dolibois follows:]
PREPARED STATEMENT OF ROBERT DOLIBOIS, EXECUTIVE VICE PRESIDENT, AMERICAN NURSERY AND LANDSCAPE ASSOCIATION
Mr. Chairman and Members of the Committee, it is an honor to appear before you today to offer the following testimony on H–2A guestworker reform. My name is Bob Dolibois and I am the Executive Vice President of the American Nursery & Landscape Association. ANLA is the national trade association for the nursery and landscape industry. We represent 2500 production nurseries, landscape firms, retail garden centers and horticultural distributions centers, and the 16,000 additional family farm and small business members of the state and regional nursery landscape associations.
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Mr. Chairman, the H–2A temporary alien labor program must be reformed this year. The reasons are simple. In our full employment economy, recent government enforcement activity has shown that agriculture does not have an adequate legal labor supply.
Our industry has felt the effects of the laws, which prohibit the employment of people without proper work authorization and documentation. We know this from conversations with our associates at conventions, committee meetings, casual conversations, and through our own personal experiences.
The problem has become a crisis for several reasons:
1) Low employment. Our thriving economy has reduced the number of applicants available for hire. Even Federal Reserve chairman Alan Greenspan has acknowledged the clear and present threat to U.S. economic prosperity posed by the growing shortage of workers in sectors such as agriculture and the service industries.
2) Stepped up activity by the Immigration and Naturalization Service (INS) in apprehending undocumented workers.
3) Heightened Social Security Administration activity requesting verification of names and Social Security number mismatches.
I can tell you emphatically that ANLA members are letting us know that finding adequate legal labor is a major problem and that, in many cases, it is getting to an economic breaking point. In 1996 the warning signals were very clear about the pending crisis. Today, that crisis is at the door and it is affecting this nation's labor-intensive agricultural industry and supporting industries and economies.
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The Social Security Administration (SSA) Enumeration Verification System (EVS) is impacting the Agricultural Labor Supply. To help ensure more accurate reporting of Social Security Information, the SSA promoted the voluntary use of EVS, the Enumeration Verification System. The system is intended to ensure that names and Social Security numbers reported on W–2 forms match SSA records and that employee accounts are properly credited with earnings. Few people can argue with the need to do that. Growers using EVS throughout the country for new hires are receiving letters from SSA informing them that large percentages of their W–2 names and social security numbers do not match. SSA informs employers in these letters that the mismatched information must be corrected and returned within forty five days of the warning letter and further warns that if the employer's report is not corrected after the second filing with the SSA, the employer may be penalized by the IRS.
This presents two problems for the employer and the employee. If the worker is still employed and on the mismatch list, he must go immediately to the local SSA office to straighten out the problem. If he can't rectify the matter, the employer has no choice but to let the employee go, even during the time-critical peak harvest of a perishable product.
The second problem is that because of the seasonal and temporary nature of the work, many of the workers who show up on the mismatch letters are no longer with the grower. While this doesn't always affect the grower immediately, it does affect the grower and workers in the future as these workers come back to the farm to work in subsequent seasons. Returning employees can only work for the grower after they have addressed the mismatch or error with SSA. This makes the filling of employment needs more difficult.
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Mr. Chairman, to make matters even more difficult for growers, it appears the information gathered by the SSA is now being used for purposes unrelated to Social Security number verification. We understand that the SSA, on occasion, shares the results of its' EVS information with the INS. The effectiveness and quick turn around of the EVS reports to employers is forcing many agricultural employers to pursue all options, including the use legal temporary alien workers.
A few months ago, a nursery in the Northwest announced that it lost 260 employees in a year due to mismatched names and Social Security numbers and faced an I–9 audit. The nursery was forced to recruit and train nearly an entire new workforce at one of its' locations, and learned through the process that some of the workers whose names and numbers had been verified by the Social Security Administration were actually undocumented. Another nursery in the South lost 150 workers, many of them older, long-time, trained and productive employees.
Mr. Chairman, ANLA does not oppose INS enforcement activity or the EVS verification system. Our concern is that when these programs screen out unauthorized workers then there must be an effective way of replacing those workers. Employers are caught between a rock and a hard place when hiring.
On one hand, prospective workers must present acceptable documents to the employer. Employers do their best to check this documentation as required by law. Yet, employers are not INS agents or document experts. Employers want to obey the laws but they also want to remain in business. Employees who must be let go are often relatively long-term employees, and many are supervisors. A sudden loss of workers puts us in a difficult position to harvest our crops.
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The H–2A agricultural guestworker program must be fixed. Unfortunately, as the legal domestic labor supply dwindles, agricultural employers must turn to legal temporary alien workers under the H–2A program. 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 alien seasonal workers are sought. The regulatory burdens leave growers waiting with uncertainty and anxiety with regard to whether they will be certified by the Department of Labor (DOL) to obtain workers in a timely manner. This is especially problematic with regard to the production of perishable commodities.
Mr. Chairman, this whole problem comes down to the people. The American people need the products produced by agricultural workers. The availability of domestic workers is decreasing. Last week I watched a debate on C–SPAN about education. It appeared the goal of improved American education is to move all students towards quality, higher paying jobs. That's a great goal, but many of the jobs in agriculture involve hard physical work, long hours, and time outside in the elements. Where are these workers in your education plan?
I also believe that seasonal agriculture workers help create quality, higher paying jobs. Without seasonal workers we wouldn't need our college graduates in landscape architecture, Horticulture, Agri-Business, business management, etc. If we don't have seasonal workers the production will have to move to countries that have the labor available. When we bring seasonal workers to local communities we keep the money there at the local hardware store, the agriculture equipment dealer, and all the other businesses ANLA members and their employees shop use in a local community. How many more jobs are created because of the money we bring into our community by growing and selling our agriculture products? If growers are able to hire more seasonal workers, they will be able to expand their business and more money will come to the communities instead of heading out of the country.
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In conclusion Mr. Chairman, ANLA applauds your efforts, and especially the exhausting efforts of Congressman Pombo, for continuing to advance legislation to reform the badly broken H–2A Temporary and Seasonal Worker Program.
We must work together to get the job done in 2000. The agriculture industry cannot wait another year to find a resolution to this rapidly expanding labor problem. The health and survival of our industry, our communities, our country, depends on it. I want to thank you and the Committee for the opportunity to address this issue. The members of ANLA look forward to working with you over the next few weeks to finally pass H–2A reform in the 106th Congress.
Mr. SMITH. Mr. Krikorian.
STATEMENT OF MARK KRIKORIAN, LEGISLATIVE DIRECTOR, CENTER FOR IMMIGRATION STUDIES
Mr. KRIKORIAN. Good morning. Thank you, Mr. Chairman. My name is Mark Krikorian. I am executive director of the Center for Immigration Studies, a think tank in Washington, which examines and critiques the impact of immigration on the United States. I appreciate the chance to testify on the implications of H.R. 4548 despite the fact that I am not a genius like one of the following witnesses.
But I would like to explore a different aspect of the issue than some of the other witnesses, namely, the danger that a guestworker program poses to American agriculture itself. Dire warnings from spokesmen for farmers about access to workers are not new. In the early 1960's, for instance, during hearings on the proposed termination of the Bracero program, tomato farmers in California claimed that ''the use of braceros is absolutely essential to the survival of the tomato industry.''
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Congress discontinued the program anyway for other reasons, but the results were not at all as the farmers had claimed. With an end to government efforts to artificially inflate the farm labor market, the harvest was increasingly mechanized and resulted in a quadrupling of the production of processing tomatoes and a fall in real prices. This result highlights the threat that guestworker programs pose to American agricultural competitiveness. By artificially inflating the supply of labor, government interference in the agricultural labor market reduces incentives for mechanization and other forms of productivity increase.
In one sense, we already have a tacit guestworker program. It is called illegal immigration, but whether the agricultural workforce is inflated through affirmative means, through a guestworker program like the one being considered today, or tacitly through the toleration of illegal immigration, the result for American agriculture is much the same: slower growth in productivity and slower mechanization, sowing the seeds of competitive problems down the road as it becomes increasingly untenable for American fruit and vegetable farmers to compete on the basis of labor costs with low wage countries.
It does not have to be that way. The period from 1960 to 1975 was a period of considerable mechanization with the average labor hours per acre used in harvesting produce dropping by 20 percent, but a continuing increase in the acreage and the number of crops harvested mechanically did not materialize as expected, in large part because the supply of workers remained artificially large due to the growing illegal alien population we were unwilling to stop.
Further evidence of the harmful impact of mass immigration on agriculture is falling wages. Real wages of farmworkers have fallen 10 percent during the 1990's and a new guestworker program is likely to continue that downward trend. Now this may appear superficially appealing to farmers, but from a national point of view, competing with low wage countries on the basis of labor costs is a dead end. No modern society will ever be willing to reduce labor costs sufficiently to match those paid in third world countries.
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There is little doubt that fruit and vegetable production could survive and thrive without importing foreign workers, whether legal or illegal. In fact, even during World War II with millions of Americans in uniform, there was no economic rationale for the Bracero program. It was instituted at that time only to prevent wage increases and possible unionization after 20 years of agricultural depression.
An example of the radically improved productivity possible even in very labor intensive crops is seen in raisin grapes. I went into some detail in my written testimony, but suffice it to say that dramatic increases in quality and productivity are possible with this new technology but the distribution, the diffusion of it, is stymied by the presence of huge numbers of foreign workers which eliminate much of the incentive for farmers to adopt modern production methods.
The Florida sugar cane harvest is an example of the reverse phenomenon where an end to importing foreign workers promoted dramatic steps toward mechanization and modernization. Sugar farmers used West Indian guestworkers, H–2As, through the 1980's, but were hit by a wave of lawsuits, some of them filed by people here in this room, on behalf of workers whose contracts had been violated. As it became increasingly onerous to import these foreign workers, farmers decided to mechanize and today virtually all of the sugar cane harvest in Florida is mechanized resulting in dramatic productivity increases and more civilized work environment for the remaining workers.
There is also the danger through guestworker programs that slow technological innovation that our competitors overseas will actually leapfrog ahead of us. This is most alarming in the field of robotic harvesting which is sort of the third wave of mechanization in agriculture and there has been a considerable development in research in this area even though it is still not viable. Unfortunately, most of that research and advancement has taken place in the European Community, not in the United States, because they do not have the same kind of access to foreign labor that we do.
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Let me just quickly touch upon some of the benefits, essentially answer Congressman Canady's question, what would happen without illegal workers and without a guestworker program? As in all things, there would be costs and benefits. Some marginal undercapitalized farms would, in fact, have to sell out or go out of business, but that kind of shakeout or rationalization of an industry is a natural phenomenon when an industry loses the government protections that agriculture now has.
Also there might be modest price increases, though the chance of that are actually relatively small given that farmworker wages are only a tiny fraction of the supermarket price of produce. And likely also some crops grown in the United States would probably be imported, primarily very fragile crops intended for sale as fresh produce. But the production of goods which are not suited to high wage capital intensive methods ought to be phased out. It is a natural consequence of modernization.
Now just briefly let me touch on three benefits of ending illegal immigration and not replacing it with a guestworker program. One, productivity increases would accelerate dramatically, strengthening the long-run competitiveness of American agriculture. Two, lower prices for certain fruits and vegetables, as unlikely as that seems. We saw this last time a guestworker program was eliminated, when the Bracero program was eliminated, and after all we all remember Julian Simon, the economist Julian Simon's famous bet about the falling price of commodities over time due to technological innovation. There is no reason agriculture is exempt from this rule.
And finally, employment would stabilize eliminating many of the political and legal controversies that have plagued farmers over the past number of years. In other words, much of the regulation of the agricultural labor issues would be rendered moot or at least less pressing with the gradual evolution of farm labor into more steady year-round employment, marked by wages and working conditions more in line with the rest of our society. Thank you, Mr. Chairman, and I will be happy to take any questions.
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Mr. SMITH. Thank you, Mr. Krikorian.
[The prepared statement of Mr. Krikorian follows:]
PREPARED STATEMENT OF MARK KRIKORIAN, LEGISLATIVE DIRECTOR, CENTER FOR IMMIGRATION STUDIES
Good morning Mr. Chairman and members of the subcommittee. My name is Mark Krikorian, and I am executive director of the Center for Immigration Studies, a non-profit, non-partisan research organization in Washington, D.C., which examines and critiques the impact of immigration on the United States. The Center does not receive any federal funds.
Thank you for the opportunity to testify on the implications of H.R. 4548, the ''Agricultural Opportunities Act,'' which would create a large agricultural guestworker program for the first time since the Bracero Program was abolished in 1964. Other witnesses are likely to explore the detrimental impacts such a program would have on workers, on local communities, and on immigration law enforcement. These impacts are likely to be quite serious and I urge the members of the subcommittee to take them into account when considering this bill.
But I would like to explore a different impact of such legislation; namely, the danger it poses to American agriculture itself. The origin of guestworker proposals is the desire of farmers for what they consider an adequate labor pool at sufficiently low cost. The warnings of spokesmen for farmers are dire—without such assistance from the government, they claim, agriculture will be crippled, with farmers going out of business, fruits and vegetable prices soaring, and America made vulnerable by dependence on food imports from abroad.
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Such claims are not new. In the 1880s, when there were proposals to stop Chinese immigration to California, farmers responded that without Chinese farmworkers ''there would not now be one fruit tree or grape vine in the state where there are now ten.''
Likewise, in the early 1960s, during hearings in California on proposed termination of the Bracero program, tomato farmers claimed that ''the use of braceros is absolutely essential to the survival of the tomato industry.'' Congress discontinued the program anyway, but the results were not at all as the farmers had claimed—with fewer workers available, the harvest was increasingly mechanized, resulting in a quadrupling of production over the next 30 years of tomatoes for processing. (See ''Immigration Reform and U.S. Agriculture,'' edited by Philip Martin, etal., University of California Division of Agriculture and Natural Resources Publication 3358, 1995.)
This result highlights the threat that guestworker programs pose for America's agricultural competitiveness: By artificially inflating the supply of labor, government interference in the agricultural labor market reduces incentives for mechanization and other forms of productivity increases.
TODAY'S GUESTWORKER PROGRAM
In some sense, we have a guestworker program already—it is called illegal immigration. It can be fairly described this way since, despite recent increases in border enforcement, there is no enforcement whatsoever inside the country, a result of repeated attacks on the INS when it does try to enforce the law. For instance, when the INS conducted raids during the Vidalia onion harvest in 1998, the modest number of illegals it managed to apprehend was dwarfed by the thousands of illegal aliens who abandoned the fields to avoid arrest. Within hours, employers and local politicians registered their displeasure, and by the end of the week both of Georgia's senators and three representatives sent a letter to the attorney general and the secretaries of labor and agriculture fiercely criticizing the INS enforcement action for its ''lack of regard for farmers.''
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In response, the INS developed a ''kinder, gentler'' means of enforcing the law, which was also stopped cold. Rather than conduct raids on specific employers, Operation Vanguard sought to identify illegal workers at all meatpacking plants in Nebraska through audits of their personal records. Despite fears that as much as 25 percent of the workforce was illegal, the INS found about 4,000 workers, out of about 24,000, who appeared to be illegal, and scheduled interviews to determine their status. Three thousand of these workers turned out to be illegal aliens, and never showed up for their interviews, with the remaining 1,000 able to correct errors in their personnel or INS records.
Local law enforcement officials were very pleased with the program: ''It's an excellent program,'' said Grand Island Police Chief Kyle Hetrick. ''It's a positive thing. It's effective.'' Despite the initial promise of this new enforcement strategy, employers and politicians actively criticized the very idea of enforcing the law: ''It was ill-advised for Operation Vanguard to start out in a state with such low employment and an already big problem with a shortage of labor,'' said a former Nebraska governor who had been hired to lobby for an end to immigration law enforcement. As a result, plans to expand the program to other states and other industries have been scrapped.
The INS has gotten the message and ended worksite enforcement; in the words of Robert Bach, the INS associate commissioner for policy and planning: ''It is just the market at work, drawing people to jobs, and the I.N.S. has chosen to concentrate its actions on aliens who are a danger to the community.''
Apart from these repeated, and ultimately successful, attempts to obstruct law enforcement, the law itself is inadequate; Congress needs to permit the resumption open-field searches by the INS and to mandate an automated verification system to enable law-abiding farmers to distinguish between legal and illegal workers. Until that happens, it cannot be denied that we are tolerating today's illegal immigration, thus allowing it to function as an tacit guestworker program.
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THREAT TO AGRICULTURE
But whether the agricultural workforce is inflated through affirmative means—a formal guestworker program, as proposed in H.R. 4548—or tacitly—through toleration of illegal immigration—the result for American agriculture is the same: stagnating productivity and slowed mechanization, sowing the seeds of a competitive meltdown in the future, as it becomes increasingly untenable for American fruit and vegetable farmers to compete on the basis of labor costs with low-wage countries. Such competitive difficulties are sure to be followed by demands that Congress enact direct subsidies for farmers grown accustomed to relying on cheap labor. This would seem contrary to the Congress's recent moves to phase out many other agricultural subsidies.
The period from 1960 to 1975—roughly from the end of the Bracero program to the beginning of the mass illegal immigration we are still experiencing today—was a period of considerable mechanization, with the average labor-hours per acre (Lh/ac) used on harvesting horticultural crops dropping 20 percent. But a continuing increase in the acreage and number of crops harvested mechanically did not materialize as expected, in large part because the supply of workers remained artificially large due to the growing illegal immigration we were politically unwilling to stop.
Further evidence of the harmful impact of mass immigration on agriculture is falling wages. According to a March 2000 report from the Labor Department, the real wages of farmworkers have fallen from $6.89 per hour in 1989 to $6.18 per hour in 1998. A new guestworker program is likely to continue this downward trend in farmworker wages. This may seem superficially appealing to farmers, but from a competitive point of view, competing with low-wage countries on the basis labor cost is a dead end—no modern society will ever be willing to reduce farmworkers wages enough to match those paid in third world countries.
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The importation of foreign farmworkers also leads to very inefficient use of labor, further lowering productivity. The same March 2000 Labor Department report found widespread underemployment—the average number of weeks a farmworker works in agriculture has dropped from 26 weeks in 1990–92 to 24 weeks in 1996–98. The average farmworker spent only about 47 percent of his time in U.S. farm work, compared with 19 percent of his time unemployed in the U.S., 8 percent of his time in U.S. non-farm employment, and 24 percent of his time living abroad. This inefficient utilization of farm labor is also reflected in the fact that the unemployment rate for farmworkers between 1994 and 1998 was routinely more than double the rate for all occupations, according to a December 1999 report from he Congressional Research Service.
Ironically, the artificial expansion of the agricultural labor market not only dissuades our farmers from exploiting America's comparative advantage in technology and capital, but using cheap foreign labor to produce fruit and vegetables for export actually subsidizes foreign consumers, since about one-fifth of our country's fruit, vegetable, and horticultural production is exported. Subsidies for Americans would are problematic enough, but subsidies for foreigners are difficult to justify in any conception of the national interest.
IS FARMING POSSIBLE WITHOUT FOREIGN LABOR?
There is little doubt that fruit and vegetable production could survive, and thrive, without importing foreign workers, whether illegals or guestworkers. In fact, even during World War II, at a time when 16 million Americans were in uniform, there was no economic rationale for the importation of foreign workers. The Bracero program was instituted at that time, not to ensure the continued production of food, but to prevent wage increases and possible unionization after 20 years of rural depression. (See ''The Politics of Labor Scarcity: Expediency and the Birth of the Agricultural ''Guestworkers' Program,'' http://www.cis.org/back1299.pdf, by William and Mary historian Cindy Hahamovitch, Center for Immigration Studies Backgrounder, December 1999.)
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An example of the improved productivity possible even in very labor-intensive crops is seen in raisin grapes. The production of raisins is one of the most labor-intensive activities in North America, with 40,000 to 50,000 workers harvesting the grapes in California's Central Valley during the three- to four-week season. Using conventional methods, the grapes are cut with a knife, placed in a pan, then laid on a paper tray for drying, and during the drying period, must be manually turned, then manually rolled and collected.
But starting in the late 1950s in Australia (where there is no large supply of farm labor), farmers were compelled by circumstances to develop a labor-saving method called ''dried-on-the-vine'' (DOV) production. (See ''Alternatives to Immigrant Labor? Raisin Industry Tests New Harvesting Technology,'' http://www.cis.org/back297.pdf, by California State University-Fresno researchers Bert Mason, R. Keith Stiegler, and Gregory T. Berg, Center for Immigration Studies Backgrounder, June 1997.) This involves growing the grape vines on trellises, then, when the grapes are ready, cutting the base of the vine instead of cutting each bunch of grapes individually. The fruit then dries naturally on the vine, at which point a tractor-mounted harvester is used to gently knock the raisins off into bins.
The benefits of this new method are significant: Labor demand at harvest time drops by up to 85 percent and total labor demand is spread out over the whole year; new vineyards planted for DOV harvest increase yield per acre by up to 200 percent; and the fruit is less susceptible to rain damage and is of higher quality because of fewer problems with dirt, sand, and mold. One farmer who shifted to DOV summarized the benefits: DOV ''can reduce labor, reduce weather hazards, reduce environmental concerns of dust and chemical use . . . DOV is so good it's scary.''
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Has this high-productivity, innovative method of production been widely adopted? No. Only a handful of farmers are using it, most notably Lee Simpson of Simpson Vineyards near Madera (who, not coincidentally, entered the raisin business after a career in engineering, rather than inheriting his family farm). This is because the widespread availability of foreign workers is a disincentive to raisin farmers, whose average age is believed to be over 60, to make the long-term capital investment needed to retrofit existing raisin farms for DOV production. The enactment of a new guestworker program would further retard the adoption of this promising new technology.
In raisin production, a surfeit of labor has dampened innovation and productivity gains. An example of the reverse phenomenon, a labor shortage promoting dramatic steps toward modernization, is Florida's sugar cane harvest. In the 1930s, Eleanor Roosevelt decried the working conditions endured by sugar harvesters—bending at the waist, using a machete, dealing with heat, mosquitoes, and snakes—which had changed little since the Middle Ages. These conditions continued through the 1980s, when the sugar companies imported 9,000 to 10,000 West Indian guestworkers a year through the small H–2A program. Then the industry was hit by a persistent wave of lawsuits filed on behalf of farmworkers whose contracts had been violated by their employers. This proved so nettlesome that the employers calculated it would be more profitable to mechanize the sugar harvest than to honor all the legally required terms of their contracts with the farmworkers. By the 1992–93 season, 50 percent of Florida sugar cane was harvested by machine, and today virtually all of it is, resulting in dramatic increases in productivity and a more civilized work environment for the remaining workers.
