[House Hearing, 113 Congress]
[From the U.S. Government Printing Office]



 
 EXAMINING THE ROLE OF LOWER-SKILLED GUEST WORKER PROGRAMS IN TODAY'S 
                                ECONOMY

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



                                HEARING

                               before the

                 SUBCOMMITTEE ON WORKFORCE PROTECTIONS

                         COMMITTEE ON EDUCATION

                           AND THE WORKFORCE

                     U.S. House of Representatives

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

             HEARING HELD IN WASHINGTON, DC, MARCH 14, 2013

                               __________

                           Serial No. 113-10

                               __________

  Printed for the use of the Committee on Education and the Workforce


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                COMMITTEE ON EDUCATION AND THE WORKFORCE

                    JOHN KLINE, Minnesota, Chairman

Thomas E. Petri, Wisconsin           George Miller, California,
Howard P. ``Buck'' McKeon,             Senior Democratic Member
    California                       Robert E. Andrews, New Jersey
Joe Wilson, South Carolina           Robert C. ``Bobby'' Scott, 
Virginia Foxx, North Carolina            Virginia
Tom Price, Georgia                   Ruben Hinojosa, Texas
Kenny Marchant, Texas                Carolyn McCarthy, New York
Duncan Hunter, California            John F. Tierney, Massachusetts
David P. Roe, Tennessee              Rush Holt, New Jersey
Glenn Thompson, Pennsylvania         Susan A. Davis, California
Tim Walberg, Michigan                Raul M. Grijalva, Arizona
Matt Salmon, Arizona                 Timothy H. Bishop, New York
Brett Guthrie, Kentucky              David Loebsack, Iowa
Scott DesJarlais, Tennessee          Joe Courtney, Connecticut
Todd Rokita, Indiana                 Marcia L. Fudge, Ohio
Larry Bucshon, Indiana               Jared Polis, Colorado
Trey Gowdy, South Carolina           Gregorio Kilili Camacho Sablan,
Lou Barletta, Pennsylvania             Northern Mariana Islands
Martha Roby, Alabama                 John A. Yarmuth, Kentucky
Joseph J. Heck, Nevada               Frederica S. Wilson, Florida
Susan W. Brooks, Indiana             Suzanne Bonamici, Oregon
Richard Hudson, North Carolina
Luke Messer, Indiana

                        [Vacant], Staff Director
                 Jody Calemine, Minority Staff Director
                                 ------                                

                 SUBCOMMITTEE ON WORKFORCE PROTECTIONS

                    TIM WALBERG, Michigan, Chairman

John Kline, Minnesota                Joe Courtney, Connecticut,
Tom Price, Georgia                     Ranking Member
Duncan Hunter, California            Robert E. Andrews, New Jersey
Scott DesJarlais, Tennessee          Timothy H. Bishop, New York
Todd Rokita, Indiana                 Marcia L. Fudge, Ohio
Larry Bucshon, Indiana               Gregorio Kilili Camacho Sablan,
Richard Hudson, North Carolina         Northern Mariana Islands


                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on March 14, 2013...................................     1

Statement of Members:
    Courtney, Hon. Joe, ranking member, Subcommittee on Workforce 
      Protections................................................     4
        Prepared statement of....................................     6
    Walberg, Hon. Tim, Chairman, Subcommittee on Workforce 
      Protections................................................     1
        Prepared statement of....................................     3

Statement of Witnesses:
    Bauer, Mary, Southern Poverty Law Center.....................    19
        Prepared statement of....................................    21
    Benjamin, Fred, chief operating officer, Medicalodges, Inc...    15
        Prepared statement of....................................    16
    Musser, R. Daniel III, president, Grand Hotel, Mackinac 
      Island, MI.................................................    29
        Prepared statement of....................................    31
    Reiff, Laura, principal shareholder, Greenberg Traurig; 
      chair, Business Immigration and Compliance Group on behalf 
      of the Essential Worker Immigration Coalition..............     8
        Prepared statement of....................................    10

Additional Submissions:
    Andrews, Hon. Robert E., a Representative in Congress from 
      the State of New Jersey:
        Letter, dated March 18, 2013, from the National 
          Association of Home Builders (NAHB)....................    76
    Bonamici, Hon. Suzanne, a Representative in Congress from the 
      State of Oregon:
        Report, ``Program Design Issues Hampered ETA's Ability to 
          Ensure the H-2B Visa Program Provided Adequate 
          Protections for U.S. Forestry Workers in Oregon,'' 
          dated Oct. 17, 2011, Internet address to...............    52
    Hudson, Hon. Richard, a Representative in Congress from the 
      State of North Carolina, questions submitted for the record    78
    Ms. Reiff, response to questions submitted for the record....    79
    Chairman Walberg:
        Letter, dated March 13, 2013, from Associated Builders 
          and Contractors, et al.................................    54
        Statement of the American Horse Council (AHC)............    55
        Letter, dated March 13, 2013, from the Center for Global 
          Development............................................    57
        Letter, dated March 14, 2013, from the Progressive 
          Solutions LLC..........................................    59
        Statement of the H-2B Workforce Coalition................    61
        Statement of ImmigrationWorks USA........................    61
        Joint statement of the Professional Landcare Network 
          (PLANET) and the American Nursery and Landscape 
          Association (ANLA).....................................    63
        Report, ``Migrant Spray Industry Report,'' October 2012..    66
        Statement of the American Hotel & Lodging Association....    72
        Letter [via email], dated March 13, 2013, from the 
          National Hispanic Landscape Alliance (NHLA)............    74
        Statement of Keesen Landscape Management, Inc............    75


                         EXAMINING THE ROLE OF
                       LOWER-SKILLED GUEST WORKER


                      PROGRAMS IN TODAY'S ECONOMY

                              ----------                              


                        Thursday, March 14, 2013

                     U.S. House of Representatives

                 Subcommittee on Workforce Protections

                Committee on Education and the Workforce

                             Washington, DC

                              ----------                              

    The subcommittee met, pursuant to call, at 10:03 a.m., in 
room 2175, Rayburn House Office Building, Hon. Tim Walberg 
[chairman of the subcommittee] presiding.
    Present: Representatives Walberg, Kline, DesJarlais, 
Rokita, Courtney, Andrews, Bishop, Sablan, and Bonamici.
    Staff present: Owen Caine, Legislative Assistant; Ed 
Gilroy, Director of Workforce Policy; Benjamin Hoog, 
Legislative Assistant; Nancy Locke, Chief Clerk/Assistant to 
the General Counsel; Donald McIntosh, Professional Staff 
Member; Brian Newell, Deputy Communications Director; Krisann 
Pearce, General Counsel; Nicole Sizemore, Deputy Press 
Secretary; Alex Sollberger, Communications Director; Alissa 
Strawcutter, Deputy Clerk; Loren Sweatt, Senior Policy Advisor; 
Mary Alfred, Minority Fellow, Labor; Tylease Alli, Minority 
Clerk/Intern and Fellow Coordinator; John D'Elia, Minority 
Labor Policy Associate; Brian Levin, Minority Deputy Press 
Secretary/New Media Coordinator; Celine McNicholas, Minority 
Senior Labor Counsel; Richard Miller, Minority Senior Labor 
Policy Advisor; Megan O'Reilly, Minority General Counsel; and 
Michele Varnhagen, Minority Chief Policy Advisor/Labor Policy 
Director.
    Chairman Walberg. Well, good morning. A quorum being 
present, the subcommittee will come to order. Other committee 
members will be arriving, but it is time to begin so we might 
as well begin.
    I would like to welcome our members and thank our witnesses 
for being here this morning.
    Legal immigration is a hallmark of this great country, my 
family included. Families and individuals from around the world 
have come to our shores in pursuit of freedom and opportunity.
    President Reagan often referred to our nation as a 
``shining city on a hill.'' For those who have followed its 
light we have tried to provide a legal framework for entering 
and residing inside the United States.
    Such a framework is critical to protecting our national 
interests and security. However, our immigration system is no 
longer as strong and effective as it should be and reform is 
complex and controversial, to say the least.
    The Education and the Workforce Committee has long played 
an important role in that debate overseeing policies such as 
employment verification and temporary guest work programs. The 
current debate is even more complicated due to the ongoing jobs 
crisis plaguing our nation: 12 million Americans are searching 
for work.
    In my home state of Michigan nearly 9 percent of the 
state's working population is without a job. It is an 
improvement from where we were a few short years ago, but we 
still have a long way to go before families and small 
businesses fully recover from a recession.
    To help our economy move forward we must ensure, first of 
all, all American workers have the tools they need to compete 
for good-paying jobs here at home. I am pleased the House will 
consider this afternoon comprehensive job training reform 
legislation which will help workers and job-seekers access to 
the skills and education they need to get back to work.
    Additionally, we must do all that is reasonably possible to 
ensure employers are searching far and wide for American 
workers. Guest worker programs include a number of provisions 
intended to protect domestic workers. We can debate whether 
those policies go too far or not far enough, but it is 
imperative we continue to support our fellow citizens 
struggling to find work.
    We do realize, however, there are times when the supply of 
domestic labor falls short of demand. For a variety of reasons 
and despite their best efforts, some employers simply cannot 
hire the workforce necessary to run their businesses. Guest 
workers help fill that void.
    The Immigration Nationality Act currently includes several 
guest worker visa programs, such as the H-1B program for highly 
skilled workers and the H-2B program for temporary non-
agricultural workers. The law allows foreign workers to be 
admitted for a specific period of time and purpose. Under the 
H-2B program specifically, guest workers can enter the United 
States for up to 10 months and their stay can be extended up to 
3 consecutive years.
    An employer petitioning for guest workers must certify that 
domestic workers are unavailable as well as demonstrate the 
hiring of foreign workers will not harm the wages and 
employment of Americans.
    We will examine today whether these programs serve the best 
interests of workers and employers. No doubt, that is a large 
undertaking for one hearing and involves a number of important 
questions.
    For example, do limits on the number of visas issued each 
year undermine the success of these programs? Will regulatory 
proposals put forward by the administration make it easier or 
more difficult for employers to obtain foreign labor?
    Do we have the right tools in place to ensure protections 
for American workers are adequately enforced? Do the current 
temporary visa programs meet the long-term needs of employers 
seeking lower-skilled workers?
    It is difficult for any federal program or law to keep pace 
with our dynamic economy. Shifting demographics can alter the 
landscape of America's workplaces. New industries and 
technologies constantly change how businesses provide goods and 
services to consumers.
    While such developments often improve our lives, they also 
raise difficult questions that need to be addressed by 
policymakers. I hope our hearing today will inform the debate 
that is taking place nationwide.
    Again, I would like to thank our witnesses for joining us.
    And I will now recognize my distinguished colleague, Joe 
Courtney, the senior Democratic member of the subcommittee, for 
his openingremarks.
    [The statement of Chairman Walberg follows:]

           Prepared Statement of Hon. Tim Walberg, Chairman,
                 Subcommittee on Workforce Protections

    Good morning. I'd like to welcome our members and thank our 
witnesses for being with us today.
    Legal immigration is a hallmark of this great country. Families and 
individuals from around the world have come to our shores in pursuit of 
freedom and opportunity. President Reagan often referred to our nation 
as ``a shining city upon a hill.'' For those who have followed its 
light, we have tried to provide a legal framework for entering and 
residing inside the United States. Such a framework is critical to 
protecting our national interests and security.
    However, our immigration system is no longer as strong and 
effective as it should be, and reform is complex and controversial. The 
Education and the Workforce Committee has long played an important role 
in that debate, overseeing policies such as employment verification and 
temporary guest worker programs.
    The current debate is even more complicated due to the ongoing jobs 
crisis plaguing the nation. Twelve million Americans are searching for 
work. In my home state of Michigan, nearly 9 percent of the state's 
working population is without a job. It is an improvement from where we 
were a few short years ago, but we still have a long way to go before 
families and small businesses fully recover from the recession.
    To help our economy move forward, we must first ensure all American 
workers have the tools they need to compete for good paying jobs here 
at home. I am pleased the House will consider this afternoon 
comprehensive job training reform legislation, which will help workers 
and job seekers access to the skills and education they need to get 
back to work.
    Additionally, we must do all that is reasonably possible to ensure 
employers are searching far and wide for American workers. Guest worker 
programs include a number of provisions intended to protect domestic 
workers. We can debate whether those policies go too far or not far 
enough, but it is imperative we continue to support our fellow citizens 
struggling to find work.
    We do realize, however, there are times when the supply of domestic 
labor falls short of demand. For a variety of reasons and despite their 
best efforts, some employers simply cannot hire the workforce necessary 
to run their businesses. Guest workers help fill that void.
    The Immigration Nationality Act currently includes several guest 
worker visa programs, such as the H-1B program for highly-skilled 
workers and the H-2B program for temporary non-agricultural workers. 
The law allows foreign workers to be admitted for a specific period of 
time and purpose.
    Under the H-2B program specifically, guest workers can enter the 
United States for up to 10 months and their stay can be extended up to 
three consecutive years. An employer petitioning for guest workers must 
certify that domestic workers are unavailable, as well as demonstrate 
the hiring of foreign workers will not harm the wages and employment of 
Americans.
    We will examine today whether these programs serve the best 
interests of workers and employers. No doubt that is a large 
undertaking for one hearing and involves a number of important 
questions.
    For example, do limits on the number of visas issued each year 
undermine the success of these programs? Will regulatory proposals put 
forward by the administration make it easier or more difficult for 
employers to obtain foreign labor? Do we have the right tools in place 
to ensure protections for American workers are adequately enforced? Do 
the current temporary visa programs meet the long-term needs of 
employers seeking lower-skilled workers?
    It is difficult for any federal program or law to keep pace with 
our dynamic economy. Shifting demographics can alter the landscape of 
America's workplaces. New industries and technologies constantly change 
how businesses provide goods and services to consumers.
    While such developments often improve our lives, they also raise 
difficult questions that need to be addressed by policymakers. I hope 
our hearing today will inform the debate that is taking place 
nationwide.
    Again, I'd like to thank our witnesses for joining us, and I will 
now recognize my distinguished colleague Joe Courtney, the senior 
Democratic member of the subcommittee, for his opening remarks.
                                 ______
                                 
    Mr. Courtney. Well thank you, Mr. Chairman. And I 
particularly want to compliment you for organizing this hearing 
early in this Congress because there is no question that since 
the election last November this issue has suddenly gotten a lot 
more political momentum, and obviously we want to make sure 
this subcommittee and our full committee are active and full 
participants in any legislative efforts.
    Mr. Chairman, we are meeting today to discuss the role of 
low-skilled guest worker programs in our country. As I said, 
this discussion comes at an important moment as we consider a 
framework for comprehensive immigration reform.
    Prior to the 2012 election, real, meaningful reform of our 
nation's immigration policy seemed completely out of the 
political realm of the possible. Sadly, the last major effort, 
the DREAM Act, which was passed in the lame duck session in 
2010, seemed to be the high watermark for this era. But 
nonetheless, the election has really changed the political 
dynamics surrounding this whole issue.
    And we are seeing encouraging bipartisan agreements among 
our Senate colleagues and an agreement on a set of shared 
principles for reform between the U.S. Chamber of Commerce and 
the AFL-CIO. I am deeply encouraged by this progress and agree 
with the joint statement released by the chamber and the AFL 
that today's effort at comprehensive immigration reform present 
a historic opportunity for U.S. workers and businesses to work 
together to fix a broken system.
    I don't think there is a single member of Congress who has 
casework in their district offices that cannot say that this 
has just become an overwhelming volume of work, whether it is 
family unification, whether it is work visas, tourist visas, J-
1, you name it. Again, the folks that work for us in our 
district office feel every single day the dysfunctional system 
that we have in place and it is time to fix it.
    But the basic principles which have been issued, I think, 
are important to state at the outset, which is first and 
foremost, any work-based visa program for foreign workers must 
protect employment opportunities for U.S. workers. It must also 
prevent the exploitation of guest workers.
    Today the national unemployment rate stands at 7.7 percent; 
12 million U.S. workers are looking for jobs. And that is 
probably understated, in terms of people who have just sort of 
left the marketplace.
    The unemployment rate in many of the industries that 
utilize the largest number of H-2B visa guest workers programs 
is even bigger. The February 2013 unemployment rate in the 
construction trades was 15.7 percent; leisure and hospitality, 
11.2 percent. That is almost 3 million U.S. workers just in 
those two sectors alone looking for a job. We must ensure that 
those workers have a meaningful chance at the jobs that are 
available in these industries.
    This morning we have the chance to examine the role of 
lower-skilled temporary foreign worker program in our nation. I 
hope that we consider what impact guest worker programs have on 
wages and working conditions.
    Are employers and industries that rely heavily on H-2B 
workers paying a fair and competitive wage? Are there some jobs 
that U.S. workers are simply unwilling or unavailable to 
perform, or does reliance on guest worker programs create a 
situation whereby the wages and demands of an industry make it 
nearly impossible for American workers to take on those jobs 
and put food on their family's table?
    Earlier this week the Bureau of Labor Statistics determined 
that the personal care home health aides are the fastest-
growing job classification in our country. On average, DOL 
found that full-time workers in this field earn about $20,000 a 
year. The hours are long, the work is physically and 
emotionally challenging. That makes it difficult to maintain a 
stable workforce.
    The question to consider today is, will opening this type 
of work to guest workers address any workforce shortage in a 
way that is good for our nation's economy, good for U.S. 
workers, and fair to the guest workers who end up in these 
jobs?
    Mr. Chairman, we have a responsibility to ensure that our 
nation's immigration laws meet the needs of our country's 
workers and employers. We also have a responsibility to our 
nation's guest workers.
    The reality is is that these workers perform difficult work 
and enjoy few workplace protections. During the Bush 
administration, DOL loosened the rules governing the H-2B 
program. Employers merely had to attest that they have 
attempted to recruit U.S. workers for open positions; they no 
longer were required, in many instances, to demonstrate that 
their recruitment efforts--their recruitment efforts or 
coordinate with the state workforce agency.
    The administration also adjusted the wage requirements, 
putting downward pressure on wages in H-2B programs. Under the 
common sense rules proposed by the Obama administration many of 
these damaging changes were addressed.
    Specifically, the wage rate reform rule would have 
increased the wages paid to H-2B workers and similarly employed 
U.S. workers by an average of $4.83 an hour. There is no 
question that better wages would attract more U.S. workers to 
these jobs and enable them to stay in these jobs. However, the 
regulations remain tied up in litigation or are delayed by 
appropriation riders.
    I hope today's discussion is the start of a productive 
debate on immigration reform--one that seeks to serve this 
nation's workers and employers. What we don't need is a race to 
the bottom here at home, with workers forced to compete for 
lower and lower-wage jobs.
    We need to be careful about how we administer any temporary 
guest worker program to ensure that foreign workers are not 
exploited and that U.S. workers have a shot at available jobs. 
Anything less will undermine the jobs, wages, and working 
conditions of U.S. workers and the guest workers laboring with 
them.
    I look forward to exploring these issues and hearing from 
the witnesses.
    Thank you, Mr. Chairman. I yield back.
    [The statement of Mr. Courtney follows:]

 Prepared Statement of Hon. Joe Courtney, Ranking Member, Subcommittee 
                        on Workforce Protections

    Mr. Chairman, today we are meeting to discuss the role of lower-
skilled guest worker programs in our economy. This discussion comes at 
an important moment, as we consider a framework for comprehensive 
immigration reform. Prior to the 2012 election, real, meaningful reform 
of our nation's immigration policy seemed unlikely. However, today's 
hearing comes in the wake of encouraging bipartisan agreements among 
our Senate colleagues and an agreement on a set of shared principles 
for reform between the Chamber of Commerce and the AFL-CIO. I am deeply 
encouraged by this progress and agree with the joint statement released 
by the Chamber and the AFL that today's efforts at comprehensive 
immigration reform present a historic opportunity for U.S. workers and 
businesses to work together to fix a broken system.
    First and foremost, any work-based visa program for foreign workers 
must protect employment opportunities for U.S. workers. It must also 
prevent the exploitation of guest workers. Mr. Chairman, today the 
national unemployment rate stands at 7.7 percent--12 million U.S. 
workers are looking for a job. The unemployment rate in many of the 
industries that utilize the largest number of H-2B guest workers is 
even higher. The February 2013 unemployment rate for the construction 
industry was 15.7 percent and in leisure and hospitality the 
unemployment rate was 11.2 percent--that is almost 3 million U.S. 
workers looking for a job. We must ensure that these workers have a 
meaningful chance at the jobs that are available in these industries.
    This morning, we have the chance to examine the role of a lower-
skilled temporary foreign worker program in our nation. I hope that we 
consider what impact guest worker programs have on wages and working 
conditions. Are employers in the industries that rely heavily on H-2B 
workers paying a fair, competitive wage? Are there some jobs that U.S. 
workers are simply unwilling or unavailable to perform? Or, does 
reliance on guest worker programs help create a situation whereby the 
wages and demands of an industry make it nearly impossible for American 
workers to take those jobs and put food on their family's table? 
Earlier this week, the Bureau of Labor Statistics determined that 
personal care aides/home health aides are the fastest growing job 
classifications in this country. On average, DOL found that full-time 
workers in this field earn around $20,000 a year. The hours are long 
and the work is physically and emotionally challenging. That makes it 
difficult to maintain a stable workforce. The question to consider 
today is, will opening this type of work to guest workers address any 
workforce shortage in a way that is good for our nation's economy, good 
for U.S. workers, and fair to the guest workers who may end up in those 
jobs.
    Mr. Chairman, we have a responsibility to ensure that our nation's 
immigration laws meet the needs of our country's workers and employers. 
We also have a responsibility to our nation's guest workers. The 
reality is that these workers perform difficult work and enjoy few 
workplace protections. During the George W. Bush Administration, the 
Department of Labor loosened the rules governing the H-2B program. 
Employers merely had to attest that they have attempted to recruit U.S. 
workers for open positions, they no longer were required to demonstrate 
their recruitment efforts or coordinate with state workforce agencies. 
The Bush Administration also adjusted the wage requirements, putting 
downward pressure on wages in the H-2B program. Under common sense 
rules issued by the Obama Administration, many of the damaging changes 
the Bush Administration made to the H-2B program were addressed. 
Specifically, the wage rate reform rule would have increased the wages 
paid to H-2B workers and similarly employed U.S. workers by an average 
of $4.83 per hour. There is no question that better wages would help 
attract more U.S. workers to those jobs and enable them to stay in 
those jobs. However, the regulations remain tied up in litigation or 
delayed by appropriations riders.
    I hope today's discussion is the start of a productive debate on 
immigration reform--one that seeks to serve this nation's workers and 
employers. What we don't need is a race to the bottom here at home, 
with workers forced to compete for lower and lower wage jobs. We need 
to be careful about how we administer any temporary guest worker 
program to ensure that foreign workers are not exploited and U.S. 
workers have a shot at available jobs. Anything less will undermine the 
jobs, wages, and working conditions of U.S. workers and the guest 
workers laboring with them. I look forward to exploring these issues 
and hearing from the witnesses. Thank you, Mr. Chairman.
                                 ______
                                 
    Chairman Walberg. I thank the gentleman.
    Pursuant to committee rule 7(c), all members will be 
permitted to submit written statements to be included in the 
permanent hearing record, and without objection, the hearing 
record will remain open for 14 days to allow statements, 
questions for the record, and other extraneous material 
referenced during the hearing to be submitted into the official 
record.
    It is a privilege to introduce our witness panel this 
morning. First, Ms. Laura Reiff is a co-managing shareholder of 
the Greenberg Traurig law firm of McLean, Virginia. She is 
testifying on behalf of the Essential Worker Immigration 
Coalition.
    Welcome.
    Our second witness is Mr. Fred Benjamin, who is chief 
operating officer at Medicalodges, Inc., in Coffeyville, 
Kansas. Could use some coffee right now, maybe. That works. Mr. 
Benjamin is testifying on behalf of the American Health Care 
Association.
    Thank you for being here.
    Ms. Mary Bauer is the legal director at the Southern 
Poverty Law Center in Montgomery, Alabama.
    Thank you for joining us again.
    And then it is a special privilege for me to introduce Mr. 
Dan Musser, who is the president of the Grand Hotel in Mackinac 
Island, Michigan.
    Allowing personal privilege here, I certainly give a very 
easy recommendation and advertisement for the Grand Hotel. If 
you have not been there you haven't lived, to sit on the 
longest porch in the world looking at some of the greatest 
scenery in the Straits of Mackinac, on an island where the only 
sound you will basically hear other than happy voices is the 
clippety-clop of horses and carriages, since those are the only 
transportation sources on the island. If you have missed it, 
you have missed it and it is about time to take care of that.
    Welcome.
    Mr. Chairman? When you sit this----
    Mr. Kline. [Off mike.]
    Chairman Walberg. Oh, gee whiz. Don't you wish. [Laughter.]
    Before I recognize each of you to provide your testimony 
let me briefly explain our simple lighting system--much like 
traffic lights. I am sure you understand that you will have 5 
minutes to present your testimony.
    When you begin the light in front of you will turn green; 
when 1 minute is left, caution, a light yellow comes on; when 
your time is expired the light will turn red, at which point I 
ask that you would wrap up as quickly as possible to allow the 
questions that will come that will allow you to expand on what 
you have said, I am certain.
    After you have testified members will each have 5 minutes 
to ask questions of the panel with the same light source 
available to them.
    And so at this time I would recognize Ms. Reiff for your 
presentation. Thank you.