A guestworker program's threat to the continued competitiveness of U.S. agriculture comes not only from the inability to compete on the basis of wages with Third World countries; there is also the danger that the slowing of technological innovation brought about by artificial infusions of labor will allow our economic competitors in other developed countries to leap ahead of us. This is perhaps most disturbing in the field of robotic harvesting. Automated picking of fruits and vegetables by a robotic system is the third wave of agricultural mechanization (after labor aids, which facilitate harvesting work but don't reduce labor demand; and labor-saving machines, which improve productivity and reduce labor needs). The development of viable robotic harvesting technologies is still in its infancy, though great progress has been made as computers, vision systems, and motion/manipulation control technologies have been enhanced. Unfortunately, because of the mass availability of alien labor in the United States, the European Union is well ahead of us in bringing this potentially revolutionary technology to market. Enactment of a new guestworker program, and/or failure to end today's mass illegal immigration, may help our competitors gain a long-run advantage in agriculture, an area where America has traditionally been the pacesetter.
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WHAT WOULD HAPPEN
What are the likely consequences of failure to enact a new guestworker program, and success in curtailing the one we already have (illegal immigration)? There would be, as in everything, both costs and benefits:
Costs:
Some marginal, undercapitalized farms propped up by foreign labor would fold. Such a shakeout, though difficult in the short term, is inevitable when an industry loses the subsidies protecting it and is forced to rationalize and become more efficient and competitive. But the reallocation of capital and labor to more productive uses benefits the nation in the long run.
There might be modest price increases. I say ''might'' because farmworker wages typically account for less than 10 percent of the retail cost of fresh fruits and vegetables, and even in the absence of a new guestworker program, there is no possibility that all illegal workers would disappear overnight; ending illegal employment, were we to make such a choice, would be a process not an event, permitting farmers some time to adjust. Even if the entire illegal agricultural workforce were somehow to magically disappear, the impact of supermarket prices would be extremely modest and short-lived: Research suggests that supermarket prices for fresh produce would rise about 6 percent during summer and fall (when imports are small and prices are lowest) for one or two years, before farmers adjusted to the new circumstances. In the winter and spring, the price rise would be even smaller, perhaps 4 percent for one or two years. (See ''How Much Is That Tomato in the Window?: Retail Produce Prices Without Illegal Farmworkers, http://www.cis.org/huffman&.htm, by Iowa State University economists Wallace Huffman and Alan McCunn, Center for Immigration Studies Backgrounder, February 1996.) Such price increases are less than the variation between supermarkets, and would in any case apply to only a very small portion of the nation's food bill.
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Some crops now grown in the United States would be imported, primarily very fragile crops intended for sale as fresh produce; fresh produce represents a relatively small portion of fruit and vegetable production, since most is processed, and thus better suited for mechanization. The phasing out of production of certain goods which are not suited to high-wage, capital-intensive methods is a natural process of modernization and subsidizing industries (or crops) which can no longer be produced economical without government assistance is simple protectionism.
Benefits:
Productivity would increase dramatically, strengthening the long-run competitiveness of American agriculture. Only by emulating other industries, which have prospered by evolving beyond the low-wage production methods of the past can American agriculture remain competitive with the growing number of commercial agricultural producers overseas. Attempting to maintain the status quo through guestworker programs is a dead end which we will all pay for in the long run. As several noted agricultural engineers note, ''while the U.S. was in the past the leading country in the world in mechanical harvesting, the majority of the research work in recent years is conducted outside the U.S. (See ''Alternatives to Immigrant Labor II: The Status of Fruit and Vegetable Harvest Mechanization in the U.S.,'' by Y. Sarig, J,.F. Thompson, and G.K. Brown, Center for Immigration Studies Backgrounder, August 2000 (forthcoming).)
Price increases, if any, would not only fade very quickly, but they would likely be followed by actual decreases in the real price of some fruits and vegetables, as was the case with processing tomatoes after the end of the Bracero program. This should not be surprising, given the proven power of innovation to reduce real prices, as demonstrated by the late economist Julian Simon's famous bet with Paul Erlich, which Simon won, that the real prices of five commodities would fall over time due to innovation.
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Employment would stabilize, eliminating many of the political and legal controversies that have surrounded agricultural labor for many years. In other words, much of the regulation of agricultural labor issues would be rendered moot, or at least less pressing, with the gradual evolution of farm labor into more steady, year-round employment, marked by wages and working conditions more in line with the rest of our society.
See also:
''Guest Worker Programs for the 21st Century,'' http://www.cis.org/back400.pdf, by University of California-Davis economist Philip Martin, Center for Immigration Studies Backgrounder, April 2000.
''Findings from the National Agricultural Workers Survey (NAWS) 1997–1998: A Demographic and Employment Profile of United States Farmworkers'' Office of Program Economics Research Report No. 8, March 2000, http://www.dol.gov/dol/asp/public/programs/agworker/report—8.pdf
Farm Labor Shortages and Immigration Policy, Congressional Research Service, Dec. 20, 1999
Mr. SMITH. Mr. Camacho.
STATEMENT OF MARCOS CAMACHO, GENERAL COUNSEL, UNITED FARMWORKERS UNION
Mr. CAMACHO. Thank you, Mr. Chairman. I have a lengthy statement that I would like to also move into the record.
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Mr. SMITH. Without objection, the complete statement will be made a part of the record.
Mr. CAMACHO. We at the UFW have examined H.R. 4548 and have concluded that if enacted it will have a devastating impact on two million farmworkers who work in American fields and groves. This legislation would allow employers to bring in hundreds of thousands of foreign workers as non-immigrant guestworkers tied to agricultural jobs under a system that would guarantee economic poverty and political powerlessness.
Further, neither Representative Pombo's bill nor H.R. 4056 introduced by Representative Bishop address the underlying problems which have created the unstable agricultural labor market.
We believe the real issue here is farmworker poverty, not labor shortage. The most recent and reliable information we have from the National Agricultural Workers Survey shows the situation of farmworkers has continued to decline. Despite a strong economy and record prosperity, farmworker wages have stagnated, annual earnings remain beneath the poverty level, and farmworkers face chronic unemployment.
Today, fewer farmworkers own a vehicle or are buying a home. The main reasons why we oppose the bill is that there is no question that this bill undermines any effort to improve the lives of American farmworkers and seeks to maintain the status quo of low wages and underemployment by adding a supply of workers. We have no reason to think that passage of this legislation will reduce in any way the continued influx of new workers from Mexico. Certainly, there is nothing in the House bill 4548 which would link admission of H–2C workers to a reduction in the number of unauthorized workers.
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Further, without union representation, the best protection that most farmworkers have from abusive working conditions is the right to walk away from a bad employer and find work elsewhere. Guestworkers don't have that right. They are either dependent on the specific employer for work and not only during the given season but from year to year. This bill would further eliminate many of the protections found under the current law. For example, the area of wages, the bill would eliminate the adverse effect wage rate, which we have talked about earlier in this hearing.
In the area of housing, the employer would no longer have to provide it but simply provide a housing allowance whether or not housing is available to workers. For one million legal farmworkers and their family members, the bill would push them deeper into poverty. Currently, unable to find work only for about 135 days per year, they would find themselves in desperate competition for jobs as growers sought to take advantage of the new H–2C program. U.S. workers would face not only competition for jobs, but for scarce housing since many H–2C workers would be forced to seek their own shelter. For current H–2A workers the bill means a pay cut as growers switch from the AEWR to lower prevailing wages and a loss of other benefits under current law.
The UFW believes that this committee should focus on the following: in changing the status quo, the premise that an abundant supply of impoverished workers is intolerable. Congress must call upon agricultural employers to abandon their low wage strategy and to look for practices that allow their workers to escape poverty. We believe that regulated legal immigration is better than unregulated illegal immigration. For that reason, we support a generous farmworker adjustment program, similar to one enacted by Congress in 1986. We need to strengthen the protections under the current H–2A program to better protect both H–2A and U.S. workers.
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We believe the committee needs to focus on three broad principles. First, it should not be cheaper to hire H–2A workers than to hire U.S. workers. Currently, employers of H–2A workers are not required to pay FICA and FUTA taxes on their H–2A employees. This means that H–2A employers save 14 percent by hiring foreign workers instead of legal U.S. residents. Congress needs to remove this economic incentive to discriminate against U.S. citizens and legal residents.
Secondly, all temporary guestworkers should be afforded the same workplace protections available to U.S. workers. We believe that H–2A workers should be covered by the Migrant and Seasonal Agricultural Worker Protection Act.
Third, employers must have a continued incentive to improve wages and working conditions. In 1993, The National Commission on Agricultural Workers specifically stated effective organizing is made more difficult by the fact that farmworkers are essentially powerless, both in objective terms and relative to the agricultural employers who oppose organizing.
It has been the UFW's experience that where farmworkers have been able to organize, there has developed a more structured, stable, and productive workforce. We see this as a long-term solution to the agricultural labor problems in the United States. If we want to break the cycle of unstable labor markets which constantly need to be replenished with new farmworkers, we should encourage the emergence of a stable labor market through organizing and collective bargaining.
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The UFW is actively working on such a model. On December 17, 1994, Bear Creek workers voted to have the UFW be their collective bargaining representative. Bear Creek chose not to fight the UFW in its election victory but instead to work toward a partnership to solving many of the issues that faced Bear Creek at the time. The workers and management looked at four broad issues.
One of them was the growth of difficulty inherent in agricultural industries; the physical demands and seasonality of the work; (3) the virtual absence of standard employee benefits; and (4) overreliance on inexpensive labor rather than development of a skilled workforce. With its new attitude of partnership between management and the UFW and the workers, in 1998, for the first time the company was able to record profits. Prior to that, it had only been breaking even.
But more importantly than that, we were also through this partnership able to reduce labor costs while at the same time increasing wages and benefits for workers. It is only through this kind of approach that the cycle of farmworker poverty can be broken and we can create a stable agricultural labor market that benefits all interested parties. I would like to thank the subcommittee and I would take any questions.
Mr. SMITH. Thank you, Mr. Camacho.
[The prepared statement of Mr. Camacho follows:]
PREPARED STATEMENT OF MARCOS CAMACHO, GENERAL COUNSEL, UNITED FARMWORKERS UNION
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Mr. Chairman:
My name is Marcos Camacho. I am General Counsel of the United Farm Workers of America, AFL–CIO. Cesar Chavez founded the United Farm Workers of America, AFL–CIO in 1962. Today, the UFW represents and organizes farm workers in several states including California, Washington, Arizona, Texas, and Florida. We represent farm workers who work in wine grapes, table grapes, raisin grapes, citrus, row crops such as broccoli, lettuce, celery, tomatoes, and other vegetables, mushroom plants, nurseries, tree fruit, and roses. Since its inception the UFW has been deeply concerned about the immigration policies that affect farm workers in this country. The UFW was actively involved in the legislative process that resulted in the enactment of the Immigration Reform and Control Act of 1986 (IRCA). The UFW representation of and day-to-day work with farm workers throughout the country give it a unique background and experience to provide meaningful comments and insight into the issues concerning immigration policy and how it affects farm workers in this country.
Mr. Chairman, thank you for the opportunity to appear before the Subcommittee today.
The UFW has examined H.R. 4548 and concluded that if enacted, it will have a devastating impact on the two million farm workers who work in America's fields and groves. This legislation would allow employers to bring in hundreds of thousands of foreign workers as non-immigrant guestworkers tied to agricultural jobs under a system that would guarantee their economic poverty and political powerlessness. Furthermore, neither Rep. Pombo's bill nor H.R. 4056 introduced by Rep. Bishop address the underlying problems which have created an unstable agricultural labor market.
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THE REAL PROBLEM IS FARM WORKER POVERTY NOT LABOR SHORTAGES
What are the economic realities facing America's farm workers at the beginning of the 21st Century?
The most recent and reliable information we have from the National Agricultural Workers Survey shows that the situation of farm workers has continued to decline: wages have stagnated, annual earnings remain beneath the poverty level, and farm workers face chronic unemployment.
In 1997–98, most farm workers held only one farm job per year and were employed in agriculture for less than half a year.
Even in July, when demand for farm labor peaks in many parts of the country, just over half of the total farm workforce held agricultural jobs.
Since 1990–1992, the average work year in agriculture has decreased from 26 to 24 weeks while the number of weeks in nonagricultural employment has fallen from eight to five. Another month of unemployment has been added to the farm worker misery index.
At the same time despite a strong economy and record prosperity, farm worker wages have lost ground relative to those of workers in the private, nonfarm sector. Adjusted for inflation, the average real hourly wage of farm workers has dropped from $6.89 to $6.18. Consequently, farm workers have lost 11 percent of their purchasing power over the last decade.
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The result is that farm workers are increasingly disadvantaged. Today fewer farm workers own a vehicle. More workers now rely on contractors and raiteros for transportation to work often in unsafe and uninsured vehicles. Another large change is in home ownership. In 1994–95, one third of all farm workers owned or were buying a home. By 1997–98, only half as many farm workers were buying their home.
All of these facts—low wages, underemployment, and low annual wages—point to a national oversupply of labor. It is the continued low income of farm workers which has destabilized the agricultural labor market by causing farm workers to seek jobs paying higher wages and offering more hours of work.
This is the economic reality that the National Council of Agricultural Employers doesn't want discussed in this hearing. For them, the only problem is how to secure access to another pool of low-wage workers, not what to do about the desperate plight of the two million farm workers already here.
We believe that the current labor practices in U.S. agriculture are unsustainable in the long term and, unless fundamentally changed, will continue the socially destructive economic hardships faced each day by the farm workers throughout this country while at the same time doing severe damage to U.S. agriculture's global competitiveness.
Unfortunately, H.R. 4548 is not a step forward into the 21st century, but a step backward to an era of indentured servitude.
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WHY THE UFW OPPOSES THE POMBO BILL
We oppose this bill for the same reasons we have opposed past efforts to revive the Bracero Program of the 1950s. There is no question that these programs undermine any efforts to improve the lives of America's farm workers and maintain the status quo of low wages and underemployment by adding to the supply of workers. We have no reason to think that passage of this legislation will reduce in any way the continued influx of new workers from Mexico; certainly, there is nothing in House Bill 4548 which would link the admission of the H–2C workers to a reduction in the number of unauthorized workers.
Our objection to these so-called ''guest worker programs'' is based on more than just the effect that increasing the supply of labor will have on farm worker wages. The fundamental flaw in these programs is that workers are not free to change employers and offer their labor in a free labor market. Without union representation, the best protection that most farm workers have from abusive working conditions is the right to walk away from a bad employer and find work elsewhere. Guest workers don't have that right. That is really the underlying issue here. For decades agricultural employers have refused to reform their labor practices with the result that their workers, including hundreds of thousands of workers who were legalized in the 1980s, have left them for employers who offer better wages and working conditions. Now, the NCAE is proposing to replace a free labor force with a captive labor force of guest workers who don't have the option to change employers.
Proponents of this legislation argue that Mexican farm workers will be better off if they can enter the country legally. Substituting an endless supply of guest workers for unauthorized workers merely changes the labels, not the underlying structural flaws in the current labor market. Guest workers are just as vulnerable to exploitation as unauthorized workers. At the same time that coyotes are charging unauthorized workers hundreds of dollars to smuggle them into the United States, most of the H–2A and H–2B workers who come to this country from Mexico are forced to pay the grower's recruiter between $500 and $1,000 for their visa.
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In some ways, guest workers are in a worse position to protect their rights even than undocumented workers. They are entirely dependent on a specific employer for work, not only during a given season but from year to year. Systematic blacklisting of worker is widespread throughout the current H–2A program. Given the overwhelming coercive power enjoyed by the employer of guest workers, the same kind of abuse and exploitation which led to the end of the Bracero Program is inevitable in any new program.
The Pombo bill would allow a virtually unlimited flow into the country of temporary foreign workers by eliminating many of the protections for workers contained in the current law. It would take us back to the Bracero Program of the 1950s, when hundreds of thousands of Mexican workers were treated as little better than slaves. It is no exaggeration to say that the Pombo bill actually provides fewer protections for workers than the Bracero Program did. (A copy of the official Bracero Agreement is attached to my testimony).
Under the current program, before H–2A workers may be employed, the Secretary of Labor must certify that ''the employment of the alien in such service or labor will not adversely affect the wages and working conditions of workers in the United States similarly employed.'' In order to protect U.S. workers from adverse effect, the Secretary has promulgated regulations containing the minimum benefit, wage and working conditions that must be contained in the employer's job offer. These are the labor protections that the NCAE wants eliminated.
Under the Pombo bill, the Secretary of Labor would no longer have to certify that the use of the guest workers would not adversely affect U.S. workers; the Secretary's role is limited to approving the employer's application. If the employer's application contains the terms and conditions of employment required by section 201 of the Pombo bill, the Secretary must approve the application; she has no authority to require that other labor protections be provided.
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Section 204 sets forth employment requirements with respect to wages, housing, and transportation. In each instance, they provide workers with less protection than under the current law:
Wages
Under current law, H–2A employers are required to pay their workers the so-called adverse effect wage rate (''AEWR''). The AEWR is the annual average hourly wage rate for field and livestock workers in the state where the H–2A workers are employed. The current AEWR for California is $7.27 per hour; the AEWR for Florida is $7.25 per hour.
Under the Pombo bill, the current AEWR requirement would be eliminated. H–2A employs would only have to pay the prevailing wage in a particular area and crop; often this will be a prevailing piece rate rather than an hourly rate. Where wages have been depressed by the use of undocumented aliens, this method ''locks in'' the depressed wage rate forever. Under the Pombo bill, a 5% ''premium'' would be added to the required wage only if the prevailing rate resulted in average earnings below the average hourly wage for field and livestock workers in the state.
The Bracero Agreement required that wages to be paid the worker shall be the same as those paid for similar work to other agricultural laborers under the same conditions within the same area, in respective regions of destination.
Housing
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Under current law, H–2A employers are required to provide housing ''without charge to the worker'' to those workers who are not reasonably able to return to their residence within the same day. If provided by the employer, the housing must comply fully with federal standards. Employers cannot charge workers for security deposits.
Under the Pombo bill, employers could substitute a housing allowance for free housing whether or not housing was actually available to workers in the area of the job. The amount of the allowance would not be set based on the fair market rental in the area of employment but the minimum fair market rental for the state as a whole. For example, in California, the housing allowance under the methodology set forth in the Pombo bill would amount to only $4 per day! Workers would get the same allowance whether they were working in Tulare County where the fair market rent for a 2 bedroom unit is $513 per month or Santa Barbara County where the fair market rent is $878 per month. Moreover, the housing would no longer have to meet federal standards. Employers would be able to charge workers for security deposits, maintenance, and utilities.
The Bracero Agreement provided that the Mexican workers will be furnished without cost to them with hygienic lodgings, adequate to the physical conditions of the region of a type used by a common laborer of the region and the medical and sanitary services enjoyed also without cost to them will be identical with those furnished to other agricultural workers in the regions where they may lend their services.
Transportation
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Current law requires employers to advance transportation expenses to U.S. workers if it is a prevailing practice among area employers to do so, or if transportation is being provided or advanced to the H–2A workers. After the worker has completed 50% of the contract period, the employer is required to reimburse transportation from ''the place from which the worker has come to work for the employer to the place of employment.'' DOL has taken the position that workers must be reimbursed for travel from the actual place where the worker was recruited, not a location that the employer ''deems'' to be the place of recruitment.
Under the Pombo bill, there is no obligation for the employer ever to advance transportation. Thus, an H–2C employer will be free to provide transportation to H–2C workers without having to offer the same benefit to U.S. workers. Reimbursement of transportation is limited to distances greater than 100 miles and is only available to individuals living in grower provided housing or housing provided through vouchers. The place where the alien is issued the H–2C visa is deemed to be the alien's place of residence.
Under the Pombo bill, a worker can be recruited in his home in southern Mexico, told to report to the U.S. consulate in Calexico to be issued his visa and then travel to the Imperial Valley, a journey of hundreds of miles and not receive any transportation reimbursement (the Imperial Valley is less than 100 miles from Calexico). Moreover, there is nothing in Pombo bill that prevents the employer from actually charging the worker for this transportation.
The Bracero Agreement required that transportation and subsistence expenses for the worker, and his family, if such is the case, and all other expenses which originate from point of origin to border points and compliance of immigration requirements, or for any other similar concept, shall be paid exclusively by the employer or the contractual parties.
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While the Pombo bill weakens existing wage, housing, and transportation protections, it totally eliminates many other worker protections found in the DOL regulations. These protections exist because under current law, the Secretary of Labor must certify that the employment of the H–2A workers will not adversely affect the wages and working conditions of U.S. workers similarly employed. Among the protections that would be eliminated are the following:
No Preferential Treatment of H–2A Workers
Under current law, the employer's job offer to U.S. workers must offer the U.S. workers no less than the same benefits, wages and working conditions which the employer offers H–2A workers. Conversely, no job offer may impose on U.S. workers any restrictions or obligations which will not be imposed on the employer's H–2A workers.
This critical protection for U.S. workers is nowhere to be found in the Pombo bill.
Guarantee of Employment
Current regulations require that the employer guarantee to offer the worker employment for at least three-fourths of the workdays of the total periods during which the work contract and all extensions thereof are in effect. This ''three-fourths guarantee'' gives migrant workers some indication of their potential earnings and discourages employers from over-recruiting to secure a labor surplus and drive down wages. Under the Pombo bill, the three-quarter guarantee is eliminated.
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The Bracero Agreement provided that for such time as they are unemployed under a period equal to 75% of the period (exclusive of Sundays) for which the workers have been contracted they shall receive a subsistence allowance at the rate of $3.00 per day.
Limitations on Productivity Requirements
Given that an H–2A worker has no choice but to work for the employer who was issued his visa, H–2A employers are in a position to speed up production requirements to the limit of human endurance. Current regulations provide that employers cannot require minimum productivity standards higher than those normally required by other employers for the activity in the area of intended employment, unless DOL approves a higher minimum.
The Pombo bill allows growers to impose new productivity requirements whenever they want.
The Bracero Agreement provided that piece rates shall be so set as to enable the worker of average ability to earn the prevailing wage.
Provision for Contract Impossibility
The current regulations provide that an employer may terminate the worker's contract because a hurricane or other Act of God makes the workers services unnecessary. However, the employer is required to either transfer the worker to other comparable employment or return the worker to his home at the employer's expense and reimburse the worker for the cost of transportation to the job site.
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The Pombo bill provides no such protection; the worker bears all the risk.
Written Contract Required
Under the current regulations, workers must be provided with a copy of the work contract, no later than on the day the work commences.
Under the Pombo bill, there is no requirement that a worker be provided with a contract of employment.
The Bracero Agreement provided that contracts will be made between the employer and the worker under the supervision of the Mexican Government (contracts were required to be written in Spanish).
In short, the Pombo bill offers workers significantly fewer protections than Mexican workers were given under the 1942 Bracero program.
The Pombo bill would also create a new bureaucracy dedicated more to ''proving'' there is a labor shortage than to actually helping farm workers find employment. Each state employment service would be required to create a farm worker ''registry.'' H–2C employers would not be obligated to hire any U.S. worker who was not registered and would not be expected to undertaken any real efforts to recruit U.S. workers before turning to the H–2C program. The registry concept has already been piloted in Florida where it was an abysmal failure.
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What would be the impact of the Pombo bill on farm workers?
For the one million legal farm workers and their family members, the Pombo bill would push them even deeper into poverty. Currently able to find work only about 135 days per year, they would now find themselves in a desperate competition for jobs as growers sought to take advantage of the new H–2C program. U.S. workers would face not only competition for jobs but for scarce housing since many H–2C workers will be forced to seek their own shelter. Further declines in wages would be inevitable as one crop after another became dominated by H–2C workers.
For the current H–2A workers, the Pombo bill means a pay cut as growers switch from the AEWR to the lower prevailing wage. They will also lose their transportation reimbursement from their homes to the border. They will lose their guarantee of employment. Their employers who provide housing will now be able to charge them for security deposits, maintenance, and utilities. Their employer may decide not to provide housing at all, and they will have to try to find someplace to live in a strange country on only $4 per day. If they are successful, they will probably have to pay a contractor or raitero $3 to $5 per day to take them to work since the Pombo bill eliminates the current requirement that the employer provide free transportation from the employee's living quarters and the worksite. Workers may also find themselves subjected to excessive meal charges and charges for tools and equipment.
For the currently unauthorized workforce, these workers will remain trapped in the underground economy where they will surely be joined by new immigrants for there is nothing in the Pombo bill directed at halting the activities of the farm labor contractors and coyotes who profit from illegal migration. The endless cycle of unfettered immigration of low wage workers, followed by the further degradation of wages and working conditions, followed by the next wave of desperate immigrants willing to work for degraded wages will continue.
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There is, however, a reasonable alternative.
WHAT SHOULD BE DONE
The status quo—premised on an abundant supply of impoverished workers—is intolerable. Congress must call upon agricultural employers to abandon their low wage strategy for practices that allow their workers to escape poverty. The first step must be to impose market discipline on the industry and force it to compete for labor based on wages and working conditions rather than allowing it to demand government programs that guarantee it workers at intolerably low wages and working conditions. Government intervention to artificially inflate the labor supply to keep down wages and working conditions should be no more tolerated than the government imposing price controls on fruits and vegetables.
Rather than allowing agriculture to revert to a 20th century ''Harvest of Shame'' past, we need to push it toward a sustainable 21st century future where there is a real partnership between agribusiness and its workforce.
We believe that regulated legal immigration is better than unregulated illegal immigration.
For that reason, we support a generous farm worker adjustment program similar to the one enacted by Congress in 1986. We also support immigration reform this year which would address the following priorities:
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allow Salvadoreans, Guatemalans, Hondurans and Haitians to apply for adjustment of status on the same terms as already provided to Cubans and Nicaraguans in 1997;
allow adjustment of status to all persons of good character who have resided in the United States prior to 1994;
restore the provision permitting those who are out of status but otherwise eligible for permanent residence to adjust their status in the United States;
reunite families by establishing a program to provide additional visas for family members of citizens and permanent residents so as to reduce unacceptable backlogs and help stabilize the workforce.
These measures, while not farm worker specific, would allow thousands of farm workers to obtain legal residency.
We also support new approaches to reducing undocumented immigration and employer abuse including the enactment of whistleblower protections for undocumented workers who report violations of worker protection laws or cooperate with federal agencies during investigations of employment, labor and discrimination violations. Such workers should be given protected immigration status and accorded full remedies, including reinstatement and backpay. Furthermore, undocumented workers who exercise their rights to organize and bargain collectively should also be provided protected immigration status.
With respect to the existing H–2A program, we believe that labor and business should work together to design cooperative mechanisms that allow law-abiding employers to satisfy legitimate needs for new workers in a timely manner without compromising the rights of and opportunities of workers already here. It is critical that immigrant workers should have full workplace rights in order to protect their own interests as well as the labor rights of all American workers. The current program does not meet this standard.
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We need to strengthen the protections under the current H–2A program to better protect both H–2A and U.S. workers. In doing so, we believe that the Committee needs to focus on three broad principles which we believe both side of this debate should be able to agree upon.
First, it should not be cheaper to hire an H–2A worker than to hire a U.S. worker.
Currently, employers of H–2A workers are not required to pay FICA and FUTA taxes on their H–2A employees. This means that an H–2A employer saves 13.85% by hiring a foreign worker instead of a legal U.S. resident. Congress needs to remove this economic incentive to discriminate against U.S. citizens and legal residents. In 1995, the National Council of Agricultural Employers proposed that H–2A employers be required to pay an amount comparable to what they pay for FICA and FUTA taxes on domestic workers into a trust fund to be used to fund the administrative costs of the program. We think trust fund is a good idea; however, we propose that the funds be used for the purpose of improving labor management practices in agriculture by stabilizing the labor force, improving productivity, and increasing earnings for farm workers through longer periods of employment.
The second principle is really a corollary of the first principle:
All temporary guestworkers should be afforded the same workplace protections available to U.S. workers.
Otherwise, unscrupulous employers gain an advantage by employing foreign workers. Furthermore, we are committed to this principle with respect to foreign workers from Mexico by the NAFTA Labor Side Accords in the United States agreed to ''providing migrant workers in a Party's territory with the same legal protection as the Party's nationals in respect of working conditions.'' The most important federal statutory protection for farm workers in the United States is the Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. ' 1801 et seq. (''AWPA''). However, H–2A workers are specifically excluded from the protections of the Act. They need to be covered by AWPA.
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Third, employers must have a continued incentive to improve wages and working conditions.
In 1993, the national Commission on Agricultural Workers concluded its report to Congress by noting that——
The response of the United States to competition from countries that pay even lower wages should be the development of a more structured and stable domestic labor market with increasingly productive workers. Industries must modernize to remain successful in the increasingly competitive international market place. Agriculture is no exception...To assure its long-term competitive position, agriculture must improve its labor management practices.
In reaching its conclusions, the Commission specifically noted that farm workers face special problems if they attempt to organize and bargain collectively in order to improve their working conditions: ''effective organizing is made more difficult by the fact that farmworkers are essentially powerless, both in objective terms and relative to the agricultural employers who oppose organizing.'' However, it has been the UFW's experience that where farm workers have been able to organize, there has developed the more structured, stable and productive work force which the Commission recommended as the long-term solution to the agricultural labor problem in the United States. If we want to break the cycle of an unstable labor market which constantly needs to be replenished with new foreign workers, we should encourage the emergence of a stable labor market through organization and collective bargaining.
The UFW is actively working on such a model today. On December 14, 1994, workers at Bear Creek Production Co., the world's largest rose producer, voted to have the UFW be their collective bargaining representative. Bear Creek chose not to fight the UFW's election victory and instead sat down and bargained a contract. A new partnership was established based on six principles: 1) commitment by both leadership levels to making the partnership work; 2) the development of continuous learning and skill building; 3) the open sharing of technical and financial information; 4) the joint development of the partnership plan; 5) continuous integration of leading-edge technology; and 6) recognizing the continual need for trust and open communications. The workers, Bear Creek, and the UFW decided that the major issues the partnership should address were 1) the growth of difficulties inherent in the agricultural industry; 2) the physical demands and seasonality of the work; 3) the virtual absence of standard employee benefits; and 4) the over-reliance on inexpensive labor rather than development of a skilled workforce. With this new partnership between labor and management, Bear Creek has gone from merely breaking even to record profits in 1998. Most notably, hourly labor costs as a percentage of total overall spending has been reduced by 3% since 1996 and by 2% since 1998, at the same time wages and benefits have improved.
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It is only through this kind of approach that the cycle of farm worker poverty can be broken and we can create a stable agricultural labor market that benefits all interested parties.
We thank the Subcommittee for its consideration of our views.
Mr. SMITH. Because Congressman Gallegly has another committee meeting at 1:30, I am going to recognize him first and then save my questions for the end. The gentleman from California, Mr. Gallegly.
Mr. GALLEGLY. I thank the chairman very much for yielding to me out of order and I really appreciate the fact that you called this hearing today. As you know, this has been an issue that I have been working on for many years and every time you think you have a resolution to the problem you find another problem that either is difficult if not impossible to try to mitigate. But I think before we get into the solution, we really need to find out more about what the problem is and what the magnitude is.
Dr. Holt, you had mentioned that somewhere in your testimony that the INS really is not enforcing the laws, but yet, and I think Mr. Dolibois made reference to the Social Security Administration is now stepping in with computers and electronic and so on and so forth. First of all, Dr. Holt, we have numbers all over the board and I know there is no way to really give us an accurate hard number. What percentage of the workers do we have in agriculture in the United States that while they may be in compliance with the verification process, we know are still here through counterfeit documents and so on? What percentage of the workers do you believe are in the United States here illegally that are working in our fields?
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Mr. HOLT. Well, Congressman, the National Agricultural Workers Survey that the Labor Department conducts every 2 years most recently estimated that percentage based on self-identification by workers in a field enumeration of 52 percent. We think if 52 percent of the workers are self-identified, admitting it on a government sponsored survey, that has got to be the lower limit.
The only other evidence we really have is the anecdotal evidence based on the Social Security letters and on the INS I–9 audits and typically when that occurs, the percentage of documents that fail to verify is in the 60 to 70 percent range. I have heard of instances. I won't mention the State, hut it's——
Mr. GALLEGLY. Close to home.
Mr. HOLT. No, it is not close to home. It is in an area that you would least expect to find it where over 90 percent of the names and numbers on an I–9 audit were determined to be unverified.
Mr. GALLEGLY. It would be safe to say that conservatively over half of the people working in agriculture in the fields and the growers of this country have no legal right to be in the country to start with; is that correct?
Mr. HOLT. That would be a very conservative estimate.
Mr. GALLEGLY. Mr. Dolibois, would you agree with that?
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Mr. DOLIBOIS. I think our employers are discovering that in spite of their experiencing no penalties because all of the documentation bears the sufficient legitimacy, from the employer's point of view, the reality is that we are experiencing that rate.
Mr. GALLEGLY. Now you mentioned the Social Security Administration.
Mr. DOLIBOIS. Correct.
Mr. GALLEGLY. And with the computer age moving at the rate technologically that they are, it is a lot more difficult for a person to continually have someone operating with an invalid Social Security number or it may be valid but it may be used by 40 different people in 30 different States. Is that a big trip wire now for this issue and what does an employer do when he gets the call?
Mr. DOLIBOIS. Clearly, it is a trip wire and it is an education process for the employer who in many cases has employed this person year after year after year only to find out—in some cases, 7 or 8 years later that this person has been working for them with apparently illegitimate documentation. Suddenly he gets a letter, the employer gets a letter from the Social Security Administration saying that there is a mismatch between the name and the Social Security number. It comes as a shock to the employer.
Mr. GALLEGLY. And these folks are hardworking people that have worked for years.
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Mr. DOLIBOIS. Absolutely and not only that, but——
Mr. GALLEGLY. And have proven to be good citizens and are good residents——
Mr. DOLIBOIS. Absolutely.
Mr. GALLEGLY.—I guess.
Mr. DOLIBOIS. Not only that, but the employer has invested in this worker. We are not talking about somebody at the bottom of the working task level either. We are talking about people who have advanced to foreman and everything else at that point.
Mr. GALLEGLY. I see my yellow light has come on and I did want to just go to Mr. Camacho just for a second. You are counsel for UFW which I guess technically qualifies you as an officer of the court.
Mr. CAMACHO. Yes.
Mr. GALLEGLY. Do you think that employers should hire only citizens or legal residents?
Mr. CAMACHO. Yes.
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Mr. GALLEGLY. And would you agree that folks that are here illegally, that are working in the fields, without a modification to status or a legal program to work under, would be much more vulnerable to unscrupulous employers because they don't have maybe the same level of comfort to go and scream help on labor laws and things of that nature?
Mr. CAMACHO. Actually I think it is the reverse because even workers that are undocumented working here, they have the choice to walk away from that employer. They can go look for another employer somewhere else or not work for that employer. H–2A workers don't have that right. They have to work for that employer and they are going to be a lot more——
Mr. GALLEGLY. So the safety valve is if there was discrimination, they can just walk away.
Mr. CAMACHO. Unfortunately that is the only safety valve.
Mr. GALLEGLY. But they still would have a tougher time if they wanted to keep their job to continue to be discriminated against as it relates to working hours, working conditions and so on and so forth because of the fear of having to deal with their immigration status. That is a safe statement; isn't it?
Mr. CAMACHO. That is a safe statement and that is why I think we support a similar program to the 1986 program to adjust these workers to a legal status and not put them into a situation of an H–2A worker where they are basically enslaved in working with one employer. If these workers truly have given what you call them as citizens and which is interesting because if they are truly like citizens why don't we give them that citizenship.
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Mr. GALLEGLY. I corrected that. I referred to that as residents. It was——
Mr. CAMACHO. I mean we should give them that. I mean they have earned it. But we should give it to them like we did in 1986.
Mr. GALLEGLY. Mr. Chairman, I see the red light is on. I could go on here for a long time, but in fairness to my colleagues I would yield back.
Mr. SMITH. I appreciate that. Thank you, Mr. Gallegly and now we will go to the gentleman from California, Mr. Berman.
Mr. BERMAN. Well, thank you, Mr. Chairman. I could go on for a long time, too. Some people think I have.
Mr. SMITH. In that case——[Laughter.]
Mr. BERMAN. Dr. Holt says undocumented workers don't depress wages. Why? Because studies show that real incomes of farmworkers have gone up faster than real incomes of non-agricultural workers. Therefore, the existence of large numbers of undocumented workers do not have a depressive effect on wage rates in agriculture. Mr. Camacho describes the decline in real income and the deterioration of working conditions in agriculture based on his daily experiences and paints a very different picture of farmworkers.
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Mr. Krikorian, I anoint you as the arbiter of——
Mr. HOLT. Congressman, you misrepresented what I said so don't ask him to respond to an alleged statement of mine that was different.
Mr. BERMAN. Wait a second. I misrepresented what you said.
Mr. HOLT. Yes. I did not talk about real income.
Mr. BERMAN. Let me read. I don't like being accused of misrepresentation so I will treat you the way you treat me. Here is what Dr. Holt says—employed by the growers. The statement is demonstrably misleading and therefore false. Farmworker wages have outperformed non-farmworker wages over the past decade even as the proportion of the seasonable agricultural workforce which is undocumented has risen dramatically. Average hourly earning of non-supervisory field and livestock workers has risen faster in dollar terms and declined less in real terms than non-supervisory, non-agricultural production workers over the past decade.
I have heard you state that—by the way the statement that is demonstrably misleading is that farmworkers' wages have been declining in real terms for the last decade. This wage depression is caused partly by the presence of economically and politically weak guestworkers and undocumented workers. I would suggest I didn't misrepresent what you said then. I don't know what you are going to say now, but I didn't misrepresent what you said then.
Mr. HOLT. Right.
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Mr. BERMAN. So now if I may finish my question, then I certainly think you should have response to what the arbitrator says.
Mr. HOLT. Okay.
Mr. KRIKORIAN. Thank you, Congressman.
Mr. BERMAN. Let me just put the issue to you. One, what is your reaction to the statement that the existence of undocumented workers in the workforce does not have a depressive effect on wage rates for agricultural workers? And two, on a separate issue, do you have any reason to believe that the number of undocumented workers here in the United States will dramatically lessen as a result of the passage of the Pombo bill allowing a substantial expansion in the existence of guestworkers tied to a specific employer at labor conditions less than those now provided for guestworkers under existing law?
Mr. KRIKORIAN. On the wage question, I would defer to the experts at the National Agricultural Workers Survey, who in their report issued in March pointed out that real wages adjusted for inflation of farmworkers have fallen 10 percent during the 1990's.
Now I think what Dr. Holt is saying that the nominal increase of those wages may have been at a slightly higher rate than the nominal increase of other wages, maybe or maybe not. That may be the way I understood it.
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Mr. BERMAN. Haven't we had some minimum wage increases during that period of time? Aren't most of the workers in America not minimum wage workers?
Mr. KRIKORIAN. I am trying to be the arbitrator, Congressman, because we do statistical reports all the time and you can always describe things in different ways, but it seems to me the bottom line is what are the real inflation adjusted wages of farmworkers? And they have fallen 10 percent during the 1990's, the greatest expansion we have experienced in a long time, and clearly that is not an indication of a labor shortage because if there were labor shortage one would expect wages to have increased because that is the way that an employer would attract more workers.
Your second question about whether H.R. 4548 or anything comparable to that would decrease illegal immigration, I think it would be quite the opposite. And that is what we saw with the experience from the Bracero program. In fact, today's illegal immigration wave, the seeds of today's illegal immigration were, in fact, sown in the 1950's and 1940's with the Bracero program. If guestworker programs did, in fact, reduce illegal immigration, then I would ask why we had during the 1950's an enormous, unfortunately named Operation Wetback, which rounded up and deported hundreds of thousands of Mexican illegal aliens at the height of the Bracero program.
Mr. SMITH. Thank you, Mr.——
Mr. BERMAN. I think Dr. Holt should have a chance to defend himself against my accusation that he was accurately represented.
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Mr. SMITH. We will give Dr. Holt that opportunity. Please proceed.
Mr. HOLT. Thank you, Congressman. You said I said real incomes declined and I did not say real incomes declined. I said real wage rates declined or—I am sorry—that real wages increased. Wage rates——
Mr. BERMAN. Wait, wait, wait. Now you got me confused. What did you say I said you said?
Mr. HOLT. You read my statement there and it talked about average hourly earnings. We are talking about the wage rates employers pay versus the income workers earn. Now it is true—I presume it is true because the National Agricultural Workers Survey shows it—that annual incomes of farmworkers have gone down somewhat and that is because the number of weeks of work have gone down. And I think that is not surprising, given the churning of the agricultural labor market that is being created by such things as, for example, the Social Security EVS initiative, INS I–9 audits. What happens in those situations? INS doesn't deport anybody. Social Security doesn't deport anybody. They just require the employer to turn them loose and guess what? They have to go out and find another job.
The agricultural work force is being churned by this process. It is not helping employers and it is obviously not helping workers either. Annual incomes and the amount of employment is going down. That is a lot different than what is happening to wage rates. Wage rates in agriculture are going up more rapidly than non-agricultural wage rates.
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Mr. SMITH. Thank you, Dr. Holt.
Mr. BERMAN. Mr. Chairman, would you just give me 15 seconds to respond?
Mr. SMITH. Yes, Mr. Berman, we will give you an additional 15 seconds.
Mr. BERMAN. The reason farmworkers are being churned is because there is an oversupply of farmworkers. The growers aren't getting rid of that guy, oh, my God, what am I doing? I got to raise rates $2 an hour to get the next worker. No way. There is an oversupply and I cannot accept the notion—it just makes no sense to me—I am trying to divorce myself from any philosophical leanings—that the addition of a large number of undocumented workers doesn't have a depressive effect on wages rates and real income. It has to.
Mr. SMITH. Thank you, Mr. Berman. The gentleman from Florida, Mr. Canady, is recognized.
Mr. CANADY. Thank you, Mr. Chairman. I want to just follow up on the assertion that there is an oversupply of agricultural labor. Dr. Holt, Mr. Dolibois, what do you say to that assertion?
Mr. HOLT. Well, I think the first thing I would point out is once again the fact that if there was an oversupply of agricultural labor, agricultural wages would not be increasing. Why would employers be increasing their wage offers year in and year out at a more rapid rate than non-agricultural employers if there was an oversupply of labor? So the same logic that the congressman uses, I would use to argue that there is not an oversupply of labor.
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However, there is a serious problem, I think, created by the instability that has been introduced. Well, that has been exacerbated in the agricultural workforce of late by our efforts, you know, proper as they are to enforce immigration laws.
Mr. CANADY. Mr. Dolibois, you want to add anything to that?
Mr. DOLIBOIS. Our experience at this point is that there are regions of the country right now where in significant producing areas of nursery stock, where there is a shortage of labor. Now maybe collectively, if you took all the possible workers in the entire United States and you pooled them all in one place, and you took all the jobs and you brought them to one place, there might be collectively a surplus. But there are very clearly places in this country where there is a shortage of workers and even with increased wage rates, which have been legitimately catalogued here, the reality is that these workers are not available.
The churning, I assure you, is occurring on the part of SSA sending letters to employers and employers being forced to tell their workers, and rightfully so, there is a problem here, the government says you shouldn't be here. And these people disappear and they go down the road. And all the training and all of the investment that these people made in many cases over multiple years is lost as that person goes down the road and tries to find some other place to work until that employer gets the same letter. The system is broken. It is not a surplus. It is a churning.
Mr. CANADY. Let me also follow up on a point that Mr. Krikorian made, which I thought was very interesting. Mr. Krikorian would contend that either having a guestworker program or having illegal immigrants working in agriculture is a drag on increasing productivity in agricultural sector. It is a drag on mechanization and so on. Now, it is my experience that there, at least in certain segments of the industry, there are very serious efforts to move toward mechanization.