   STATEMENT OF LAURA FOOTE REIFF, CO-MANAGING SHAREHOLDER, 
 GREENBERG TRAURIG LLP, TESTYFYING ON BEHALF OF THE ESSENTIAL 
                  WORKER IMMIGRATION COALITION

    Ms. Reiff. Thank you, Chairman Walberg, and Ranking Member 
Courtney, and distinguished members of the committee. Good 
morning and thank you for the opportunity to testify before the 
committee today.
    My name is Laura Reiff and I am a partner at the law firm 
of Greenberg Traurig. I also run the national immigration 
practice for the firm, and I have been involved in immigration 
legislative issues for the past 20-plus years.
    I am also one of the founders and on the leadership team of 
the Essential Worker Immigration Coalition, the business 
coalition that has been put together on immigration reform. And 
we have been working together to help effect immigration change 
since 1999.
    It is a privilege for me to be here today to discuss the 
role of lesser-skilled worker programs as Congress wrestles 
with comprehensive immigration reform issues.
    It is very important to note that an overhaul of the 
immigration policy to meet our national security and economic 
needs is long overdue. It has been more than 26 years since the 
last reform. It is really time for good public policy to take 
center stage.
    The Immigration Reform and Control Act was passed in 1986 
when I was still in law school. It was designed to be a 
solution to the broken immigration system.
    The law included a new immigration legal program that 
brought more than 3 million people out of the shadows and 
granted them lawful status. There was also a plan to hold 
employers accountable for hiring workers by asking them to 
check the identity and work authorization of new hires, and as 
a counterbalance to employer verification there were 
antidiscrimination requirements passed to ensure that employers 
didn't discriminate in hiring based upon citizenship or 
national origin. This was supposed to be the solution in 1986.
    The idea was good but things went dreadfully wrong over the 
past two decades. The programs didn't work the way they were 
envisioned.
    Millions of foreign workers entered the U.S. in 
questionable status and took jobs with U.S. employers. Most 
employers did go through all the employment verification 
processes but the new workers had documents to satisfy those 
requirements.
    Why didn't these foreign workers enter the U.S. legally or 
why did they overstay their status and take jobs without 
authorization? The answer is very simple: There was no 
immigration program available to those foreign workers that 
wanted to enter the U.S. lawfully.
    What is needed now to correct this employment-based 
immigration, this broken employment-based immigration system, 
is a workable employment eligibility verification program for 
employers, a functional temporary worker program that allows 
employers to hire foreign workers when U.S. workers are not 
available, and some sort of stabilization of the existing 
foreign workforce that is embedded in the U.S. economy over the 
last two decades.
    Current visa programs don't address the problem, as the 
chairman stated. We have an H-1B program, which is for 
highlyskilled individuals with at least a bachelor's degree. We 
have an H-2A program, which is for seasonal agricultural 
workers. We have an H-2B program, which is for seasonal non-
agricultural workers. And then some other extraneous visa 
programs, like the TN, Trade NAFTA program, which is for 
professionals from Canada or Mexico.
    These current visa programs--the H-1B has kind of been seen 
as the model of a temporary worker program that should be used 
for a new worker program. It is a program that is limited to 6 
years.
    Again, it has to--the individual must come in and be 
sponsored by an employer. The employer must have a position 
that requires an individual with a university degree. And the 
program is capped at 65,000 numbers per year.
    It is an arbitrary cap. That cap has been reached every 
year over the past 10 years and it is anticipated that that cap 
will be reached on April 1 of 2013 for the next fiscal year 
2014 number of H-1B visas. That cap is the filing date is 
coming up imminently.
    The H-2B program has been a program for seasonal non-
agricultural workers, and you will hear from Mr. Musser today 
about how that program works. It is not a program that fits the 
needs of our economy. And it is not a program that deals with 
full-time permanent employment.
    H-2B visas are used in industries such as landscaping, 
seasonal hospitality, fish processing and there is a cap on 
that program as well--an arbitrary cap of 66,000.
    These existing types of temporary worker programs do not 
begin to meet all the needs of our complex U.S. economy. There 
is no temporary worker program that addresses the huge gulf 
between these programs and the complexities of the many 
different kinds of jobs and skills that are out there. 
Employers need a way to recruit foreign workers when they 
cannot find a U.S. worker after rigorous recruitment, and 
currently there are very few realistic mechanisms to accomplish 
that.
    Employers are experiencing persistent and recurring job 
openings despite the downturn in the economy. Many positions 
remain unfilled despite extensive recruitment efforts of U.S. 
workers.
    Some industries that have expressed concern: meat 
processing, specialty construction employers, manufacturing, 
restaurant and food service, hospitals, and you will hear today 
about hotels and resorts and senior care medical facilities--
nursing homes.
    We need to fill the program gap that was left in 1986. The 
Essential Worker Immigration Coalition has worked together with 
other advocates to come up with a new model, a model that we 
think actually can work for a new worker program.
    In contrast with other existing U.S. temporary worker 
programs, under this new proposal employers would not sponsor 
workers for visas and workers would not be tied to specific 
jobs or specific employers. But workers would, rather, be able 
to change jobs and work for any employer who is registered to 
participate in a program.
    I have put the full details in the testimony, but here are 
a few quick highlights: it would be a two-track program; 
employers would register for slots after doing rigorous 
recruitment; employees would then be able to register for a 
slot.
    There would be complete portability. Employees would be 
able to move between registered employers.
    The cap would not be arbitrary; it would be flexible and 
market-based, based on demand so that when employers needed 
workers after testing the U.S. market they would be able to 
bring workers in.
    Wages would be the wages that would be paid to actually--to 
similarly-situated U.S. worker or the prevailing wage, 
whichever is higher. And we actually propose having a pretty 
detailed monitoring system to make sure that employees that are 
here are monitored while they are here and that their status is 
checked so that there is a workable employment eligibility 
verification system and a way to track employees when they are 
here.
    Chairman Walberg. We will look forward to plumbing the 
depths further, but----
    Ms. Reiff. So I thank you for allowing me to testify today, 
and I am looking forward to answering questions.
    [The statement of Ms. Reiff follows:]

  Prepared Statement of Laura Reiff, Principal Shareholder, Greenberg 
Traurig; Chair, Business Immigration and Compliance Group on behalf of 
               the Essential Worker Immigration Coalition

    Chairman Walberg, Ranking Member Courtney, and distinguished 
members of the Committee, good morning, and thank you for the 
opportunity to testify today before the Committee. I am Laura Reiff, 
the Co-Managing Shareholder of Greenberg Traurig, LLP's (``GT'') Tysons 
Corner Office and Co-Chair of GT's Business Immigration and Compliance 
Group. I focus my practice on business immigration laws and regulations 
affecting U.S. and foreign companies, as well as related employment 
compliance and legislative issues.
    I am also one of the founders and a member of the leadership team 
of the Essential Worker Immigration Coalition. The Essential Worker 
Immigration Coalition (EWIC) is a coalition of businesses, trade 
associations, and other organizations from across the industry spectrum 
that support reform of U.S. immigration policy to facilitate a 
sustainable workforce for the American economy while ensuring our 
national security and prosperity.
Overview
    It is a privilege for me to be here today discussing the role of 
lower-skilled guest worker programs as Congress wrestles with 
comprehensive immigration reform issues. It is very important to note 
that an overhaul of our immigration policy to meet our national 
security and economic needs is long overdue--it has been more than 
twenty-six years since the last reform--it is time for good public 
policy to take center stage.
    The Immigration Reform and Control Act of 1986 was designed to be a 
solution to a broken immigration system of the day. The law included a 
new legal immigration program that brought more than 3 million people 
out of the shadows and granted them lawful status. There was also a 
plan to hold employers accountable for hiring workers by asking them to 
check the identity and work authorization of new hires. As a counter 
balance to employer verification, there were antidiscrimination 
requirements passed to ensure that employers didn't discriminate in 
hiring based upon citizenship and national origin.
    This was to be the solution. The idea was good, but many things 
went dreadfully wrong over the past two plus decades. The programs 
didn't work the way they were envisioned. Millions of foreign workers 
entered the U.S. in questionable status and took jobs with U.S. 
employers. Most employers did go through an employment verification 
process, but the new workers had documents to satisfy the requirements. 
Why didn't these foreign workers enter the U.S. legally or overstay 
their status and take jobs without authorization? The answer is 
simple--there was no immigration program available to foreign workers 
who wanted to enter the U.S. lawfully. What is needed to correct this 
broken employment based immigration system is (1) a workable employment 
eligibility verification program; (2) a functional temporary worker 
program that allows employers to hire foreign workers when U.S. workers 
are not available and (3) some sort of stabilization of the existing 
foreign workforce that is embedded in the U.S. economy.
Current Visa Programs for Lesser Skilled Workers
    Most foreign workers entering the U.S. to work enter under one of 
the following categories: professionals, and executives or managers; 
agricultural workers or seasonal non-agricultural workers. 
Traditionally, the visa status used for technical professionals is the 
H-1B. Canadian and Mexican professionals are eligible for expedited 
visa and admission procedures pursuant to the North American Free Trade 
Agreement (NAFTA) under a TN visa. An employer may sponsor an unskilled 
worker for permanent residence, or greencard status, but this is 
category is restricted to 10,000 visa numbers per year. Due to backlogs 
in this category, it can take 10--15 years to actually enter the U.S. 
in this category and for most employers that is not a realistic or 
timely method to bring in workers.
    The commonly used temporary worker programs in existence today are 
the H-1B, the H-2B, TN and the H-2A programs. The H-2A agricultural 
visa program has proven to be difficult to use and not responsive to 
the realities of the agricultural workplace.
H-1B Visa--Temporary Specialty Worker Visa
    The H-1B visa is available to nonimmigrants who are temporarily 
employed in professional positions that qualify as ``specialty 
occupations.'' A ``specialty occupation'' requires the theoretical and 
practical application of a body of highly specialized knowledge, and 
the attainment of a bachelor's degree--or its foreign equivalent--or 
higher in a specific specialty as a minimum for entry into the 
occupation in the United States.
    The position to which the individual is transferred must be 
professional. Professional positions include positions such as 
engineer, computer systems analyst, financial analyst, attorney, 
accountant, and many others; these are considered occupations for which 
a bachelor's degree is the minimum requirement for entry. If the 
employee has the equivalent of a U.S. bachelor's degree and an employer 
requires his/her services in a professional position, the employee 
should qualify for an H-1B temporary worker visa. H-1Bs visas are 
employer and location-specific. The initial period of stay granted to 
H-1B beneficiaries is three (3) years, with the option to extend their 
status in three (3) year increments. At the end of the six (6) year 
term, beneficiaries must spend one (1) full year outside the United 
States before being permitted to re-enter in H-1B status.
    All H-1B petitions must be filed by the employer. Prior to filing 
an H-1B petition with the USCIS, the employer must first attest to the 
Department of Labor that the alien will receive a salary commensurate 
with the prevailing wage for U.S. workers in the same job category. The 
employer must also make certain attestations to show that U.S. workers 
are in no way disadvantaged by the hiring of the foreign national. The 
employer must also attest that it offers its U.S. and H-1B workers the 
same benefits. A notice of the filing and the attestations must be 
posted internally along with the offered salary and the prevailing wage 
for ten (10) consecutive days in two (2) conspicuous locations. The 
employer is also required to obtain and maintain documentation to 
support each of the Labor Condition Statements made on the Labor 
Condition Application (``LCA'').
    An employer must maintain a Public Access File (PAF) that is 
accessible to interested and aggrieved parties, and kept separate from 
personnel records. The PAF must be available at either the employer's 
principal place of business or at the worksite within one (1) day after 
the LCA is filed with supporting documentation
    There is currently 65,000 H-1B visas allocated every fiscal year. 
The cap has been reached well before the end of the fiscal year for the 
past several years, meaning that new H-1B petitions are not available 
until the next federal fiscal year (starting October 1). There are also 
20,000 available visas per year for nonimmigrants who have earned a 
Master's degree or higher from a U.S. institution.
Trade NAFTA ``TN'' Status
    NAFTA has special provisions for Canadian and Mexican citizen 
professionals who are offered a position in the U.S. The professional 
visa status under NAFTA is called Trade NAFTA status or TN status. The 
person must be coming to work in an occupation on the NAFTA list. A 
Canadian citizen who fits within one of the TN occupational categories 
may present documentation at the border in order to obtain a TN. If a 
Canadian national does not fit within one of the given professions 
identified in the NAFTA, he/she still may qualify for the standard H-1B 
category for specialty occupations. Mexican nationals may qualify for 
TN status. However, there is a limit of 5,500 Mexican TN visas per 
year. In addition, Mexican nationals must first obtain a labor 
condition attestation from the Department of Labor and be pre-approved 
by the USCIS within the U.S. The process is similar to the process for 
H-1B status.
H-2B--Seasonal Non-Agricultural Temporary Worker
    The other major temporary worker program is the H-2B program. This 
program is designed specifically to allow foreign nationals to work for 
a sponsoring employer in a job that is only temporary in nature; for 
example, to fill a seasonal job (but not in agriculture), to meet a 
one-time project or need, to add additional staff during a time of 
exceptionally high peak load, or to fill a position that is 
intermittently used in the business. H-2B visas are used in industries 
such as landscaping, seasonal hospitality (such as resort hotels, 
restaurants and attractions), and seasonal construction, as well as to 
meet specific needs in manufacturing, retail and other industries. The 
cap on H-2B visas is 66,000 annually. The H-2B program helps supplement 
the native-born workforce, but it cannot be used to fill all types of 
jobs because of the seasonal nature of the visa. A company has to first 
recruit and advertise for the opening in the U.S. The employer must 
then obtain a temporary labor certification from the Department of 
Labor, receive approval from the Department of Homeland Security, and 
then request that the visa be issued through consular process of the 
Department of State.
    The existing types of temporary worker programs do not begin to 
meet all of the complex needs of the U.S. economy. In sum, the H-1B 
program is focused on higher-skilled immigrant workers, while the H-2B 
program is limited to short-term, seasonal types of work, although it 
allows for recruitment of lower-skilled workers. Furthermore, 
particularly when viewed against a domestic economy of over 154 million 
workers, the caps are simply unrealistic. There is no temporary worker 
program that addresses the huge gulf between these programs and the 
complexities of the many different kinds of jobs and skill levels. 
Employers need a way to recruit foreign workers when they cannot find a 
U.S. worker, and currently there are few realistic mechanisms to 
accomplish that.
What are the Needs of our Economy and Business
    The population of the U.S. as a whole will increase over the next 
several decades. However, this population is aging, more educated and 
participating at lower rates in the workforce. The demographic changes 
caused by our aging workforce and the lower participation of the baby 
boomers will have long lasting effects on our labor market.\1\ The 
Bureau of Labor Statistics also has projected job growth, both in low-
skilled and high-skilled occupations. The BLS expects that between 2010 
and 2020 the number of U.S. jobs will increase by 20 million.\2\
---------------------------------------------------------------------------
    \1\ Bureau of Labor Statistics, Projection of the Labor Force to 
2050. Monthly Labor Review, October 2012.
    \2\ Bureau of Labor Statistics, Labor Force Projections to 2020. 
January 2012.
---------------------------------------------------------------------------
    Employers are experiencing persistent and recurring job openings. 
Many positions remain unfilled despite extensive efforts to recruit and 
retain U.S. workers. Some of the industries that have expressed concern 
include: Meat Processing, Specialty Construction Employers; 
Manufacturing; Restaurants and Food Service; Hospitals; and as you have 
heard here today, Hotels and Resorts and Senior Care Medical 
Facilities. Here is a short list of some of the positions that I am 
aware of that are in need of workers.
    Industry/Positions with Identified Needs:
    Landscaping Industry
     Landscape Laborer
     Irrigation Technician
     Crew Leader
     Tree Surgeon Assistant
    Manufacturing
    Welders
    Electricians
    Health Care
     Nurses
     Certified Nursing Assistants
     Licensed Practical Nurses
    Construction Industry
     First Line Supervisor/ Managers of Construction
     Steel Workers and Structural Iron Workers
     Brick mason and Block masons
     Cement Mason and Concrete Finishers
     Roofers
    Hotel Industry
     Baggage Porters and Bellhops
     Hotel, Motel, and Resort Desk Clerks
     Maids and Housekeeping Cleaners
    Restaurant Industry
     Food Service Manger
     Chefs and Head Cooks
     First-line Supervisors/ Managers of Food Prep & Servers
     Cooks/Restaurants
     Dishwasher
     Cooks/Fast Food/Crew Member (non-managerial)
    Other Positions
     Carpenter
    --Helper-Carpenter
     Plumbers, Pipefitters and Steamfitters
    --Helper-Plumber
     Meat Processor
     Housekeeping Cleaner
     Truck Driver
EWIC Proposal for a Temporary Worker Program
    We need to fill the program gap that was left in 1986 with a 
supplemental worker program that can be used when U.S. workers cannot 
be found. A visa program that allows employers from across the spectrum 
to obtain workers from abroad should be established so that all 
employers with worker needs that can't be filed by U.S. workers can 
bring workers to this country through legal channels. Since 1999, EWIC 
has supported new worker programs that meet business needs. EWIC has 
worked with businesses and other advocates to develop a program that 
fills this critical gap in our legal immigration system.
    A critical element of a program is to supply the U.S. economy with 
the workers it needs to recover from the downturn and grow in years 
ahead. This visa program must give employers, not the government, the 
primary say in which workers they need to staff their businesses and 
give the labor market the primary say in how many workers enter the 
country annually in a legal program. The marketplace can best make 
these determinations. The most accurate way to measure whether 
immigrant workers are needed is for employers to try--and either 
succeed or fail--to hire U.S. workers. The enclosed Exhibit is the most 
recent proposal for a new worker program.
    As described above, of the many inadequacies of the existing legal 
immigration system, few are as damaging--with worse consequences for 
immigrants or for the U.S. economy--than the lack of a visa program for 
less skilled immigrants seeking to enter the country legally and work 
in the United States. EWIC developed a proposal to fill this void: a 
provisional visa program designed to reflect market dynamics, expanding 
in good times when U.S. labor needs intensify and contracting in 
downturns when U.S. labor needs subside.
    In contrast with other existing U.S. temporary worker programs, 
under this proposal, employers would not sponsor workers for visas, and 
workers would not be tied to specific jobs or specific employers, but 
rather would be free to change jobs at will, working for any employer 
who is registered to participate in the program. The following is a 
short synopsis of the key program points:

    TWO APPLICATION TRACKS. One track is for employers who demonstrate 
they have tried and failed to find U.S. workers and are given 
permission to hire less-skilled foreign workers for specific, 
``registered jobs.'' The other track is for foreign workers who are 
granted visas based on initial job offers, but then are free to change 
jobs in the U.S., accepting work from any employer who has demonstrated 
a labor need and been registered with the program.

    COMPLETE PORTABILITY. The foreign worker is not tied to a specific 
job for a specific employer but rather is free to work for any employer 
who has tested the market and been registered with the program.

    OCCUPATIONS COVERED. Any nonfarm, low-skilled job that does not 
require a college degree as standard preparation, including year-round 
employment.

    DUAL INTENT. The initial visa is temporary: two years, renewable 
twice. But just as high-skilled H-1B temporary visa holders can 
eventually transition to permanent visas, so low-skilled workers in 
this program can eventually earn the right to get in line for a green 
card. Who can make the transition will be determined by an evaluation 
of the newcomer's rootedness, assimilation and personal success in the 
U.S.

    LABOR MARKET TEST. Attestation-based with back-end audits. Before 
they can be registered, employers must test the labor market, making a 
good faith effort to recruit U.S. workers, and every two years, they 
must reapply, demonstrating their continued labor need and keeping 
their registration current.

    NUMBER OF VISAS AVAILABLE. The number of visas issued each year 
will float up and down in response to U.S. labor needs--need 
demonstrated and quantified by the employer attestation process. 
Employers who have tried and failed to find U.S. workers will attest to 
their job openings and recruitment efforts. The government will approve 
a given number of registered job openings, and the annual visa quota 
will be adjusted to meet this demand using a mathematical formula.

    WAGES. Participating foreign workers will receive the actual wage 
paid to similarly situated U.S. workers in the same location OR an 
agreed upon prevailing wage, whichever is greater. The prevailing wage 
will be determined by any relevant collective bargaining agreement, 
applicable Davis-Bacon and Services Contract Act requirements, the 
Bureau of Labor Statistics-determined wage for that occupational 
classification or a private wage survey that meets standards specified 
by the Secretary of Homeland Security.

    E-VERIFY and an ELLIS MONITORING SYSTEM. Movement of workers from 
job to job will be tracked electronically by a government monitoring 
system and through E-Verify, and the two systems will be coordinated.
    A new temporary worker program to meet the needs of an expanding 
economy will also enhance our national security and control over our 
borders. When available jobs are filled (after recruitment in the 
domestic labor pool) by legal foreign workers, there will no longer be 
jobs to be filled by those who may come here illegally and thus, the 
magnet that drives much illegal immigration will be eliminated. A 
successful temporary worker program should bring these economic 
migrants through lawful channels allowing the Border Patrol to focus on 
the real threats coming across our border.
Conclusion
    What is needed, and the challenge you face as legislators, is an 
immigration system that reflects the needs of the economy. Picking an 
arbitrary number of immigrants to be allowed into the U. S. and only 
allowing some industries the workers needed at the expense of other 
industries is not in our national interest. If we want the economy to 
grow, we will need workers. When we can't find U.S. workers we need to 
be able to hire foreign workers.
    Immigration is a complex, complicated problem. It deserves more 
than piecemeal solutions, more than a patchwork of regulation at 
various levels of government. It deserves a thoughtfully reasoned 
solution from the people who have true responsibility for immigration 
law: Congress and the President. Thank you.
                                 ______
                                 
    Chairman Walberg. Thank you. Your Swedish heritage gave you 
a little less extra time there. I ask for forgiveness on that 
one.
    Mr. Benjamin, we recognize you for your 5 minutes of 
testimony.

     STATEMENT OF FRED BENJAMIN, CHIEF OPERATING OFFICER, 
MEDICALODGES, INC., TESTIFYING ON BEHALF OF THE AMERICAN HEALTH 
                        CARE ASSOCIATION

    Mr. Benjamin. Good morning, Chairman Walberg, Ranking 
Member Courtney, and distinguished members of the subcommittee. 
I would like to thank you for holding this hearing to explore 
the labor shortage facing our country and I especially 
appreciate the opportunity to appear before you here today.
    My name is Fred Benjamin and I am chief operating officer 
of Medicalodges, a company that offers a continuum of health 
care services and options which include skilled nursing care, 
rehabilitation, assisted living, services for people with 
developmental disabilities, intellectual disabilities, and 
more. Medicalodges is a member of the American Health Care 
Association, which in turn is a member of the Essential Worker 
Immigration Coalition.
    We are an employee-owned company and operate over 30 
facilities in Kansas, Missouri, and Oklahoma and employ over 
2,200 people. We have critical staffing needs. There are 
chronic shortages throughout the nursing home community. It is 
a daily struggle to find enough dedicated caregivers, yet we 
are responsible for the lives of 1.5 million frail and elderly 
citizens nationwide, and this is the fastest-growing segment of 
our population.
    The general causes of the shortage have been explored, but 
we in the nursing industry are also confronted with chronic 
underfunding through Medicare and Medicaid, which prevents us 
from offering higher wages to--being paid to our workers; a 
newly altered regulatory system that focuses on fines and 
penalties; dramatically increased competition for caregivers 
from all variety of health care delivery systems; annual 
turnover rates nearing 100 percent; and an aging workforce.
    We are almost completely dependent on the government for 
payment for our services and do not have the ability to raise 
our prices. Nearly 80 percent of our residents are 
beneficiaries of the Medicare or Medicaid programs.
    And while we do not have the ability to raise our prices, 
we also have little ability to reduce our expenditures. The 
government inspectsnursing homes every year to look for errors 
in compliance with several hundred regulations and accompanied 
by fines of up to $10,000 per day for noncompliance.
    Dedicated caregiving staff that work in our facilities are 
the unsung heroes of the American workforce. The job of caring 
for the elderly and disabled is very demanding.
    Because of the difficulty of the job and our inability to 
increase wages or prices, long-term care has always been a 
high-turnover industry. My company's turnover rate in the 
lower-skilled categories is approximately 60 percent annually, 
and that is significantly lower than most companies in the 
industry.
    For many the first reaction is, ``You are not paying 
enough.'' That is simply not true.
    At Medicalodges certified nurse's aides presently receive 
an average of $11.50 per hour plus benefits, and these include 
health insurance, participation in the company employee stock 
ownership program, 401k, tuition reimbursement, vision, dental, 
and more. We regularly review wage rates for competitiveness.
    We need certified nurse's aides, licensed practical nurses, 
and registered nurses to provide skilled services around the 
clock in every facility. Vacancy rates for CNAs can approach 20 
percent; for LPNs, 10 percent; and for RNs, 10 percent as well.
    So what have we done to address these vacancies and 
shortages? Well, historically I have hired extensively from the 
welfare rolls. The nursing home industry in general has hired 
over 50,000 welfare recipients in the last 3 years.
    We have offered signing bonuses; we have set up tables in 
grocery stores to recruit new employees; sent direct mail; 
posted job openings in newspapers, communities, schools, and 
even laundromats. We offer multiple incentives for recruitment, 
yet it is still not enough.
    So in conclusion, our labor shortage is our most pressing 
operating problem. If we are to meet the expectations set for 
us policymakers must act now and expand the pool of new staff.
    I would like to present some solution options for you. 
First, we need to increase the staff supply, and there are many 
talented immigrants who are anxious to enter the caregiving 
field yet are faced with insurmountable odds. Please give 
special consideration to permitting new entry for immigrants 
with skilled--with nursing skills, as well as increasing the 
pool of unskilled labor.
    We need a new immigration system--one that serves the 
economic needs of the U.S. economy. If an American employer is 
offering a job that an American citizen is not willing to take 
we ought to welcome into our country a person who will fill 
that job.
    We struggle every day to ensure that the labor shortage 
does not negatively affect the quality of care delivered in our 
facilities. This is a difficult and highly complex balancing 
act.
    I urge you to take a broader look at the staffing crisis 
and think about the frail and elderly populations we serve--our 
parents, our grandparents, aunts, uncles, our neighbors and 
yours--those special people who have given so much to us and 
our country. We owe it to them to provide the best possible 
care, don't we?
    I am here to ask you: Who will care for them if this 
critical situation is not addressed immediately?
    Thank you. I am happy to answer any questions.
    [The statement of Mr. Benjamin follows:]

     Prepared Statement of Fred Benjamin, Chief Operating Officer, 
                           Medicalodges, Inc.