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I think that the reality is that there are just some limitations on what can be accomplished, particularly with respect to particular commodities. But let me ask Mr. Dolibois and Dr. Holt if they have any response to Mr. Krikorian's point about that issue?
Mr. HOLT. Congressman, you may recall in Mr. Fraser's testimony, the Labor Department witness this morning, he cited some statistics which were a little bit wrong, but I think proved the point. He indicated that production of labor intensive commodities in the United States had increased 80 percent over the last 10 years and with a level workforce. The only thing wrong with this statement was the increase has actually been a little more than 80 percent.
But that makes it obvious that there has been an enormous amount of innovation and technological innovation. That takes many forms. It is not always mechanization. There is all kinds of different plant breeding, all kinds of different labor saving technologies. Clearly, we have made tremendous strides in this country, even in the last 10 years, during a period of unprecedented employment of illegal aliens, in increasing agricultural productivity. So I think that assessment is simply wrong.
Mr. DOLIBOIS. In the case of the nursery industry, we are currently participating with the Agricultural Research Service in cooperation with Carnegie Mellon University and the Robotics Institute there. We have invested between the industry and ARS and NASA, we have invested $2.5 million in the last 2 years trying to come up with a product or a robot that could pick up the number of containers in a container growing operation. These are things that ultimately may result but that doesn't solve the problem for the owner or the worker today. Mechanization may happen some day, but every plant grows differently so it doesn't respond well to uniform treatment.
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Mr. CANADY. Mr. Chairman, I see that my time has expired and the bells have rung.
Mr. SMITH. Thank you.
Mr. CANADY. I do want to thank all the members of this panel for being here today. I think your testimony has been very valuable to the subcommittee on these important issues. Thank you.
Mr. SMITH. Thank you, Mr. Canady. The ranking member, Ms. Jackson Lee, is recognized for her questions.
Ms. JACKSON LEE. Thank you very much, Mr. Chairman, and thank you very much, the witnesses, and your prepared testimony. As I indicated, I apologize. Your testimony is not diminished in my eyes because I was engaged in another meeting. I thank the chairman for this meeting/hearing, and as well the questions of my colleagues.
Let me simply focus on Mr. Camacho because I think my colleagues have appropriately questioned the witnesses on the numbers and as well the positions that they are taking and raise this to another level. Might I, as I do this, because I know I do have the bells ringing, but I think we are not yet on the second bell, I want to again congratulate Cecilia Muñoz for the MacArthur fellow. I just wanted to say that one more time and won't put the amount of money in the record, but again emphasize that she is one of only 30 people. So her work is well to be respected.
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But I want to change the tone of the discussion and go back to my opening comments which might have been muddied in what I was saying and that is that I respect the agricultural industry. In fact, I would almost say that there is a greater need for professionalization of the employees that work for the agricultural industry inasmuch as it is another economic anchor that will be further energized by the new attitude about trade frankly.
More workers will be needed is certainly acknowledged and maybe we will take this terminology of illegal immigrants as they come in because the industry needs them. And I view this as slightly different or substantially different from H–1Bs. The H–1B individuals are at a slightly higher educational level and maybe a slight degree of independence and as well these are not immigrant visas anyhow.
My question to you, Mr. Camacho, is what this legislation does to the human factor? In an economy where we are fighting for affordable housing, where vouchers don't satisfy the needs of people who work at minimum wage and are attempting to find housing in a market where anything that has a roof over its head commands, and I assume in California and it may be even in Florida, a high price.
What happens when legislation eliminates housing provision and gives a voucher? What happens when there is little attention given to minimum wage and other aspects of the human person or human being that is involved in this particular program? What are you trying to present to us today as to how do we confront this issue? The human misery factor, if you will?
Mr. CAMACHO. Yes. One of the things that happens is, for example, workers lose wages. I mean wages start declining. In terms of the housing, for example, if you to go to Washington, to the Yakima Valley where apples are grown, there is no housing. Workers live near the river. So tell workers that we are going to give you $4 a day to go find housing, I mean how does that meet the housing need that is there?
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So I think we are not addressing the real issue of do we want to really address the issue of housing and disregard how we provide housing for these workers or want to address the issue of poverty and disregard how we address the issue of poverty for those workers? Unfortunately, one of the other things that happens is education for their children also suffers.
I mean along with the poverty, you start seeing children go back into the fields and start working because the family needs to raise that income to survive. And they don't start going to school. So it has dramatic effects in terms of the welfare of the entire family, not just in reducing wages but also in affecting the children in terms of what they are doing.
Ms. JACKSON LEE. You may have had this in your testimony. Can you give me an estimate of how many farmworkers we may have in the Nation today?
Mr. CAMACHO. It is about two million.
Ms. JACKSON LEE. About two million. I notice that the legislation that we have under advisement gives no need for recruitment or seeking individuals from other parts of the country seems to be unlimited. How do you address that question as to the fact that there may be farmworkers who, in fact, would be enhanced by moving into another product, another fruit, another vegetable, and help enhance their wages? They seem to be at the mercy of this unlimited flow, if you will, and again with no opportunity to advance themselves, if you will. I mean we are not creating a professional class. There may be some individuals who if the working conditions were right, housing was right, education was right, this may be their particular choice of work. Are there kind of growth opportunities? And I may be taking you off the mark. But going to my point of professionalizing the industry, of responding to the human needs of the individuals who work in this industry.
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Mr. CAMACHO. No, I think I gave an example in my testimony of a company we are working with which is Bear Creek. We are trying to work with them and we brought the workers in as professionals, as skilled laborers in terms of defining how to better improve production at that plant, and surprisingly they come up with a lot of new innovations, a lot of different things that management hadn't come up to at that point, and helped that company become profitable.
I think we want to work with agriculture in terms of making it a viable industry. But it can't be as it has been in the past at the back of farmworkers. We want farmworkers to prosper along with the industry and we want to try to figure out how this industry can prosper because it is in our interest and it in the farmworkers' interest for the industry to be a prosperous industry.
But they also have to have the right wages and the right benefits. It is interesting to note that at places where we have collective bargaining unit agreements those employees aren't screaming that they have shortage of workers. In fact, we have lists of workers lining up to sign up to go work at those companies. Why? Because they have good benefits, they have good medical plan, they have a good pension plan.
So, again, I believe if we can provide those benefits to those workers, we can make the industry where it can make workers have a real wage, a real life in that industry.
Ms. JACKSON LEE. Mr. Chairman, I am going to make a concluding remark. I see the red light. Mr. Chairman, I don't know where you stand on this legislation. I am sorry that I missed your remarks, but let me just say that I have a level of discomfort when I hear Mr. Camacho talk about some of the themes that I had with respect to enhancing the worker and I don't know whether this legislation goes on some of those issues and some of those human issues that I have questions about. Maybe as we move through committee, I will have some answers. Thank you very much. Thank the witnesses very much.
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Mr. SMITH. Thank you, Ms. Jackson Lee. I would like the witnesses to remain, because I would like to ask my questions when we return from voting. We will stand in recess for I hope about 15 minutes or so. Thank you.
[Recess.]
Mr. SMITH. The Subcommittee on Immigration and Claims will reconvene. I appreciate you all waiting. I do have a couple of questions. And Mr. Camacho, I understand you are leaving for Dulles almost immediately. So let me just ask you a question or two, and then you can head to the airport and be sure and catch your plane.
One question is this. I know Mr. Holt in his testimony pointed out, for example, that the conditions surrounding the kind of work done by H–2A workers, those being seasonal work, lasting just a few months, work being in the rural areas as opposed to the urban areas where labor may be in greater supply, the difficulty of the physical labor itself, the fact that workers oftentimes have to move from one location to another, oftentimes separated by many hundreds of miles, given those kinds of labor conditions, is it really any surprise that the wages are going to be relatively modest?
Mr. CAMACHO. I am trying to understand your question. But if you are saying that by the simple nature that work is seasonal——
Mr. SMITH. Right.
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Mr. CAMACHO [continuing]. That that depresses wages in itself?
Mr. SMITH. Right. Seasonal, rural, physically demanding and migratory, given those kinds of work conditions, isn't it fair to assume that there are not a lot of people who want to engage in that kind of activity, and therefore you don't have that great of a supply, and therefore wages are not going to be as high as you might like otherwise?
Mr. CAMACHO. The only way I can answer that is, for example, the Bear Creek Company that I have been talking about. Their peak of production is 3 months. That is it for the year. And they have the highest wages in the industry. So in terms of the seasonality of the work depressing wages, I don't think that is true. What we are trying to do in terms of work with other employers to try to figure out how we extend their work throughout the year.
For example, these workers work in roses for 3 months. We are trying to figure out, okay, how can we move them from roses for 3 months to work with, for example, let us say in grapes. And then move on them on so that we expand their period of time working for the remainder of the year.
Mr. SMITH. Okay. I don't want to prolong the discussion, but I am interested in your answer. Thank you very much for being here. I hope you make that plane. It is going to be closer than you know.
Mr. CAMACHO. If there any other questions, I mean——
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Mr. SMITH. Let me see if any other members have any other quick questions. Mr. Berman has that look on his face. [Laughter.]
The gentleman from California is recognized very quickly.
Mr. BERMAN. I would think that if a job were hard to do and only for a small period of time and far away from where you are, that might cause someone to pay you more to do it. In other words, that would be a natural thing that might—it would screen out. A lot of people wouldn't want that kind of job and, therefore, there would be a fewer amount of supplies so that it would actually be flipped around. You would think you might get paid more for doing that kind of work, not less. Do you——
Mr. HOLT. No, I would agree with you, Congressman, and I think what you will find in many rural labor markets is that, in fact, for jobs of comparable skills——
Mr. SMITH. Mr. Holt, I am going to interrupt you just to excuse Mr. Camacho. He is not going to make that plane if we don't let him go.
Mr. CAMACHO. Thank you.
Mr. SMITH. And we will continue the discussion. Thank you, Mr. Camacho. Mr. Holt, yes, please.
Mr. HOLT. That in many rural labor markets, in fact, that is what you see that the wage rates for the seasonal agricultural field worker, in fact, are higher than wages say in the fast food restaurants. But they are year-round jobs and workers, in fact, are willing to accept a lower wage for those jobs than seasonal agricultural work. I know in Florida—this has been 10 years ago or so now, but it is the only study like this that I recall that I am aware of—the Florida Job Service did a little study of wage rates in South Florida of unskilled workers, and, in fact, determined that H–2A workers, or the agricultural workers, in this case they were on H–2A farms, were getting a higher entry level wage than for non-farm jobs, but it goes back to the issue we were discussing before the recess.
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The problem was the income levels of these workers was still low because the duration of the jobs was brief even though their wage rates were high.
Mr. SMITH. Let me continue my questions and we will come back to that. I don't know that we are going to conclusively answer the hypothetical anyway. Mr. Holt and Mr. Dolibois, I assume, and correct me if I am wrong, that you all would both favor a verification program or system that would allow growers to determine whether any member of their workforce is in the country illegally?
Mr. HOLT. I think growers would welcome a way of knowing whether the workers were legal because—and being able to verify that. They certainly don't know that based on looking at the documents that they fill out for I–9 forms now. But they don't want, they wouldn't want such a system without a way of getting legal workers at the same time.
Mr. SMITH. I understand that. I just wanted to get to the point where they would be willing to verify their workforce with the expectation that they could replace the folks who were here illegally with people who might be here in a more structured legal capacity. Is that right?
Mr. HOLT. I think growers would welcome the certainty of being able to determine whether their workers were legal.
Mr. SMITH. Mr. Dolibois, would nurserymen and women agree with that as well?
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Mr. DOLIBOIS. I think if that verification system were such that it didn't single them out as an employer because it is a different kind of verification system than would be expected of anybody else in that job market, and that there was a functioning guestworker program that would be tied to that, then I think that would be something they could live with over the uncertainty that they're living with now.
Mr. SMITH. I understand. Let me ask you both to respond to a point made earlier by Mr. Fraser, who pointed out in his written testimony that in the various agricultural fields, the income and the profits have been increasing dramatically over the last few years. You wouldn't normally associate that kind of a record of income and profitability with a shortage of laborers. What would be your response to his point?
Mr. HOLT. At the risk of getting into another one of these discussions like Congressman Berman and I had before the break, I don't think he was talking about income. I think he was talking about receipts. In other words, he was talking about gross, the gross value of production, having grown substantially, which it has. The production of labor intensive commodities has increased substantially. I am not aware of data on incomes, if you will, net incomes for farm incomes in the fruit and vegetable industry. I know that it is certainly not true that farm income and agriculture generally has increased.
I think it in pretty dire straits right now. But I do think the figures he was citing were gross revenue. He was talking about growth in production and gross revenues.
Mr. SMITH. Are you aware of any location this spring where crops have not been able to be harvested or fruit picked because of a labor shortage?
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Mr. HOLT. Well, of course, we are not at the harvest time of year yet. In most parts of the country, this is still preharvest, but—and incidentally sort of the pattern of seasonal agricultural employment is that the peak occurs in the July to September period and with September and October being peak months.
Mr. SMITH. Maybe Texas just has better timing.
Mr. HOLT. Well, I was going to say South Texas and South Florida have their peaks, of course——
Mr. SMITH. Now.
Mr. HOLT [continuing]. Now, and even earlier, and I think you are going to hear some of that kind of testimony in the next panel.
Mr. SMITH. Thank you. Mr. Krikorian, you recommended two specific changes in current law that you think that the growers should adopt. One was a verification system, which they have said they would accept as long as there was another program put in place to provide legal workers to take the place of the illegal workers. The other was open field searches. What is your reason for suggesting open field searches?
Mr. KRIKORIAN. Well, the INS is now prohibited and has been prohibited from entering fields where farmworkers are doing work to examine their documents. They are required to obtain a search warrant and by the time the search warrant is obtained, the workers they wanted to investigate are no longer there. It is simply not a feasible way to allow the INS to enforce the law and until they have that ability combined with a verification system, it will be extremely difficult for the INS to do its job even if it were, you know, permitted to do so.
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Mr. SMITH. Let me ask Mr. Canady if he has any questions for this panel.
Mr. CANADY. I have no additional questions.
Mr. SMITH. Okay. I am going to finish up then, and then we will proceed to the next panel. Mr. Holt and Mr. Dolibois, would you be in favor of or opposed to open field searches?
Mr. DOLIBOIS. I would submit that the circumstances under which our member employers are operating right now is sufficiently onerous that open field searches are academic. Let me give you at least one example. We recently were having a meeting in Chicago and one of our members was flying from a distant State. I was flying in from Washington.
We rendezvoused at O'Hare Airport and another member of our staff was meeting us there. And in between the time that member grower took off from his local airport to the time that he got to Chicago, it was a Monday morning, his number two had called our other staff member who was already in Chicago to inform them that his workers who lived in nearby apartments were not showing up in droves. And the reason is that a rumor circulated through that apartment building that the INS was coming on Monday morning and was going to raid that particular nursery.
173 of his workers were scattered as far as three States away. And these people were calling the nursery that morning to find out if the INS had been there or not because they were living with relatives or had spent all their savings just trying to get as far away from this situation as they could. We don't need INS raids in the fields to continue to aggravate the situation for employers.
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Mr. SMITH. If you had a program that allowed you an adequate supply of legal workers, would that soften your opposition to open field searches?
Mr. DOLIBOIS. I am confident that if we had a workable guestworker program that was reasonably easy to administer, that was fair to both the employer and the employee alike, yes.
Mr. SMITH. Then you wouldn't need one.
Mr. DOLIBOIS. That the law of supply and demand would then be righted as it is not now righted. And all of these distortions would be resolved and that would be an academic question.
Mr. SMITH. Thank you, Mr. Dolibois. Mr. Krikorian, my last two questions to go to you. The first is why do you think a guestworker program would increase illegal immigration, and the second, why would you oppose giving amnesty to people who are in the country illegally?
Mr. KRIKORIAN. Experience has shown that a guestworker program increases or even creates illegal immigration where it did not exist in the past. And this is because guestworker programs on their own terms always fail. Everywhere in the world throughout all of his history because the point to a guestworker program is to get the labor of a person without getting the person. A German commentator said we asked us workers and they sent us men.
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Henry Ford, along the same lines, said he needed hands to operate his factory and unfortunately each pair of those hands was connected to a human being. Guestworker programs create networks and relationships where they did not exist before and those networks are the pipelines or the means by which illegal immigration takes place.
For instance, the analogy I like to use is to compare Indonesia to the Philippines. This has nothing to do with guestworkers, but it does relate to the network question. No one in Indonesia wakes up in the morning and says I want to move to Los Angeles because the United States has never had any relationship and there are no networks connecting people in that country to the United States, whereas the Philippines right next door was colonized by us for 50 years, we have a long-standing relationship since then, and there is therefore a large population of Filipinos here and very significant pipelines, networks, if you will, of people from the Philippines to the United States.
Guestworker programs create those kind of networks where they did not exist before. And the experience of the 1950's with the Bracero program shows us that the 10 years worth of the Bracero program created an enormous illegal alien population that was pulled into the United States along with the
aceros or they were braceros themselves who settled out, as the farmworker people say, and created a large illegal alien population. There is simply no way to avoid that. It has happened everywhere in the world and there is no reason to expect that this particular guestworker program would somehow be exempt from the laws of human nature.
Mr. SMITH. And if you feel that way about the guestworker program, I hate to ask you what you think about amnesty, but——
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Mr. KRIKORIAN. Well, actually I don't think I said anything about amnesty in my testimony and I'm not necessarily—I think there is potentially an argument to be made for amnesty if it is a tying up of loose ends and it only happens after the doors have been closed, after the problems have been fixed, and then those people remaining who are illegal, after the situation which created that illegal immigration has been resolved, then are given legal status. I am not necessarily opposed to that.
Mr. SMITH. Is there ever any realistic prospect that those doors will be closed, as a practical matter?
Mr. KRIKORIAN. That is up to you and your colleagues, Mr. Chairman.
Mr. SMITH. Thank you, Mr. Krikorian. Thank you all for your testimony today, it is much appreciated.
Mr. SMITH. We will go to our fourth panel, if they can come forward as I read their names. Michelle Williamson, president, Sleepy Creek Inc. and Williamson Berry Farms; Mr. Dewey L. Hukill, Labor Advisory Committee, Texas Farm Bureau; Mr. William Buchanan, president, American Council for Immigration Reform; and Ms. Cecilia Muñoz, vice president, National Council of La Raza.
We welcome you all, and, Ms. Williamson, if you will start us off.
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STATEMENTS OF MICHELLE WILLIAMSON, PRESIDENT, SLEEPY CREEK INC., AND WILLIAMSON BERRY FARMS
Ms. WILLIAMSON. Good afternoon, Mr. Chairman and members of the committee. My name is Michelle Williamson and I thank you for allowing me to tell you why I feel that reform of this program is crucial. My husband and I are strawberry growers in Hillsborough County, Florida. We have 81 acres of strawberries and still farm land that has been in our family since the late 1890's. I am here today to share with you my experiences with the H–2A program and express my support for H.R. 4548.
I believe this long-awaited H–2A reform bill will make great strides in improving the effectiveness of the program. It will streamline the current H–2A program by carefully defining the obligations of prospective users to recruit domestic workers and ensure that no U.S. workers are displaced in favor of H–2A workers.
Most importantly, H–2A reform will ensure that farm employers will have a legal workforce immediately and will have a workable safety valve for future labor needs. The upcoming season will be our third year of using the H–2A program. The program is very complicated, expensive and full of problems. I have had to hire another person in my office just to handle all the paperwork associated with the H–2A program.
We are using this program because it is the only way we can ensure that we have a legal workforce to produce our berries. One of the biggest problems with the current system is the lack of timeliness of the program. As a user of the program, you must apply 45 days prior to your need for workers. In most agricultural operations, there is an ideal date that you should set or plant your crops. In the 1998–99 growing season we asked for our first wave of H–2 workers about 5 days before our first set date.
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These workers arrived 2 days after that day. In the following season, we asked for our workers 2 weeks before that first planning date and they arrived 7 days after that planting date. This delay in planting caused a loss of 18 percent of our production over other growers producing the same varieties.
This 18 percent translated to a loss of $343,000 in loss revenue. Obtaining and retaining workers is not just a problem for us at the planting time. Throughout the growing season, we need a steady and reliable workforce. In the 1998–99 growing season, we had unseasonably warm weather. Therefore, by mid-December, we were harvesting from sun up to sun down 7 days a week, which is not normal in December.
This heavy work schedule meant that we were behind in harvesting and picking 5 day old fruit that should have been picked at 3 days. Because workers were in short supply, we were not able to cut runners or do other maintenance work on the plants that are needed to ensure production. We in agriculture understand and do not have a problem with making a job guarantee to workers whether they be foreign or domestic. What we can't afford to do is have all the workers come at one time to cover unseasonably warm weather, having workers not come because your petition was delayed or not being able to delay a petition for fear of losing it because we have cold weather.
We need to be able to request more workers without waiting 45 days if we have more production than normal. Another problem with the program is the cost associated with it. Employers have to pay the costs of transportation of the workers to and from the United States, housing the workers, providing transportation to the store and other places the workers may want to go. Growers understand the need to provide housing for our workers and we are committed to provide reasonable housing, but we feel there should be some flexibility in the rules governing this component of the program.
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Another concern is the adverse wage rate. To require employers who are trying to hire a legal workforce to pay more for labor than their competitors just isn't right. I understand the reason the AEWR was put into the program, to ensure that cheaper off-shore labor wasn't hired. However, you must understand the reason that agriculture is trying to use this program is because our government has told us indirectly with letters from Social Security Administration that our workforce is largely illegal.
Fearing a loss of our crop due to immigration audits, we decided to turn to the H–2A program. We go through the positive recruitment to prove to the Department of Labor that there is not a legal workforce available. Our opponents say that if there are workers available. If we would pay a higher wage we could secure these workers. But in using the H–2A program, we are already paying 41 percent more wages than our neighbors and we still can't get these domestic workers.
In summary, the current guestworker program needs to be reformed to meet the specialized constraints associated with agriculture. H.R. 4548 will create a new H–2A program alongside the existing program. As a farmer, I have to adapt to adverse weather and ruinous prices. The H–2A program should be a solution to the problem, not a part of the problem. It must be reformed to add stability to a business that is inherently filled with risk. Thank you.
Mr. SMITH. Thank you, Ms. Williamson.