    Good Morning Chairman Walberg, Ranking Member Courtney, and 
distinguished members of the Subcommittee. I'd like to thank you for 
holding this hearing to explore the labor shortages facing our Country, 
and I especially appreciate the opportunity to appear before you here 
today. My name is Fred Benjamin, and I am the Chief Operating Officer 
of Medicalodges, Inc., a company that offers a continuum of health care 
options which include independent living, skilled nursing home care, 
rehabilitation, assisted living, specialized care, outpatient 
therapies, adult day care, in-home services, as well as services and 
living assistance to those with developmental disabilities. 
Medicalodges is a member of the American Health Care Association (AHCA) 
which is a member of the Essential Worker Immigration Coalition 
(EWIC)--a broad-based national coalition of businesses and trade 
associations concerned about the shortage of semi-skilled and unskilled 
labor.
    Medicalodges was launched in 1961 when its first nursing home, 
Golden Age Lodge, was opened in Coffeyville, Kansas by founding owners 
Mr. and Mrs. S.A. Hann. The company grew through the 1960's with the 
addition of eight nursing facilities. In 1969, Golden Age Lodges was 
renamed Medicalodges, Inc. As new care centers were built or purchased, 
the company expanded its products and services to include a continuum 
of health care. In February, 1998 the employees of Medicalodges 
acquired the company from its previous owners in a 100% Employee Stock 
Ownership Trust transaction. Today, the company owns and operates over 
30 facilities with operations in Kansas, Missouri and Oklahoma and 
employs over 2200 people in the communities it serves.
    I have served as the Company's Chief Operating Officer since May, 
2009. I am honored to have served 30-years in this industry that 
includes senior management roles in skilled and sub-acute care, 
hospitals and other for-profit and not-for-profit ventures. I am also 
currently serving as Chairman of the Board of the Kansas Health Care 
Association, the leading provider advocacy group for seniors in Kansas.
Worker Needs are Critical and The Impact is More Profound in Skilled 
        Nursing Facilities
    We have critical staffing needs. There are chronic shortages 
throughout the nursing home industry. If you are in the business of 
caring for our nations' elderly, whether you are for-profit, non-
profit, or government managed, it is a daily struggle to find enough 
dedicated caregivers to care for the people in your charge. Let me tell 
you a little about the state of nursing homes today.
    We are different from other employers in many ways. We are 
responsible for the lives of 1.5 million frail and elderly citizens 
nationwide. And this is the fastest-growing segment of our population.
    The general causes of the shortage have been explored. In addition 
to the causes that affect employers of all types, the nursing home 
industry is confronted with the following:
     Chronic underfunding through Medicare and Medicaid which 
prevents higher wages from being paid to our workers;
     A newly altered regulatory system that focuses on fines 
and penalties (often for failing to provide adequate personnel) instead 
of the previous system where government employees were encouraged to 
help centers meet the challenges they face;
     Dramatically increased competition for caregivers from 
assisted living centers, independent housing for the elderly, home care 
centers and hospital based nursing homes--all of which seek the workers 
we traditionally employed;
     Annualized turnover rates of nearly 100% in our industry 
among staff personnel, and now excessively high turnover rates among 
our managers who are increasingly frustrated with overwhelming 
paperwork, regulation, and underfunding;
     Challenge of caring for infirm and often difficult 
residents;
     Mandated training and certification of most employees;
     Need for dedicated and caring personalities;
     Increasing age of workforce--with fewer young workers 
entering long term care; this means that these young workers are 
increasingly not choosing long term care as a profession of choice, 
which is alarming as baby boomers age in greater numbers.
Government Dependence
    We are almost completely dependent on the government for payment of 
our services, and do not have the ability to raise our prices. Nearly 
80% of the residents in our facilities are beneficiaries of the 
Medicaid or Medicare Program. Of the remaining 20%, 17% are spending 
their life savings until they are poor enough to qualify for Medicaid, 
and only 3% have private insurance.
    While we do not have the ability to raise our prices, we also have 
little ability to reduce our expenditures. The government inspects 
every nursing home every year to look for errors in compliance with 
several hundred regulations. These measures by the government are 
intended to root out providers of poor care--but as designed and 
implemented, only focuses on fines and paperwork, and not on patient 
care or quality measurement. If we are found lacking in any small way, 
we can be subject to fines up to $10,000 per day or closure. 
Furthermore, I would never reduce expenditures in a way that would have 
a negative impact on quality of care. This puts me, and every other 
nursing home operator, in a squeeze, and we are asking you for 
understanding of our challenges and relief.
The Role of Caregiver
    Dedicated caregiving staff that work in our facilities every day 
and every night are the unsung heroes of the American workforce. The 
job of caring for the elderly and disabled is one of the most demanding 
jobs on many levels.
    It is difficult physically to lift, turn, transport, position, and 
keep up with our residents' care day and night. It is psychologically 
demanding to work with our Alzheimer's residents who are often 
confused, angry, scared, or lonely, and to make their days rewarding 
and productive. It is emotionally draining to care for those in the 
twilight of their lives, share their frustration and fears, and still 
assure that they are getting the very best medical care we can provide. 
Their needs must come first, and staff must learn to put their own 
needs second to their residents. These are the residents that hospitals 
cannot care for, whose families cannot care for them, and who are 
dealing with multiple chronic illnesses.
    Our dedicated staff do a very hard job for a wage that is as much 
as we can pay, but never enough, in my opinion, for the service they 
provide. Without these caregivers, our seniors will suffer.
    The shortage of labor and difficulty in finding adequate levels of 
staff on a daily basis, 24-hours each and every day of the year, is 
cited as the number one reason prompting many of our existing workers 
to leave our company and seek alternative employment. We lose some of 
our best managers during this period of time when their skills and 
compassion are crucially needed.
    Because of the difficulty of the job, and our inability to increase 
wages or prices, long term care has always been a high turnover 
industry. My company's turnover rate in lower skilled categories is 
approximately 60% annually--significantly lower than most companies in 
the industry. We do focus on retention initiatives and employee 
recognition and involvement. We have implemented dozens of programs, 
and empowered our facilities to implement their own initiatives. We are 
active in implementing total quality management techniques successfully 
used by the best companies in America. Indeed, four of our facilities 
were recently identified by US News and World Report as among the 
``Best in America''.
How to Retain Workers
    For many, the first reaction is ``You aren't paying enough.'' Let's 
address that perception first. Most people think of nursing homes as a 
minimum wage employer. This is simply not true. At Medicalodges, 
certified nurse aides presently receive an average of $11.50 per hour, 
plus benefits, which include health insurance, participation in the 
company Employee Stock Ownership Program, 401k programs, vision, and 
dental care. We regularly review wage rates to ensure that they are 
competitive.
    We are limited in our ability to compete with other employers 
because of our inability to set the prices for the vast majority of our 
services. Congress and our nation's Governors do that when establishing 
Medicare and Medicaid rates. In this regard, the State of Kansas, like 
many others has recently implemented a Managed Care approach to 
Medicaid. What many Americans fail to realize is that Medicaid pays for 
the long term care services received by 2 out of every 3 skilled 
nursing patients.
    In fact, national data underscores the tight margins within which 
skilled nursing facilities operate. Recent data show that out of every 
health care dollar earned, only 1.5 cents is profit. For Medicalodges, 
after we pay property and real estate taxes, whatever is left goes to 
only two places; our ESOP (employee pension fund) or back into our 
facilities.
    Secondly, our nursing centers are not factories. We cannot stop the 
assembly line or reduce the services we provide to accommodate budget 
cuts. The elderly we care for depend on us 24-hours, everyday, weekends 
and holidays. If we have a staff vacancy, we must fill that vacancy. 
Ms. Johnson will still need help getting dressed and eating in the 
morning. Mr. Smith will need therapy to help him swallow and learn to 
walk after a stroke. These services are not optional. We need certified 
nurse aides (CNAs), licensed practical nurses (LPNs) and registered 
nurses (RNs) to provide skilled services around the clock in every 
facility. We provide services in both rural and urban locations. 
Vacancy rates for CNA's can approach 20% for LPN's 10% and RN's 10%.
Addressing the Recruitment Problem
    What has Medicalodges done to address the vacancies and shortages?
    Historically, I have hired extensively from the welfare rolls. The 
nursing home industry in general has hired over 50,000 welfare 
recipients in the last three years. Most of them are single mothers 
whom we train to become certified nurse aides, and put on a career path 
in health care. This is the only career path that I know of that can 
help take people from economically disadvantaged situations to the 
middle class. Unfortunately, all too often they will complete their 
training with us, and then be hired away by hospitals or other 
providers who do not have to deal with our heavy reliance on 
government-set payment rates.
     Several states, including Wisconsin and Florida, have 
taken steps to use federal funds to help support training programs 
specifically targeted on meeting the labor needs of the long term care 
industry.
     In our profession, the residents' welfare must be top 
priority. Hence, we perform criminal background checks on each 
potential employee. This process significantly adds to costs, but 
eliminates an estimated 10% of applicants from eligibility for hire, 
and appropriately so.
     We have offered signing bonuses of $1,500 for certified 
nursing assistants--and even higher for licensed personnel.
     We have set up tables in grocery stores to recruit new 
employees, sent direct mail, posted job openings in communities, 
schools, and even laundromats.
     We offer multiple incentives for recruitment. We have 
flexible scheduling, good benefits, recruitment bonuses, shift 
differentials, float incentives, pay in-lieu of benefits, and many 
other programs to attract the dedicated caregivers we need.
     Every one of my facilities has a substantial recruitment 
and retention function. We make great efforts to reduce turnover and 
maintain a stable workforce through flexible scheduling, employee 
appreciation efforts, mentoring programs, and much more. We even 
involve our residents in interviewing candidates. Yet it is still not 
enough.
Conclusion
    Our labor shortage is our most pressing operating problem. The 
labor shortage deprives us of the most valuable resource we have, our 
caregivers. If we are to meet the expectations set for us, policymakers 
must act now to expand access to new pools of staff and take steps to 
encourage employment in long term care.
    I would like to present solutions to you that will address our 
staffing crisis:
     Of course, I would like to increase staffing, and increase 
wages. As I mentioned earlier, I am not able to do so, because Medicaid 
and Medicare reimbursement levels do not allow me to. It is truly a 
national shame that we invest so little in the care of our elder 
population. These programs pay for more than 3 of 4 of all my 
residents. And that ratio is fairly consistent throughout the field. 
Please urge your colleagues in Congress to invest more in our nation's 
elderly and fix these broken and underfunded programs. Enacting a wage 
pass-through for Medicaid will assist providers to increase wages.
     We need to increase staff supply, and there are many 
talented immigrants who are anxious to enter the caregiving field, yet 
are faced with insurmountable roadblocks. These talented caregivers 
should be given the opportunity to make a living and make a difference 
in their own lives and the lives of others. To increase the supply of 
labor, please give special consideration to permitting new entry for 
immigrants with nursing skills as well as increasing the pool of 
unskilled labor. We need a new immigration system that serves the 
economic needs of the U.S. economy. If an American employer is offering 
a job that American citizens are not willing to take, we ought to 
welcome into our country a person who will fill that job--especially a 
job that has the capacity to improve the health and well being of a 
vulnerable senior, or person with disabilities.
    We struggle every day to ensure that the labor shortage does not 
negatively affect the quality of care delivered in our facilities. This 
is a difficult and highly complex balancing act that is currently 
taking place in nursing centers across the country. I urge you to take 
a broader look at this staffing crisis and think about the frail and 
elderly population we serve--our parents, our grandparents, our aunts, 
our uncles, our neighbors and yours--those special people who have 
given so much to us and our country. We owe it to them to provide the 
best possible care, don't we? I am here to ask you who will care for 
them if this critical situation is not addressed immediately. Thank 
You. I am happy to answer any questions that you may have.
                                 ______
                                 
    Chairman Walberg. Thank you, Mr. Benjamin.
    Ms. Bauer, we now recognize you for your 5 minutes of 
testimony.

            STATEMENT OF MARY BAUER, LEGAL DIRECTOR,
                  SOUTHERN POVERTY LAW CENTER

    Ms. Bauer. Good morning, and thank you for inviting me to 
speak about guest worker programs in the United States. My 
employer, the Southern Poverty Law Center, recently reissued 
our report about the H-2 program. The report is entitled 
``Close to Slavery'' and it is based upon the interviews with 
thousands of guest workers and our experience representing tens 
of thousands of these workers.
    Put simply, the H-2B program has led to the systematic 
exploitation of workers in the United States. This abuse and 
exploitation has had a deleterious effect on the wages and 
working conditions of U.S. workers laboring in industries that 
employ H-2B workers.
    Because of the many abuses in the H-2B program, this 
program absolutely must not be the model for any new temporary 
worker program in the future.
    Guest workers are systematically exploited because the very 
structure of the program places them at the mercy of a single 
employer and provides them no realistic means for exercising 
the few rights they have. Guest workers are typically required 
to borrow large sums of money--as much as $20,000--to obtain 
their jobs. They are forced to mortgage their futures to obtain 
low-wage temporary jobs.
    They are routinely cheated of wages. They are held 
virtually captive by employers or labor brokers who seize their 
documents. And they are often housed in squalid conditions.
    H-2 workers can work only for the employer who filed a 
petition for them to enter the country. The employer decides if 
he can come; the employer decides how long he can stay; and the 
employer holds all of the power over the most important aspects 
of a worker's life.
    As long as employers in low-wage industries can rely on an 
endless supply of vulnerable guest workers who lack basic labor 
protections they have little incentive to hire U.S. workers or 
to make the jobs more appealing to domestic workers by 
improving wages and working conditions.
    A 2008 review of seven occupations using H-2B workers by 
the Economic Policy Institute found that 98 percent of H-2B 
jobs were set below the average wage rate in that occupation. 
Astonishingly, the program does not prohibit the importation of 
guest workers during periods of high unemployment. Indeed, the 
unemployment rate in a locality or industry is not a 
consideration for the Department of Labor in determining 
whether to certify an H-2B application.
    Under the program, employers are required to pay a 
prevailing wage rate. The purpose of this wage is to ensure 
that U.S. workers' wages are not depressed by an influx of 
foreign workers but the current methodology for calculating the 
prevailing wage rate is doing exactly the opposite by setting 
the prevailing wage rate $4 to $5 lower than the average wage 
for those occupations.
    The Department of Labor itself determined that the current 
wage rule degrades the wages of U.S. workers and in response 
proposed a new rule that would better protect U.S. workers. 
This new rule has been attacked by employers in the courts and 
its implementation has been effectively blocked by Congress. A 
more comprehensive set of regulations, designed to protect H-2B 
and U.S. workers, has been enjoined by the courts as well.
    The legal requirements for recruiting U.S. workers are 
abysmally weak. In practice, recruiters and employers pay only 
lip service, in many cases, to those requirements, preferring 
to hire H-2B workers--workers who will be effectively 
indentured to one employer during the term of their visa.
    We have a more comprehensive set of recommendations in our 
written comments and in our report than I can cover here in my 
remarks. But at a minimum, Congress should insist that the DOL 
regulations promulgated to protect workers be allowed finally 
to go into effect.
    The exploitative recruitment process that traps workers in 
overwhelming debt must be reformed. And workers should be 
permitted the right that all other workers have in our free 
society--the right to walk away and find another job. Workers 
must be given the opportunity to become permanent members of 
our community over time and not be trapped, instead, as 
permanent guests.
    In conclusion, the abuses of these programs are too common 
to blame on a few bad-apple employers. They are the foreseeable 
outcome of a system that treats foreign workers as commodities 
to be imported without affording them adequate legal 
safeguards.
    I thank you for the opportunity and wait for any questions 
you might have.
    [The statement of Ms. Bauer follows:]

     Prepared Statement of Mary Bauer, Southern Poverty Law Center

    Thank you for the opportunity to speak about guestworkers who come 
to the United States as part of the H-2B program and about the U.S. 
workers whose wages and working conditions are affected by the program.
    My name is Mary Bauer. I am a Senior Fellow at the Southern Poverty 
Law Center (``SPLC''). Founded in 1971, the Southern Poverty Law Center 
is a civil rights organization dedicated to advancing and protecting 
the rights of minorities, the poor, and victims of injustice in 
significant civil rights and social justice matters. Our Immigrant 
Justice Project represents low-income immigrant workers in litigation 
across the Southeast.
    During my legal career, I have represented and spoken with 
literally thousands of H-2A and H-2B workers in many states. The SPLC 
has represented tens of thousands of H-2A and H-2B guestworkers in 
class action lawsuits. We also published a report in 2013 about 
guestworker programs in the United States entitled ``Close to 
Slavery,'' which I have attached to these comments as Exhibit I to my 
written testimony.\1\
    The report discusses in further detail the abuses suffered by H-2 
guestworkers. It is based upon thousands of interviews with workers as 
well as the research related to guestworkers and the experiences of 
legal experts from around the country. As the report reflects, 
guestworkers are systematically exploited because the very structure of 
the program places them at the mercy of a single employer for both 
their job and continued presence in the United States. It permits 
workers to enter the United States. encumbered with overwhelming debt--
debt that they paid to get short-term, low paid work. It provides no 
realistic means for workers to exercise the few rights they have.
    Just as importantly, the appalling wages and working conditions 
experienced by H-2B workers have a demonstrably depressive effect on 
the wages and working conditions of U.S. workers in industries 
employing H-2B workers. As long as employers in low-wage industries can 
rely on an endless stream of workers, we should expect wages and 
working conditions in those industries to drop. Our market economy is 
premised on the idea that a shortage of workers will push the market to 
increase wages to attract workers from other parts of the economy. 
Introducing guestworkers undermines these market mechanisms, 
artificially preventing wage increases that we would expect to see in a 
healthy market sector. This problem is particularly acute when the 
workers being introduced into the labor market are vulnerable 
guestworkers who lack the basic labor protections available to U.S. 
workers.
    The government's H-2B program undercuts employers' incentive to 
hire U.S. workers or make jobs more appealing to domestic workers by 
improving wages and working conditions. Not surprisingly, many H-2 
employers discriminate against U.S. workers, preferring to hire 
guestworkers, even though they are required to certify that no domestic 
workers are available to fill their jobs. It is well-documented that 
wages for
    U.S. workers are depressed in industries that rely heavily on 
guestworkers. Astonishingly, the H-2B program does not prohibit the 
importation of guestworkers during periods of high unemployment. 
Indeed, the unemployment rate in a locality or an industry is not a 
consideration for DOL in determining whether to certify an H-2B 
application. The H-2B program allowed for the importation of 50,009 
workers in 2012.\2\ In December 2012, there were 12.2 million Americans 
looking for work.\3\
    The H-2B (non-agricultural) guestworker program permits U.S. 
employers to import human beings on a temporary basis from other 
nations to perform work only when the employer certifies that qualified 
persons in the United States are not available and the terms of 
employment will not adversely affect the wages and working conditions 
of similarly employed U.S. workers.\4\
    Prospective H-2B employers must apply to DOL for a temporary labor 
certification confirming that American workers capable of performing 
the work are not available and that the employment of foreign workers 
will not adversely affect the wages and working conditions of similarly 
employed American workers. The H-2B program requires the employer to 
attest to DOL that it will offer a wage that equals or exceeds the 
highest of the prevailing wage, the applicable federal minimum wage, 
the state minimum wage, or the local minimum wage to the H-2B worker. 
The employer also must agree to offer terms and working conditions 
typical to U.S. workers in the same geographical area.
    In practice, the program is rife with abuses. The abuses typically 
start long before the worker has arrived in the United States and 
continue through and even after his or her employment here. A 
guestworker's visa is good only so long as he works for the employer 
who sponsored him. Unlike U.S. citizens, guestworkers do not enjoy the 
most fundamental protection of a competitive labor market--the ability 
to change jobs if they are mistreated.
    If guestworkers complain about abuses, they face deportation, 
blacklisting or other retaliation. Because H-2B guestworkers are tied 
to a single employer and have little or no ability to enforce their 
rights, they are routinely exploited. If this program is permitted to 
continue at all, it should be substantially reformed to address the 
vast disparity in power between guestworkers and their employers.
    In the past several years, the DOL has proposed two sets of 
regulations to better protect nonagricultural H-2 workers--one related 
to wage rate guarantees and one more comprehensive set of regulations. 
These regulations also would better protect the jobs and wages of U.S. 
workers. Unfortunately for workers, neither set of regulations has gone 
into effect; employers have filed multiple lawsuits challenging them 
and Congress has effectively blocked implementation of the new wage 
regulations. For workers, then, the abuses continue unabated.
    It is virtually impossible to create a guestworker program for low-
wage workers that does not involve systemic abuse and thus erode the 
wages and working conditions of U.S. workers. The H-2 guestworker 
program should not be expanded in the name of immigration reform and 
should not be the model for the future flow of workers to this country. 
If the current H-2 program is allowed to continue, it should be 
completely overhauled.
I. The H-2B Program Depresses Wages and Working Conditions for U.S. 
        Workers
    As laid out in greater detail in Section II, the H-2B program 
creates abuse and exploitation for H-2B workers--not because the 
program attracts ``bad apple'' employers, but because the very 
structure of the program lends itself to abuse. Because workers arrive 
desperately in debt, can work only for their petitioning employer, and 
are dependent upon that employer for their very right to enter or 
remain in the United States, H-2B workers are incredibly vulnerable. 
The abuses suffered by H-2B workers also have an impact beyond that 
experienced by the guestworkers: they put profound downward pressure on 
the wages and working conditions experienced by U.S. workers in 
industries employing H-2B workers.
            A. Wages for H-2B Workers Are Set Far Too Low, Driving Down 
                    Wages for U.S. Workers
    It is well documented that there are chronic wage and hour abuses 
involving H-2B workers.\5\ Since 2004, SPLC has represented 
guestworkers in obtaining settlements and judgments of approximately 
$20,000,000. There can be no doubt that the impact of such pervasive 
wage and hour violations is to depress wages in those industries. 
Furthermore, since at least 2005, the prevailing wages paid to H-2B 
workers has been set far below the median wages that are paid in the 
applicable industries--again something that indisputably serves to 
depress wages.
    Under the law, H-2B workers are entitled only to the ``prevailing 
wage'' for their work; there is no adverse effect wage rate for those 
workers, as there is with H-2A workers. Of course, even though H-2B 
workers are entitled to payment of prevailing wages and to employment 
in conformity with required minimum terms and conditions as provided 
for in the employer's labor certifications, federal law provides no 
real remedy when these rights have been violated due to anemic staffing 
at federal workplace enforcement agencies. For example, 1,100 DOL 
investigators have the Sisyphean task of protecting a workforce of 135 
million.\6\
    The purpose of the prevailing wage is to ensure U.S. worker wages 
are not depressed by the influx of foreign workers to the U.S. labor 
market, but the current methodology for calculating the H-2B prevailing 
wage rate is doing the exact opposite. In fact, under the current 
methodology, the wages of H-2B workers are in some industries almost $4 
to $5 lower than the average wage for those occupations, a situation 
that inevitably places downward pressure on U.S. worker wages. A 2008 
review of seven occupations using H-2B workers by the Economic Policy 
Institute (EPI) found that 98% of H-2B jobs were set below the mean 
(average) wage rate and that 64% of jobs were set below 75% of the 
mean. EPI concluded that this would clearly adversely affect the wages 
and working conditions of U.S. workers.\7\ Another EPI study looked at 
crab picking and landscaping industries in Maryland and concluded that 
``employers have been using the H-2B program as a way to degrade the 
wages of U.S. workers.'' \8\ It found that H-2B crab-pickers and 
landscapers were underpaid by $4.82 and $3.35 per hour, respectively.
    DOL has also determined that the current H-2B wage rule degraded 
the wages of U.S. workers, and a federal court ruled the 2008 wage rule 
invalid.\9\ In response, DOL proposed a new rule that would better 
protect U.S. worker wages. As discussed in Section IV, this new rule 
has been attacked by employers in the courts, and its implementation 
has been effectively blocked by Congress, largely due to the efforts of 
a few vocal senators and representatives from states with industries 
that rely heavily on H-2B workers.
    When an industry relies on guestworkers for the bulk of its 
workforce, wages tend to fall. Guestworkers are generally unable to 
bargain for better wages and working conditions. Over time, wages 
decline and the jobs become increasingly undesirable to U.S. workers, 
creating even more of a demand for guestworkers.
            B. Recruitment of U.S. Workers Is Weak at Best, and Often A 
                    Sham
    Theoretically, employers are allowed to hire H-2B workers only when 
U.S. workers are not available for the job. In fact, the legal 
requirements for recruiting U.S. workers are abysmally weak. In 
practice, recruiters and employers often pay only lip service to those 
requirements, preferring to hire H-2B workers--workers who will be 
effectively indentured to one employer during the term of their visa.
    The legal requirements for recruiting U.S. workers are few. 
Employers are required to publish advertisements for two days in a 
newspaper. They must also contact the local union as a recruitment 
source if the employer is a party to a collective bargaining agreement 
governing the job classification that is the subject of the H-2B labor 
certification application. Employers must not reject U.S. applicants 
for the job opportunity for which the labor certification is sought for 
reasons other than ones that are lawful and job-related.
    In practice, employers and recruiters make little effort in most 
instances to locate U.S. workers. By the time they have decided to 
apply for H-2B workers, they have typically made a business decision to 
employ those H-2B workers rather than to employ U.S. workers. In a 
recent report, the U.S. General Accounting Office (GAO) documented 
instances of recruiters actively counseling prospective employers on 
how to make jobs unattractive or unavailable to U.S. workers.\10\ In 
one case reported by the GAO, a Texas recruiter suggested conducting 
interviews before 7:00 a.m. and requiring drug testing prior to the 
interview to weed out qualified American applicants. The recruiter also 
suggested that current employees be fired for cause or induced to quit 
prior to the employer filing a petition for U.S. workers to avoid 
arousing DOL's suspicion. Another recruiter offered to provide ``good 
excuses'' to help ``weed out'' prospective U.S. workers who might apply 
for housekeeping jobs.\11\
    H-2B workers are not eligible for unemployment compensation, making 
them cheaper to employ than U.S. workers. Employers of H-2B workers 
also save by not having to pay for benefits such as health care. In 
addition to the lower wages employers pay H-2B workers, they have 
powerful financial reasons to prefer foreign workers to Americans. And 
they do.
    The Palm Beach Post conducted an investigation into claims by 
Florida employers that they had been unable to find U.S. workers to 
take hospitality jobs even in localities where the unemployment rate 
was well over 10% and higher still for unskilled labor.\12\ In the Palm 
Beach Post investigations, an employer claimed to have worked with the 
local government agency that helps Floridians file jobs, but that 
agency denied any knowledge of the employer. That employer, Workaway 
Staffing, was approved to bring in 810 H-2B employers. Its president, 
William Mayville said H-2B workers were necessary because ``you don't 
see Americans wanting to get into the hospitality industry.'' \13\
II. Guestworker Programs Are Inherently Abusive
    When recruited to work in their home countries, workers are often 
forced to pay enormous sums of money to obtain the right to be employed 
at the low-wage jobs they seek in the United States. It is not unusual, 
for example, for a Guatemalan worker to pay more than $5,000 in fees to 
obtain a job that may, even over time, pay less than that sum. Workers 
from other countries may be required to pay substantially more than 
that. Asian workers have been known to pay as much as $20,000 for a 
short-term job under the program. Unregulated foreign labor recruiters 
in home countries make false promises to workers about the H-2B jobs 
and visas. Only after the workers have paid high recruiting fees and 
arrive in the United States do they learn the less rosy truth.
    Because most workers who seek H-2 jobs are indigent, they typically 
have to borrow the money at high interest rates. Guatemalan workers 
routinely tell us that they have had to pay approximately 20% interest 
per month in order to raise the needed sums. In addition, many workers 
have reported that they have been required to leave collateral--often 
the deed to a vehicle or a home--in exchange for the opportunity to 
obtain an H-2 visa. These requirements leave workers incredibly 
vulnerable once they arrive in the United States.
    Guestworkers labor in a system akin to indentured servitude. 
Because they are permitted to work only for the employer who petitioned 
the government for them, they are extremely susceptible to being 
exploited. If the employment situation is less than ideal, the worker's 
sole lawful recourse is to return to his or her country. Because most 
workers take out significant loans to travel to the United States for 
these jobs, as a practical matter they are forced to remain and work 
for employers even when they are subjected to shameful abuse.
    Guestworkers routinely receive less pay than the law requires. In 
some industries that rely upon guestworkers for the bulk of their 
workforce--seafood processing and forestry, for example--wage-and-hour 
violations are the norm, rather than the exception. These are not 
subtle violations of the law but the wholesale cheating of workers. We 
have seen crews paid as little as $2 per hour, each worker cheated out 
of hundreds of dollars per week. Because of their vulnerability, 
guestworkers are unlikely to complain about these violations. Public 
wage and hour enforcement has minimal practical impact because 
overstretched labor standards enforcement agencies can follow up on 
only a small fraction of violations.
    Even when workers earn the minimum wage and overtime, they are 
often subject to contractual violations that leave them in an equally 
bad situation. Workers report again and again that they are simply lied 
to when they are recruited in their home countries. Another common 
problem workers face is that they are brought into the United States 
too early, when little work is available.
    Similarly, employers often bring in far too many workers, gambling 
that they may have more work to offer than they actually do. Because 
the employers are not generally paying the costs of recruitment, visas, 
and travel, they have little incentive not to overstate their labor 
needs. Thus, in many circumstances, workers can wait weeks or even 
months before they are offered the full-time work they were promised. 
Given that workers bring a heavy load of debt, that many must pay for 
their housing, and that they cannot lawfully seek work elsewhere to 
supplement their pay, they are often left in a desperate situation.
    Guestworkers who are injured on the job face significant obstacles 
in accessing the benefits to which they are entitled. First, employers 
routinely discourage workers from filing workers' compensation claims. 
Because those employers control whether the workers can remain in or 
return to the United States, workers feel enormous pressure not to file 
such claims. Second, workers' compensation is an ad hoc, state-by-state 
system that is typically ill-prepared to deal with transnational 
workers who are required to return to their home countries at the 
conclusion of their visa period. As a practical matter, then, many 
guestworkers suffer serious injuries without any effective recourse.
    The guestworker program appears to permit the systematic 
discrimination of workers based on age, gender and national origin. At 
least one court has found that age discrimination that takes place 
during the selection of workers outside the country is not actionable 
under U.S. laws.\14\ Thus, according to that court, employers may evade 
the clear intent of Congress that they not discriminate in hiring by 
simply shipping their hiring operations outside the United States--even 
though all of the work will be performed in the United States.
    Many foreign recruiters have very clear rules based on age and 
gender for workers they will hire. One major Mexican recruiter openly 
declares that he will not hire anyone over the age of 40. Many other 
recruiters refuse to hire women for field work. Employers can shop for 
specific types of guestworkers over the Internet at websites such as 
www.labormex.com, www.maslabor.com, www.mexicanworkers.biz, or 
www.mexican-workers.com. One website advertises its Mexican recruits 
like human commodities, touting Mexican guestworkers as people with ``a 
good old fashioned work ethic'' who are ``very friendly and easy to 
work with.'' \15\
    We have received repeated complaints of sexual harassment by women 
guestworkers. Again, because workers are dependent upon their employer 
to remain in, and return to, the United States, they are extremely 
reluctant to complain even when confronted with serious abuse.
    In order to guarantee that workers remain in their employ, many 
employers refuse to provide workers access to their own identity 
documents, such as passports and Social Security cards. This leaves 
workers feeling both trapped and fearful. We have received repeated 
reports of even more serious document abuses: employers threatening to 
destroy passports, employers actually ripping the visas from passports, 
and employers threatening to report workers to Immigration and Customs 
Enforcement if those workers do not remain in their employment.
    Even when employers do not overtly threaten deportation, workers 
live in constant fear that any bad act or complaint on their part will 
result in their being sent home or not being rehired. Fear of 
retaliation is a deeply rooted problem in guestworker programs. It is 
also a wholly warranted fear, since recruiters and employers hold such 
inordinate power over workers, deciding whether a worker can continue 
working in the United States and whether he or she can return.
    When the petitioner for workers is a labor recruiter or broker, 
rather than the true employer, workers are often even more vulnerable 
to abuse. These brokers typically have no assets. In fact, they have no 
real ``jobs'' available because they generally only supply labor to 
employers. When these brokers are able to apply for and obtain 
permission to import workers, it permits the few rights that workers 
have to be vitiated in practice.
    The lawsuit filed in March of 2008 against Signal International, 
LLC by workers represented by the SPLC and others illustrates many of 
the abuses H-2B workers face. In that case, hundreds of guestworkers 
from India, lured by false promises of permanent
    U.S. residency, paid tens of thousands of dollars each to obtain 
temporary jobs at Gulf Coast shipyards only to find themselves 
subjected to forced labor and living in overcrowded, guarded labor 
camps. When the workers attempted to assert their federally-protected 
rights, they were violently retaliated against, and forcibly almost 
deported to India.
III. Virtually No Legal Protections Exist for H-2B Workers
    Although this hearing is to focus on the H-2B program in the United 
States, it is important to understand that the few legal protections 
that exist for guestworkers are applicable only to H-2A (agricultural) 
workers.
            The H-2A Program
    The H-2A program provides significant legal protections for foreign 
farmworkers. Many of these safeguards are similar to those that existed 
under the widely discredited bracero program, which operated from 1942 
until it was discontinued amid human rights abuses in 1964. 
Unfortunately, far too many of the protections--as in the discredited 
bracero program--exist only on paper.
    Federal law and DOL regulations contain several provisions that are 
meant to protect H-2A workers from exploitation as well as to ensure 
that U.S. workers are shielded from the potential adverse impacts, such 
as the downward pressure on wages, associated with the hiring of 
temporary foreign workers.
    H-2A workers must be paid wages that are the highest of: (a) the 
local labor market's ``prevailing wage'' for a particular crop, as 
determined by the DOL and state agencies; (b) the state or federal 
minimum wage; or (c) the ``adverse effect wage rate.''
    H-2A workers also are legally entitled to:
     Receive at least three-fourths of the total hours promised 
in the contract, which states the period of employment promised (the 
``three-quarters guarantee'');
     Receive free housing in good condition and meals or access 
to a cooking facility for the period of the contract;
     Receive workers' compensation benefits for medical costs 
and payment for lost time from work and for any permanent injury;
     Be reimbursed for the cost of travel from the worker's 
home to the job as soon as the worker finishes 50% of the contract 
period. The expenses include the cost of an airline or bus ticket and 
food during the trip. If the guestworker stays on the job until the end 
of the contract or is terminated without cause, the employer must pay 
transportation and subsistence costs for returning home; and
     Be eligible for federally funded legal services for 
matters related to their employment as H-2A workers.
    To protect U.S. workers in competition with H-2A workers, employers 
must abide by what is known as the ``fifty percent rule.'' This rule 
specifies that an H-2A employer must hire any qualified U.S. worker who 
applies for a job prior to the beginning of the second half of the 
season for which foreign workers are hired.
            The H-2B Program
    The basic legal protections historically afforded to H-2A workers 
have never applied to guestworkers under the H-2B program.
    Though the H-2B program was created two decades ago by the 
Immigration Reform and Control Act (IRCA) of 1986, prior to 2008, DOL 
had not promulgated substantive labor regulations for the H-2B 
program.\16\ As discussed in Section IV below, DOL promulgated new 
regulations in 2011 and 2012 that better protect workers, but those 
regulations have been enjoined by the courts and subject to 
Congressional action prohibiting their enforcement.
    While the employer is obligated to offer full-time employment 
(currently defined as only 30 hours per week) that pays at least the 
prevailing wage rate, none of the other substantive regulatory 
protections of the H-2A program apply to H-2B workers. There is no free 
housing. There is no access to legal services. There is no ``three-
quarters guarantee.'' And the H-2B regulations do not require an 
employer to pay the workers' transportation to the United States.
    Although H-2B workers are in the United States legally, they are 
generally ineligible for federally funded legal services because of 
their visa status. As a result, most H-2B workers have no access to 
lawyers or information about their legal rights at all. Because most do 
not speak English and are extremely isolated, it is unrealistic to 
expect that they would be able to take action to enforce their own 
legal rights.
    Typically, workers will make complaints only once their work is 
finished or if they are so severely injured that they can no longer 
work. They quite rationally weigh the costs of reporting contract 
violations or dangerous working conditions against the potential 
benefits.
    Historically farmworkers and other low-wage workers have benefited 
greatly by organizing unions to engage in collective bargaining, but 
guestworkers' fears of retaliation present an overwhelming obstacle to 
organizing unions in occupations where guestworkers are dominant.
IV. DOL's Efforts to Better Protect U.S. and H-2B Workers Have Been 
        Stymied by Employers Seeking to Maintain the H-2B Program as a 
        Source of Cheap, Unregulated Labor
    In 2011 and 2012, DOL proposed new regulations for the H-2B program 
that provide increased protections for U.S. and H-2B workers. These 
regulations would better shield U.S. worker wages from the depressive 
effect of foreign labor, preserve U.S. workers' job opportunities, and 
protect H-2B workers from the severe exploitation that is so prevalent 
in the program. Unfortunately, due to efforts by business interest 
groups, H-2B employers, and the Chamber of Commerce none of these 
critical protections have ever been implemented.
            A. The 2008 H-2B Regulations
    Prior to 2008, DOL had not promulgated regulations that provided 
substantive labor protections for H-2B workers and their U.S. worker 
counterparts.\17\ In December 2008, President Bush's Department of 
Labor published ``midnight'' regulations for the H-2B program.\18\ 
These regulations provided only minimal protections for H-2B workers 
and lacked many of the fundamental legal protections afforded to H-2A 
workers, such as reimbursement of the H-2B workers' transportation 
costs to the United States and the ``three-quarters guarantee.'' The 
2008 regulations also established a methodology for calculating the 
wage that employers must pay to their H-2B workers (the prevailing 
wage) that causes the very depressive effect on U.S. worker wages 
Congress intended to avoid in requiring the H-2B prevailing wage.
    In issuing the 2008 regulations, DOL failed to consider many of the 
comments presented by migrant worker advocacy groups. In response, 
shortly after the rules were implemented in January 2009, a coalition 
of H-2B workers, U.S. workers, and worker advocacy organizations filed 
a lawsuit in federal court (CATA v. Solis) challenging the 2008 H-2B 
rules, alleging that DOL promulgated the rules in violation of the 
Administrative Procedure Act (APA).\19\ On August 30, 2010, the court 
in the Eastern District of Pennsylvania granted partial summary 
judgment for the plaintiffs, ruling that several of the Bush 
Administration DOL's H-2B regulations violated the APA. In order to 
avoid a regulatory gap, however, the court chose not to vacate the 2008 
rules. Rather, it ordered DOL to promptly promulgate new rules in 
compliance with the APA.
    Nearly three years after the court's order, however, the 
invalidated 2008 regulations still govern the H-2B program today.
            B. The 2011 H-2B Wage Rule
    On January 19, 2011, DOL issued a new prevailing wage rule for the 
H-2B program (``2011 wage rule'') in response to the CATA court order, 
but also because DOL found the 2008 wage rule was adversely affecting 
the wages of U.S. workers.\20\ Given that DOL's statutory and 
regulatory mandate is to certify that an employer's importation of H-2B 
workers will not adversely affect the wages and working conditions of 
U.S. workers, DOL rightfully sought to replace a wage rule that was 
doing exactly the opposite.\21\ Indeed, DOL found that the 2008 wage 
rule sets a wage ``below what the average similarly employed worker is 
paid,'' \22\ and, as a result, leads to underpayment of wages in nearly 
96% of cases.\23\ In practical terms, this means that U.S. workers 
would be less likely to take those jobs or would be required to accept 
a job at a wage well below what the market has determined is the 
prevailing wage for that occupation.
    Shortly before the wage rule was set to go into effect in September 
2011, H-2B employers and trade associations representing H-2B employers 
filed lawsuits in federal courts in Florida and Louisiana (later 
transferred to Pennsylvania) challenging the rule. The lawsuits both 
allege that DOL issued the rule in violation of the APA and the 
Regulatory Flexibility Act (RFA) and DOL lacks authority from Congress 
to issue any legislative rules for the H-2B program.\24\ H-2B employers 
also galvanized a group of vocal Senators and Representatives from 
states with industries that rely heavily on H-2B workers to ensure the 
new wage rule would not be implemented. This effort led to Congress 
passing a series of appropriations bans and continuing resolutions that 
effectively blocked the 2011 wage rule by prohibiting DOL from using 
funds towards its implementation.\25\
    In August 2012, the Louisiana Forestry court granted DOL's motion 
for summary judgment, upholding the 2011 wage rule and ruling that DOL 
has authority to issue rules for the H-2B program.\26\ Yet, because the 
current Congressional ban on the new wage rule's implementation is in 
effect until March 27, 2013, and employers have appealed the lower 
court's decision to the Third Circuit Court of Appeals, the rule is 
still not in effect and likely will not be implemented in the near 
future. As a result, a wage rule that directly contravenes its 
purpose--to protect U.S. worker wages--is still operative today, 
resulting in the gross underpayment of wages to hundreds of thousands 
of H-2B and U.S. workers with no end in sight.
            C. The 2012 Comprehensive H-2B Rule
    On February 21, 2012, DOL published new comprehensive regulations 
for the H-2B program (``2012 Final Rule'') that would provide much 
needed protections to U.S. and H-2B workers. The 2012 Final Rule 
requires employers seeking to import H-2B workers to first engage in 
more protracted and aggressive recruitment of U.S. workers, such as 
posting the open jobs on a national job registry and giving U.S. 
workers more time to apply for open positions. The new regulations also 
prevent the exploitation of H-2B workers by providing important 
protections to prevent human trafficking, debt servitude, fraud, and 
charging of exorbitant fees by overseas recruiters. Unlike the 2011 
wage rule, the majority of the 2012 Final Rule's provisions will have 
little or no economic impact on employers that participate in the 
program.
    In April 2012, just days before the new regulations were scheduled 
to go into effect, business interest groups, including the Chamber of 
Commerce, and a few H-2B employers sought and won a nationwide 
injunction in federal court in Florida that blocked DOL from 
implementing the 2012 Final Rule.\27\ Similar to the employers' 
challenges to the 2011 wage rule, this lawsuit alleges that DOL did not 
comply with the APA and RFA when issuing the 2012 Final Rule and that 
DOL does not have authority to issue any rules for the H-2B program. 
DOL appealed the injunction to the Eleventh Circuit Court of Appeals, 
and several amici submitted briefs in support of DOL's rulemaking 
authority and the new rules, including Representative Peter DeFazio and 
Senator Jeffrey A. Merkley, and labor unions UNITE HERE and PCUN. The 
Eleventh Circuit's decision is pending. In the meantime, as a result of 
the district court's injunction, the critical worker protections 
provided by the 2012 Final Rule did not go into effect as planned and 
may never go into effect.
    While the employer-driven attacks on DOL's new H-2B regulations 
have completely derailed the implementation of long overdue protections 
for U.S. and H-2B workers, the real implication of this litigation is 
more concerning. The gravamen of the employers' claims in all three 
lawsuits is that DOL lacks authority to issue any regulations for the 
H-2B program. Given that DOL has been regulating the H-2 guestworker 
programs for over forty years, the employers' sudden challenge to DOL's 
authority is particularly transparent. Indeed, not until DOL proposed a 
wage rule that will lead to fair wages that better approximate the 
market wage for U.S. and H-2B workers across the country did DOL's 
rulemaking authority become an issue for the employers. Clearly, the H-
2B employers do not just want less onerous regulation--they want no 
regulation or regulations--like the 2008 Bush-era rules--that 
overwhelmingly favor employers, even if those regulations do not 
adequately effectuate the protections for U.S. workers that Congress 
intended when creating the H-2B program.
V. Substantial Changes Are Necessary to Reform These Programs
    The SPLC report ``Close to Slavery'' offers detailed proposals for 
reform of the current guestworker programs. The recurring themes of 
those detailed recommendations are that federal laws and regulations 
protecting guestworkers from abuse must be strengthened; federal agency 
enforcement of guestworker programs must be strengthened; and Congress 
must provide guestworkers with meaningful access to the courts.
    The SPLC recommends that Congress take the following actions:
     Congress must finally allow the protective regulations 
promulgated by DOL in 2011 and 2012 to go into effect. In doing so, it 
should also make clear that DOL does have rulemaking authority under 
the H-2B program.
     Congress should enact protections to regulate the 
recruitment of workers.
    Congress should make clear that the systematic discrimination 
entrenched in this program is unlawful. Congress should regulate 
recruitment costs and should make employers responsible for the actions 
of recruiters in their employ. Any such regulation must make the 
employer who selects a recruiter responsible for the actions of that 
recruiter. Doing so is the only effective means of avoiding the severe 
abuses that routinely occur in recruitment. Holding employers 
responsible for their agents' actions is not unfair: if those hires 
were made in the U.S., there is no doubt that the employers would be 
lawfully responsible for their recruiters' promises and actions. Making 
the rules the same for those who recruit in other countries is fair, 
and it is the only way to prevent systematic abuse.
     Congress should also make H-2B workers eligible for 
federally funded legal services. There is simply no reason that these 
workers--who have come to the U.S. under the auspices of this 
government sponsored plan--should be excluded from eligibility.
     Congress should make the H-2B visa fully portable to other 
employers, at least under some circumstances. For example, at a 
minimum, Congress should create a means by which workers may obtain 
visas when they need to remain in or return to the United States to 
enforce their rights. Employers currently control workers' right to be 
here. That means when workers bring suit, or file a workers 
compensation claim, the employers have extraordinary control over that 
process.
     Congress should provide a pathway to permanent residency 
for guestworkers who would choose to become full members of our 
community.
     Enforcement should include a private federal right of 
action to enforce workers' rights under the H-2B contract.
     Lastly, Congress should provide strong oversight of the H-
2B program. Congress should hold additional hearings on this issue 
related to the administration of the guestworker programs.
    A review of available evidence would amply demonstrate that this 
program has led to the shameful abuse of H-2B workers and has put 
downward pressure on the wages and working conditions offered to U.S. 
workers. Congress must not allow that abuse to continue.
Conclusion
    The H-2B program as it currently exists lacks worker protections 
and any real means to enforce the few protections that do exist. 
Vulnerable workers desperately need Congress to take the lead in 
demanding reform. The goal of this subcommittee should be to make 
effective protections for the wages and working conditions of American 
workers that Congress intended in creating the H-2 program. 
Continuation or expansion of the H-2B program thwarts that intention.
    Thank you again for the opportunity to testify. I welcome your 
questions.
                                endnotes
    \1\ Close to Slavery was originally released in 2007, but was 
updated and re-released in 2013.
    \2\ Nonimmigrant Visas Issued by Classification FY 2008-2012, 
available at http://www.travel.state.gov/pdf/FY12AnnualReport-
TableXVIB.pdf
    \3\ Bureau of Labor Statistics, Economic News Release (2012), 
available at http://www.bls.gov/news.release/empsit.t01.htm.
    \4\ 8 U.S.C. Sec.  1101(a)(15)(H)(ii)(b); 8 C.F.R. 
Sec. 214.2(h)(6)(iv)(A); 20 CFR Part 655.
    \5\ See Close to Slavery, Chapter 5.
    \6\ See Congressional Budget Justification, Wage and Hour Division, 
FY 2013, available at http://222.dol.gov/dol/budget/2013/PDF/CBJ-2013-
V2-09.pdf.
    \7\ Denise Velez, ``Wages for H-2B Workers Set Lower than the 
Prevailing Wage'', available at http://www.epi.org/publication/
webfeatures--snapshots--20080813/ (last visited Aug. 13, 2008).
    \8\ Daniel Costa, ``H-2B Employers and their Congressional Allies 
Are Fighting Hard to Keep Wages Low for Immigrant and American 
Workers'', available at http://www.epi.org/publication/2b-employers-
congressional-allies-fighting/ (last visited Mar. 11, 2013).
    \9\ See Comite de Apoyo a los Trabajadores Agr!colas, et al., v. 
Solis, et al., No. 09-240, 2010 WL 3431761, at *2 (E.D. Pa. Aug. 30, 
2010) (``CATA''); 76 Fed. Reg. 3452 (Jan. 19, 2011).
    \10\ U.S. General Accounting Office, Closed Civil and Criminal 
Cases Illustrate Instances of H-2B Workers Being Targets of Fraud and 
Abuse, available at http://www.gao.gov/products/GAO-10-1053, September 
30, 2010.
    \11\ Supra n.10, at 11.
    \12\ John Lantigua, ``Use of Guest Workers in Palm Beach County 
Draws Fire'' Palm Beach Post, July 11, 2011.
    \13\ Id.
    \14\ Reyes-Gaona v. NCGA, 250 F.3d 861 (4th Cir. 2001). For a 
discussion of this case, see Ruhe C. Wadud, Note: Allowing Employers to 
Discriminate in the Hiring Process Under the Age Discrimination in 
Employment Act: The Case of Reyes-Gaona, 27 N.C.J. Int'l Law & Com. 
Reg. 335 (2001).
    \15\ See, e.g., Mexican Workers, www.mexican-workers.com/why-
foreign-workers.htm (last visited Jan. 28, 2013).
    \16\ See Martinez v. Reich, 934 F. Supp. 232 (D. Tex. 1996)
    \17\ Prior to 2008, the procedures governing certification for an 
H-2B visa were established by internal DOL memoranda (General 
Administrative Letter 1-95), rather than regulation.
    \18\ 77 Fed. Reg. 78,020-01 (Dec. 19, 2008).
    \19\ See CATA, 2010 WL 3431761 at *2, supra n. 8.
    \20\ 76 Fed. Reg. 3452 (Jan. 19, 2011).
    \21\ 8 U.S.C. Sec.  1101(a)(15)(H)(ii); 8 U.S.C. 1184(c)(1); 8 
C.F.R. Sec.  214.2(h)(6)(iv)(A).
    \22\ Id.; see also 75 Fed. Reg. 61,578, 61,580-81 (Oct. 5, 2010) 
(``2010 NPRM'').
    \23\ 76 Fed. Reg. at 3463.
    \24\ See Louisiana Forestry Ass'n, Inc., et al. v. Solis, No. 11-
01623 (W.D. La. Sept. 7, 2011); Bayou Lawn & Landscape Servs., et al. 
v. Solis, 3:11 cv445 (N.D. Fla. Filed Sept. 21, 2011).
    \25\ Continuing Appropriations Resolution, 2013, H.J. Res. 117, 
Public Law No. 112-175 (Sept. 28, 2012); Consolidated and Further 
Continuing Appropriations Act, 2012, Pub. L. 112-55, Div. B, Title V, 
Sec.  546 (Nov. 18, 2011); Consolidated Appropriations Act of 2012, 
Pub. L. No.112-74, Div. F, Title I Sec.  110, 125 Stat. 786 (2011).
    \26\ See Louisiana Forestry Ass'n, Inc., et al. v. Solis, No. 11-
7687, 2012 WL 3562451 (Aug. 20, 2012).
    \27\ Bayou Lawn & Landscape Servs., et al. v. Solis, et al., No. 
3:12-cv-00183 (N.D. Fla. filed Apr. 16, 2012).
                                 ______
                                 
    Chairman Walberg. Ms. Bauer, thank you, as well.
    I recognize Mr. Musser for your 5 minutes of testimony.