[The prepared statement of Ms. Williamson follows:]
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PREPARED STATEMENT OF MICHELLE WILLIAMSON, PRESIDENT, SLEEPY CREEK INC., AND WILLIAMSON BERRY FARMS
Good morning Mr. Chairman and members of the Committee. My name is Michelle Williamson and I thank you for allowing me to tell you about my experiences with the H–2a program and why I feel that reform of this program is crucial. My husband and I are strawberry growers in Hillsborough County, Florida. We have 81 acres of berries and still farm land that has been in our family since the late 1890s. My father-in-law and brother-in-law are berry growers and between us we produce over 500 acres of berries.
The upcoming season will be our third year of using the H–2a program. The program is very complicated, expensive, and full of problems. We are using it because it is that only way we can insure we have a legal workforce to produce our berries. That's why I am here today; to share with you my experiences with the H–2a program and express my support H.R. 4548, ''The Agricultural Opportunities Act.'' I believe this long-awaited H–2a reform bill will make great strides in improving the effectiveness of the program. It will streamline the current H–2a program by carefully defining the obligations of prospective users to recruit domestic workers and ensure that no U.S. workers are displaced in favor of H–2a workers. Most importantly, H–2a reform will ensure that farm employers will have a legal workforce immediately and will have a workable safety valve for future labor needs.
One of the biggest problems with the current system is the lack of timeliness of the program. As a user of the program you must apply 45 days prior to your need for workers. In berry production, like most agricultural operations, there is an ideal date that you should set or plant your crop. If you plant after this date your profitability is reduced daily. Thus, availability of labor to plant our crop is crucial. For example, in the 1998–99 growing season we asked for our H–2A workers about five days before our first set date and they arrived two days after that date. In 1999–2000, we asked for our workers two weeks before the first plant date and they arrived seven days after that plant date. This delay in planting caused an 18% loss of production over other growers producing the same varieties. This 18% loss caused by problems with the H2a program cost my family $343,000.00 dollars in lost revenue. I can verify this loss from planting delays by research and field tests done by our marketers and the trials done with different planting dates.
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The timeliness of H–2A program obtaining and retaining workers is not just a problem for us at planting time. Throughout the growing season we need a steady and reliable work force. In the 1998–1999 growing season we had unseasonably warm weather. Therefore, by mid December we were harvesting from sun up until sun down seven days a week which is not the norm in December. This heavy work schedule meant we were behind in harvesting and picking 5 day fruit that should have been picked at 3 days. Because workers were in short supply we were not able to cut runners or do other maintenance on the plants that needed to be done to ensure production.
The above mentioned points about labor availability highlights the need for employers to have access to workers without the 45 day waiting period. Production pushes don't tell you 45 days before they happen. A cold snap that can delay harvest by 25 days doesn't tell you it is going to happen. We in agriculture understand and do not have a problem in making a job guarantee to the workers whether it be domestic or foreign. What we can't afford to do is have all the workers come at one time to cover unseasonably warm weather, having workers not be sent because your petition got delayed, or not be able to cancel or delay a petition because of cold weather. We need to be able to request more workers without waiting 45 days if we have more production than normal. Another problem with the program is the costs associated with worker. The program is costly and the break on FICA and unemployment tax just about covers the cost of transportation of the worker to and from the United States. It in no way begins to cover the added expense of housing the workers, providing transportation to the store and other places the workers may want to go. Prior to H–2A, we charged $15.00 per worker a week for housing and this in no way covered our expenses. Compared to housing costs for workers in other occupations, this was a small fraction of the actual costs. Now we have to provide this housing at no cost. Growers understand the need to provide housing for our workers and we are committed to providing reasonable housing. But we feel there should be some flexibility in the rules governing this component of the program.
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Another concern that I have with the program involves the Adverse Effect Wage Rate (AEWR). To require employers that are trying to hire a legal work force to pay more for labor than their competitor is just not right. I understand that the AEWR was enacted to ensure that employers did not hire cheaper offshore labor. However, we must understand that the reason Agriculture is even trying to use this program is because our government has told us that our work force is largely illegal. So we go through the red tape and prove to Department of Labor that a legal work force is not available thereby showing that we would prefer to hire domestic workers. We have even promised 41% more wages than our neighbor and still we can't get domestic workers. Only after this process are we then allowed to request workers from the Immigration and Naturalization Service. Since October 1998 the AEWR in Florida has increased almost 7%. If the AEWR continues to increase at this rate my profitability will drastically impacted and the future of my family operation will be placed in jeopardy. Unlike other businesses where the cost of doing business is passed on to the consumer, Agriculture has had to come up with other methods of recouping increased cost and we can't just tack on a surcharge fee on customers like the airlines have done to combat higher fuel costs.
One avenue we have developed to help both our profitability and our workers bottom line is paying them increased wages if they are more productive. This has allowed us to use fewer employees and reduce overhead. In berry production, to earn the federal minimum wage a worker only has to pick 3.03 crates/ hour and we pay $1.70 per crate of berries. Our crews would average about 5.00 crates an hour putting our average above AEWR. However this is just average so we still have some that are harvesting below that 5.00 crates per hour. Because of AEWR we have to bump them to the $7.25. Now when you have part of your crew earning below $7.25 but above the $5.15 and you are giving them the extra, you eventually have the top half of your crew fall off in speed because they do not see the incentives to be more productive. $7.25 is a good wage and they couldn't get that at any other unskilled job. Add another $1.24 per hour for the housing and they are earning $8.50 an hour. Because of the AEWR we have to add another person per acre to meet harvest demands. The end result is that I have to hire and house 40 more workers.
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Because the H–2a program is so complicated, another unfortunate situation is created and that is lawsuits. Most of these lawsuits are filed by farmer worker advocate groups and most everyone that has used the program has faced lawsuits. There are many grey areas that leave wiggle room for lawyers to wage lawsuits against growers for minor infractions or mistakes. That is why we must clarify and reform the program. As a grower I would rather spend my resources and time improving the pay and working conditions of my workers instead of lawsuits.
In summary, the current guest worker program needs to be reformed to meet the specialized constraints associated with agriculture. At the same time, I realize that the domestic labor source is not appropriate to meet the demands and that we must have access to foreign workers to produce and harvest our crops. H.R. 4548 will create a new H–2a program alongside the existing program to demonstrate the value of reforms like changes to the Adverse Effect Wage Rate (AEWR) and improve the efficiencies of the program. As a farmer, I have to adapt to adverse weather, droughts and ruinous prices. With reform to the H–2a program, I look forward to a program that can be able to be adapted to me and my labor needs.
Mr. Chairman, that concludes my statement. Thank you for the opportunity to participate in this process and listening to my concerns about the current H–2a program. At the appropriate time, I am willing to answer any questions from the Committee.
Mr. SMITH. Mr.—is it Hukill? Am I pronouncing that correctly?
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Mr. HUKILL. Hukill, yes, that is correct.
Mr. SMITH. Hukill. Excuse me.
STATEMENT OF DEWEY L. HUKILL, LABOR ADVISORY COMMITTEE, TEXAS FARM BUREAU
Mr. HUKILL. Mr. Chairman, members of the committee, my name is Dewey Hukill. May I have my full written statement and the full written statement of the American Farm Bureau Federation entered in the record?
Mr. SMITH. I will insert both into the record without objection.
Mr. HUKILL. Thank you.
[The prepared statement of the American Farm Bureau Federation follows:]
PREPARED STATEMENT OF THE AMERICAN FARM FEDERATION
The American Farm Bureau Federation appreciates the opportunity to offer its views on proposals to improve and expand the H–2a temporary farm worker visa program. Farmers often find themselves dependent upon the labor of people outside their immediate families in order to plant, cultivate, and harvest their crops. Approximately 1.6 million people are hired to perform work on farms every year. These workers perform a vital function in assisting farmers to operate their farm businesses.
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Recently, the U.S. Department of Labor reported that its National Agriculture Worker Survey (NAWS) revealed that 52 percent of surveyed farm workers acknowledge that they are not legally documented to work in the United States. Only a few years ago, the same survey found that 37 percent of farm workers acknowledged illegal status. This growth in the number of workers acknowledging illegal status is a clear indication that farm employers not only experience difficulty recruiting a sufficient workforce to perform necessary work, but also indicates that farm employers suffer from an insufficient number of available, legal workers.
Farm Bureau believes this labor supply problem stems from two distinct developments that have worked together to reduce the available supply of labor for farmers. First, there has been a developing consensus among public policymakers that the federal government, working with state and local governments, should more effectively enforce U.S. laws to discourage illegal immigration. Though it has been illegal for non-authorized persons to seek employment in the United States, and for U.S. employers to employ non-authorized persons since 1986, relatively few resources were devoted to enforce this prohibition. The Immigration and Naturalization Service (INS) and the Border Patrol have in the last few years employed greater resources for border interdiction, interior, enforcement, and workplace enforcement.
More recently, the Social Security Administration (SSA) has more vigorously implemented its Enumeration Verification System, which is designed to weed name-and-number mismatches out of the SSA database. It is our understanding that billions of dollars in the Social Security Trust Fund may be credited to names and Social Security numbers that may be false. When SSA detects a name and number mismatch, the agency sends a letter to the farm employer advising of the mismatch and telling the employer that correct information must be furnished, threatening fines and Internal Revenue Service action if correct information is not forthcoming. Of course, when filing to pay the employer's share of Social Security taxes, the employer furnishes the information provided by the employee in question. When a farmer requires farm workers to furnish correct information for SSA,, those employees often do not return to work the following day. The clear implication is that the workers provided fraudulent Social Security cards.
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All of these stepped-up enforcement activities have diminished the labor supply for farm employers. It is important to emphasize that this is not because farm employers seek to employ undocumented workers. Rather, we believe farm employers probably have a greater propensity to be in compliance with pre-employment verification requirements than some other types of employers. However, it is very easy for persons in the United States to illegally obtain fraudulent identification documents that appear to be genuine. And when these documents are presented to an employer, they must be accepted as genuine unless they are clearly fraudulent. Farm employers are obligated to accept documents that appear on their face to be genuine because, under federal law, failure to do so could result in document discrimination charges. Farmers are in a Catch-22 situation. As citizens they wish to uphold the law and would thus prefer to avoid hiring illegal aliens. As business people, they realize they must hire an adequate workforce to plant, cultivate, and harvest the crops they depend upon for their livelihood. And, if they are too quick to decline to hire someone they suspect is fraudulently documented, they may run afoul of the law.
For the last five years, Farm Bureau has been engaged in an effort with state Farm Bureaus and other state and regional farmers' organizations to develop reforms of the H–2a program and work to secure legislation to accomplish those reforms. Our goal has been to unify agriculture from the east, the west, and all points in between, and to unify H–2a program users and non-users to support a reform package that will help everyone. At the outset, it was clear to us that the cost of a lack of unity would be high. In the 1980s, agriculture fragmented into factions seeking different reforms. The resulting Seasonal Agricultural Worker program legalized a great many ''farm workers'' who ultimately sought employment in other industries. Concurrent reforms of the H–2a program proved ineffective. And, the unintended consequence of the 1986 requirement to obtain documentation from workers encouraged a market in fraudulent employment documents that still thrives today.
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The H–2a temporary visa program is difficult for farm employers to use, and is in need of reform before it can be a viable source of legal workers for farmers. Farmers who have successfully used the program have told us that a. number of reforms could be made that would make the program less burdensome and less expensive for growers to use. In particular, farmers have complained about the labor certification procedure they are required to complete to demonstrate that no domestic workers will be displaced by the admission of foreign workers, as well as the excessively high Adverse Effect Wage Rate (AEWR) standard.
In terms of program usage, the H–2a. program today is not a major source of workers for farm employers. USDA surveys indicate that about 1.6 million people work seasonally in agriculture, excluding raising livestock, every year. Only about 30,000 workers were admitted under the H2a program in 1998. Compare that to the total potential need of 820,000 workers. Only one farm in Michigan has been able to effectively use the program. While program usage has been growing in recent years, only a few years ago the H–2a program admitted only about 15,000 workers annually. We think program usage is this low because the vast majority of growers feel they cannot navigate the bureaucratic process associated with labor certification, and even if they could, they could not afford to meet the adverse effect wage standards mandated by the program.
The market test requirements of the labor certification process has been particularly burdensome to growers because of their ineffectiveness. Farmers are required to file job orders with the Job Service agency in their state, which in turn files interstate clearance orders with the Job Services in other states where workers might be available to fill farm jobs. Often, workers referred to farmers by these activities are in fact illegally documented ''domestic'' workers to whom a farmer must offer work before being allowed to bring in legal foreign labor. This places a farmer in the absurd position of being forced by the U.S. government to employ a worker who is illegal in favor of a worker legally admitted under the H–2a program.
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In other instances, farm employers have been forced to advertise in metro-area newspapers for farm workers, or to advertise on Spanish-language radio stations in areas where migrant farm workers have traditionally resided during the winter months. These efforts have usually proven to be futile and expensive.
H–2a program wage standards have also been problematic. Under the current H–2a program, a participating grower must pay all H–2a workers (and any domestic workers they employ in the same occupation) the greater of the Adverse Effect Wage Rate, the prevailing wage in the area of intended employment (as determined by Department of Labor farm employer surveys), or the statutory minimum wage. Under current regulations, the AEWR is set at the average wage paid to field and livestock workers in a given state. Obviously, application of the AEWR will have an undesirable inflationary impact for about half of all farm employers in a given state, causing unnecessary inflation of the wages they must pay simply to ensure an adequate labor supply. For almost all farm employment, the AEWR set wage standard is uneconomic in a globally competitive labor market. In all cases of which we are aware, both the prevailing wage and the AEWR exceed the statutory minimum wage. For Michigan, the Adverse Effect Wage Rate in 1999 is $7.34 per hour. This is the fourth-highest AEWR in the nation, after Hawaii ($8.97 per hour) and Indiana, Illinois, and Ohio ($7.53 per hour). It is important for you to remember that the H–2a minimum wage standard is paid to workers over and above other expenses not incurred by non-H–2a employers, such as inbound and outbound transportation, housing and program administration expenses.
We believe the AEWR should be replaced with the prevailing wage standard applicable to the other non-immigrant worker programs. We also propose adding to that a 10-percent premium to help ensure that domestic workers are not displaced. This eliminates the major flaw of the AEWR now, the grouping together of unlike occupations in dissimilar labor markets to create an AEWR that doesn't reflect the local labor markets.
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Rather than using the combination of job orders and interstate clearance orders and ineffective employer recruitment required by the current program, we propose to use information technology to create a more effective conduit of labor market information for farmers and farm workers. We propose that the Department of Labor and the state Job Service agencies create Agricultural Worker Registries in states or regions that correspond to natural farm labor markets. These registries would be repositories of employment information provided by farmers and farm workers seeking to find one another. In order to participate in the registry, workers would have to demonstrate that he or she is legally eligible to work in the United States, and the Job Service could not place a worker in the registry who has provided documentation that can be verified by governments. Farm employers listing jobs with the registry would be obliged to first meet terms and conditions of the H–2a program. Farm workers wishing to seek work on farms in a given state would provide necessary information, such as name and current address to the registry.
These reforms are embodied in HR 4548, H–2a reform legislation introduced recently by Rep. Richard Pombo of California. We are pleased to see this legislation introduced, and are pleased to see the committee considering this legislation. We encourage the committee to examine whether the current illegal agricultural workforce should be given an opportunity to earn the right to apply for resident alien status. This has been proposed in Title I of S 1814, the Agricultural Jobs, Opportunities, Benefits and Security Act (AgJOBS), introduced in October 1999 by Sens. Gordon Smith of Oregon, Bob Graham of Florida, and Larry Craig of Idaho and cosponsored by 14 senators.
It is worth noting that recently the governors of Arizona, California, New Mexico, and Texas; as well as the governors of the Mexican states of Baja California, Chihuabhua, Coahuila, Neuvo Leon, Sonora, and Tamaulipas recently met in Sacramento at the XVII Conference of United States-Mexico Border Governors. At the meeting, the governors adopted the following resolution, among others:
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We the Governors, endorsing this joint declaration, hereby adopt the following topic of significant importance to the border region . . . request that the United States Congress expand and simplify the current H–2a unskilled labor visa program, which allows agricultural laborers to work for a temporary period in the United States, in order to meet the existing labor shortage in the agriculture industry.
This resolution represents the clear policy goals of border region policymakers, who are much closer and much more familiar with the challenges they face than anyone else. Further, the fact that several state governors of the United Mexican States joined in this resolution clearly demonstrates these governors understand the economic interests of their citizens. They understand that those economic interests are well served by expansion of the H–2a program, despite the claims of some opponents of the program to the contrary.
In 1998, we came very close to success in our efforts to reform the H–2a program. The Senate passed a proposal to accomplish the reforms we have presented in a bipartisan 68–31 vote in July of last year. That legislation was later combined with a number of other measures to create the omnibus appropriations bill that funded the operations of the federal government for fiscal year 1999. In that process, our H–2a reform was dropped in favor of other provisions. We have worked with the administration and opponents of the H–2a reform to see if we can reach a mutually agreeable solution to this problem. For example, we hope soon to engage in substantial discussion of reforms of rural housing programs that will create more housing stock for farm workers. We believe this is beneficial to farmers who will not use the H–2a program. And, of course, more and better housing stock will benefit migrant farm workers and their families. The Farm Bureau looks forward to working with interested members of Congress to ensure that 2000 is the year when meaningful H–2a reform takes place.
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Mr. HUKILL. My farming operation is located in Lamb County, Texas near Olton where I raise 700 acres of bulbs and about 600 acres of cotton. I appreciate the opportunity to offer our views on proposals to improve and expand H–2A temporary farm work visa program. Farmers often find themselves dependent upon the labor of people outside the immediate family in order to plant, cultivate and harvest their crops.
Approximately 1.6 million people are hired to perform work on farms every year. These workers perform a vital function in assisting farmers to operate their farm business. Mr. Chairman, with your permission I would like to submit for the record a copy of a letter from Bruce Fraiser, another member of the Texas Farm Bureau Labor Advisory Committee, as well as a letter from a rice farmer in Chambers County, Mr. Ricky Wolf. In fact, I am serving as a back-up for Mr. Fraiser who was not able to testify because of his problem in finding sufficient labor to harvest his melon crop.
While it is a short letter, I think it would be of significant interest to the committee if I read his letter. Dear Chairman: I was honored when asked to appear in front of this distinguished committee concerning agricultural
labor. Unfortunately, we are in the middle of a hectic cantaloupe harvest and I am fighting my own labor problems trying to get this crop harvested.
This morning, as every morning, I arrived at my farm at 5:30 a.m. to prepare for today's harvest. We try to position all the equipment early so we can begin the harvest at 7 a.m. and finish before it gets too hot down here in South Texas. Only 75 percent of the harvest crew showed up for work so we won't be able to harvest what we have orders for today. This is indicative of every day on my farm. We have had an open job order with the local workforce commission for 100 people the last 2 weeks and haven't been able to get a single person to apply for a job harvesting cantaloupes.
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This is in a region of South Texas that has 28 percent unemployment. My message to you is that even though we are only 45 miles from the Mexican border, there is a labor shortage here in South Texas. Daily we see illegal aliens crossing coming across our ranch. There seems to be a hurdle here in South Texas that once they cross, they are welcomed by all types of employers, not just in agriculture. Why can't there be a system to employ these and other individuals in this area?
Often the question of these individuals taking jobs away from the Americans arises. For the most part, agricultural labor is hard, manual, tough work. However, the misconception of this type of labor not being well paid is unjustified. My employees average over $9 per hour during harvest. The problem is there is just not enough labor pool available. The answer is simple. There are not enough people that are willing to do this type of work. We are doing a better job of educating young people to develop skills that will permit them to find better jobs in the city.
Government benefits ensure that if someone doesn't want to work he will not go hungry. The most often heard response from the job placement agency is no one wants to work. This is not true just a few miles south of here. There is a tremendous labor pool willing, able and literally dying to have a job in this country. I truly wish I could have appeared in person in front of this committee. The big question concerning this proposal is what we in agriculture do in 7 years when the labor pool moves to other types of employment after being legalized? Respectfully, Bruce Fraiser.
[Letters from Mr. Fraiser and Mr. Wolf follow:]
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| Dixondale Farms, Inc., |
| Carrizo Springs, TX, June 14, 2000. |
Hon. LAMAR SMITH, Chairman,
Subcommittee on Immigration and Claims,
Committee on the Judiciary,
House of Representatives, Washington, DC.
DEAR MR. CHAIRMAN: I was honored when asked to appear in front of this distinguished committee concerning agricultural labor. Unfortunately we are in the middle of a hectic cantaloupe harvest and I am fighting my own labor problems trying to get this crop harvested.
This morning, as every morning, I arrived at my farm at 5:30 a.m. to prepare for today's harvest. We try to position all the equipment early so we can begin harvest at 7:00 a.m. and finish before it gets too hot down here in South Texas. Only 75% of the harvest crew showed up for work so we won't be able to harvest what we have orders for today. This is indicative of every day on my farm. We have had an open job order with the local workforce commission for 100 people the last two weeks and haven't been able to get a single person to apply for a job harvesting cantaloupes. This is in a region of South Texas that has 28% unemployment.
My message to you is that even though we are only 45 miles from the Mexican border there is a labor shortage here in South Texas. Daily we see illegal aliens crossing across our ranch. There seems to be a hurdle here in South Texas that once they cross they are welcomed by all types of employers, not just in agriculture. Why can't there be a system to employ these and other individuals in this area?
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Often, the question of these individuals taking jobs away from Americans arises. For the most part, agricultural labor is hard, manual, tough work. However, the misconception of this type of labor not being well paid is unjustified. My employees average over $9.00 per hour during harvest. The problem is there is just not enough labor pool available. How can this be in an area with such high unemployment? The answer is simple. There are not enough people that are willing to do this type of work. We are doing a better job of educating young people to develop skills that will permit them to find better jobs in the city. Government benefits insure that if someone doesn't want to work he will not go hungry. The most often heard response from the job placement agencies is ''No one wants to work''. That is not true just a few miles south of here. There is a tremendous labor pool willing, able, and literally dying to have a job in this country.
I truly wish I could have appeared in person in front of this committee. The big question concerning this proposal is what will agriculture do in 7 years when this labor pool moves to other types of employment after becoming legalized?