        STATEMENT OF DAN MUSSER, PRESIDENT, GRAND HOTEL

    Mr. Musser. Thank you, Mr. Chairman and members of the 
subcommittee. I appreciate the invitation today to talk about 
the critical need for foreign temporary seasonal H-2B worker 
program for Grand Hotel and other seasonal businesses 
throughout the country.
    My name is Dan Musser. I am president at Grand Hotel on 
Mackinac Island, Michigan. I am the third generation in my 
family to own and operate this historic, seasonal, 385-room 
summer resort.
    We are known nationally and internationally as the world's 
largest summer hotel. We are known for the beauty of our 
location on Mackinac Island, our dramatic 660-foot front porch 
that the chairman eloquently discussed earlier, and more 
importantly, our friendly and unique hospitality.
    Our exceptional service is widely recognized by many 
national rating guides. For example, National Geographic 
Traveler selected us as one of 150 properties that--with 
location-inspired architecture, ambiance, amenities, eco-
stewardship, and an ethic of giving back to the community.
    Grand Hotel is the largest employer of U.S. workers on 
Mackinac Island. We employ 60 U.S. workers annually on a year-
round basis and 260 on a seasonal basis.
    For many decades Grand Hotel's entire staff had U.S. 
workers. Increasing opportunities for year-round hospitality 
workers has made it impossible to fill all of our positions 
with ready, willing, and able American workers. Without the H-
2B seasonal temporary workers we employ to supplement our U.S. 
workforce we would eventually not be in business.
    Since Grand Hotel first opened in 1887 it has been a 
continuing challenge to find a stable, dependable workforce to 
fill the 620 jobs required to maintain the high level of 
service for which we are known. We are only open 6 months a 
year. We are in an isolated location 300 miles north of 
Detroit.
    Operating year-round is not an option. There is no good way 
to get to our island in the winter and very little to do there 
if you were able to get across the frozen lake.
    We are and always have been committed to staffing Grand 
Hotel with U.S. workers. Each year we take a number of steps to 
recruit U.S. workers for Grand Hotel, including running ads in 
major papers in Michigan, the Great Lakes region; advertising 
in seasonal resort areas that dovetail with ours; attending as 
many job fairs; visiting culinary institutes around the 
country; and partnering with Job Corps centers.
    We are able to hire some college students, but increased 
summer enrichment opportunities and the extended school year at 
many colleges preclude them from remaining with us for the 
entire season.
    We have also tried several innovative programs, including a 
service academy through which we worked with the state of 
Michigan and the Educational Institute of the American Hotel 
and Lodging Association, where we hired unemployed Michigan 
citizens, guaranteed them a job the next summer, provided them 
college-level hospitality courses throughout the summer. We 
found that after helping them find jobs in resorts in another 
part of the country in the winter and the additional college-
level classes that they did not return to us.
    While these programs have not provided us the workforce we 
need to provide Grand Hotel's service, we continue and will 
continue to do everything in our power to find, recruit, and 
maintain an American labor force.
    About 40 years ago Grand Hotel began to look to foreign 
workers to fill positions which we were finding no U.S. 
citizens were available. Many of our H-2B workers--for example, 
those from Jamaica--hold seasonal hospitality jobs in their 
home countries. Some of them return year after year to Grand 
Hotel because of the pay and working conditions that we offer 
to all of our staff.
    Most of the subsidizing housing we provide to our staff are 
single rooms--some with private baths, some with shared baths, 
and others are dormitory style. But we are proud of the 
condition of our employee housing. And over the last 3 years we 
have spent in excess of $1 million on improvements. We provide 
three meals a day in our employee cafeteria and assist all of 
our staff in many ways, including through the Mackinac Island 
Community Foundation.
    We are one of 70 Northern Michigan resorts and hotels that 
utilize temporary seasonal foreign workers on the H-2B visa for 
specific jobs. Our workforce during the summer is made up of 
our U.S. workers and 300 or so temporary foreign workers.
    Our American jobs depend on our H-2B workers. It would be 
extremely difficult if not impossible for us to continue to 
operate successfully without the H-2B worker. They are the 
lifeblood of our seasonal business.
    The potential closure of Grand Hotel would have a 
devastating impact on Mackinac Island, Northern Michigan, and 
the tourism industry in the state of Michigan. For example, in 
the last 15 years we have reinvested in excess of $32 million 
in capital expenditures that have created jobs for hundreds of 
Michigan workers.
    Grand Hotel is not that much different from the thousands 
of small and seasonal businesses throughout the U.S. who have 
been forced to turn to the H-2B program as a result of lack of 
available Americans willing and able to work in temporary 
seasonal positions. Like all business, Grand Hotel suffered 
during the recent recession. The uncertainty about whether and 
when the H-2B visa program could be dramatically changed by the 
accommodation of the recent Department of Labor rules and H-2B 
wage rates and new H-2B programmatic rules have created an 
untenable climate for business planning.
    Comprehensive immigration reform must maintain a viable 
non-agricultural seasonal worker program along the lines of 
existing H-2B program. The program should maintain current 
protections for Americans and H-2B workers and not impose 
costly burdensome requirements on employers who use the 
program. The federal government should enforce the existing 
protections.
    The number of participants in the program should be market-
based so it can fluctuate based on need and the returning 
worker exemption should be reinstated.
    Comprehensive immigration reform should provide sufficient 
resources for federal agencies to process H-2B applications in 
a timely manner.
    Thank you, Mr. Chairman.
    [The statement of Mr. Musser follows:]

         Prepared Statement of R. Daniel Musser III, President,
                    Grand Hotel, Mackinac Island, MI

    Mr. Chairman and Members of the Subcommittee, I appreciate your 
invitation to testify today about the critical need for a foreign 
temporary, seasonal H-2B worker program for Grand Hotel and other 
seasonal businesses throughout the U.S. My name is Dan Musser, I am 
President of Grand Hotel on Mackinac Island, Michigan. I am the third 
generation of my family to own and operate this historic, seasonal, 
385-room summer resort. This is the 80th year that the hotel has been 
under our stewardship and on July 10, 2012 we celebrated our 125th 
birthday.
    Grand Hotel is known nationally and internationally as the world's 
largest summer hotel. We are known for the beauty of our location on 
Mackinac Island, for our dramatic 660-foot front porch and, more 
importantly, for our friendly and unique hospitality.
    Our exceptional service is widely recognized by many national 
rating guides; I have attached a brief listing of recent awards that 
reflect our commitment to quality.
    To give just a few examples:
     The April 2008 issue of National Geographic Traveler 
selected us as one of 150 properties in the U.S., Canada, Mexico and 
the Caribbean Region with location inspired architecture, ambiance, and 
amenities, eco-stewardship, and an ethic of giving back to the 
community.
     Travel & Leisure magazine annually lists us as one of the 
500 best hotels in the world and their readers selected us as one of 
the top 50 family friendly resorts in the U.S. and Canada.
     Conde Nast Traveler rated us one of the top 100 resorts in 
the United States and the number 4 northern resort in their list of top 
125 golf resorts in the United States.
     In honor of our anniversary, Michigan Governor Rick Snyder 
proclaimed July 8-14 Grand Hotel week in the state of Michigan noting 
our designation as a National Historic Landmark by the U.S. Department 
of Interior and the ``world-class hospitality'' the Musser family and 
Grand Hotel has provided over the past 125 years.
    Grand Hotel is the largest employer of U.S. workers on Mackinac 
Island. We employ 60 U.S. workers annually on a year round basis and 
260 on a seasonal basis. For many decades, Grand Hotel's entire staff 
was U.S. workers. Increasing opportunities for year-round hospitality 
workers and other factors have made it impossible to fill all of our 
positions with ready, willing, and able American workers. Without the 
H-2B seasonal temporary workers we employ to supplement our U.S. work 
force, we eventually would not be in business.
    Since Grand Hotel first opened in 1887, it has been a continuing 
challenge to find a stable, dependable work force to fill the 620 jobs 
required to maintain the high level of service for which we are known. 
The fact we are open only six months, our isolated location 300 miles 
north of Detroit, and other factors make it difficult to develop a work 
force needed to provide Grand Hotel level hospitality.
    Operating year round is not an option. We are a seasonal summer 
hotel. There is no good way to get to our island in the winter and very 
little to do there if you were able to get across the frozen lake.
    We are and always have been committed to staffing Grand Hotel with 
U.S. workers. Each year we take a number of steps to recruit U.S. 
workers for Grand Hotel.
     We run ads in major papers in Michigan and the Great Lakes 
region.
     We advertise in seasonal resort areas that dovetail with 
ours such as ski resorts in Colorado and Utah and warm weather resorts 
such as Florida and Arizona.
     We attend as many job fairs in as many colleges and 
universities in Michigan and the Great Lakes region as we can.
     We visit culinary institutions around the country.
     We attend Michigan Works job fairs.
     We list jobs on major Internet sites.
     We promote on major media outlets in Michigan (radio, 
print, electronics)
     We have partnered with Job Corps Centers in Flint, Grand 
Rapids and Detroit, Michigan and Golconda, Illinois.
    We are able to hire some college students, but increased 
opportunities for summer educational and enrichment activities for 
college students has reduced the pool of available students. Further, 
most college students' school schedules preclude them from remaining 
with us for the entire season, which runs from April through mid-
November.
    We have also tried several innovative programs. We created a 
service academy through which we worked with the Michigan Employment 
Security Commission to find unemployed Michigan Citizens who expressed 
an interest in the hospitality field. We provided employment for the 
summer and rotated them through different departments in the Hotel 
during the course of the season. They also received college-level 
classroom instruction provided by the Educational Institute of the 
American Hotel and Lodging Association.
    At the end of the season, they received accreditation from the 
Institute, a guaranteed job the next summer with us, and with the 
State's assistance found winter jobs at various resorts in Colorado, 
Utah, Arizona and Florida. Unfortunately for us, those resorts offered 
year-round employment. We found that after we had provided them an 
education and experience in the hospitality industry and then found 
positions for them with other resorts in other parts of the country 
that offered year-round employment, we had virtually no returning 
graduates.
    We even tried a program where we recruited workers from homeless 
shelters in metropolitan areas in southern Michigan. That was not 
successful.
    We had a somewhat successful program with the State with 
individuals with certain limited physical and mental disabilities. We 
hired a qualified full-time supervisor specially trained to work with 
and live with these individuals to ensure integration to our working 
community. In recent years, the State's role has diminished in this 
regard and, therefore, our program as well. I am pleased to say that 
our program enabled six of these individuals to become capable of 
living on their own and several worked with us for over 20 years.
    While these programs have not provided us with the work force we 
need, we continue and will continue to do everything in our power to 
find, recruit and retain as many U.S. workers as possible. In the 
meantime, the quality of service we provide requires that we supplement 
our professional, trained and dependable U.S. work force.
    For many years, we recruited workers from Florida. But as Florida 
turned into a year round vacation destination, those workers no longer 
were available. The situation was particularly critical in the hotel 
dining room, which is a key part of hotel operations.
    About 40 years ago, Grand Hotel began to look to foreign workers to 
fill positions for which we could not, despite extensive efforts, find 
U.S. workers. Our H-2B workers come from several different countries. 
Many of these workers hold seasonal hospitality jobs in their home 
countries. For example, the Jamaican tourist season dovetails perfectly 
with ours and Jamaica is an important source of H-2B workers for us. 
Some of them return year after year to Grand Hotel because of the pay 
and working conditions we offer to all staff, both domestic and 
foreign. In 2012, of the 280 H-2B staff that worked with us, 
approximately 250 or 90% were returning staff.
    Under federal law, our wage rates are approved by both the Michigan 
Employment Security Commission and the U.S. Department of Labor. Our 
wage rates are based on Detroit-area wages.
    We provide a variety of housing in communities on the island that 
we subsidize for all staff. Most are single rooms; some with private 
baths; some with shared baths with one other room and some dormitory 
style. We are proud of the condition of our employee housing. In the 
past 3 years, we have spent in excess of $1.1 million on improvements. 
In addition to housing, we also provide three meals a day in our 
employee cafeteria. It is important to note that our H-2B workers enjoy 
workers compensation, just as our American workers. We also assist our 
U.S. and H-2B workers in many ways. For example, in September of 1988, 
Hurricane Gilbert caused $4 billion of damages to homes and crops in 
Jamaica. It is estimated that 80% of the homes on the Island lost their 
roofs. Several staff members returned to Jamaica early to take care of 
their property and family and also report back to staff members who 
stayed on Mackinac. Grand Hotel gathered food and supplies and sent a 
trailer of these supplies to Jamaica to assist with the clean up.
    In November of 2006, shortly after returning home to Jamaica, 11 
year Waiter Garfield Slowly was seriously injured in an automobile 
accident and his child was killed in the same accident. News of the 
tragedy traveled quickly to Mackinac and Grand Hotel partnered with the 
Mackinac Island Community Foundation to provide monetary help and 
medical supplies.
    $19,500 in aid was sent to support Garfield and his family over a 
4-year period. This is one of many partnerships with the Mackinac 
Island Community Foundation. My wife, Marlee, was on the founding Board 
of Trustees for the Foundation and I still serve on the Board. Grand 
Hotel provides office space free of charge and also paid the Directors 
salary and benefits for 15 years. The Foundation is a resource for all 
staff, U.S. and H-2B workers, and provides financial assistance for 
medical and family emergencies, natural disasters and serious illness.
    Grand Hotel makes special efforts to help its workers in other 
ways. Each year, all staff is allowed to order bulk food items and 
cleaning supplies through the hotel at a great discount.
    These items are shipped within the U.S. or to their home countries 
and used to support their extended families for the entire year. At the 
beginning of each season, clothing donations are accepted from staff 
and Mackinac Island residents and redistributed to the staff coming to 
work in April. Much of our staff comes from a climate where warm 
clothing and boots are not readily accessible. This program has 
provided our staff with free clothing and boots for the past 8 years.
    Grand Hotel also conducts activities to celebrate our multicultural 
staff. Each year we recognize Mexican, Jamaican and Filipino 
Independence Days through activities in our Employee Cafeteria and 
through the entertainment offered in our outside restaurants. We also 
help to sponsor football, soccer and cricket matches for the staff to 
participate in and challenge each other. The staff appreciates the 
recognition and everyone appreciates the opportunity to learn more 
about the culture and customs of their co-workers.
    We are one of 70 northern Michigan resorts and hotels that utilize 
temporary, seasonal foreign workers on H-2B visas for specific jobs. 
Our workforce during the summer is made up of our U.S. workers and 300 
or so temporary foreign workers. Our American jobs depend on our H-2B 
workers. It would be extremely difficult, if not impossible, for us to 
continue to operate successfully without H-2B workers--they are the 
lifeblood of our seasonal business.
    The potential closure of Grand Hotel would have a devastating 
impact on Mackinac Island, Northern Michigan and the tourist industry 
in general.
    Some relevant facts to consider are:
     Grand Hotel has reinvested in excess of $32 million in the 
past 15 years on capital expenditures. All construction was performed 
by Michigan contractors.
     During the past 15 years, an additional $25 million was 
spent on normal and major repairs to the Hotel's properties.
     On average, 600 individuals are employed at the Hotel each 
year, with an annual payroll in excess of $14 million.
     Grand Hotel spends in excess of $1.4 million annually for 
State and Federal unemployment and FICA taxes.
     The Hotel spends in excess of $1.4 million annually in 
Michigan for professional services such as advertising, accounting and 
other outside services.
    Grand Hotel is not much different from the thousands of small and 
seasonal businesses throughout the U.S. who have been forced to turn to 
the H-2B program as a result of a lack of available Americans willing 
and able to work in temporary seasonal positions. And it is not just 
the hotel and resort industry that needs these workers.
    Nearly every corner of the country uses seasonal temporary workers. 
The industries include:
     Seafood processors, shrimpers, crabbers, and fishermen 
throughout the Gulf, Carolinas, Alaska, Northwest and Mid-Atlantic 
states;
     Hotels, restaurants, ski resorts and other important 
tourist destinations throughout New England, the Mid-West and the 
Rockies;
     Quarries from New England to Colorado;
     National Parks, including Grand Canyon, Sequoia, Yosemite 
and others;
     Forest industry in New England and the Southeast;
     Theme parks and swimming pools in virtually every state; 
and
     Landscapers and landscape contractors across America.
    Each year these employers go through great expense and trouble to 
follow the law. The H-2B process consists of applications to four 
separate Government agencies (State Workforce Agency, U.S. Department 
of Labor, U.S. Department of Homeland Security and U.S. Department of 
State), legal fees, Government filing fees and many other expenses. 
Employers pay wages at levels that have been certified by the U.S. 
Government to be high enough so that they will not adversely affect the 
wages of similarly employed Americans. Employers are obligated to pay 
transportation expenses to and from the property (according to DOL 
guidance), and they must comply with the myriad rules and regulations 
that govern the worksite of U.S. and foreign workers alike.
    For seasonal employers, the H-2B returning worker exemption worked 
well. Employers still willingly searched high and low for every 
American they could find. But when they could not find Americans, the 
fact that they could turn to workers who have worked for them in the 
past ensured that they could stay in business. Most importantly, since 
returning workers had already undergone extensive background security 
checks (and have to undergo similar cheeks each time they apply to 
enter the U.S.), employers could feel confident that they have helped 
protect the security of our homeland. Moreover, in deciding to return 
to work with the same seasonal employer, these H-2B workers signaled 
that they were pleased with their working conditions and the wages they 
were paid. The returning worker exemption was one of those rare ``win-
win-win-win'' situations: a win for workers (American and foreign); a 
win for employers; a win for the United States of America; and a win 
for the communities we serve. The returning worker exemption from the 
annual cap on H-2B visas should be re-instated.
    Like all businesses, Grand Hotel suffered during the recent 
recession. Our recovery has been threatened by the recent U.S. 
Department of Labor rules on H-2B wage rates and new H-2B programmatic 
rules. Fortunately, Congress and the federal courts have so far blocked 
implementation of these rules, but the uncertainty about whether and 
when the H-2B visa program could be dramatically changed by 
Administration action creates an untenable climate for business 
planning.
    Grand Hotel did not comment on the Department of Labor (DOL) 
proposed wage rule issued on October 5, 2010. Although the proposed 
rule was of concern to us, we determined that we could survive with the 
new rule. DOL issued the final rule on January 19, 2011. It 
artificially increases H-2B hourly wages by more than 50%. For many 
seasonal employers who operate on thin profit margins, such a dramatic 
increase in labor costs will drive them out of business or into 
bankruptcy. This rule was slated to go into effect last year, but DOL 
moved the implementation date to March 27, 2013 after Congress 
prohibited DOL from spending any appropriations funding to implement 
the rule.
    According to DOL's own estimates, the rule will increase H-2B wages 
by the following:
     Landscaping services, $4.32;
     Janitorial services, $5.81;
     Food services and drinking places, $2.59;
     Amusement, gambling, and recreation, $6.61;
     Construction, $9.12; and
     Forestry support, $1.23.
    The actual cost to H-2B users is far greater than DOL's estimates 
because DOL does not account for labor increases for similarly employed 
American workers or more experienced American workers whose pay should 
reflect the greater skill or experience level and be proportional to 
the hourly wage earned by lesser skilled workers. It also does not 
include additional payroll costs, workers compensation insurance, 
overtime costs and other associated increases.
    On February 21, 2012, DOL issued a final H-2B program rule that 
would make the H-2B program more complicated for small seasonal 
employers. The combination of the H-2B wage rule and the H-2B program 
rule will make the H-2B program virtually unusable for many seasonal 
businesses. The rules are based on the mistaken assumption that the H-
2B program is fraught with abuse. While this is not the case, DOL and 
the Department of Homeland Security already have significant authority 
to enforce against any employers that are not meeting their obligations 
to their H-2B and U.S. workers. The DOL is currently enjoined by a 
federal court from implementing the program rule.
    I will highlight a few of the provisions in the Department of Labor 
programmatic rule that are particularly burdensome:
     Additional Recruitment Time
    Increasing the amount of time during which U.S. workers must be 
recruited from ten (10) days before filing the ETA-9142 to twenty-one 
(21) days before the H-2B employer's need for the worker, is too short.
    The end of the recruitment period must leave more time to shift 
from the use of human resources manpower hours for recruitment and 
compliance with H-2B rules to the use of manpower hours to actually 
open the business. Typically, Grand Hotel's goal in recruiting H-2B 
workers (to supplement the employment of the U.S. workers we are able 
to recruit to fill various positions in our organization including 
housekeepers, wait staff, kitchen helpers, and bellhops) is to have the 
majority of recruitment completed by March 1. Our plan is to have 
workers begin to arrive at the Hotel on April 1. The Hotel opens on May 
1. We need time between completion of the long and expensive hiring and 
recruitment process and the arrival of staff to begin the operational 
side of our business, that is, to prepare training plans, housing, 
uniforms, and scheduling. Our guests expect to experience Grand Hotel's 
high level of service on our opening day.
     Areas of Substantial Unemployment Definition
    An ASU is defined in the rules as ``a contiguous area with a 
population of at least 10,000 in which there is an average unemployment 
rate equal to or exceeding 6.5% for the twelve (12) months preceding 
the determination of such areas made by the ETA.'' We believe that the 
benchmark for an ASU, for purposes of requiring additional recruitment, 
should not be based on the annual unemployment rate, but the timeframe 
of need. For example, Grand Hotel is located in Mackinac County, which 
has an annual unemployment rate of 11.5%, but this is to be expected in 
a summer vacation area when during the summer months the unemployment 
rate for all but one month is lower than the national average as 
delineated below:


------------------------------------------------------------------------
                          Annual-2012                             11.5%
------------------------------------------------------------------------
January.......................................................       23%
February......................................................     23.5%
March.........................................................     21.6%
April.........................................................     14.1%
May...........................................................      6.1%
June..........................................................      4.5%
July..........................................................      4.2%
August........................................................      3.8%
September.....................................................      3.6%
October.......................................................      4.3%
November......................................................     11.9%
December......................................................     17.9%
------------------------------------------------------------------------

    We also believe that the ASU threshold should not be an arbitrary 
figure of 6.5%, but should be based on the national employment rate, 
which is currently 7.7%.
     Additional Recruitment Required for an ASU is Unreasonable 
and may be Counterproductive
    The DOL's regulation would require employers to engage in 
additional recruitment activities, including but not limited to 
contacting community-based organizations in ASUs to ensure that 
unemployed U.S. workers, who may be capable of (and desirous of) 
performing the job duties, are afforded maximum access to those 
opportunities, is unreasonable in many circumstances and based on 
faulty logic. The DOL's intention of requiring additional recruitment 
is predicated on its belief that more recruitment will result in more 
opportunities for U.S. workers.
    It is our view that this position is based on faulty reasoning 
because many employers, including Grand Hotel, already conduct 
significant recruitment far above that which is required under previous 
DOL regulations, and which has absolutely not resulted in the hiring of 
additional U.S. workers, even during the last few years of increased 
nation-wide unemployment. The requirement by the DOL to have employers 
conduct additional recruitment if employers are located in an ASU, 
could actually result in employers conducting only the DOL-ordered 
additional recruitment, which might actually result in the placement of 
fewer advertisements. Grand Hotel is located in an ASU, but because we 
are committed to hiring as many U.S. workers as possible, we are 
already placing many more advertisements than could be required by the 
DOL under its rules.
    For example, in 2012, Grand Hotel conducted the following 
recruitment in order to find staff in the U.S. for our available 
positions:
Advertisements
    Lansing State Journal; Detroit News
    Detroit Free Press; Grand Rapids Press; Sault Evening News; St. 
Ignace News
    Mackinac Island Town Crier; Traverse City Record; Eagle Petoskey 
News Review
Job Fairs (to which Grand Hotel sends recruiters)
    Michigan State University; Northwestern Michigan College; Northern 
Michigan University
Advertisements in the following College Areas
    Grand Rapids Community College; Henry Ford Community College; 
Schoolcraft College
    Northwood University; Kent State University
Electronic Media
    Craig's List; Monster.com
    Michigan Talent Bank, also known as Pure Michigan Talent Connect 
(which is used by Grand Hotel throughout the 7 month period during 
which the hotel is in operation, which in turns makes referrals from 
local Michigan employment offices in St. Ignace and Cheboygan)
    Grand Hotel Website found at www.grandhotel.com (on which job 
openings are listed year round. When the website became operational, 
the number of applications jumped from 600 to 1,600, and did not result 
in the hiring of more U.S. workers who could work the entire contract 
period.)
Other Recruitment
    At various seasonal resorts in Utah, Colorado and Florida
    Cheboygan & Presque Isle Annual Job Fair hosted by Michigan Works; 
Gerald R. Ford, Flint, Detroit, and Golconda Job Corps Center
    Ubuntu Institute (founded by Nelson Mandela's grandson)
    We are very excited about our new relationship with the Outbound 
Programme of the Ubuntu Institute. The Outbound programme is designed 
for youth and adults from Southern Africa (SADC) and provides 
internships, learnerships, and training opportunities for unemployed 
graduates from disadvantaged communities in Southern Africa for a 
period of 6-12 months. The programme is largely focused on Tourism and 
Hospitality, one of the fastest growing economic sectors in most 
Southern African countries. The participants of this programme, 
referred to as ``Ubuntu Institute fellows'' travel to the United States 
and Canada to gain work experience at some of the most distinguished 
companies in the world. We have not yet been approved for Ubuntu 
Institute Fellows for this season and we are hopeful some of these 
Fellows will be joining us on Mackinac Island this summer.
    As a result of our sustained recruitment efforts in 2012, we 
received 1,665 applications from U.S. workers for various positions at 
the Hotel, including but not limited to the positions for which we 
sought H-2B workers, and of these 1,665 applications, only 358 or 21% 
were available for our full season.
    Finally, we believe that permitting the DOL to require employers to 
contact community-based organizations based on a determination that a 
particular employer is located in an ASU places an undue burden on the 
DOL, which would have to become familiar with the area's community-
based organizations. This might result in hasty and un-researched 
determinations by the DOL, and ultimately will not result in the net 
hiring of additional U.S. workers. Grand Hotel is familiar with 
community-based organizations on the Island and in surrounding areas, 
including St. lgnace, Mackinaw City and Cheboygan, and advertisements 
with and referrals from those organizations have not proven to be very 
fruitful. In addition, the rule gives the DOL far too much discretion 
in supplanting its wisdom for the wisdom of an employer that has been 
in existence in Mackinac County for over 120 years and which fully 
understands the local labor market.
Recommendations for Comprehensive Immigration Reform:
     Comprehensive immigration reform must maintain a viable 
non-agricultural seasonal worker program along the lines of the 
existing H-2B program.
     The program should maintain current protections for 
American and H-2B workers and not impose costly burdensome requirements 
on employers who use the H-2B program. The federal government should 
enforce existing protections.
     The number of participants in the program should be 
market-based, so it can fluctuate based on need, and the returning 
worker exemption should be re-instated. Returning workers have 
demonstrated that they will comply with the rules of the program. The 
number of workers desiring to return confirms that most employers treat 
their H-2B workers fairly.
     The current H-2B requirement that an H-2B worker cannot 
leave a sponsoring employer until the successor employer's USCIS 
petition has been approved should be maintained. Sponsorship of an H-2B 
worker is a costly and time-consuming process for a short season.
    H-2B employers should not be vulnerable to losing a worker the day 
before the date of need.
     Immigration reform should provide sufficient resources for 
federal agencies to process H-2B applications in a timely manner.
    Thank you, Mr. Chairman.

                       Grand Hotel Recent Awards

            AAA Four Diamond Rating
    Rated by a AAA field inspector as an excellent property displaying 
a high level of service and hospitality.
            The Greatest Hotels in the World
    Travel & Leisure Magazine, January 2011--The annual guide to the 
500 best hotels in the world. The list contains the hotels that 
received the highest rating in the Travel & Leisure reader survey along 
with opinions and advice of its editors and reporters.
            Top 100 Readers' Choice Award
    Conde Nast Traveler, November 2011--Voted by readers as one of the 
top 100 resorts in the United States.
            World's Best Awards
    Travel & Leisure Magazine, August 2011--Voted by readers as an 
essential index of the places you want to go in the United States and 
Canada.
            Top 125 Golf Resorts
    Conde Nast Traveler, April 2011--Chosen by thousands of readers as 
a property that marries outstanding golf with fantastic lodging, 
dining, and service for the avid or casual golfer. Grand Hotel was 
ranked 4th in the top northern U.S. golf resorts category.
            Silver Sage Award
    Spa Magazine, 2011 Readers Choice--Selected by readers as one of 
the top resort/hotel spas in the Midwest.
            TripAdvisor 4.0 Rating
    July 2011--Grand Hotel received the 2011 Certificate of Excellence 
from TripAdvisor acknowledging the most powerful recommendation--the 
endorsement of guests.
            Gold Key Award
    Meetings & Conventions Magazine, September 2010--Selected by 
readers of M&C who based their votes on overall professionalism and 
quality of property. Experienced meeting planners selected their 
winning properties based on strict industry criteria including staff 
attitude, quality of meeting rooms, quality of guest service, food and 
beverage service, and recreational facilities.
            10 Best All-Inclusive Family Resorts
    FamilyVacationCritic.com--Selected number four in the U.S. and 
Caribbean in a September, 2010 rating based on setting, activities, 
food, and overall experience for families.
            T+L World's Best Hotels For Families
    Travel & Leisure Family Magazine, September 2011--Selected by 
readers as one of the 50 best family-friendly resorts in the United 
States and Canada.
            Best of MidAmerica
    Meetings Focus MidAmerica, August 2012--Selected by readers of 
Meetings Focus MidAmerica magazine as one of the top properties in the 
Midwestern United States.
            Stay List
    National Geographic Traveler, April 2008--Nominated by travel 
experts and seasoned travelers and then selected as one of 150 
properties in the U.S., Canada, Mexico and the Caribbean Region with 
location-inspired architecture, ambience, and amenities, eco-
stewardship, and an ethic of giving back to the community.
            Top 10 Historic Hotels
    June 2009--Selected by AAA property inspectors as one of their 
favorite historic hotels.
            Award of Excellence
    Wine Spectator, August 2010--Recommended as a restaurant where a 
fascinating wine experience is part of the dining experience. Wine 
lists are judged by the number of selections, quality of wines chosen, 
depth of vintages, compatibility with the restaurant menu, inventory, 
and how easy the lists are to use.
            56 Hotels We Love
    National Geographic Traveler, September 2004--Named one of the 
American hotels that deliver a unique experience and a lasting 
impression.
            Award of Excellence
    Corporate & Incentive Travel, November 2006--Recognized by 
subscribers as a resort that has superior staff service, excellence in 
accommodations and meeting facilities, trouble-free food and beverage 
functions, smooth set-ups and arrangements for social functions, 
exceptional ambiance, and convenient and accessible location.
            Inner Circle Award
    Association Meetings Magazine--Voted by readers as one of the top 
hotels in the country for meetings.
            Planners' Choice Award
    Meeting News Magazine--Recognized as one of the best in the 
industry by conference and convention planners based on the quality of 
facilities and services provided.
            Golden Links Certified
    Corporate Meetings & Incentives--Certified by an advisory panel as 
an outstanding facility for golf and meetings.
            Excellence in the East Award
    Meetings East Magazine--Chosen by readers as one of the top 56 
properties in the Eastern and Midwestern United States and Canada. The 
properties were selected based on the quality of meeting space, guest 
rooms, staff, service, food and beverage, amenities, activities, and 
value from properties that they have used within the last two years.
            Playful Travel Award
    Nick Jr. Magazine--Chosen by top family travel experts and editors 
from Nick Jr. Magazine as well as two
    Nickjr.com online surveys as a hotel that offers the best 
facilities and products to suit the needs and tastes of Nick Jr. 
families. It is accessible, affordable, and accommodating and offers 
unique features that make kids feel special and make parents feel cared 
for and comfortable.
            Best of the Midwest
    Midwest Living Magazine--Featured as one of the top 37 Midwest 
resorts selected by the editors of Midwest Living in the Best of the 
Midwest 2006 edition.
            Top 25 Around the World
    Gourmet Magazine--Selected by Gourmet Magazine as the top hotel in 
the Midwest and one of the top 25 hotels in the world, in the May 1997 
issue.
            Greens of Distinction
    Corporate & Incentive Travel, 2008--In recognition of outstanding 
golf facilities and service for corporate meetings and incentive travel 
programs as a result of a subscriber survey.


                                 ______
                                 
    Chairman Walberg. I thank you and each of the witnesses 
this morning.
    I recognize myself for my 5 minutes of questioning.
    Mr. Musser, I detect that there may be a second negative of 
air conditioning. Not only has it encouraged the expansion of 
federal government's staying around longer here in Washington, 
but I am sure it has made it somewhat difficult by opening 
opportunities in tourist spots other than in Michigan and in 
the North.
    Let me ask you a question. Critics of guest worker programs 
argue that American workers would fill temporary jobs if they 
were better able to access information about the positions. 
Grand Hotel, as you have described, does extensive outreach to 
connect with American workers, yet you still have to turn to 
foreign workers.
    Can you further describe some of your recruitment efforts, 
and do they go beyond the requirements of the H-2B program?
    Mr. Musser. Thank you, Mr. Chairman. And yes, our 
recruitment efforts do go beyond the requirements. Quite 
frankly, I would like to hire all Mackinac County residents if 
I could, but unfortunately, there are just not enough willing 
to do the job.
    We have, in the past, run buses to Detroit to homeless 
shelters. In addition to the program I outlined in my 
testimony, we have tried a variety of programs and will 
continue to do that. The most recent is Job Corps, which is--we 
have found some good American staff through that, and we will 
continue to do those.
    But unfortunately, you know, we are in this isolated 
location 300 miles away from the, you know, the largest 
population base in our state. We are difficult to get to even 
in the summer, and the idea of individuals leaving their life, 
if you will, for 6 months--packing up and coming to this 
isolated location is not a reality, or at least in the numbers 
that we need to operate.
    And I think that as far as the foreign nationals that we do 
bring in, it is important to note that last year, for example, 
of the 260 or so H-2B workers we had, 90 percent were 
returning. So if our wages weren't good and the type of work 
environment that we work hard to create wasn't good, I don't 
think those individuals would be returning.
    Chairman Walberg. Your testimony highlights that the Labor 
Department's new H-2B rules would threaten your ability to 
fully recover from the recent recession. Explain a little bit 
in more detail why you say that.
    Mr. Musser. The costs are problematic. Some of the 
suggested changes, such as the requirement to accept an 
individual up to 21 days prior to the need--or the date of 
starting work is difficult.
    If we play by the rules and we do everything in our power 
to find Americans and then are not able to do it and we are 
able to bring an H-2B worker, if we are told up to, you know, 3 
weeks prior to our opening date that we have to remove that 
person it is very difficult to reasonably plan for the season 
and get the crew up to speed and ready for the summer. And then 
to go through the process again is not realistic to find, if 
that American doesn't work out, to find an H-2B person to 
replace him or her.
    So the costs and also the timeframes are two areas of 
difficulties.
    Chairman Walberg. Reality gets in the way.
    Mr. Musser. Yes.
    Chairman Walberg. Ms. Reiff, your testimony suggests that 
there should be a lower-skilled guest worker program that does 
not tie visa-holder to a single employer. Can you elaborate for 
us on the benefits of that approach?
    Ms. Reiff. The idea is that employers in the lesser-skilled 
areas would be able to actually recruit for positions, show 
that--do extensive recruitment, show that they couldn't find 
U.S. workers for particular positions--let's say they are LPNs 
or CNAs--and then they would register within the system and be 
identified as an employer that was not able to find X number of 
workers. Workers, then, that were looking for that type of work 
overseas would have access to a database to show--or through a 
foreign recruiter to show that they also qualified for that 
position. So it was kind of a willing worker, willing employer 
kind of matching database.
    The employer would then be able to get a visa, come in, be 
registered with that employer, be tracked through a monitoring 
system, and if the employee decided to leave they could go to 
another registered employer. So they would be able to leave if 
they decided that they didn't want to be there. But that 
employer would still be registered for those particular slots 
and would be able to recruit another worker, whether it is a 
U.S. worker or somebody from overseas.
    Chairman Walberg. Okay. Thank you.
    My time is expired.
    I now recognize the ranking member, my good friend, Mr. 
Courtney.
    Mr. Courtney. Thank you, Mr. Chairman.
    Just to sort of follow up on that point, I mean, your 
testimony, Ms. Bauer, really was focused a lot on, you know, 
some real horror stories of people who were sort of trapped 
under the existing system with an employer and nowhere else to 
go. I mean, the sort of reform that you were sort of describing 
in terms of more portability--maybe I just was kind of curious 
to have you comment on--on whether or not that would improve 
that obvious problem that your center has identified, and the 
reports, and actually the GAO also identified.
    Ms. Bauer. Well, maybe. And maybe it will make an 
improvement. But I think it is not a panacea, particularly as 
described in this proposal, because workers would still have to 
go to a registered employer; they wouldn't be free to go find a 
job more generally. Our experience is that that is very 
difficult for workers to access those jobs and to find a job in 
the timeframe that is appropriate.
    I think more importantly, those jobs would still remain as 
jobs that would then be available to, presumably, additional 
guest workers who would come in, and paid under the prevailing 
wage rate or paid less than the average wage rate, which would 
have a depressive effect on U.S. wages and working conditions.
    Mr. Courtney. Right. I mean, the wage issue, which again, I 
think you did a nice job sort of walking us through that, I 
mean, that certainly is something that needs to be looked at. 
But, I mean, the AFL-U.S. Chamber joint statement, which again, 
I think we have got to embrace whatever sort of traction we can 
get around this town, you know, when opposing forces are 
coming--trying to come together, I mean, did actually 
specifically say that this present system that, again, locks 
people into one employer should be reformed. And, you know, I 
think that is encouraging.
    Again, how you do it I guess is really the trick here. And, 
what is your response to her observation?
    Ms. Reiff. Well, I think--there are a lot of negotiations 
going on right now but I think it was very important to the 
labor union side to have this portability and the workers being 
able to vote with their feet. It is also very important for 
employers who recruit and can't find U.S. workers to be able to 
have that open slot if they do--if our foreign worker that 
comes in actually leaves and goes to another employer.
    So, for us, I think it is really--it was a big concession 
to say that portability should be from day one, but we also 
need to have those slots still open because there is still an 
open position. That is not to say that a U.S. worker wouldn't 
fill that position, but it should still be in the database as a 
position that is open until it is filled. And I think we are on 
the same page with the unions on that issue.
    Mr. Courtney. Right.
    And, you know, you mentioned database. I mean, it seems 
that for, you know, a smart reform, you know, we need a system 
that actually is better, in terms of just helping American 
workers--we did a job fair in New London County last summer, 
which we had 33 employersthat was the good news--some in health 
care, some in hospitality, some in defense--that had openings. 
We had 1,500 people in the pouring rain an hour or 2 before we 
opened the doors.
    And, you know, it was clear that even though some of these 
employers had been advertising, the system is really still 
weak, you know, in terms of people knowing what is out there. 
And it seems like a reform is going to have to do better, as 
far as data being available, again, to U.S. workers, in my 
opinion, at this time of recession. It is so obvious that there 
is a need there. But also, as the--if we do have a reform, 
there has got to be a way for people to, you know, know what is 
going on out there.
    Ms. Reiff. Absolutely. And----
    Mr. Courtney. But that is not the case now, right?
    Ms. Reiff. Well, there are different--we don't have a 
temporary worker program right now aside from the seasonal non-
agricultural worker program, so we don't really know exactly 
how the lesser-skilled--semi-skilled folks--now, this goes all 
the way up to less than a bachelor's degree--the scope of the 
program, from ``no skill'' all the way up to ``could be an 
RN,'' because RNs don't necessarily need to have a 4-year 
bachelor's degree.
    There has to be ways--we have listed out many different 
ways to recruit these types of workers. It could be job fairs; 
it could be in ethnic media; it could be in many different 
ways. It could be sitting outside the grocery stores. But there 
are many different ways that we have identified in conjunction 
with our counterparts on the other side that could adequately 
test the labor market.
    But yes, our workers--our employers want to hire U.S. 
workers. We want to exhaust the U.S. workforce first and then 
reach out to the foreign workers.
    Mr. Courtney. Right.
    I yield back.
    Chairman Walberg. Thank the gentleman.
    Against my better judgment, and after what Indiana did 
unfairly to Michigan the other night, I will show grace and 
recognize my good friend from Indiana for his 5 minutes of 
questioning.
    Mr. Rokita. Well, thank you for that grace, Reverend--I 
mean Chairman--I mean both.
    Good morning, everyone. Thank you for your testimony. It 
has given me several questions to think about and ask you 
about, but only 5 minutes so I will try to get right to it.
    I want to draw out the idea of numerical limits. If I 
understood the testimony correctly--I will just go right down 
the row--I want to have you cap--summarize your testimony. Do 
you believe in numerical limits? Do you not? If they are 
arbitrary, what is a better--what is not arbitrary? Should 
there be limits at all?
    Ms. Reiff? Thank you.
    Ms. Reiff. Numerical limits are arbitrary currently. The H-
2B program and the H-1B program have set limits that are really 
not--how do we put this--they were not thoughtfully put 
together, they are just there--65,000 for H-1B, 66,000 for H-
2B.
    What we see is a program--a new program that takes into 
account the market needs, and when----
    Mr. Rokita. And who decides what the market needs are? What 
would you use?
    Ms. Reiff. It is probably a combination of things, but 
basically demand and----
    Mr. Rokita. As defined by who and what?
    Ms. Reiff. Demand probably defined by employers and the 
testing of the market.
    Mr. Rokita. What kind of employers? The ones that belong to 
the Chamber of Commerce, or NFIB, or what?
    Ms. Reiff. I am not speaking for the Chamber of Commerce 
here, but----
    Mr. Rokita. That wasn't my question.
    Ms. Reiff. It would be a test of the market. After you have 
done a sufficient test of the market and you can show that----
    Mr. Rokita. Who is you? Department of Labor?
    Ms. Reiff. Well, it would be the agency that is charged. 
Right now the Department of Labor----
    Mr. Rokita. Thank you.
    Ms. Reiff [continuing]. Looks at the labor certification 
application----
    Mr. Rokita. Very good.
    Ms. Reiff [continuing]. So yes.
    Mr. Rokita. Thank you.
    Mr. Benjamin, same kind of question.
    Mr. Benjamin. Sir, I don't pretend to be an expert in all 
the different rules. I can tell you that I live at the ground 
level, and what that means to me is I have a 24/7/365 
responsibility to care for the elderly. And I just want some 
help to bring new workers in.
    Mr. Rokita. Yes. So as an aside, let's take a specific 
question I had for you. Your testimony notes that foreign 
workers interested in the health care field currently face, 
``insurmountable roadblocks.'' Elaborate on that, please.
    Mr. Benjamin. Just being able to get them to come in with 
the limits that are out there currently.
    Mr. Rokita. These caps I am talking about?
    Mr. Benjamin. Caps, yes, sir.
    Mr. Rokita. Okay. Any other roadblocks?
    Mr. Benjamin. Sometimes there are cultural roadblocks, and 
we deal with those in our orientation process. We try very 
carefully. We let our residents be involved, for example, in 
the interview process with people that are going to take care 
of them.
    Mr. Rokita. Okay. Thank you.
    Ms. Bauer, did you want to comment on the 65,000 and 
66,000?
    Ms. Bauer. Well, the--in the H-2B program the cap has not 
been reached since 2008, so we are not filling the 66,000 slots 
that are available.
    Mr. Rokita. But would you agree it is arbitrary 
nonetheless?
    Ms. Bauer. It is not related to changes in the economy but 
it is certainly clear that in the last several years we haven't 
needed more workers than that because we haven't filled those 
slots.
    Mr. Rokita. But would you support a supply-demand kind of 
scenario that Ms. Reiff was talking about?
    Ms. Bauer. Not with a program that is structured as the 
programs are currently structured, we would not support that.
    Mr. Rokita. And along those same lines, Ms. Bauer, do you 
think that a sovereign nation has a duty to its citizens or a 
right of some kind to have an immigration policy that exists 
solely to serve economic interests of the nation?
    Ms. Bauer. No. I think there is a moral component to the 
conditions that we allow people to work under in the United 
States, and there will always be an endless supply of people 
from other countries who are willing to come here and consider 
it even a good deal to make one or two dollars an hour and to 
suffer under what we might regard as appalling circumstances, 
but is that really how we want to structure the work of our 
nation?
    Mr. Rokita. I would say, shouldn't it be the people's 
decision to make? We are not forcing them here are we? They are 
coming here freely. I would like to think that people in this 
country and in this world can make better decisions for 
themselves than you can for them.
    Ms. Bauer. It may be a good decision for an individual 
person.
    Mr. Rokita. Okay.
    Ms. Bauer. I don't dispute that.
    Mr. Rokita. Thank you. Let me get--because I am running out 
of time, let me get to Mr. Musser.
    You have seen the line of questioning. Can you comment on 
any of it?
    Mr. Musser. Yes. In regards to H-2B, I think that the 
returner worker exemption that had been in place is the answer. 
You know, that speaks to the individual that is not trying to 
somehow sneak into our country through the H-2B program. It 
speaks to the individual that has been vetted before and is not 
a security concern to our country. It is the, you know, it is 
the individual that apparently does like our wages and our 
housing and the things that we do and wants to come back. So I 
think that addresses the cap issue.
    Mr. Rokita. Thank you, sir, very much.
    Mr. Chairman, the gentleman from Michigan with poor 
basketball skills, I yield back.
    Chairman Walberg. Grace will be remembered.
    I thank the gentleman.
    And now I am pleased to recognize my friend from New 
Jersey, Mr. Andrews.
    Mr. Andrews. Thank you, Mr. Chairman. Thanks for the 
approach to this issue. It is very important for our country.
    And I join Mr. Courtney in saying I am very hopeful and 
optimistic we will have comprehensive immigration reform this 
year. Our country needs it.
    Ms. Reiff, the core of your argument is that there is an 
undersupply of labor for--to fill necessary jobs in the United 
States, and--but the unemployment statistics show that in the 
construction industry, for example, those who identify their--
Americans who identify their last job as construction is a 15.7 
percent unemployment rate; hospitality is 11.2 percent.
    The AFL-CIO-Chamber principles say that Americans should 
have first crack at available jobs. Do you subscribe to that 
agreement?
    Ms. Reiff. Absolutely. Yes----
    Mr. Andrews. And you say in your testimony that there 
should be ``rigorous recruitment by employers who want to take 
advantage of the H-2B program.'' I want to flesh out with you 
what we mean by rigorous recruitment of Americans--rigorous 
recruitment----
    Ms. Reiff. Are you talking about the H-2B program or the 
new worker program?
    Mr. Andrews. Well, I am talking about your proposals. You 
know, the proposals you made----
    Ms. Reiff. Okay. The proposal for the new guest worker 
programs.
    Mr. Andrews. Yes. It talks about a rigorous attempt to 
recruit Americans before you could use the new program, as I 
understand.
    Ms. Reiff. Absolutely.
    Mr. Andrews. Okay.
    Ms. Reiff. The--go ahead.
    Mr. Andrews. I would assume that in reading a GAO report 
from 2010 you would agree that the following pieces of evidence 
are not consistent with rigorous recruitment: One employer 
required American applicants to run with a 50-pound bag to show 
they were fit for a certain kind of work, which was not 
terribly related to the work, as I understand it. An Oregon 
forestry employer placed ads for open positions in newspapers 
in California and Washington but not in Oregon for the work 
that was supposed to be done there. Kansas City Star expose 
reported by the GAO says that one employer scheduled interviews 
with U.S. workers for 6 p.m. on Christmas Eve to see--does that 
sound like rigorous recruitment to you?
    Ms. Reiff. No, and I am wondering what they are recruiting 
for. Because again, we don't have this temporary worker program 
in place at this point.
    Mr. Andrews. Well, no, they were recruiting for openings in 
the hospitality industry and in the construction and the 
forestry industry, and to meet the requirement to show you had 
tried to recruit U.S. workers this is what they did. What do 
you think rigorous recruitment would look like? Tell me what an 
employer would have to do to establish that burden.
    Ms. Reiff. Well, there are many different things that 
recruiters can do, and in some of our negotiations with the--in 
the current comprehensive reform debate we have come up with 
lists of probably 26 different things that could be considered 
rigorous recruitment, so----
    Mr. Andrews. Could you share a couple with us that you 
think----
    Ms. Reiff. Job fairs, high school job fairs, ethnic media, 
radio ads, Internet recruitment, going to different perhaps 
union halls, community centers, different ways of recruiting. 
There are many different things that are--probably would be 
considered a little bit archaic in the current----
    Mr. Andrews. Do you think that definition should be 
codified in regulations, or issued as guidance, or how do you 
think employers should know what the ground rules are to meet 
the burden of vigorous recruitment?
    Ms. Reiff. I think the ground rules should be very clear 
and it should be identified how many forms of recruitment and 
how that recruitment is conducted. And I think most of the 
employers, at least the ones you have seen here and part of our 
coalition, do over and above what is codified right now in 
terms of recruitment for H-2B and for the permanent residence 
process.
    Employers--good actor employers--want to hire U.S. workers. 
They don't want to----
    Mr. Andrews. Do you think that there is a critical error--
shortage of needed workers in the construction field in the 
United States today?
    Ms. Reiff. Overall? At a 30,000-foot----
    Mr. Andrews [continuing]. In construction.
    Ms. Reiff [continuing]. At a 30,000-foot level, probably 
not. However, I am not--I don't represent the construction 
industry. I am talking on behalf of the Essential Worker 
Immigration Coalition and people in my practice. We have found 
situations where there are specialty construction occupations 
where you cannot find----
    Mr. Andrews. I understand.
    Mr. Benjamin, I want to ask you a question.
    Mr. Benjamin. Yes, sir.
    Mr. Andrews. You say that one of the problems in running 
your facilities--and I know what a challenge it is, ``chronic 
underfunding in Medicare and Medicaid.'' There is discussion of 
a proposal that would reduce Medicaid spending by about 18 
percent under the next 10 years from $4.1 trillion projected 
down--well, the cut is $756 billion.
    If that cut went into effect would that make your job 
easier or harder in running your nursing home?
    Mr. Benjamin. Thank you for asking that question, sir. It 
would make my job all but impossible.
    Mr. Andrews. The numbers I cited are from the Ryan budget, 
which was approved by the House Budget Committee last night and 
will be on the floor of the House next week. Do you think it is 
unwise to cut Medicaid by 18 percent?
    Mr. Benjamin. I can't understand where we would be able to 
save that kind of money. As I mentioned, we are price-takers, 
not price-makers. We take the rates that the states--that are, 
as you know, are already embattled, and governors all over the 
country are having difficulty in funding their states.
    Mr. Andrews. Thank you. As you say, someone who works from 
the ground up, I think, has given us some very valuable insight 
on a budget that the House will vote on next week. Thank you.
    Mr. Benjamin. Thank you.
    Chairman Walberg. I thank the gentleman.
    And it would be hoped that we could certainly find 
significant savings in dealing with waste, fraud, and abuse, 
and I was--I am certain that Mr. Benjamin would not recognize 
that problem in the sense of supporting it, so--let me now 
recognize my good friend from Tennessee, Dr. DesJarlais?
    Mr. DesJarlais. Thank you, Mr. Chairman.
    Thank you all for being here today.
    Let me ask, Ms. Reiff, what is the average wage that you 
offer for most jobs that you are trying to hire--or that are 
competing with American jobs?
    Ms. Reiff. It is quite a range because the scope goes from 
lesser-skilled--unskilled individuals all the way up to people 
that may have a 2-year associate's degree or more.
    Mr. DesJarlais. Just an average, can you----
    Ms. Reiff. Could be $27, $28 an hour at some levels. It 
could be----
    Mr. DesJarlais. And you are having a hard time filling 
those jobs with American workers?
    Ms. Reiff. Believe it or not, yes.
    Mr. DesJarlais. Okay.
    Mr. Benjamin, what is your average wage for the people that 
you are having trouble finding American workers for?
    Mr. Benjamin. For certified nurse's aides the average wage 
is about $11.50 an hour. For licensed practical nurses the 
rate--average rate is about $16.50 per hour. For RNs it is in 
excess of $20.
    Mr. DesJarlais. Okay.
    Mr. Musser?
    Mr. Musser. About $10 an hour.
    Mr. DesJarlais. $10 an hour.
    Do you find that there is a competitor against finding 
American worker--who is your biggest obstacle to finding 
American employees to do these jobs, or what is your biggest 
obstacle, in terms of applicants?
    Mr. Musser. Well, in our case it is location and the fact 
that we are closed for more than half the year, and----
    Mr. DesJarlais. So there are no workers that are willing to 
come out there that are maybe single that don't have families. 
That has been----
    Mr. Musser. Some. And we certainly encourage and do 
everything we can to find those individuals. And our experience 
with the American workforce is that in general if we get you 
for two seasons we get you for about a decade. But the 
challenge is getting them to Mackinac, getting them to accept 
leaving their home for half the year or more than half the year 
to come to us.
    Mr. DesJarlais. Okay, that is good.
    How about, do you find anybody that is standing in the way 
of finding American workers, or what might be?
    Mr. Benjamin. Well, we have--about half of our facilities 
are in rural locations, so that is a locational disadvantage of 
substantial nature.
    Mr. DesJarlais. Well, folks, I am going somewhere with 
this. I guess I will try to get us there quicker.
    I have a lot of nursery workers in Tennessee that hire 
seasonal workers, and they have tried to get American workers 
to come out. We have unemployment rates that exceed the 
national level.
    And it seems what I am hearing from them and actually a lot 
of businesses just around the district that aren't ag-related 
or construction are saying that they can't compete against the 
unemployment rates. If the job is not $10 to $14 an hour you 
can't get people to come off unemployment to take those jobs. 
And are you finding that or are you----
    Mr. Benjamin. We don't hire seasonal workers. We have 24/7/
365 responsibility.
    Mr. DesJarlais. Okay. All right.
    And then how about working with local colleges, vocational 
schools. Are we reaching out to them saying, hey, we need 
workers here; we can't find workers; we are having to get 
immigrant workers? What are you doing to encourage that type of 
cooperation?
    Mr. Benjamin. We have relationships with a variety of local 
community colleges and many of those individuals, part of their 
training is that they have to do an internship, and we gladly 
cooperate with them because we--they are a ready source of 
labor for us.
    Mr. DesJarlais. And, Ms. Reiff, did you have something to 
add to that?
    Ms. Reiff. A lot of our employers offer in-house training 
to U.S. workers. We reach out to vocational schools, to high 
schools, do all kinds of recruiting to try to get people into 
the workforce. We do prison-to-work if possible, welfare-to-
work, refugee programs, reaching out all over the place looking 
for the U.S. workers to take the--a lot of these jobs are just 
very, very demanding and difficult. Being an LPN or a CNA is a 
very demanding job and it takes a special person to deal with 
those.
    Mr. DesJarlais. Okay.
    Well, it seems that there might be a little more incentive 
if it wasn't so easy to get 99 weeks of unemployment that 
Americans would take these jobs. And I understand there has 
been studies, I know in the agriculture area, where they have 
advertised for American workers, they have had big job fairs, 
they will get 3,000 applicants and maybe three will actually 
show up for work and less than that make it through the day. 
They are just not willing to do that job.
    So I think we have a big problem here in the federal 
government by enabling people to not do the work. And I know 
you said $27 an hour, so we are looking $50-some-thousand a 
year. I mean, that is unbelievable that we can't find people to 
take those jobs.
    I did want to yield a few seconds to my colleague, Mr. 
Rokita.
    Mr. Rokita. Thank you, Dr. DesJarlais.
    Mr. Benjamin, going back to the Medicare line of 
questioning----
    Mr. Benjamin. Yes, sir.
    Mr. Rokita [continuing]. Are you aware that the state of 
Rhode Island recently received a waiver which capped their 
Medicaid funding for a whole 5 years in exchange for being 
relieved from nearly all the Medicaid laws, and they put their 
Medicaid patients--the poor that the Medicaid program is 
supposed to serve--in a managed care and they didn't need any 
more money? Yes or no?
    Mr. Benjamin. I am sorry. I didn't understand the question.
    Mr. Rokita. Are you aware of the Rhode Island waiver?
    Mr. Benjamin. Yes, sir.
    Mr. Rokita. Okay. Are you aware that in the state of 
Indiana we have a Healthy Indiana plan that is the product of a 
waiver that in exchange for being released from all the--most 
of the Medicaid rules and regulations we were able to cover 
40,000 more truly poor people without adding a cent more to the 
budget of either our state or federal line items?
    Mr. Benjamin. I am aware of those programs.
    Mr. Rokita. Okay. Thank you very much.
    My time is expired.
    Chairman Walberg. Gentleman's time is expired.
    I now recognize a gentleman who understands the beauty of 
islands, Congressman Sablan.
    Mr. Sablan. Thank you very much, Mr. Chairman, and thank 
you for conducting today's hearing. I think it is an issue that 
we all need to start addressing.
    When I am asked what is the two best things that Congress 
has ever done for the place I am from, and one is to approve 
the permanent political status relationship we have with the 
United States, and the second thing that Congress has ever 
done--the best--second-best thing, I think, is the 
federalization of immigration system law in the Mariana 
Islands.
    Because, Ms. Bauer, testifying--listening--sitting here 
listening to you testify, I thought you were just talking about 
me--my--where I am from. Because we had a guest workers program 
that is just out of whack. We have our government and big time 
companies hiring big guns here in D.C. to just continually 
delay this, and when it was over we found, left with a mountain 
of nasty--listen, things that I have been spending going on 5 
years now trying to correct parts of it, and, because that is 
for us a wall of shame and it is really hard to do, but.
    And, Ms. Bauer, what is the average--what is the amount 
of--the salary pay for H-2 workers--I mean, H-2 for--H workers 
in the country?
    Ms. Bauer. Well, that varies by locality and industry. I 
would say that what is particularly relevant is that the salary 
paid to H-2B workers has been estimated to be as much as $4 to 
$5 dollars less than the average wage in the industry and in 
the locality, so that H-2B employers are able to pay less than 
the average wage. In landscaping that difference has been 
estimated at about $3 per hour; in seafood processing, more 
than $4 an hour.
    So that is certainly part of the story when we talk about 
the inability to attract U.S. workers. And the other side of 
that, of course, is the current recruitment requirements.
    Mr. Sablan. Thank you.
    What we need to do here--and this is why I am very grateful 
to the chairman for bringing this issue up and early is, I do 
understand that we need to strike a balance between the needs 
of employers and the--to prevent the exploitation of workers. 
Again, I am a micro--could somebody say the English word? I am 
a small example--I am the example of what can happen with a 
system run amuck.
    But the key word here is a balance. That is critical to all 
of this. I don't like the attestation, because employers do get 
away with that. I still don't understand whether it is back 
home--and I come from an island so I can't run away from anyone 
who wants to see me. They know where--that hole I have lunch 
at, and--but we--I don't understand why we have unemployment of 
U.S. workers and yet continue to have a need to bring in 
workers from third countries.
    And I don't call--from where I come from I don't call them 
guest workers because some of them have been there for 25 
years, and I don't call them foreign workers because they are 
as much a part of our community as anyone else. So I still 
cannot comprehend whether it is home, where I meet with 
employers and I meet with workers and I meet with--or here, 
when we have unemployment at going on 8 percent per, you know, 
national, and yet you are--some of you are telling us your here 
that we can't find able and willing workers?
    But you can't find them if you advertise for 2 days in the 
paper because these people don't have jobs and probably can't 
afford to read the paper. We--but we need to strike--I do 
understand that a balance.
    And, Mr. Musser, for those of your customers who come to 
you in the winter and they need a place in the summer, there is 
a--we have islands out there. Beautiful place, too.
    But no, seriously, this is an important issue that we need 
to address and I am also very, very happy going on 5 years now 
that CIR--comprehensive immigration reform is being addressed 
by this Congress and we are--last night somebody said that we 
should get it done by August 1st. I look forward to August 1st.
    Thank you very much, Mr. Chairman.
    Chairman Walberg. I thank the gentleman, and we will take 
that under advisement.
    I am now pleased to recognize Ms. Bonamici, from the other 
end of the country.
    Ms. Bonamici. Thank you very much, Mr. Chairman. I apology 
for being slightly out of breath. I am participating in a 
markup in another committee.
    I wanted to reiterate the comments of my colleagues about 
the importance of comprehensive immigration reform, and I am 
certain that others who have listened to this testimony today 
would agree that this is yet another example of why we need 
comprehensive immigration reform.
    I want to follow up on the question that Mr. Andrews asked 
earlier that brought attention to what happened in my home 
state of Oregon.
    And, Ms. Bauer, in 2011 the Department of Labor inspector 
general reported that the forest contractors in Oregon working 
on thinning projects under ARRA were able to bring in foreign 
nationals under the H-2B program even though there was double-
digit unemployment in the counties where the work was being 
done, and it was stated earlier that the advertising for those 
jobs was done in other states.
    The report, which I would ask be entered in the record, Mr. 
Chairman----
    [The report, ``Program Design Issues Hampered ETA's Ability 
to Ensure the H-2B Visa Program Provided Adequate Protections 
for U.S. Forestry Workers in Oregon,'' dated Oct. 17, 2011, may 
be accessed at the following Internet address:]