Respectfully,
| Bruce L. Frasier, President. |
Hon. LAMAR SMITH, Chairman,
Subcommittee on Immigration and Claims,
Committee on the Judiciary,
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House of Representatives, Washington, DC.
DEAR MR. CHAIRMAN: My name is Arnold Wolf, my father and I are rice farmers in Chambers County, Texas. We need your help in softening the hassle we find in the H2Aprogram. In the middle 80's the government had a green card program for all farmers, after a few years the government softened the rules for green card holders; therefore, our workers went to work in the industry plants and the U.S. Highway Departments, where the workers were offered more money, and the opportunity to have health insurance. Which created a labor problem for the farmer. There are four other points I would like to recommend to the subcommittee. One, we have tried to use the H–2a program, and the paperwork and hassle are simply too much for an average farmers to cope with. Second, reforming the H–2a will give the farmers an opportunity to get enough legal workers to do the planting and harvesting of their crops when the work needs to get done. Third, many of the workers available now are illegal, even though they have documents that look real. Fourth, a farmer shouldn't have to hire a lawyer, and a accountant to have a worker do a days job. That's why reforming the H–2a program is so important for the American farmers.
Your assistance in this effort is appreciated.
Respectfully yours,
Mr. HUKILL. Mr. Chairman, I am here today to speak in support of H.R. 4548, legislation that would reform H–2A farm work visa program. Many Texas growers are beginning to find that labor available related problems are taking more of their management time. This is happening in the State that at one time boasted a bountiful farm and ranch labor workforce. Today we are beginning to experience the diminishing supply of farm labor that other States have been experiencing for several years.
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It is appropriate that Congress is addressing the H–2A temporary farm work visa program. Our support of H.R. 4548 is predicated on the fact that it begins the reform of the guestworker program that is needed to maintain a viable agricultural economy and the highest standards of productivity. Thank you for allowing me to present this testimony today.
Mr. SMITH. Thank you, Mr. Hukill.
Mr. HUKILL. I will answer any questions.
[The prepared statement of Mr. Hukill follows:]
PREPARED STATEMENT OF DEWEY L. HUKILL, LABOR ADVISORY COMMITTEE, TEXAS FARM BUREAU
Mr. Chairman and Members of the Committee, my name is Dewey Hukill. My farming operation is located in Lamb County Texas near Olton where I raise 700 acres of bulbs (Iris, Canna, Day Lily and Tube Roses) and 600 acres of cotton. I chair the Texas Farm Bureau (TFB) Nursery and Greenhouse Advisory Committee, am a member of the TFB Farm Labor Advisory Committee and serve on the American Farm Bureau Federation's Nursery and Greenhouse Advisory Committee. On behalf of Texas Farm Bureau, I appreciate the opportunity to offer our views on proposals to improve and expand the H–2a temporary farm worker visa program. Farmers often find themselves dependent upon the labor of people outside their immediate families in order to plant, cultivate, and harvest their crops. Approximately 1.6 million people are hired to perform work on farms every year. These workers perform a vital function in assisting farmers to operate their farm businesses.
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Mr. Chairman, with your permission I would like to submit for the record a copy of the statement prepared by the American Farm Bureau Federation as well as a letter from Bruce Fraiser, another member of the Texas Farm Bureau Labor Advisory Committee.
I am here today to speak in support of H.R. 4548, legislation that would reform the H–2a Farm Worker Visa Program. In fact, I am serving as back-up to another member of the TFB Farm Labor Advisory Committee who was not able to testify because of his problem in finding sufficient labor to harvest his melon crop. Many Texas growers are beginning to find that labor availability related problems are taking more of their management time. This is happening in a state that, at one time boasted, a bountiful farm and ranch labor work force. Today, we are beginning to experience the diminishing supply of farm labor that other states have been experiencing for several years. It is appropriate that Congress is addressing the H–2a temporary farm worker visa program.
Our support of H.R. 4548 is predicated on the fact that it begins a reform of the guest worker program that is needed to maintain a viable agricultural economy and the highest standards of productivity. The following points are reasons why we feel this legislation should be passed.
The three-year pilot program creates a new category (H–2c) of foreign agricultural workers that will not interfere with or cause confusion with the current H–2a program. The new category offers the opportunity to ''ground truth'' the program prior to full implementation.
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One of the problems with the H–2a program is matching employer's labor needs to worker availability. This legislation would provide for the development of a registry with information from employers and workers that would streamline the process for farmers finding workers and workers finding employment.
The current formula that determines the Adverse Effect Wage Rate (AEWR) would be replaced with the prevailing wage standard used in all other employment based immigration programs. The AEWR is particularly problematic in that it causes unnecessary inflation of wages simply to insure an adequate labor supply. We are not aware of any states in which the prevailing wage standard is below the statutory minimum wage.
The current program requires farmers to provide housing for employees under the H–2a program. H.R. 4548 gives the employer the option of either providing housing or a housing allowance. This is important to the program in that farmers who could use the current program are disqualified because of the lack of housing.
The proposal has a mechanism that encourages workers to leave the United States after the approved period of admission under the H–2c visa expires. We believe this will help reduce competition for permanent jobs sought by domestic workers.
Finally, the proposed legislation enhances those protections for foreign and domestic workers in the current program and the users would pay the cost of the program.
Thank you for allowing me to present this testimony today. I will answer any questions you might have.
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Mr. SMITH. Mr. Buchanan.
STATEMENT OF WILLIAM BUCHANAN, EXECUTIVE DIRECTOR, AMERICAN COUNCIL FOR IMMIGRATION REFORM
Mr. BUCHANAN. Just for the record, I would like to state, first of all, that I am not the president of American Council for Immigration. I am the legislative director. Our president, Joan Hueter, is here in the audience. So I had to straighten that out right away.
Mr. SMITH. Okay. Truth in advertising. Thank you.
Mr. BUCHANAN. Mr. Chairman and members of the subcommittee, my name is William Buchanan. I am testifying on behalf of the American Council for Immigration Reform. Thank you for the opportunity to testify regarding H.R. 4548, the ''Agricultural Opportunities Act.'' There is no shortage of agricultural workers and, therefore, no call for yet another guestworker program.
The circumstances of farmworkers in American are poor and getting worse is powerful evidence of this. The latest National Agricultural Worker Survey found that between 1989 and 1998, the average real wage of farmworkers declined from $6.89 per hour to $6.18 per hour and that three out of five farmworker families had incomes below the poverty line.
It is no wonder that some farm interests prefer guestworkers. Only 5 percent of farmworkers have employe provided health insurance and guestworkers are not eligible for Social Security. Administration of H.R. 4548 is likely be perfunctory. We understand that 99 percent of H–2A certifications are approved. We know that the Department of Labor is notoriously underfunded in these areas. We expect, therefore, the very same rubber stamp applying for H–2C certifications as is currently used for H–2As and dare we add H–1Bs.
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Under H–2A, a guestworker is guaranteed work for three-quarters of the work days in the stated period of employment. This gives workers some idea of how much they will earn and discourages the overrecruitment some employers might attempt in an effort to drive down wages.
H–2C lacks such a minimum work period requirement. Worker protections built into the 1998 legislation expanding the H–1B program were never implemented and if recent oversight hearings by this subcommittee are any indication, they never will be. Why should we believe then that the worker protections in H.R. 4548 would be implemented?
It is claimed that the H–2C program will reduce illegal immigration by providing some farmers with a supply of legal labor. H.R. 4548 does contain many controls but fails where all such efforts fail. The problem is implicit in a proposed INA Section 218A(a)(3), Abandonment of Employment.
This section would require employers to report and the attorney general to catch and remove H–2Cs who quote ''prematurely abandon employment.'' We wish the AG good luck in this futile effort, but it is also noticeable that there is no arrangement for escorting home the guestworker who voluntarily terminates his or her employment or the compliant worker who completes his contract.
Are they expected to return home on their own accord? Guestworker programs don't prevent illegal immigration; they promote it. Two new incentives make H–2C visas even more attractive to guestworkers than on becoming illegal aliens. One, tighter controls at the border have made illegal entry, EWI, more costly and far more dangerous. This in a virtual end to interior enforcement will make H–2C visas a preferred means of gaining entry and eventual illegal status.
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Two, at last count, 26 bills have been introduced, some with presidential support, offering amnesty to a variety of illegal alien categories and nationalities. Moreover, the AFL–CIO, the traditional defender of the American worker, no longer opposes but supports these ''shamnesties.''
Can there be anyone living in the third world who does not do these things? Can there be anyone living in Mexico or Central America who does not have a friend or former neighbor who has broken our laws and been rewarded for this with permanent residence and eventual American citizenship? How do we maintain respect for the rule of law under these circumstances?
Much of the cost of H.R. 4548 will be externalized immediately or eventually upon taxpayers and local communities in the form of overcrowded schools, urban sprawl, environmental degradation, irredentism and much more.
This committee heard testimony on this subject just 1 year ago. Recall that it was all Angie Morfin could do to maintain her composure as she described how her 13-year-old son had been chased and murdered, shot through the head by an illegal alien gang member, who then escaped back to Mexico. Illegal aliens once viewed her hometown of Salinas, California as a short stop for agricultural work she related. Now, they stay on and this has brought gangs, violence and drugs in abundance to her community.
A nation that cannot control its borders, she said, won't be a nation for very long. Terry Anderson stunned the audience with his trenchant attack on illegal immigration. He noted that he had lived on the same street in South Central Los Angeles for 45 years. You don't hear about the 17-year-old black youth who was denied a job at the local McDonald's because he spoke only English. We have things we never had before, said Anderson. We have chickens, we have goats and corn growing eight feet tall. Nine houses have been sold on Mr. Anderson's street on the previous 5 years. Though numerous black Americans had sought to buy them, all the houses were sold at inflated prices to illegal aliens with multiple families signing on to each deed.
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In conclusion, Ambassador George Kennan, who knew something about containment, warned that quote, ''The inability of any society to resist immigration, the inability to find other solutions to the problem of employment at the lower, more physical and menial levels of economic process, is a serious weakness and possibly even a fatal one in national society. The fully healthy society would find ways to meet these needs out of its own resources.''
Ohio State Professor John Simon, when asked if slavery would have died of its own weight had there been no civil war, speculated that human beings may have an innate tendency to want to hold others to labor. In the first two millennia A.D., those who worked the land were slaves, serfs, peons, H-visa holders, indentured servants and free men and women. Passage of H.R. 4548 is not the way for a prosperous America, the modern agent for free men and women, to enter the third millennium. Thank you.
Mr. SMITH. Thank you, Mr. Buchanan.
[The prepared statement of Mr. Buchanan follows:]
PREPARED STATEMENT OF WILLIAM BUCHANAN, EXECUTIVE DIRECTOR, AMERICAN COUNCIL FOR IMMIGRATION REFORM
Mr. Chairman and Members of the Subcommittee:
My name is William Buchanan. I am testifying on behalf of the American Council for Immigration Reform. Thank you for the opportunity to testify regarding H. R. 4548, The Agriculture Opportunities Act.
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H.R. 4548 Is Not Justified. There is no shortage of agricultural workers in America and therefore no call for yet another guestworker program. That the circumstances of farm workers in America are poor and getting worse is powerful evidence of this.(see footnote 1)
Between 1989 and 1998 the average wage of farm workers declined from $6.89 to $6.18 per hour adjusted for inflation (NAWS, page 33).
Between 1990–92 and 1996–98 the average period of time farm workers worked in agriculture declined from 26 weeks to 24 weeks per year (NAWS, page 24).
Incomes of three out of five farm worker families are below the poverty line (NAWS, page 39).
Is it any wonder that it is hard to get Americans to do this kind of work? It is no wonder that some farm interests prefer guestworkers, however, and would like H–2C workers.
Thanks to the constant draw on uneducated foreign workers, 58% of farm workers are functionally or totally illiterate which means they cannot read material that might convey some idea of their rights (NAWS, page 16).
Only 5% of farm workers have employer-provided health insurance (NAWS, page 36).
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Guestworkers are not eligible for Social Security which eliminates the expense of matching the FICA tax and the inconvenience of withholding that tax.
It is our understanding that 99% of H–2A certifications are approved. The Department of Labor is notoriously underfunded in this area. Therefore we can expect the very same ''rubber stamp'' to be used for H–2C certifications as is used for H–2As (and, dare we mention, H–1Bs).
H–2C lacks a Minimum Work period. The H–2A guestworker is guaranteed work for three-quarters of the work days in the stated period of employment. This gives the worker some idea of how much he/she will earn and discourages the over-recruitment an employer might otherwise attempt in an effort to drive down wages.
Worker protections built into the 1998 legislation expanding the H–1B program were never implemented and, if recent oversight hearings by this subcommittee are any indication, never will be. Why should we believe, then, that worker protections in this bill would be implemented?
H.R. 4548 will promote illegal immigration. It is claimed that this H–2C program will reduce illegal immigration by giving certain farmers a large supply of legal labor. The bill does contain a whole series of controls, but fails where all such efforts fail. The problem is implicit in proposed INA Sec. 218A(a)(3) ''Abandonment of Employment.'' This section would require employers to report, and the Attorney General to catch and remove, H–2Cs who ''prematurely abandon . . . employment.'' We wish the A–G good luck in this (futile) effort, but it is also noticeable that there is no arrangement for escorting home the guestworker who voluntarily terminates his/her employment or the compliant worker who completes his contract. Are they expected to return home of their own accord?
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Guestworker programs don't prevent illegal immigration, they promote it. It is estimated that 40% of all illegal aliens are visa overstays. Two new incentives make H–2C visas even more attractive to guestworkers bent on becoming illegal aliens.
1. Tighter controls at the border have made Entry Without Inspection (EWI) more costly and far more dangerous. This, and a virtual end to interior enforcement, makes legal access under a program such as H–2C a preferred means of gaining entry and eventual illegal status.
2. At last count, 26 bills have been introduced, some with presidential support, offering amnesty to a variety illegal alien categories and nationalities. Moreover, the AFL–CIO, the traditional defender of the American worker, no longer opposes but supports these shamnesties.
Can there be anyone living in the Third World who does not know these things? Can there be anyone living in Mexico who does not have a friend or former neighbor who has broken our laws and been rewarded for this with permanent residence and eventual American citizenship? These guestworker programs are a way of defraying the labor costs of certain farmers in exchange for the foreign worker's access to U. S. residence and citizenship, (our patrimony).
Costs of H.R. 4548 Are Externalized. Many of the costs of guestworker programs are externalized immediately or eventually upon taxpayers and local communities in the form of over-crowded schools, urban sprawl, emergency medical care, environmental degradation, irredentism, and much more.
This Committee heard testimony on this subject on June 10, last year. Angie Morfin described herself as a ''Latina-American,'' with Mexican and Apache forebears. It was all she could do to maintain her composure as she described how her 13-year-old son had been chased and murdered, shot through the head by an illegal alien gang member, who then escaped back to Mexico.
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Illegal aliens, she went on, once viewed her hometown of Salinas, California as a short stop for agricultural work. Now they stay on and this has brought gangs, violence, and drugs in abundance to her community. ''It is not enough to talk about fixing the system,'' she said, ''. . . you must act now . . . A nation that cannot control its borders won't be a nation for very long.''
With a voice like rolling thunder, Terry Anderson stunned the audience with his trenchant attack on illegal immigration. Anderson has lived on the same street in South Central Los Angeles for 45 years. His was once a mixed, but amicable, black and white neighborhood which, thanks to illegal immigration, is increasingly an alien one.
''You don't hear about'' the 17-year-old black youth who was denied a job at the local McDonald's because he spoke only English. Or the 8-year-old black girl who had to be bused 20 miles to get an education because the local school had no English-only classes. ''We have things we never had before,'' said Anderson. ''We have chickens, we have goats . . . and corn growing eight feet tall.''
Nine houses have been sold on Mr. Anderson's street over the last five years. Though numerous black Americans had sought to buy them, all the houses were sold at inflated prices to illegal aliens with multiple families signing on to each deed. And then there are the skilled jobs denied to blacks—bricklayers, roofers, and framers. Body and fender men who earned $20/hr in the 1970s can now only ply their trade at $7 or $8/hr.
H.R. 4548 Will Undermine the Rule of Law. By promoting illegal immigration, H–2C will do its part to undermine perhaps the most precious gift bequeathed to us by our Founders: the rule of law. Numerical restrictions enacted in 1924 were soon violated by a limited number of illegal aliens. We winked at this by establishing a registry date for very long-time illegal residents and by allowing others to adjust status when a legal slot was available and into which we could fit them.
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Unlike the proverbial horse thief hidden in the family genealogy, who brought shame to one's family, the illegal alien who is rewarded for his violations may be a hero to his children and grandchildren. Today, millions of Americans are in that category, one that has been augmented repeatedly since 1986. How can anyone believe in the sanctity of the law when they have been so vastly advantaged by breaking it? Need examples?—an editor of a leading newspaper and a current cabinet member each bragged recently that one of their grandparents was an illegal alien—this, in an effort to show their sympathy for, and solidarity with, others in the same category.
Studies? What are THEY for? Section 301 of H.R. 4548 provides for a series of studies—on agricultural labor standards, migrant child labor, migrant housing, field sanitation. By themselves, these might be a good idea. But how about heeding the results of studies already made: like the NAWS study, or a December 1999 Congressional Research Service study that showed that between 11% and 13% of farm workers hired during the years 1994–98 were unemployed at any given time. A recently updated GAO report claims that ''A sudden widespread farm labor shortage requiring the importation of large numbers of foreign workers is unlikely to occur in the near future.'' More significantly, the report of the Commission on Immigration Reform (the Jordan Commission) concluded that a new guestworker program would be a ''grievous mistake.''
Conclusions. There is no shortage of farm workers in America at this time. But the debate is symptomatic of a long-term trend in America to low birthrates. For the first time in our history, the native-born American population (and workforce) is not only barely increasing but may soon be headed for a decline. Will we respond to this by developing the talents of Americans; by becoming more productive; by supporting employers who pay a living wage; or are we peering into a sinkhole with an H–37K visa at the bottom? If America gets into the habit of dealing with this unaccustomed workforce direction by bringing in more foreign workers, then future immigration will dwarf the current levels.
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NAWS found that an astonishing 52% of farm workers are illegal aliens (page 22). Obviously, the Congress has not seen fit to provide an adequate means for identifying who is legal and who is not. Nevertheless, it is currently illegal to hire an illegal alien. And it hardly seems proper to reward the beneficiaries of such illegal hiring with yet another benefit such as H–2C.
Ambassador George Kennan in his last book, Around the Cragged Hill, warned that ''. . . the inability of any society to resist immigration, the inability to find other solutions to the problem of employment at the lower, more physical, and menial levels of the economic process, is a serious weakness, and possibly even a fatal one, in any national society. The fully healthy society would find ways to meet those needs out of its own resources.''
Mr. SMITH. Ms. Muñoz.
STATEMENT OF CECILIA MUÑOZ, VICE PRESIDENT, NATIONAL COUNCIL OF LA RAZA
Ms. MUÑOZ. Thank you, Mr. Chairman. Let me start by thanking Congressman Berman and the ranking member for their kind comments earlier today. I am happy to be here to talk about the situation of farmworkers in this country and the legislation which has been proposed before this committee. Over 70 percent of American farmworkers are Latino and frankly we are the only group of Americans that is expected to endure the kinds of wages and working conditions that have characterized farm labor for much too long.
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And Mr. Chairman, if this committee is to consider any legislation having to do with farmworkers, it is to be hoped that the legislation would bring their wages and working conditions out of the 19th century, which is the century that they reflect. I am sorry to say that the legislation before the committee today goes very much in the wrong direction.
Our assessment is that the already abominable conditions in the fields would get worse if this legislation is enacted and we are here to urge that it not become law. We have heard today about labor shortages; and NCLR continues to side with the experts in government and in the private sector that have studied the issue and found no evidence of a shortage of work authorized farmworkers. The basic laws of economics would suggest that in the presence of a labor shortage you would expect wages and working conditions to improve and demand for workers' time to go up.
While this has happened in other industries in this vibrant economy, it hasn't happened in agriculture. We have heard some about that today. Farmworker wages, the best you can say about them, is that they are stagnant or have been declining in real terms and certainly annual earnings are well below the poverty line. For the individual farmworker, the median is about $7,500 a year.
Unemployment and underemployment are rampant even during the hiring peak. Only about half of the Nation's total farm labor workforce holds agricultural jobs. The number of days that crop workers are actually employed on farms has diminished dramatically over time from about 213 days a decade ago to about 129 now. This would suggest that the number of jobs available to farmworkers is shrinking.
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In addition, the California Rural Legal Assistance Foundation has conducted surveys during peak hiring times during the last 3 years of raisin and grape producing counties and these surveys have consistently found that there are available farmworkers who are not being recruited by employers and that employers apparently are doing a poor job of making their work opportunities known. For these reasons, we question the rationale for the legislation.
And in addition, our assessment of its impact makes it clear that H.R. 4548 would make conditions for farmworkers worse which is very much a step in the wrong direction. My written statement outlines in detail a variety of concerns with the current H–2A program. There is ample evidence to suggest that the protections for workers which are built into this program are not successfully protecting the interests of the domestic farm labor force and not protecting the interests of the guestworkers themselves.
None of these problems are addressed by the legislation which is before this committee today. Instead, the legislation would create a new foreign agricultural worker program. The legislation is similar to bills already defeated by the House. It is also similar to provisions in H.R. 4056 and S. 1814; these bills would also create a second temporary guestworker program for undocumented farmworkers already in the country. Neither program would be acceptable and we believe all of these pieces of legislation should be rejected.
As I have mentioned, the current H–2A program inadequately ensures that U.S. farmworkers have access to available farm jobs and that individuals entering as H–2A workers are not exploited. The H–2C program proposed in this bill is similar but it would reduce recruitment of farmworkers inside the United States, eliminate housing opportunities, reduce wage rates, decrease government oversight and in other ways reduce the labor standards of U.S. farmworkers and allow exploitation of vulnerable foreign guestworkers.
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The bill would authorize wage systems like group piece rates and other practices that have been used to circumvent the law and prevent farmworkers from improving their circumstances. In short, Mr. Chairman, in an environment of unprecedented growth in this economy and unprecedented wealth in this country, we are proposing here to make things worse for the most vulnerable and exploited group of workers in the country. We believe this is an intolerable situation.