   http://www.oig.dol.gov/public/reports/oa/2012/17-12-001-03-321.pdf

                                 ______
                                 
    Chairman Walberg. Without objection.
    Ms. Bonamici. Thank you, Mr. Chairman.
    Because of the current system that allows for self-
attestation regarding efforts to recruit U.S. workers a group 
of loggers was able to avoid having to interview U.S. workers 
for available work and the inspector general's report found 
that most Oregonians were not even aware that the jobs were 
available. As it was stated, they advertised outside of Oregon. 
In fact, some of the employers actually discouraged the few 
U.S. workers they interviewed and then, of course, the foreign 
nationals were brought in to do the work.
    Ms. Bauer, as your testimony noted, there is the Department 
of Labor's 2012 final rule to protect workers in the H-2B 
program. This is being challenged and the case is now pending 
before the 11th Circuit Court of Appeals, and two of my 
colleagues from Oregon--both Senator Jeff Merkley and 
Representative Peter DeFazio have filed amicus briefs in this 
litigation.
    So could you talk a little bit about what the rule would 
have accomplished had it been in place in this Oregon 
situation? Would the abuses have been prevented?
    Ms. Bauer. Well, as you noted, the--those regulations would 
have required a certification process, which does involve 
greater oversight by the U.S. Department of Labor. But it also, 
I think, maybe as importantly, requires far more rigorous 
recruitment of United States workers.
    The current system allows for the advertising of these 
jobs--2 days in a newspaper 120 days before the job starts. In 
the world of low-wage workers, that is not a reasonable way to 
recruit workers for low-paid temporary jobs.
    We also see employers fighting against the regulations that 
would--that would produce an online national registry of these 
jobs so people could find out about them and determine whether 
they are good jobs and might be a good fit. Right now it is 
virtually impossible, because of the--some of the issues you 
raised in terms of where the advertisement takes place and when 
the advertisement takes place, for people to find out about 
these jobs. The----
    Ms. Bonamici. Thank you.
    And I read Mr. Musser's testimony from the beautiful 
Mackinac Island and heard about some of the efforts that he is 
taking, but certainly not all the employers are taking those 
efforts. So there has been some suggestion in the testimony 
today that an employer's self-attestation should be the basis 
for a guest worker program. Is that a sound way of approaching 
this policy?
    Ms. Bauer. In our view, no. And let me explain just a 
little bit of what the certification will kind of weed out that 
the attestation process doesn't. Primarily, the difference in 
terms of the process and the oversight is that the people who 
were--the applications that were weeded out under the 
certification process were applications that had jobs that were 
permanent, and that was the largest number of applications for 
H-2B workers that were weeded out by certification that people 
described them as temporary but the DOL looked at them and 
said, ``No, these are good, permanent jobs.'' And attestation 
doesn't allow for that kind of review until after the fact.
    Ms. Bonamici. Thank you.
    And my time is about to expire, but we have talked about 
comprehensive immigration reform, but until we can do that, 
what needs to be done to make it clear that the Department of 
Labor does have the legal authority to issue rules under the H-
2B program?
    Ms. Bauer. Well, we believe the Department of Labor does 
have that authority, but because a court has indicated that 
there is less clarity than that court would prefer, we believe 
that it would be appropriate for Congress to make it abundantly 
clear that they intended the Department of Labor to have rule-
making authority.
    Ms. Bonamici. Thank you very much.
    And my time is expired. I yield back. Thank you, Mr. 
Chairman.
    Chairman Walberg. I thank the gentlelady.
    And I thank each member of the panel for taking the time to 
be with us today and adding the expertise and experience that 
you brought with.
    I now recognize my friend, the ranking member, Mr. 
Courtney, for any closing comments.
    Mr. Courtney. Thank you, Mr. Chairman.
    Again, I just want to reference at the close here the, 
again, the positive signal that the AFL and the Chamber issued 
recently in terms of their, you know, joint commitment to try 
and reform and improve this system. And what the statement said 
in a--just a small portion of it here is, ``our challenge is to 
create a mechanism that responds to the needs of business in a 
market-driven way while also protecting the wages and working 
conditions of U.S. and immigrant workers. Among other things, 
this requires a new kind of worker visa program that does not 
keep all workers in a permanent temporary status, provides 
labor mobility in a way that gives American workers a first 
shot at available jobs, and that automatically adjusts as the 
American economy expands and contracts.''
    I thought that was a very nice way to sort of summarize, 
you know, what the end game should be here for Congress, and I 
want to thank the witnesses for their great testimony today 
because I think it is going to help us guide and direct our way 
to reach that goal, which again, two sides which normally don't 
agree on much are already expressing an historic commitment to 
achieve.
    So thank you, Mr. Chairman, for holding this hearing.
    Chairman Walberg. I thank the gentleman and am impressed 
the attorney with the--that you are with the brevity that you 
carry on here in committee, and that is a good thing and I will 
try to follow suit even though I am a pastor by training.
    I want to thank the panel again for taking the time to be 
here. Your experience, your passion with what you do and who 
you care for, the jobs you provide, the service you provide is 
much appreciated.
    This is an issue and I would concur with both sides of the 
rostrum here that immigration is a huge issue that we have to 
address. And what type of reform, we have to address.
    And I want to make sure that this subcommittee and our 
committee plays a key part in making sure that areas that we 
have purview over and responsibility for are addressed in 
proper ways that have reality, that meet needs, and as much as 
possible don't make more problems. We don't need that.
    We want to encourage the American dream. We want to 
encourage people like my grandmother, grandfather brought my 
father and his brother over from Sweden in the early 1900s, and 
grandfather and family who helped to build the skyline of 
Chicago, and a grandmother who cared for the needs of people in 
Glencoe and the North Shore of Chicago.
    And, Mr. Benjamin, I know you, having grown up in Glencoe, 
understand what that is.
    But Grandma was just delighted, as an immigrant, to clean 
houses, take care of the needs of those people, because her two 
sons went to Glencoe High School, the same place the wealthy 
and others went to and gave her the opportunity to share that 
dream with her children. How she was cared for, I don't know. 
She never said. But she was delighted for the opportunity of 
the American dream to be part of her life.
    We want that to continue. Immigration expands our country--
its creativity, its resourcefulness, and the whole melting pot 
aspect.
    It also spurs those of us who have had the privilege to be 
American citizens and to grow up here, to be born here, to be 
all we can be as well, and we certainly want our objective in 
dealing with H programs--H-2B specifically today, and others, 
to foster that great experience that this country offers and 
must continue to offer, as well as the creativity and the 
strength and resolve of people who yearn to use that in 
responsible ways to expand what this country can be, as well, 
to the rest of the world.
    And so we will continue looking at this, and I appreciate 
comments from both sides of this rostrum on our way forward. We 
will consider that, and ultimately, to have the opportunity to 
do good work.
    I would like also, in conclusion, to enter for the record a 
letter from representatives of the construction industry who 
are not in front of us but wanted to have their comments 
brought forward on this issue, as well as letters from 
landscaping and hotel and lodging industries, the Center for 
Global Development, ImmigrationWorks USA, and the H-2B 
Workforce Coalition.
    [The information follows:]

                                                    March 13, 2013.
Hon. Tim Walberg, Chairman; Hon. Joe Courtney, Ranking Member,
Subcommittee on Workforce Protections, U.S. House of Representatives, 
        2181 Rayburn House Office Building, Washington, DC 20515.
    Dear Chairman Walberg and Ranking Member Courtney: The undersigned 
construction associations represent thousands of employers and hundreds 
of thousands of workers in all facets of construction-from home 
building, to road construction, to heavy industrial production, to 
specialty trade contractors and material suppliers. Together, we 
believe that in order to be successful in fixing America's broken 
immigration system, any viable remedy must do four things: strengthen 
our national security, create a role for employers in an employment 
system that functions in a fair, efficient and workable way, address 
the realities of future workforce needs in the less-skilled sectors, 
and find a reasonable, rational way of dealing with the current 
undocumented population in the United States.
    As the economy recovers, companies in the construction sector will 
face more acute shortages of qualified workers-both craft professionals 
and laborers. Even in recent years during a slow economy, our members 
have experienced difficulty in finding workers. For decades, the 
immigrant workforce has played a vital role in the growth and 
sustainability of our industry, and we are proud to note that for many 
legal immigrants, jobs in the construction sector have provided them 
with a key opportunity to gain a foothold in the American middle class. 
Unfortunately, current immigration laws-which all but ignore the needs 
of sectors that utilize less-skilled immigrant workers-
disproportionately affect construction companies because of their 
fluctuating work needs.
    A major deficiency in the 1986 immigration law was its lack of a 
legal program to address the issue of a pathway for foreign workers to 
enter the United States to work. Because the 1986 law did not create a 
legal system, foreign workers drawn to the United States' dynamic 
economy came into the country illegally. Congress attempted to resolve 
this deficiency in 1990, when it created the H-2B classification for 
low-skilled non-agricultural workers. The program, however, is 
seriously flawed and unable to meet the market's needs. The program is 
capped at a mere 66,000 visas per year and is not market-based, which 
means by definition the supply almost never matches demand.
    To resolve this problem going forward, any future immigration law 
must include a new market-driven program to provide a legal path for 
foreign workers to enter the United States when the economy needs them, 
with fewer entering when the U.S. economy contracts.
    A successful future guestworker program must include:
     An annual visa cap that fluctuates based on a demand-
driven system that reflects the real economic needs of the nation;
     An opportunity for employers to petition for an approved 
slot that allows them to hire visa-holding foreign workers, and replace 
those workers if/when they move onto another approved job slot;
     A time period for job slot approvals, and approved visas, 
that reflects a long enough time period to ensure that the training 
investment made by employers is not lost;
     A program that requires employers to treat these legal 
foreign workers in the same manner as U.S. workers-with all of the same 
benefits, workforce protections and wage rates as similarly-situated 
workers at the same location; and
     A dual-intent process that allows some foreign workers who 
have demonstrated a commitment to their jobs and their communities to 
choose to petition for a change of status to a permanent legal status 
in the United States, while also incentivizing most foreign workers to 
return to their home country at the end of their visa period.
    We have a unique opportunity before us to reform our immigration 
policies to enhance our security, protect our economy, and continue our 
heritage as a welcoming country of immigrants. We urge you to continue 
working together to craft a reasonable and balanced approach to 
addressing America's immigration problems in a way that resolves the 
issue for the long-term. We look forward to working with you, and with 
the Senate and the Administration, to craft and support immigration 
reform legislation that can be considered and passed by Congress this 
year.
    Thank you for your consideration of our views.
            Respectfully,
                       Associated Builders and Contractors,
                            Associated General Contractors,
                               Leading Builders of America,
                  Mason Contractors Association of America,
                     National Association of Home Builders,
                  National Roofing Contractors Association.
                                 ______
                                 

            Prepared Statement of the American Horse Council

    The American Horse Council (AHC) appreciates the opportunity to 
submit testimony concerning the H-2B temporary non-agricultural worker 
program and the ``Role of Lower-Skilled Guest Worker Programs in 
Today's Economy.''
    The AHC is a Washington-based association that represents the horse 
industry before Congress and the federal regulatory agencies. The AHC 
includes over 120 equine organizations representing all horse breeds 
and virtually every facet of the horse industry, including horse 
owners, breeders, veterinarians, race tracks, horse shows, trainers, 
rodeos, farriers, breed registries, horsemen's associations, state 
horse councils and commercial suppliers.
    Despite substantial efforts to recruit and train U.S. workers, 
horse industry owners, trainers, and competitors must use the H-2B 
worker program to bring aliens into the country as temporary, non-
immigrant workers. Without these foreign workers, the horse industry 
could not continue to operate as it does now.
    The horse industry, in all its segments of racing, showing, 
recreation and work horses, involves 9.2 million horses, nearly 2 
million horse owners, has a $102 billion impact on the U.S. economy and 
supports 1.4 million full-time jobs. It involves agriculture, sport, 
entertainment, gaming, recreation and exercise, all built on the 
breeding, training, use and enjoyment of horses and horse activities.
    The racing and showing segments of the industry are particularly 
dependent on the H-2B program. The horse racing industry has a $26.1 
billion economic impact and supports 380,826 jobs. The horse show 
industry has a $28.7 billion economic impact and supports 380,416 jobs. 
The workers provided by the H-2B program are a small portion of horse 
industry workers, however they play a vital role within the industry.
    Most H-2B workers in the industry are directly responsible for the 
care of the horses upon which the entire horse industry is dependent. 
Without these workers to care for the industry's horses, many American 
jobs provided by and supported by the horse industry could be in 
jeopardy.
    Caring for horses is not an easy job. It is hard, dirty work, with 
often erratic hours. Many owners, trainers, and competitors simply 
cannot find enough Americans willing to take these jobs, as grooms and 
stable attendants. Many horse industry participants have reported they 
have not had a single American apply for these jobs in several years. 
Furthermore, these jobs are not really unskilled. They require 
knowledge and understanding of horses, an understanding most Americans 
no longer have. Many H-2B workers have extensive experience with 
horses. Often the same H-2B workers have been returning to working for 
the same employers year after year.
    In January 2009, the Bush Administration issued a new rule 
governing the H-2B program. That rule made major changes to the H-2B 
program by implementing an ``attestation-based'' labor process in place 
of the previous ``labor certification'' process. This change among 
others was intended to make the H-2B program more usable and efficient 
while still providing protections for American and foreign workers. We 
have heard from many horse industry employers that while it is not 
perfect the H-2B program under the 2009 rule is working and serving 
it's intend purpose.
    Unfortunately, the Department of Labor (DOL) finalized a new H-2B 
wage rule on January 19, 2011. This rule artificially increases the 
wages rates for H-2B workers far above current market based wage rates. 
Congress realized the adverse impact this rule would have on businesses 
and has to date prevented it from being implemented. Furthermore, the 
DOL then finalized a new H-2B rule that would roll back most of the 
provisions of the 2009 Rule that made the H-2B program more usable and 
efficient and will add new and burdensome requirements. This rule would 
make the program vastly more costly, complicated and would make the 
program unusable for many horse industry employers. The DOL has been 
prevented from implementing this rule by a federal court in Florida 
that issued a temporary injunction against it.
    The AHC believes Congress must permanently block the DOL from 
implementing either of these new H-2B rules. Horse industry employers 
who are forced to utilize H-2B workers are very often small businesses. 
They will be hard pressed to absorb any increase in costs these rules 
could force upon users of the program.
    The reality in the horse industry is that most Americans are unable 
or unwilling to take the jobs foreign workers usually fill. These 
foreign workers make up a small portion of all the workers employed and 
supported by the horse industry. However, without these foreign 
workers, the horse industry could not function and the hundreds of 
thousands of Americans jobs would be lost.
    Horse industry employers use the H-2B program because they have to, 
not by choice, because American workers are not seeking these jobs. In 
the current economic conditions any changes to the H-2B program that 
increase the cost of an already costly system could be devastating to 
those employers who rely on H-2B workers. Most horse industry employers 
who use the H-2B program also employ American workers in other 
capacities and support many other jobs. If current users of the H-2B 
program are no longer able to afford to participate the jobs of many 
Americans employed by the horse industry will be put at risk.
    It is absolutely vital for of the horse industry to have access to 
a functioning, efficient and cost effective foreign temporary non-
agriculture worker program to meet its labor needs. In light of recent 
DOL rulemaking, the AHC believes it will be up to Congress to make sure 
the H-2B program can serve its intended purpose of providing seasonal 
employers with a legal means to hire workers when no U.S. workers can 
be found.
    The AHC appreciates this opportunity to submit testimony to the 
committee. If the committee would like any additional information 
regarding temporary worker programs and the horse industry, please 
contact us.
                                 ______
                                 