NCLR believes instead that there should be dramatic changes in farm labor policy, moving in a direction different from the one proposed by this bill. Instead, we think Congress should seek to improve opportunities for farmworkers, both foreign born and U.S. born, by effectively enforcing existing protections in labor laws, providing adequate resources for the enforcement of labor laws, improving existing recruitment mechanisms, making growers who use farm labor contractors responsible for the treatment of their workers, and enacting a legalization program for those who are already employed, already working in this industry.
The testimony we have heard today suggests that their labor is needed here. We also would encourage the committee to enact pro-immigrant legislation this year in other contexts this proposal is articulated in greater detail in my testimony. All of these proposals will help reduce the number of undocumented workers in the labor force not just in agriculture but in other sectors that are genuinely experiencing trouble finding work authorized workers. We would encourage the committee to look at those pieces of legislation. We encourage the committee to oppose the legislation which it is considering today. I have further comments with respect to legalization proposals which I know are not the subject of this particular hearing, but I am certainly happy to respond to questions about them.
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Mr. SMITH. Thank you, Ms. Muñoz.
[The prepared statement of Ms. Muñoz follows:]
PREPARED STATEMENT OF CECILIA MUÑOZ, VICE PRESIDENT, NATIONAL COUNCIL OF LA RAZA
I. INTRODUCTION
My name is Cecilia Muñoz. I am the vice-president for the Office of Research, Advocacy and Legislation of the National Council of La Raza (NCLR). NCLR is a private, nonprofit, nonpartisan organization established in 1968 to reduce poverty and discrimination and improve life opportunities for Hispanic Americans. NCLR is the largest constituency-based national Hispanic organization, serving all Hispanic nationality groups in all regions of the country through our network of 230 affiliate community-based groups and regional offices. NCLR has supported fair and effective immigration and farmworker policies for over two decades, and has ensured a fact-based Latino perspective on the issue of immigration. NCLR approaches this issue as a civil rights organization, with an interest in protecting the rights of our constituency and promoting the values and principles of the nation as a whole.
I appreciate the opportunity to submit this statement before the Subcommittee today, especially when it concerns an issue that ultimately will affect the lives of perhaps the single most disadvantaged of all groups in the United States: the nation's farmworkers. These hard-working Americans toil in the fields for meager earnings and few benefits; they sustain multi-billion dollar industries, and literally put food on our tables. Yet, they remain largely invisible to the rest of the country. Under a century-old system of labor, farmworkers continue to be inadequately protected by federal laws and regulations, including worker protection standards that all other workers take for granted.
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We have heard today from representatives of the agricultural industry which is again attempting to orchestrate the establishment of additional special privileges for itself, proclaiming the same unsubstantiated argument employed continuously since the mid-1800s: that there are labor shortages.
NCLR continues to side with the experts in government and in the private sector who have studied and found that there is still no shortage of work-authorized farmworkers, but a shortage of decent jobs and decent pay. Second, the status quo is indeed untenable, not because of over-regulation of labor standards in agriculture but because of a complete lack of enforcement of the few labor standards that actually apply to farm work.
Therefore, NCLR strongly opposes H.R. 4548, the Agricultural Opportunities Act, as well as other similar proposals primarily because they would not improve conditions for America's farmworkers. In fact, we believe that this legislation would give unscrupulous employers an unreasonable level of control over farmworkers' lives. Such comprehensive control could only lead to further exploitation of the nation's most vulnerable workers.
II. THE FACE OF AMERICA'S FARM LABOR FORCE
The history of farm labor in the United States coincides with the political awakening of the American Latino community. Since the beginning of the last century, Mexicans and other Latinos have been an integral part of the nation's farm labor force, and farmworkers have been integral to the growth of Hispanic Americans' political consciousness.
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For this reason, NCLR, like most Latino advocacy organizations, is concerned about current proposals to ''reform'' or expand current guestworker programs. In fact, the majority of farmworkers in the United States are Latino. In 1997 and 1998, 81 percent of farmworkers are foreign-born; 95 percent of these are from Mexico. As many as 52 percent of farmworkers are undocumented; 58 percent of farmworkers, however, consider the United States their permanent home.(see footnote 2)
Further, the plight of farmworkers in the United States has gotten worse over the last decade. Government studies(see footnote 3) show that:
Farmworker wages are stagnant: since 1989, the average hourly wage has risen only 18 percent, compared to 32 percent for non-agricultural workers
Annual earnings remain below the poverty line: for the past decade, the median income of individual farmworkers has been $7,500 while for farmworker families it has remained less than $10,000
Despite their poverty, farmworker use of public benefits remains low and has declined
Farmworker assets are decreasing: in 1994–5, one-third of all farmworkers were homeowners, by 1997–8 only 14 percent were homeowners
More workers now rely on their employers, contractors and coworkers for transportation to work: in 1994–5 49 percent of workers owned a vehicle; in 1997–8, the figure dropped to only 44 percent.
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Unemployment and underemployment is rampant: even during the hiring peak, just over half of the nation's total farm labor workforce held agricultural jobs
The number of days crop workers actually were employed on farms has diminished over time: from 1989–91, the typical foreign-born worker was employed in farming for 213 days; this figure fell to 193 in 1992–1994, and to 176 in 1995–1997. U.S. born workers are also seeing less time in the fields, from 183, to 155, to 129 over the same period. This indicates that the number of jobs available to all farmworkers is shrinking.
In California, the unemployment rates in eighteen agricultural counties continue to be nearly double the statewide average even during peak harvest months.(see footnote 4) The California Rural Legal Assistance Foundation (CRLAF) has conducted surveys in the last three years of farmworkers in certain raisin and grape producing counties during harvests. These surveys have consistently found that there are available farmworkers who are not being recruited by employers. In fact, employers are doing a poor job of making their work opportunities known.
These findings are very disturbing to us. More importantly, they indicate that there is truly no shortage of farm labor in the United States. Were there actually a shortage, wages would be going up, just as they have in other sectors experiencing difficulty in recruiting and retaining workers. In fact, these figures indicate a national oversupply of labor. For this reason, NCLR opposes employer efforts to enact policy that would guarantee for themselves a continued oversupply of workers.
Whether it was Chinese immigrants in the nineteenth century, the 4.5 million braceros brought in to toil in the fields between 1942 and 1964, or ''guestworkers'' under the current H–2A program, the agricultural industry has been dependent on foreign-labor and has been relentless in maintaining this dependency. They have spent the last decade soliciting Congressional support for a massive expansion of the H–2A program.
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III. PROBLEMS WITH THE H–2A AGRICULTURAL GUESTWORKER PROGRAM
NCLR believes that the existing temporary foreign worker program, known as ''H–2A'', is overly generous to the agricultural industry and insufficiently protective of the rights of both U.S. and foreign workers. Industry proposals to further ''deregulate'' the H–2A program will inevitably and inexorably undermine wages and working conditions for all of America's farmworkers. There is considerable evidence that the H–2A program—which brings in nearly 30,000 mostly Mexican and Jamaican temporary workers each year—has been fraught with abuses.
In its December 1997 study, the GAO found that workers who enter under the H–2A program are not receiving all of the protections required by the H–2A law. The ''special requirements'' of the H–2A program, which the growers decry, are there for a reason. These protections are intended to ensure that nonimmigrant guestworkers are hired only to fill actual labor shortages, that U.S. farmworkers' wages and working conditions are not affected adversely, and that foreign workers are not mistreated.
In 1998, the Department of Labor's Office of Inspector General reported that the program fails to protect U.S. farmworkers. It found that employers and the State Employment Service Agencies were doing a poor job of advertising available jobs to U.S. farmworkers, and that the Department of Labor's Employment Training Administration was approving H–2A certifications without sufficient scrutiny.
Nevertheless, the Department of Labor is acceding to growers' demands by offering, for instance, administrative reform and quicker processing that further undermine the program's protections. The current program has resulted in lower wages for farmworkers in America. That is why the USDA's National Commission on Small Farms urged the repeal of the H–2A program after hearing testimony that ''large farm operators and agribusiness have unfair advantages 'because employer costs have been reduced by partial or total exclusion of agricultural workers from coverage under key labor laws.' In addition, 'the authorized importation of foreign workers for agricultural work (H–2A program), by adding workers to the pool of available labor, has helped keep wages for agricultural workers . . . below what they would have been without such interventions.' ''(see footnote 5)
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The current H–2A program approves 99 percent of the applications filed by agricultural employers despite the labor surplus. The H–2A program was streamlined for employers in 1986 and has operated to their advantage. The program is growing rapidly and spreading to new crops and new states. In Georgia, for example, the Department of Labor approved applications for more than 2,200 jobs in 1999, even in cases where the grower failed to file the application on time.(see footnote 6) During the previous year, Georgia received fewer than 200 H–2A workers.
Still not satisfied, growers are demanding that Congress ''reform'' the guestworker program to lower wages, reduce recruitment of U.S. workers, eliminate the current program's housing obligations, authorize wage and other employment practices that are currently illegal, and reduce enforcement of labor standards. Guestworkers are desirable because they lack the right to switch jobs or to remain in the country once their job ends. Guestworkers also lack economic or political power to improve their conditions.
The vulnerability of H–2A workers forces them to live with unbearable working conditions that no other American would ever tolerate. In a series of articles, the Charlotte Observer recently shed light on the H–2A program in North Carolina, where employers import as many as 10,000 H–2A workers every year. These articles are also attached to this testimony as Appendix A. I'd like to highlight one particularly poignant story in the first of these articles. It is the story of Carmelo Fuentes, an H–2A worker who suffered heat stroke while picking tomatoes in 105-degree heat.
According to his employer, Mr. Fuentes, who was 36 years old, said he just wanted a short break after showing signs of heat stress, which state investigators said were ''dangerously ignored'' by his supervisor. His employer said ''that boy said he was fine, and just needed to rest.'' As he rested, heat stroke shut down his internal organs and led to Mr. Fuentes to suffer from severe brain damage. According to the Charlotte Observer story,
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Nobody can know exactly what Carmelo Fuentes said about how he felt that July day in 1998. But as a veteran working his third N.C. harvest, he likely understood what some say are the unwritten rules of the government program that brought him to an N.C. farm 2,000 miles from home.
Work fast, or lose your job to somebody who is faster. Complain about your living or working conditions, and you're sent back to Mexico. Get sick or injured, and you're off the list of workers invited back next season.
These are the rules that have many guestworkers have come to understand as determining whether they will continue to be able to work in the United States. That is why the H–2A program reminds so many Mexican Americans of the universally denounced Bracero program that existed between 1942 and 1964. As in the H–2A program, Bracero workers were so controlled by their employers that, according to Ernesto Galarza, one of NCLR's founders, undocumented workers actually used to consider themselves ''libre'' or ''free workers'' since they could leave an employer if conditions were intolerable.(see footnote 7) The same can still be said about the current program.
NCLR opposes the current H–2A program, and calls for its repeal. Any attempts to reduce the protections it provides for farmworkers, those already in the U.S. and those entering through the program, should be rejected.
IV. PROBLEMS WITH H.R. 4548
The Agricultural Opportunities Act falls far short of what is needed to improve the H–2A program and to make better the lives of America's farmworkers. This bill would subject farmworkers to even poorer wages and working conditions and inequitable economic and political status for many years to come.
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This legislation would create a new foreign agricultural worker program (H–2C) and leave the current H–2A program in place. This proposal is very similar to legislation already defeated by the House of Representatives (Roll Call no. 85, 180–242) in 1996. It is also similar to provisions in H.R. 4056 and S. 1814, bills that would also create a second temporary guestworker program for undocumented farmworkers already in the country. Neither program would be acceptable, and the legislation should be rejected.
As mentioned above, the current H–2A program inadequately ensures that U.S. farmworkers have access to available farm jobs, and that individuals entering as H–2A workers are not exploited. H.R. 4548 would establish an H–2C program similar to the H–2A program, but would reduce recruitment of farmworkers inside the United States, eliminate housing opportunities, reduce wage rates, decrease government oversight, and in other ways lower labor standards of U.S. farmworkers and allow exploitation of vulnerable foreign guestworkers. The bill would also authorize wage systems (''group piece rates'') and other practices that have been used to circumvent the law and prevent farmworkers from improving their circumstances.
A. Recruitment of U.S. Farmworkers
H.R. 4548 bill would allow a virtually unlimited flow into the country of exploitable temporary foreign workers whose visas would be controlled by employers.
Under the current H–2A program's ''50% rule job preference,'' employers must hire qualified U.S. workers who apply by the time one-half the season has elapsed. H–2A program employers must affirmatively recruit in the private marketplace (this is known as ''positive recruitment'') and use the federal-state Job Service to circulate job offers to areas where migrant workers may be located.
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H.R. 4548 bill would require no positive recruitment or Job Service circulation of job offers. The new system of state job registries is designed to fail to refer U.S. workers to such employers and thereby justify the issuance of visas to exploitable guestworkers. Under this proposal, all agricultural employers could reject qualified U.S. workers who applied for a job directly to the employer, or through a nonprofit group, a union, or a labor contractor. See 101(a)(6). Yet, employers could use labor contractors to hire foreign workers. Employers need only consider a U.S. worker's job application if it was submitted through a ''job registry,'' a new government agency to be established in each state. The job registry could have as little as 14 days to recruit U.S. migrant workers before the employer would get access to guestworker visas. Yet, growers could recruit guestworkers for months.
B. Housing
The current H–2A program requires employers to offer housing, and to provide it at no cost to the worker. The proposed H–2C program would eliminate the housing obligation and authorize employers to provide below-market-rate housing allowances (at least for three years). Due to a severe housing shortage for farmworkers, and the inadequacy of their wages and the allowance, farmworkers will not be able to find housing or to finance its development and the burden will fall on farmworkers and local communities. See 204(b)(6) and 204(d)(3).
C. Minimum Work Guarantee
Under the H–2A program, employers who seek guestworkers have been required to offer the opportunity to work at least 3/4 of the work-days in the stated period of employment, except when there is an Act of God. This ''three-fourths guarantee'' gives migrant workers some indication of their potential earnings and discourages employers from over-recruiting to secure a labor surplus and drive down wages. The H–2C program would lack any minimum work guarantee.
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D. Wage Provisions
Farmworkers' wages have been declining in real terms for the last decade. This wage depression is caused partly by the presence of economically and politically weak guestworkers and undocumented workers (whose presence has increased to 52% of the labor force). To overcome the depression in wage rates and protect both U.S. and foreign workers, H–2A employers must pay the highest of three minimum wages: (1) the federal or state minimum wage; (2) the local, job-specific ''prevailing wage,'' as determined by the Department of Labor using state agency wage surveys; and (3) the H–2A ''adverse effect wage rate (AEWR). The formula for setting the AEWR was changed by the Reagan administration, which lowered the rates by an average of 20%. The H–2A AEWR is now defined as the regional average hourly wage for field and livestock workers, as found in Department of Agriculture annual surveys. For example, Arizona's AEWR is now $6.74, California $7.04, Georgia $6.72, North Carolina $6.98 and Washington $7.64. Often the AEWR is higher than the local prevailing wage and therefore many H–2A employers must pay the AEWR.
The H–2C proposal ( 2(1)) would redefine the term ''adverse effect wage rate'' (or ''AEWR'') to lower wage rates in most circumstances as compared with the H–2A program. The AEWR would be the local ''prevailing wage'' (under some circumstances plus five percent). The prevailing wage (plus five percent) is often significantly lower than the current AEWR (the regional hourly average wage). In addition, since the local prevailing wage is often an artificially low ''piece rate,'' in many cases the only effective base wage rate will be the minimum wage under law at the federal ($5.15 per hour) or state (in California $5.75) level.
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Employers could increase productivity standards to overcome the effects of any potential increases in prevailing wage rates. Such ''speed-ups'' would no longer be regulated. The H–2A program has some (admittedly weak) protections.
No individual worker would be guaranteed the H–2C minimum required wage rate. The bill allows employers a huge loophole to avoid paying the ''adverse effect wage rate.'' The employer may offer an incentive wage system (piece rate, ''group rate,'' ''task rate'') and merely demonstrate that its employees, ''taken as a group,'' on average earn the local prevailing wage. If the group as a whole earns the minimum rate, then some workers, by definition, are earning below that minimum rate. The workers' only real wage floor is the federal or state minimum wage, from which some agricultural employers are still exempt. 204(a)(4)(A)–(B)
The employers would continue, as under the H–2A program, to be exempt from Social Security and unemployment taxes, depriving foreign workers of social security and creating incentives to use guestworkers rather than U.S. workers.
As non-immigrant temporary visa holders, these H–2C workers would be ineligible for legal assistance from organizations funded by the federal Legal Services Corporation. There is a special exception that allows H–2A guestworkers to secure legal assistance regarding their employment contracts.
There are other aspects of this bill that would reduce labor standards or offer protections that might seem helpful but turn out to be meaningless, but they are far too numerous to discuss in this testimony.
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V. RECOMMENDATIONS
NCLR believes there should be a change in farm labor policy, but H.R. 4548 is not the right policy prescription. Instead, Congress should seek to improve opportunities for farmworkers, both foreign-born and U.S. born, by enacting the following recommendations:
Effectively Enforce Existing Protections and Labor Laws: The Department of Labor (DOL) must prevent persisting employer abuses of the H–2A program, by enforcing existing protections in the program, including the ''fifty percent rule,'' which gives U.S. farmworkers preference over an H–2A worker. Growers must also not be allowed to exploit foreign workers by underpaying them or denying them crucial benefits. DOL also must increase its vigilance over the H–2A program and resist attempts to reduce alleged administrative burdens.
Provide Adequate Resources for Enforcement of Labor Laws: The Administration should request, and Congress should provide, sufficient funding to DOL's Wage and Hour Division and OSHA, among others, to assure effective monitoring and enforcement of labor standards for U.S. farmworkers and H–2A workers. Congress should also revisit the budget restrictions and limitations on the Legal Services Corporation grantees that have traditionally served farmworkers.
Improve Existing Recruitment Methods: The agricultural industry must improve its current recruitment methods to attract available, work-authorized U.S. workers. Surveys along the East Coast, where more growers are using the H–2A program, have shown that U.S. farmworkers are indeed available for work but need advance assistance with transportation; which is rarely provided to U.S. farmworkers. Growers also must assure that their written job advertisements are placed in locations where U.S. farmworkers will hear or see them. In addition, the Department of Labor's U.S. Employment Service must improve its outreach efforts to match U.S. farmworkers with available agricultural jobs, primarily since less than five percent of all U.S. farmworkers use this system to secure work. Employers and DOL should improve coordination with labor unions and community-based organizations that are ready and willing to promote recruitment of U.S. farmworkers to meet the employers' needs.
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Make Growers Who Use Farm Labor Contractors (FLCs) Responsible for Treatment of Their Workers: Congress and enforcement agencies must assure that growers do not circumvent existing labor laws by increasingly relying on FLCs for workers. Since the enactment of the Immigration Reform and Control Act of 1986 (IRCA), growers have come to depend more heavily upon FLCs to produce a workforce. Essentially, contractors have become the ''risk buffers'' between growers and their immigrant workers, and now perform the regulatory duty imposed by IRCA on all employers. Furthermore, evidence has shown that workers hired by FLCs are more susceptible to exploitation in the form of lower wages, reduced benefits, lower retention rates, and inferior working conditions.
Enact a New Legalization Program: While we believe there is an oversupply of available work-authorized farm workers, the currently high proportion of undocumented workers in the farm labor force is troubling. NCLR believes that the use of farm labor contractors competing to provide growers with the cheapest available workers has led to an overrepresentation of undocumented workers. These workers are not as able to defend themselves from exploitative practices as are legal workers. Congress should allow workers who have already contributed to the U.S. economy through their sweat and labor an opportunity to become legal residents, without any conditions that would further subject workers to more exploitation.
Enact Pro-Immigrant Legislation This Year: Many farmworkers would benefit from passage of pro-immigrant legislation that has already been introduced. Namely, NCLR strongly supports and calls on Congress to enact:
— S. 2407, the Date of Registry Act, which would update a long-standing provision of the Immigration Act called ''registry'' and allow long-time resident, deeply-rooted immigrants who are contributing to our economy to remain here lawfully. This bill would change the registry cutoff date from 1972 to 1986. NCLR would prefer a change in the date to 1994.
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— S. 1592, the Central American and Haitian Adjustment Act, which would correct for past unequal treatment among different groups of similarly-situated Central American and Caribbean Refugees.
— H.R. 1841, to restore Section 245(i) of the Immigration and Nationality Act, which would allow immigrants who are eligible to adjust their status to lawful permanent residency to do so while remaining in the country instead of traveling to their home country to complete the process. By passing this provision, Congress could ensure that immigrants are not separated from their families and employers for as many as ten years.
— Legislation, not yet proposed, to decrease the immigration backlogs by increasing the number of available visas so that immediate relatives of U.S. citizens and permanent residents may join their families and cease having to wait in interminable backlogs for lawful admission to the United States
All of these proposals will help reduce the number of undocumented workers in the labor force, not just in agriculture, but in other sectors that are genuinely experiencing trouble finding work-authorized workers.
VI. CONCLUSION
I respectfully urge you to consider these recommendations, as they represent a consensus among many different immigrant and farmworker advocates about immigration policies that Congress should enact in the short-term. Immigration is but one of the many complicated issues concerning farm labor that need to be addressed, and I appreciate the attention the Subcommittee is paying to the issue today. However, before the Subcommittee considers acting on this legislation, I ask that you take a closer look at the need for comprehensive reform of our farm labor system.
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Finally, I would like to call your attention to a letter that was sent to the entire House and its leadership last February. It is also attached as Appendix B. It calls on the Senate to reject guestworker legislation and is signed by 185 organizations made up of farmworkers, and individuals that work day-to-day with farmworkers. Please take their voices into account as you consider this legislation.
Once again, I thank the committee for allowing NCLR to present this testimony. I would also like to thank Bruce Goldstein of the Farmworker Justice Fund (FJF) for assisting NCLR with this testimony. I would encourage any Members of the Subcommittee to contact NCLR or FJF with any questions.
[NOTE: The appendixes submitted with this statement—a copy of the article from The Charlotte Observer entitled ''Desperate Harvest,'' dated Sunday, October 31, 1999 and a letter to Hon. Dennis Hastert, dated February 15, 2000—are not reprinted here but are on file with the House Judiciary Committee's Subcommittee on Immigration and Claims.]
Mr. SMITH. Mr. Hukill, I am trying to get that pronunciation right.
Mr. HUKILL. You are getting close.
Mr. SMITH. Pretty close. I should do better. Tell me, please, where there are other spot labor shortages in Texas.
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Mr. HUKILL. Most of them are in the valley in South Texas in the fruit and vegetable area, south of the Lubbock area.
Mr. SMITH. South of Lubbock is attributing a lot of Texas to being South Texas.
Mr. HUKILL. That is a lot of South Texas.
Mr. SMITH. Okay. But in that general area. Ms. Muñoz, a minute ago Mr. Hukill referred to a location where the unemployment rate was 28 percent. They were paying more than $9 an hour. It was close to the border and they still couldn't find the laborers. Isn't that an example of a location where there would be a legitimate shortage of farm labor, and therefore shouldn't they be able to have access to some program that would supply it?
Ms. MUÑOZ. Well, it is difficult to reconcile what we heard with the unemployment rates in South Texas, which are really quite high. So——
Mr. SMITH. Let me quickly respond because to me the way you reconcile it is by saying there may be a lot of people not working in the area who don't want to do the kind of labor that is required. For example, in South Texas, the place I was thinking about that I am familiar with down in Jim Wells' county is where you are asking people to lift 20 to 40 pound ripe watermelons, hundreds and hundreds and hundreds, and put them on a conveyer belt where they go into a truck. There are a lot of people who are unemployed who might not be able to or want to participate in that kind of labor.
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Ms. MUÑOZ. Certainly. I guess the question then is whether or not a temporary guestworker program is the answer to that situation, I would suggest that there are other potential answers which might include some changes in the wages and the working conditions in the industry itself.
Mr. SMITH. Do you recognize at all that there are places in the country where there would be honest legitimate labor shortages or do you deny that they exist anywhere?
Ms. MUÑOZ. It may be true in individual locations, but it is also true that in places like California where last year the growers were arguing forcefully that there was a dramatic shortage in the raisin harvest, for example, that they managed to harvest the raisins, that it was documented that there were farmworkers who were not being employed in that very industry, and while their arguments were being used to justify the expansion of guestworker program, they managed to bring in what they needed to bring in with the workers who were available and the hue and cry had more to do with this debate than it did with an actual shortage of workers.
Mr. SMITH. You said that there are some areas where there would be shortages. What would be your solution as to how you would alleviate those shortages?
Ms. MUÑOZ. We would suggest that ultimately if you have a shortage of workers, the laws of supply and demand would suggest that you raise wages, that you improve the working conditions, that you look at mechanization. This is an industry which has not had to transform in the way that other industries have transformed over time in part because of government policies which have essentially subsidized the industry and reduced the necessity to change the practices in the industry. Ultimately agriculture exists in an arena in which other industries have had to evolve and we think that those changes need to begin to happen. I think mechanization is another piece of that.
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Mr. SMITH. It is interesting to hear you cite the law of supply and demand. I assume that you would want it to apply to other industries as well?
Ms. MUÑOZ. What I am suggesting is that the laws of supply and demand suggest that the arguments about a labor shortage may have more to them than what the folks claiming that there are not sufficient workers suggest.
Mr. SMITH. I just didn't hear you. I am sorry. Say that again.
Ms. MUÑOZ. The statement in my testimony indicates that if there is a labor shortage, the laws of supply and demand would suggest that wages would increase, that demand for workers' time would increase, that conditions would improve. That hasn't been happening in agriculture in part because of policies which eliminate the need for changes in the industry because of an oversupply of workers.
Mr. SMITH. So you are saying you are in favor of the law and supply and demand being applied, but you are saying it doesn't exist?
Ms. MUÑOZ. I am suggesting that the laws of supply and demand undermine the arguments for a labor shortage. In fact, they suggest that there is an oversupply of workers.
Mr. SMITH. But not in all areas? There are still some places where there is a shortage; is that right?
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Ms. MUÑOZ. I will grant that there may be individual places where it is difficult to find workers. I don't believe that there is a labor shortage sufficient to justify the legislation proposed before this committee.
Mr. SMITH. What about a labor program that would just put guestworkers in those specific locales?
Ms. MUÑOZ. There is a labor program to put guestworkers in specific locales. That is the existing H–2A program.
Mr. SMITH. Do you think that it is working?
Ms. MUÑOZ. I would hope that its protections would be better enforced.
Mr. SMITH. Do you think the current H–2A program is working as intended?
Ms. MUÑOZ. I can't answer that from the perspective of a grower. I can say that its protections with respect to the workers are not being fully enforced and that is detailed in my statement.
Mr. SMITH. We heard testimony—I don't know if you were in the room or not—from the Department of Labor and from the Government Accounting Office saying it is not working as intended or as it should.
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Ms. MUÑOZ. I heard the Department of Labor say that they are making some very specific changes to improve the flexibility of the program from the point of view of the employers.
Mr. SMITH. Right. They claim to be improving it, but they also admit that they haven't put into effect all the recommendations. In fact, I think a majority of recommendations have not yet been implemented. We will come back to that. I am going to allow myself some more time in a few minutes for some additional questions. Thanks. The gentleman from California, Mr. Berman.
Mr. BERMAN. Thank you, Mr. Chairman. Ms. Williamson, I am curious. You don't like the idea of paying 41 percent more than your neighbor down the road for workers. How come your neighbor down the road is able to get workers without resorting to the H–2A program and you aren't?
Ms. WILLIAMSON. My neighbor down the road has chosen to employ what we believe to be largely illegal workers in agriculture. We have decided that we would prefer to try to hire legal workers and if I could have enough legal domestic workers, I would employ them as opposed to going to the H–2A program.
Mr. BERMAN. Your neighbor down the road is not checking, is not complying with the law, checking documents, pulling out I–9 forms? Your neighbor down the road?
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Ms. WILLIAMSON. We fill out I–9 forms.
Mr. BERMAN. No. I am asking about your neighbor down the road.
Ms. WILLIAMSON. My neighbor fills out I–9 forms. I fill out I–9 forms, too, but yet I still get letters from Social Security Administration letting me know that these workers may not be legal.
Mr. BERMAN. And your neighbor doesn't. Well, I don't know whether in the short time I have how long I should pursue this, but I am confused by your answer a little bit. Mr. Buchanan, I guess I want—my wife is growing peppers and tomatoes at this garden in the high school around the block from our home and she was born in the country. And my father was an immigrant and he never grew anything. So in and of itself, corn in the backyard, I am not sure what that has to do with—I am not sure why it is so bad and why that is necessarily a revelation of immigration status.
Mr. SMITH. Mr. Berman, if you would yield for a minute. It would be interesting if you——
Mr. BUCHANAN. Goats might be another problem.
Mr. SMITH. If your family was growing 100 acres, it would be interesting whether or not you needed guestworkers to harvest them.
Mr. BERMAN. By and large, there is a thing in corn called mechanization and ask the peasant farmers in Mexico how American corn growers are competing with Mexican corn growers in corn in Mexico.
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Mr. SMITH. It depends on the crop as to whether it can be mechanized or not.
Mr. BERMAN. I was talking about corn. I mean the sugar cane story that was discussed in a previous panel is a fascinating story. For years and years and years, the Florida sugar cane growers went to get guestworkers and they had the housing and there were suits about whether they were doing all the other stuff. And I would say, well, how come in Louisiana or other places they are not using guestworkers for sugar cane? Oh, they have mechanized. They are using—well, why don't you use the machines? Well, our land is too swampy and all that.
And, then, of course, what happened was Legal Services sued them and at some point they decided you know something, this H–2A program plus a lawsuit isn't worth it and all of a sudden those machines worked just fine. And they are doing the sugar cane and I mean there is something to the argument that both the presence of undocumented workers and the existence and availability and under this bill the much easier availability of an uncapped program that I suggest will produce hundreds and hundreds of thousands of guestworkers and do remember the testimony of Mr. Buchanan and others and the earlier witnesses regarding the one-way nature of many of these guestworker programs.
That this will increase guestworkers exponentially and I think increase undocumented workers exponentially, but there is a deterrent effect on labor saving productivity measures when you keep providing artificial supply of cheap labor. On the housing issue, basically, Ms. Williamson, I am told that in the case where you have problems, the problem was that they kept thinking you weren't meeting the housing requirement, that your housing wasn't adequate, it didn't meet the State or the Federal standards, and that the moment you did the things you needed to do, you got the workers the next day. Am I wrong about that or the application was approved the next day?
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Ms. WILLIAMSON. I am not sure what you are talking about.
Mr. BERMAN. Well, you testified rather extensively about the problems you had getting certified for workers under the H–2A program unless I was imagining things. No?
Ms. WILLIAMSON. No, sir, I just said we had delayed in getting our workers.
Mr. BERMAN. Right.
Ms. WILLIAMSON. I don't know whether it was the fact that the petition was held up or——
Mr. BERMAN. You weren't told that your housing didn't meet the standards?
Ms. WILLIAMSON. No, sir. No, sir. I have not had a petition held up because of housing not meeting standards. That is not the reason any of my workers have not showed up.
Mr. BERMAN. All right. Let me just take 1 second to read you this. Sleepy Creek—that is your place?
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Ms. WILLIAMSON. Yes, sir.
Mr. BERMAN. Submitted, as opposed to Bear Creek—that is Mr. Camacho's place—submitted an initial application with a date of need of September 1, 1999. The employers' housing was inspected on July 22 and July 28, but failed an inspection on each occasion. The housing again failed inspection on August 9, 1999. Because of the housing problems, no certification was ever issued and the employer withdrew the H–2A application.
Sleepy Creek submitted a second application with a date of need of September 27, 1999. Certification due on September 7. On September 3 inspection of the housing was attempted, but Ms. Williamson challenged the applicability of the Federal regulations to her units forcing the State inspectors to obtain a determination from the regional Department of Labor offices to the proper regulations to be applied.
The regional office agreed with the State DOL inspectors. Reinspection was done and some housing problems were determined to still exist. September 13, 4 days later, the regional ETA office received by fax finally the State's approval of the housing. The following day, H–2A certification was issued for 19 of the 25 requested positions. Why only 19? Because there was only available housing for 19 people.
Ms. WILLIAMSON. Those particular housing units the prior year were certified by the State at 25 workers. The demand date, that particular petition was pulled because the housing inspection was conducted prior to us being ready. We then got the housing ready, the certification date was still within a time frame prior to us needing them for setting and they still did not arrive until after the setting date. They did not arrive on the date that those workers were promised to be there.
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Mr. BERMAN. For a long time, the application was not granted because the housing wasn't appropriate.
Ms. WILLIAMSON. The application originally when the inspector came in, we were not aware that they were coming at that time. We have had time constraints with the person doing the repairs on the units. They were also trying to get repairs done with other units in there. And I understood that. And I had no problem with that. But once the petition was approved and the housing was approved, the workers still did not arrive at the expected arrival date.
Mr. BERMAN. Thank you, Mr. Chairman.
Mr. SMITH. Thank you, Mr. Berman. On the way to recognizing Mr. Canady, I want to follow up on something that Mr. Berman said, if the gentleman from Florida will yield a little bit of time to me here. I just want to make the point that there is a distinction between crops, which is to say we have seen the mechanization, for instance, of raisins and sugar cane, corn and so forth.
But I am thinking of two pieces of property in South Texas, with which I am very familiar, where on one side of the highway you have corn being raised, which, of course, is harvested mechanically, and on the other side, you have watermelons being grown, which is very labor intensive. Now maybe some day there will be a way to harvest those watermelons more mechanically than they are now being harvested. But it seems to me that if, in fact, it was more profitable to do so, the growers would have an incentive to develop that system to make more of a profit.
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Mr. BERMAN. Would the gentleman yield?
Mr. SMITH. I would yield briefly, yes.
Mr. BERMAN. As long as you can get undocumented workers or a uncapped supply of guestworkers, the incentives to focus on the research to develop the watermelon harvester is not there. And so the two are related. Corn was once a very labor intensive crop.
Mr. SMITH. Let me reclaim my time to make the point, and you helped me make it, which is that for whatever reason, if it was more profitable, you can see that an individual would engage in that mechanization.
Mr. BERMAN. It ain't going to be more profitable than cheap undocumented or foreign labor.
Mr. SMITH. I think that that is not——
Mr. BERMAN. The lawsuit plus that maybe makes it more profitable.
Mr. SMITH. Well, we disagree on that. To me, if it was more profitable, they would go forward. In the case of sugar cane, not the case of the raisins, but in the case of the sugar cane, I understand that most of that labor was legal and——
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Mr. BERMAN. Yeah.
Mr. SMITH [continuing]. And when it became more profitable to mechanize, they did. In the case of some crops, I think it is going to be awhile before it is profitable with or without legal or illegal labor to mechanize the harvesting of those crops. The gentleman from Florida, Mr. Canady, is recognized.
Mr. CANADY. Thank you, Mr. Chairman. I want to start out by thanking all the members of this panel. I don't want to be remiss in failing to congratulate Ms. Muñoz on her outstanding achievement. That is something that——
Mr. SMITH. I thought you were going to say on her endorsement of the law of supply and demand. [Laughter.]
Mr. CANADY. That is truly noteworthy and you are to be congratulated.
Mr. BERMAN. Wish everybody would endorse it.
Mr. CANADY. But I appreciate the testimony of the witnesses. I also want to wish a special thank you to Mrs. Williamson who is a constituent of mine and comes from an important part of my district where strawberries are grown And let me just kind of pick up on the subject about efforts to improve productivity through mechanization. The area where I am most familiar with those efforts that are ongoing have to do with the harvesting of citrus and I can tell you that with respect to the harvesting of citrus, there are extensive efforts underway to figure out how that can be accomplished through mechanization.
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I mean there is a desire to do that. The traditional methods of harvesting go forward, but I know that there is a lot of effort being put into that. So the notion that somehow because people have the ability now to harvest it, even where sometimes it is threatened by an inadequate supply of labor, that that is going to prevent efforts to increase productivity through mechanization or whatever, I just don't think that holds up to analysis. And I think that most people in agriculture would attest to that.
Now when it comes to the harvesting of strawberries, think—I am not sure what is going on there. I don't know if Ms. Williamson is aware of that and wants to address that, but when you have something that is so fragile, I think at least for the foreseeable future it is going to be pretty labor intensive until there is some amazing breakthrough that I don't know that is on the horizon. And somebody may want to address that.
But let me just finally say that I think Ms. Williamson's experience and he testimony does put some of these issues in a very practical light and Ms. Williamson has tried to work with the existing program and I think her experience shows some of the problems with that program and again I don't see how we can be satisfied with the situation where such a large number of the people who are working in the agricultural sector are doing so illegally. That is just not the way things should be.
And I realize we have differences of opinion about the way to solve that problem and that hearing, I think, has been helpful in highlighting that, but I think it should be crystal clear that the status quo is unacceptable and for those who don't like this bill, there is an obligation, which I am sure you will be willing to meet to offer other suggestions for solving the problem. And then it is our responsibility as members of the subcommittee, Members of Congress, to weigh the alternatives.
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But I think the one thing that is unacceptable is to do nothing about the current situation. And that is just my perspective on this. And again, I don't know if you want to make any more comments, Ms. Williamson, but I want to thank you for taking the time to be here and sitting here all day and participating and giving us your perspective on these things.
Mr. BERMAN. Would you yield?
Mr. CANADY. I will be happy to yield to the gentleman.
Mr. BERMAN. First of all, at the very beginning, I said I consider this situation is wrong and it is unhealthy and it needs to be changed. The one thing I know is if no one compromises and no one gets together and we still keep getting these bills that only deal with expanded and uncapped guestworker programs that eliminate a lot of the procedural things and dilute all the substantive provisions, we will have nothing. That bill will not pass. That bill will not go into law.
So there is going to be a need for some getting together on different things because I think almost everybody agrees—there is a consensus—the present situation isn't good.
Mr. CANADY. Well, reclaiming my time, I appreciate the gentleman's perspective on this. I think we might have a difference in perspective about what this bill actually would do and the impact of it and the way it should be properly characterized. But that is a debate that I am sure will go on as we move forward to a mark-up of this legislation, but I agree with the gentleman that we are going to have to find common ground on this, if reform in this area is going to become law. I understand that. I know that the administration has threatened to veto this and I understand that those kind of things have to be taken into account.
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But I would say that I don't want to—I would rather do nothing on this than to go through some process of just cosmetic rearrangement of the status quo where we can say we have done something, but in fact have done nothing that will make this program more practical and more workable and more effective——
Mr. BERMAN. I agree.
Mr. CANADY [continuing]. In meeting the needs that need to be met. But I appreciate the gentleman's perspective and I know the gentleman has very strong feelings about these issues and I will look forward to working with the gentleman and the chairman on these important matters.
Mr. SMITH. Thank you, Mr. Canady. Ms. Williamson, I want to go back and ask you a question. First of all, I want to compliment you on your efforts to try to make the H–2A program work even though you testified as to ways it does not work, and I also appreciate your efforts to try to determine through the Social Security system whether people are in the country legally or not.
I wish every employer would make the efforts you did. Do you want to go into any detail as to how you would recommend that the H–2A program be improved?
Ms. WILLIAMSON. Well, Mr. Chairman, I guess going back to try to clarify maybe some of the things that are in my statement. When I alluded to having to pay 41 percent more for workers, it is not the fact that I really mind paying more to my workers because in the area where we are at, we do historically pay more to our workers than some of the other growers in the area.
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What I don't like is being forced by our government to pay this premium to workers when we are trying to hire legal workers when everyone else is using——
Mr. SMITH. You are being punished for trying to do the right thing?
Ms. WILLIAMSON. Right. Being punished for trying to do the right thing and that is what I meant to convey in my testimony about the 41 percent higher wages.
Mr. SMITH. Right.
Ms. WILLIAMSON. And as far as when Mr. Berman was asking about the delay in my petition, there was some problems with the housing on that petition and I didn't mention anything in my testimony about that, and I was in no way trying to convey that there was that, but once the petition was approved, the workers still did not arrive on time. That was——
Mr. BERMAN. Was that the government's fault? Or was that the labor contractor's fault?
Ms. WILLIAMSON. I don't know. I have no way of knowing where the fault in the system lies. I am just saying that there are problems with the system.
Mr. SMITH. Right, right.
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Ms. WILLIAMSON. So.
Mr. SMITH. That answers my question. By the way, when is the strawberry harvesting season?
Ms. WILLIAMSON. In Florida, we harvest from the end of November through hopefully the middle of April.
Mr. SMITH. So it is over for you this year?
Ms. WILLIAMSON. Yes, sir.
Mr. SMITH. That is how you happen to have all the accurate statistics, too. Okay. Thank you. Mr. Buchanan, I wanted to address some questions to you, and I appreciate your written testimony as well as your oral testimony. One of the criticisms you had of a guestworker program is that there was no way to make sure that the guestworkers returned to their home country, wherever that may be. Would you feel better about a guestworker program if there was a certainty that the guestworkers did return home and there was a way to confirm that?
Mr. BUCHANAN. First of all, I can't imagine that there is any way that you could actually do that and make it cost effective. The cost of taking somebody back to the border or flying them to Central America or wherever they came from, I am not answering your question in the sense that I am saying I can't imagine that happening.
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No, I would be opposed to it in any case. We should be getting rid of these H-visas and reverting to a system that says we are looking for free workers, workers that have the options that anybody else would have.
Mr. SMITH. Why do you think a guestworker program would increase illegal immigration?
Mr. BUCHANAN. I think a lot of people will use it as a way to get into the United States. I understand that when the AFL–CIO made its change and when all the bills came up here on amnesty, this got back immediately. It was all over the Mexican newspapers, for example. It was probably in newspapers all over the world and people are thinking I can get in there using this visa and I will stay and they know we don't have interior enforcement. They all know this.
Some time ago Alan Cranston was talking——
Mr. SMITH. Alan Simpson?
Mr. BUCHANAN. Alan Simpson. Excuse me. That is another guy. That was a much earlier—Alan Simpson commented that 7 minutes after we do something on immigration, they know about it in central China. I don't know how he knew that, but——
Mr. SMITH. That is probably true. My last question is, why are you opposed to any form of amnesty?
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Mr. BUCHANAN. Well, the problem with amnesty is, and we have had a lot of experience with amnesty recently, it just doesn't work. We thought in 1986 with the IRCA that we were going to resolve a problem. We were going to say let us go back to square zero. We are going to let all these people that have been here a certain time remain permanently and that would solve the problem. But what it does actually is it tells other people, hey, they are allowing it to happen now, let us go in.
So I just can't imagine that any amnesty would be successful in stopping illegal immigration. It just promotes it.
Mr. SMITH. I don't have any further questions. I don't even want to look at Mr. Berman for fear that he—no more questions from Mr. Berman?
Mr. BERMAN. You wore me out.
Mr. SMITH. Wore him out. I am sure that Mr. Berman joins me in thanking you all for your testimony here today. We were talking earlier, in fact during the vote, and we both considered today to be very productive, and we have been the beneficiary of excellent testimony from every witness. So we appreciate your contributions and thank you all for being here, and we stand adjourned.
[Whereupon, at 3:40 p.m., the subcommittee was adjourned.]
(Footnote 1 return)
Most of my statistics are drawn from Research Report #8 of the National Agricultural Workers Survey (NAWS), Department of Labor, March 2000.
(Footnote 2 return)
U.S. Department of Labor, Findings from the National Agricultural Workers Survey: 1997–1998.
(Footnote 3 return)
Ibid. See also Linda Levine, ''Farm Labor Shortages and Immigration Policy,'' a Congressional Research Service Report for Congress. December 20, 1999.
(Footnote 4 return)
State of California, Employment Development Department, Report 400C, 1989–1999.
(Footnote 5 return)
U.S. Department of Agriculture, A Time to Act, National Commission on Small Farms, Washington, D.C.: January 1998.
(Footnote 6 return)
Letter from Secretary Alexis Herman, U.S. Department of Labor, to Senator Paul Coverdell, April 16, 1999.
(Footnote 7 return)
Galarza, Ernesto, Merchants of Labor: The Mexican Bracero Story. McNally & Loftin, (Charlotte, 1964).