          Michael A. Clemens, Ph.D., Senior Fellow,
  Center for Global Development, 1800 Massachusetts Ave NW,
                                    Washington, DC, March 13, 2013.
Hon. Tim Walberg, Chairman; Hon. Joe Courtney, Ranking Member,
Subcommittee on Workforce Protections, U.S. House of Representatives, 
        2181 Rayburn House Office Building, Washington, DC 20515.
    Dear Chairman Walberg and Ranking Member Courtney:
Foreign Workers Benefit Massively from Guest Work Opportunities: 
        Unequivocal Findings of Economic Research
    Leading development economists find that authorized guest workers 
typically draw massive economic benefits from their work, relative to 
their best alternatives. They migrate voluntarily, pass on large 
benefits to their families and home countries, and almost universally 
return home when guest work programs are well designed. Expanding 
opportunities for authorized guest work reduces the exploitation of 
migrant workers by competing directly with the black market for labor.
    The Center for Global Development is a non-partisan, independent, 
and non-profit think tank dedicated to reducing global poverty and 
inequality through rigorous research. This submission briefly 
summarizes the latest research by myself and other economists regarding 
the effects of guest work on guest workers.
    Authorized guest work is the economic opportunity of a lifetime.
    Authorized guest workers are the opposite of `cheap labor'. Workers 
who migrate with a guest work visa raise the value of their labor, and 
therefore their earning power, enormously. Almost all have no other way 
to raise the value of their labor to anywhere near the same degree.
    First, authorized guest workers' labor would be much cheaper, and 
they would therefore earn less, if they instead worked in the black 
market for labor. Today's typical seasonal workers with an H-2 visa 
earn well above minimum wage; unauthorized workers routinely earn below 
minimum wage doing the same task.
    Second, guest workers' labor would be even cheaper--vastly 
cheaper--if they could not migrate at all. In a 2008 paper, my co-
authors and I estimate that low-skill workers from Mexico, Guatemala, 
and Haiti who work temporarily in the United States experience life-
changing increases in earning power, between 300% and 1,000% or more, 
depending on the country of origin.\1\ No other economic opportunity of 
this magnitude exists for almost all of these workers, anywhere.
    It is incorrect to suggest that participation in authorized guest 
work programs is typically coercive. My research on the largest US 
employer of authorized seasonal agricultural guest workers shows that 
about 4 out of 5 hires each year are repeat hires.\2\ The Independent 
Agricultural Workers Center in Yuma, Arizona, which places about 1,000 
authorized Mexican guest workers at US farms each year, has a waiting 
list of over 7,000 Mexicans, hoping for the chance to work legally US 
farms. Most already have experience working in the United States on 
identical tasks.\3\
---------------------------------------------------------------------------
    \1\ Michael A. Clemens, Claudio Montenegro, and Lant Pritchett. 
2008. ``The Place Premium: Wage Differences for Identical Workers 
across the U.S. Border''. Working Paper 148, Center for Global 
Development. The referenced estimates assume that authorized guest 
workers remit 60% of their earnings to their home country.
    \2\ I analyze internal records of the North Carolina Growers 
Association, the largest single employer of H-2A seasonal agricultural 
workers, in a forthcoming study from the Partnership for a New American 
Economy and the Center for Global Development.
    \3\ Michael A. Clemens. 2012. ``This Beats Most Aid by Miles--And 
It's a Migrati on Non-Profit''. Views from the Center, Center for 
Global Development.
---------------------------------------------------------------------------
    The vast majority of today's guest workers choose voluntarily to 
participate in the program based on firsthand experience of its 
extraordinary benefits. What is certainly harmful to low-skill foreign 
workers is the absence of flexible legal channels for US firms to hire 
them, particularly in non-seasonal sectors.
    Authorized guest workers also pass on very large benefits to their 
families and communities back home. A rigorous evaluation found that 
the overseas families of authorized guest workers in New Zealand 
experienced large increases in household consumption, child schooling, 
and community infrastructure--making this program ``among the most 
effective development policies evaluated to date.'' \4\ I have surveyed 
the families of Filipinos doing authorized guest work in South Korea in 
a rigorously controlled study, and I find that they experience dramatic 
increases in purchasing power, especially for children's education, and 
decreased indebtedness.\5\ In a forthcoming paper I survey the families 
of authorized Indian guest workers in the United Arab Emirates, finding 
similar massive, positive effects of having a household member, working 
abroad earning over four times what he could earn at home.
---------------------------------------------------------------------------
    \4\ John Gibson and David McKenzie. 2010. ``The Development Impact 
of a Best Practice Seasonal Worker Policy: Newzealand's Recognised 
Seasonal Employer (RSE) Scheme''. Working Papers in Economics 10/08, 
University of Waikato, Department of Economics.
    \5\ Michael A. Clemens and Erwin R. Tiongson, ``Split Decisions: 
Family Finance When a Policy Discontinuity Allocates Overseas Work'', 
Policy Research Working Paper 6287, World Bank.
---------------------------------------------------------------------------
    Guest workers do return home when programs are well designed.
    Problems with guest work programs two generations ago--braceros in 
the United States and Gastarbeiters in Germany--remain a common point 
of reference. But just as telephone technology has changed since the 
1950s, the design of guest work programs has changed as well. Canada 
and New Zealand now have successful and popular programs for authorized 
agricultural guest work that are large relative to the size of their 
economies.
    Smart design of guest work programs is critical to their success. 
In New Zealand, much less than one percent of authorized guest workers 
fail to return home as promised. This is attributable to key design 
features such as minimum employment guarantees for complying repeat 
participants, targeting remote farms, and creating incentives for 
employer cooperation in monitoring.\6\
    It is a myth that all workers who come to work in the United States 
wish to do so permanently. In fact, circular migration has been 
integral to US history. Frequent movement back and forth across the 
border is a generations-old tradition not just for today's Mexican 
migrants,\7\ but for many Southern European migrants to the United 
States over a century ago.\8\
---------------------------------------------------------------------------
    \6\ Department of Labour. 2010. Final Evaluation Report of the 
Recognised Seasonal Employer Policy. Government of New Zealand.
    \7\ Douglas S. Massey, Jorge Durand, and Nolan J. Malone, eds. 
2003. Beyond Smoke and Mirrors: Mexican Immigration in an Era of 
Economic Integration. Russell Sage Foundation.
    \8\ Dino Cinel. 2002. The National Integration of Italian Return 
Migration: 1870--1929. New York: Cambridge University Press.
---------------------------------------------------------------------------
    What clearly deters return migration, as numerous studies have 
shown, is harsh measures to stop unauthorized migration without 
creating channels for authorized movement such as opportunities for 
authorized guest work.\9\ Because there is no legal channel for 
migration, enforcement-only policies lead many unauthorized migrants to 
fear that they will lose the future option to work in the United States 
if they return home.
---------------------------------------------------------------------------
    \9\ See papers by Fernando Riosmena and by Belinda Reyes in: Jorge 
Durand and Douglas S. Massey. 2004. Crossing the Border: Research from 
the Mexican Migration Project. Russell Sage Foundation.
---------------------------------------------------------------------------
    The real alternative to authorized guest work--black market 
employment--is much more exploitative of foreign workers.
    To analyze the impact of temporary guest worker programs on 
migrants, it is only relevant to analyze guest work relative to 
migrants' alternatives, which would be to stay home or come to the US 
as undocumented migrants. It is irrelevant to compare the benefits of 
guest work to the benefits of legal permanent residence or US 
citizenship.
    In the absence of a guest worker program, workers hoping to migrate 
to the United States have only two options: participate in the black 
market for migrant labor and increase their earning potential, or, to 
remain at home. Neither of these serves the interest of low-skill, low-
income foreign workers.
    To be concrete: in 2006, the US Senate passed a bill that, if it 
had been signed into law, would have created 200,000 visas for low-
skill authorized guest work. Because those 200,000 slots for authorized 
guest workers were not created in 2006, almost all of those 200,000 
people, who would have migrated each year, have done one of two things: 
they have either come as undocumented migrants without any legal 
protections at all, or they have--against their will and despite 
employers' desire to hire them--been unable to work in the United 
States. These have been the genuine alternatives for potential US guest 
workers in the past; and it is the harsh conditions experienced by 
these groups--unauthorized migrants and non-migrants--that is the 
relevant point of comparison for the lives of authorized guest workers.
Recommendations
     Congress should determine the size and scope of a US guest 
worker program by balancing the needs of US workers and US employers. 
No serious economic research supports the notion of limiting the size 
or scope of a US guest worker program in the interest of current or 
potential guest workers. Guest workers and their families benefit 
massively from authorized guest work opportunities, far more than from 
any real alternative available to most of them.
     Guest work programs are not doomed to fail. The world has 
moved on from guest work programs of two generations ago, and today's 
world has examples of successful, popular guest work programs with 
almost universal return rates. Careful design of the program is key to 
this success.
     The real-world alterative to guest work visas, in any 
substantial numbers, is either unauthorized migration, which increases 
earnings but provides no legal protection, or staying at home without 
the opportunity to pass on large benefits to their families and home 
communities. Given these alternatives, a well-designed guest worker 
program is in the best interests of the potential migrants.
                                 ______
                                 
                                                    March 14, 2013.
Hon. Tim Walberg, Chairman, Subcommittee on Workforce Protections,
U.S. House of Representatives, 2181 Rayburn House Office Building, 
        Washington, DC 20515.
    Dear Chairman Walberg: In conjunction with the Subcommittee's 
hearing entitled ``Examining the Role of Lower-Skilled Guest Worker 
Programs in Today's Economy,'' I appreciate the opportunity to provide 
information to the committee about the importance of the H-2B program 
to our company, our U.S. workforce, and our community.
    I am Vice President and Operations Manager for Progressive 
Solutions LLC. Our company is headquartered in the small rural town of 
Marshall, Arkansas, located deep in the heart of the Ozark Mountains. 
Our business is fairly unique. We perform low volume selective stem 
back pack herbicide application for a number of clients, including for 
electric utilities to control brush growing under electrical lines. We 
provide our services to clients in more than 20 states throughout the 
Southeast, Midwest and Mid-Atlantic areas of the U.S. with the 
assistance of more than 300 seasonal H-2B employees that supplement our 
permanent U.S. workforce.
    We work in a difficult outdoor environment. Workers are organized 
into crews and walk up to 10 miles per day, often over rough terrain 
and in adverse weather conditions. Our work is performed seasonally, as 
we can only treat brush when leaves are on the trees--typically late 
spring to early fall. The work is migratory in nature, with work in any 
particular area lasting just two to four weeks, and crews having to 
move locations frequently. It is not unusual for a crew to work at 6-10 
locations over a 6 month period, often in three or more states.
    In our experience, the difficult nature of the work, the seasonal 
aspect, and the migratory movements of the crews make this job 
unappealing to most U.S. workers. Despite aggressive recruitment of 
U.S. workers each year and the hiring of any able-bodied U.S. worker 
interested in the job, U.S. workers comprise less than 1% of our 
migrant workforce. And we pay wages for this work that far exceed the 
minimum wage. We estimate that within our industry, over 95% of the 
people performing this work (approximately 2000) are H-2B workers. In 
fact, this labor intensive work was really never performed by a U.S. 
labor force because this herbicide application work is so closely 
related to reforestation work, which is also highly dependent upon H2B 
workers.
    Over the years, the herbicide application work performed as part of 
reforestation efforts has also been utilized in other forestry and 
forestry-like settings. Before ``back pack application'' of herbicide 
was developed, the control of brush in other forested and overgrown 
areas, including under electric utility lines, was primarily done using 
heavy machinery or by helicopters spraying herbicide. Our company's 
method of clearing bush by, for example, spraying each individual stem 
that might grow into the electric line and cause an outage, is the most 
environmentally safe and cost-effective way to tackle the problem of 
invasive vegetation. This is a critically important role that we 
perform for utility companies to help ensure they are able to maintain 
electric reliability. Over 90% of the utilities in states where we 
operate, rely on migrant crews to help manage their right of ways.
    Our company has over 50 U.S. employees that manage our H-2B crews, 
and perform sales or administrative tasks that keep our company 
running. We are one of the largest employers in our community and use 
the services and products of many local and regional businesses. This 
year alone we will purchase over 30 additional trucks to transport our 
workers; adding to our existing fleet of 116 company-owned vehicles.
    We have been using H-2B workers for over 20 years, and many have 
been with our company almost that long. The vast majority of our 
workers return year after year and new workers are typically family 
members of those who work for us. We have never used the services of 
recruiters in Mexico. In fact, many of our current employees tell us 
they have several relatives who would be willing to accept work with us 
because of their desire to find safe and legal employment in the U.S. 
Few, if any of our employees, have expressed any desire to stay 
permanently in the U.S. Rather, they are happy to come to the U.S. on a 
temporary visa for 6 months of work and then return to their families 
with the money they have saved during their employment. They use their 
earnings to improve and enrich their families, farms, and communities 
in their homeland.
    Over the past several years, navigating the administration process 
to obtain H-2B workers has been extraordinarily difficult, burdensome, 
and costly. We have spent hundreds of thousands of dollars in legal and 
administrative fees just to get through the overly bureaucratic process 
that is the H-2B program. Twenty years of documented history shows that 
there are virtually no U.S. workers interested in doing this job, yet 
every year, we begin the year not knowing if we will be able to have H-
2B workers certified by the Department of Labor. The stress and 
uncertainty causes great harm to our company, our employees who depend 
on us for their livelihood, and our vendors who provide over 12 million 
dollars in goods and services to our company.
    If implemented, the DOL's proposed new wage rule and new program 
rule (currently on hold because of a court order) will cause 
irreparable harm to all H-2B employers and to our U.S. workforce. 
Additionally, we continue to face difficulties with the DOL that 
specifically affect our industry. Recently, DOL has suddenly taken a 
new position wherein they are attempting to prevent us from employing 
H-2B workers at multiple worksites, despite the fact that the very 
nature of our work is migrant and requires work at multiple worksites. 
In fact, that is the basis of our entire company and we have been 
approved by DOL to perform work in that manner for as long as we have 
been in the H-2B program.
    DOL has traditionally processed our workers under forestry-related 
job codes and allowed us to apply for workers under the Department's 
``special procedures'' for forestry-related work. In recognition of the 
unique work requirements of migrant employers, which are different from 
fixed site employers, the special procedures allow an employer to file 
an application that includes multiple work locations where work will be 
performed along a tentative itinerary. Recently, and inconsistently, 
the DOL has arbitrarily determined that we should not perform work in 
this manner. Instead, they have at times suggested that we should be 
classified as something like a groundskeeper, which would mean that 
rather than filing a few applications per year, we would be forced to 
file nearly a hundred separate applications for each and every separate 
piece of land where we will work. Aside from the bureaucratic nightmare 
of so much paper, that process would be logistically impossible because 
our work crews are constantly on the move and government paper 
processing, which requires weeks and months, would never be able to 
keep up. Working in migratory patterns based on weather and working on 
an itinerary is an essential aspect of the services we provide. Thus 
far, we have been able to continue our operations, but after several 
years of correspondence and meetings with the DOL, these issues are 
still not definitively resolved.
    We are prepared to meet with the DOL in good faith with hopes of 
finding a solution to this problem, but we are concerned about the lack 
of progress and all of the other uncertainty that surrounds the H-2B 
program. Our company and our industry, is dependent upon a workable H-
2B program that provides a stable regulatory environment appropriate to 
the work we perform. Many businesses like ours provide employment and 
security to many, without negatively impacting the U.S. labor market. 
We hope that members of the Committee will keep these concerns in mind 
as they consider immigration reform legislation--and particularly the 
need for a workable lower-skilled guestworker program--during this 
Congress.
    For the committee's reference, I have attached a copy of a report 
describing the type of work performed by our industry. Thank you for 
your consideration.
            Sincerely,
                                     Michael Economopoulos.
                                 ______
                                 

                        H-2B WORKFORCE COALITION

                 Protecting American Workers Through a
                 Stable and Reliable Seasonal Workforce

                     www.h2bworkforcecoalition.com

            principles for comprehensive immigration reform
About the H-2B Program
     The H-2B program is essential for seasonal businesses that 
cannot fill temporary jobs with American workers despite intensive 
recruitment efforts. Seasonal non-agricultural industries that use the 
H-2B program include seafood processing, food processing, horse 
training, restaurants, hotels, forestry, landscaping, carnivals and 
amusement parks, and stone quarries. Because the program is expensive, 
time-consuming and involves four government agencies, employers only 
turn to the program if they are unable to find legal local workers.
     The H-2B program is important to American workers whose 
year round positions are reliant upon seasonal laborers during peak 
seasons. In companies that use the H-2B program, both American full 
time and H-2B temporary seasonal workers are well compensated; often 
well above the federal minimum wage and the prevailing wage.
     For H-2B workers, the program provides well-paying 
seasonal jobs that allow them to provide for their families and still 
maintain their homes in their native countries. Many of these workers 
voluntarily return to the same employer year after year.
     The H-2B program is important to the U.S. economy. Without 
access to a legal source of seasonal labor, employers will be forced to 
lay off American workers, scale back on vehicle, equipment and supply 
purchases and perhaps even close their businesses.
Immigration Reform Principles
     Immigration reform must maintain a viable seasonal worker 
program along the lines of the existing H-2B program for non-
agricultural workers.
     Immigration reform should maintain the current protections 
for American and H-2B workers and not impose costly burdensome new 
requirements on employers who use the H-2B program such as those 
created under the temporarily blocked Department of Labor wage 
methodology and program rules.
     Wage rates required to be paid to H-2B and similarly 
employed American workers shall be based on economic realities and 
local markets. Wage rates should not be based on arbitrary formulas 
that are well above wage rates paid in the local labor market.
     The H-2B returning worker exemption should be re-instated 
and there should be an expedited process for consular visa processing 
for H-2B returning workers.
     The number of participants in the program should be 
market-based, allowing the number of participants to fluctuate up or 
down based on economic needs.
     Immigration reform should provide sufficient resources for 
federal agencies to process H-2B applications in a timely manner. 
States should have an appropriate role in program administration.
     H-2B applications should not be released to the public to 
protect the confidential business information submitted by employers 
and to prevent the businesses from being harassed by outside 
organizations.
     The Coalition supports strong enforcement of all the 
program rules, including the increased security procedures at US State 
Department consulate offices. Employers will continue to notify 
officials when they become aware of workers that may have not complied 
with the terms of their visas.
                                 ______
                                 

               Prepared Statement of ImmigrationWorks USA

    What's the most important piece of comprehensive immigration reform 
you never heard of? It's fixing the legal system so it works for the 
future--for immigrants and for the U.S. economy.
    Many Americans think reform is about the 11 million unauthorized 
immigrants already living in the United States. Many have been here for 
years and have put down roots. We're not going to deport them--not even 
the harshest restrictionists think that's practical. Nor are most 
likely to go ``home'' voluntarily, no matter how difficult we make 
their lives with tough enforcement. For the overwhelming majority, 
America is home by now. And they are sure to be the most contentious 
issue as the immigration debate heats up in months to come.
    But most contentious is not the same as most important.
    What most people don't stop to ask: what created this problem in 
the first place? Exactly what is it about the broken immigration system 
that produced this vast underground world of workers and families--a 
population the size of Ohio?
    The root cause: for less-skilled foreigners who want to come to 
work legally in the United States, there is no ``line'' to get in or 
wait in--no visas available for workers like them.
    The two existing programs for low-skilled temporary workers are for 
seasonal labor only: farmhands, landscaping crews, summer and winter 
resort workers. There are virtually no permanent visas for less skilled 
workers. So there simply is no avenue for an uneducated Mexican unless 
he has family members living legally in the U.S. who can sponsor him 
for a family visa.
    Many, if not most, of the 11 million already here would have 
preferred to enter the country legally if that were possible. But they 
and others like them have no lawful option.
    This wouldn't be a problem if we didn't need immigrant workers. But 
we do. And we're going to need them increasingly as the economy 
recovers.
    This isn't because American workers are somehow lacking or 
inadequate. On the contrary, for the most part, it's because Americans 
are doing better than in decades past. We're becoming better educated 
and aspiring to the kinds of jobs for which our better educations 
prepare us.
    In 1960, half of the native-born men in the labor force were high 
school dropouts happy to do physically demanding, low-skilled work. 
Today, less than 10 percent of the native-born men in the labor force 
are high school dropouts. And meanwhile, far from shrinking, the demand 
for low-skilled labor is growing over time. In 1955, for example, 25 
cents of every dollar spent on food was spent in a restaurant. Today, 
the figure is nearly 50 cents. And one of the fastest-growing 
occupations in America is home health aide.
    But very few Americans with high school diplomas aspire to careers 
as busboys or home health aides. And they shouldn't--their educations 
equip them to do more productive work, making better wages and 
contributing more to the economy.
    U.S. demand for immigrant workers eases somewhat in a down 
economy--and far fewer workers want to come to the U.S. when jobs are 
scarce. But even then, we still need some foreign labor, and those 
workers need a legal way to get here.
    The lesson for policymakers: whatever program we create needs to be 
flexible, growing in good times to accommodate rising labor needs and 
shrinking in down times when demand subsides.
    To be clear, the goal of reform is not to increase the overall 
number of unskilled immigrants entering the country.
    What's needed is to end illegal immigration by creating ways for 
needed workers to come legally--creating worker visas and establishing 
a program that allows employers who can't find enough willing and able 
Americans to connect easily and quickly with lawful immigrants.
    This is not just an economic imperative. Without it, there can be 
no successful immigration law enforcement.
    Even the best, most effective enforcement is no match for the 
dynamism of the U.S. economy. As long as there are jobs available, 
foreigners will want to come to work here. And if we want to prevent 
them from coming illegally, we need to create lawful alternatives.
    Finding a solution for the 11 million unauthorized immigrants 
already in the country addresses the mistakes of the past but fixes 
nothing going forward. Unless we create ways for the immigrants of the 
future to enter legally, we're going to find ourselves in exactly the 
same predicament a decade or two down the road--wondering what to do 
about 10 or 20 million unauthorized immigrants living among us but 
beyond the rule of law.
    The only way to prevent this: a legal immigration system that 
works--not just an answer for the 11 million and tougher enforcement, 
but a way for the workers we need to keep the economy vibrant and 
competitive to enter the country and work legally.
    ImmigrationWorks USA is a national federation of employers working 
to advance better immigration law. The network links major 
corporations, national trade associations and 25 state-based coalitions 
of small to medium-sized business owners concerned that the broken 
immigration system is holding back the nation's economic growth. Their 
shared aim: legislation that brings America's annual legal intake of 
foreign workers more realistically into line with the country's labor 
needs.
Why business needs immigrant workers
    On March 1, 2013, ImmigrationWorks sponsored a briefing for 
congressional staffers: a panel of employers from across the U.S. 
explaining their reliance on immigrant workers. Panelists included a 
Georgia restaurateur, a manager of Colorado vacation rentals, a senior 
vice president at a large Midwest hospital and the vice president of a 
Maryland construction company. They explained the kinds of jobs 
available at their businesses, the wages they offer, how they try to 
hire Americans and how immigrants help them keep their operations 
running and contributing to the economy.

    ``Employers who hire immigrants believe the most important piece of 
the immigration puzzle is fixing the system so it works for the future. 
That means creating a way for the high- and low-skilled immigrants we 
need to keep the economy vibrant and competitive to enter the U.S 
legally and work.''

                         Moderator Tamar Jacoby, President,
                                              ImmigrationWorks USA.

    ``Most Americans apply for front-of-the-house positions. The few 
who do apply for jobs as cooks and dishwashers usually last only a few 
days and then quit. Back-of-the-house jobs are very tough--slippery 
floors, hot fryers and a fast pace all day long. We rely on immigrants 
to fill our back-of-the-house jobs.''

                                       Tad Mitchell, Owner,
                                        Six Feet Under restaurants.

    ``We can't find enough Americans to fill jobs in housekeeping, 
dietary and other departments in the hospital. If it weren't for the 
Bosnian refugees, we wouldn't have a housekeeping department.''

       Joe LeValley, Senior vice president of planning and 
                                                  advocacy,
                                              Mercy Health Network.

    ``We place job ads in the paper and on the internet. We go to job 
fairs and prisons to find ex-offenders who are willing to work. But we 
cannot find enough American workers. Nearly 80 percent of our 1,500 
workers are immigrants. It's hard to find qualified workers. The job is 
labor intensive and the working conditions are tough--it's cold in 
winter and hot in the summer. We work early and late.''

              Otto Girr, Vice president of human resources,
                               Miller & Long Concrete Construction.

    ``There has been a dramatic shift in our workforce. Thirty years 
ago, our workers in housekeeping were all Americans. Today they are all 
Hispanic. No American has applied for a housekeeping job at my company 
for more than 15 years. Even in the downturn, we've placed ads in the 
paper for jobs paying $17 an hour and no one applies.''

                                         Dale Bugby, Owner,
                                               Vail Resort Rentals.

    ``The EB-5 investor visa application is 4,000 pages. It's extremely 
difficult and you get the feeling after a few months that the 
government is trying to discourage you from obtaining the visa. Many 
people don't apply because the administrative process is too onerous.''

      Nicholas Logothetis, Board member and senior advisor,
                                                   The Libra Group.
                                 ______
                                 

Prepared Joint Statement of Sabeena Hickman, CAE, CMP, Chief Executive 
Officer, Professional Landcare Network (PLANET); and Michael V. Geary, 
     CAE, Executive Vice President, American Nursery and Landscape 
                           Association (ANLA)

    Chairman Walberg, Ranking Member Courtney, and members of the 
Subcommittee on Workforce Protections, thank you for the opportunity to 
provide comments on the H-2B program, which is crucial to the landscape 
industry. The Professional Landcare Network (PLANET) is the national 
trade association representing more than 100,000 landscape industry 
professionals, who create and maintain healthy, green living spaces for 
communities across America. PLANET members are committed to the highest 
standards in industry education, best practices and business 
professionalism. Many of PLANET's professionals have attained the 
status of becoming Landscape Industry Certified, achieving the greatest 
level of industry expertise and knowledge.
    Founded in 1876, the American Nursery & Landscape Association 
(ANLA) is the national trade association of the vertically-integrated 
nursery and landscape, or ``green'' industry. ANLA membership comprises 
over 10,000 affiliates that grow nursery and greenhouse plants, sell 
lawn and garden products, design, install, and care for landscapes, and 
sell supplies to the industry. Typical members include growers, garden 
center retailers, horticultural distributors, landscape professionals, 
and suppliers to the industry. A number of firms are engaged in more 
than one of these operations.
    The H-2B program provides a vital and legal source of seasonal 
labor for the landscape industry and other industries that cannot fill 
their labor needs with American citizens. Employers who turn to the H-
2B program do so as a last resort. The landscape industry is one of the 
major users of this program because the industry requires numerous 
workers during the busy spring and summer seasons. Employers are unable 
to attract significant numbers of American workers for these labor-
intensive, short-term, seasonal jobs. Because of the seasonal nature of 
the industry, traditional sources of manual labor, such as college 
students, are not available, and the heavy machinery used in the 
business prohibits companies from hiring high school students. Before 
they even apply for H-2B workers, companies go through an intensive 
recruitment period in an attempt to hire Americans and must prove that 
they cannot find Americans to take the jobs. They would gladly hire 
American workers if they could.
    The landscape industry is a large contributor to the U.S. economy. 
The industry is composed mostly of small businesses, the engine that 
drives the U.S. economy. According to the Economic Impacts of the Green 
Industry in the United States publication by the University of Florida 
and Texas A&M University, the economic impacts for the U.S. Green 
Industry in 2007 were estimated at $175.26 billion (Bn) in output, 
1,949,635 jobs, $107.16 Bn in value added, and $53.16 Bn in labor 
income (these values are expressed in 2007 dollars). The largest 
individual sector in terms of employment and value-added impacts was 
landscaping services (1,075,343 jobs, $50.3 Bn). When the landscape 
industry cannot get the H-2B workers it needs, the economic losses have 
a multiplier effect to suppliers and other jobs throughout the economy.
    According to 2007 estimates, approximately 2,800 landscape 
companies participate in the H-2B program and spend about $77.28 
million annually just on landscape equipment. In addition, they spend 
approximately $115.36 million annually on fleet vehicles, $2.8 million 
on payroll services, $6 million annually on computers, $4.3 million 
annually on tires, and $13.6 million on cell phones and wireless 
radios. Without the H-2B workers, not only will these landscape 
companies suffer, supplier companies will feel the economic downturn as 
well.
    According to the U.S. Department of Labor Bureau of Labor 
Statistics, grounds maintenance workers held about 1.3 million jobs in 
2010. Employment of grounds maintenance workers is expected to grow 
about 20 percent between 2010 and 2020. Grounds maintenance workers 
will have among the largest numbers of new jobs (around 254,600) arise 
over this 10-year period. There will be an increased need to fill these 
jobs. The H-2B program is the only legal way that employers can fill 
these seasonal jobs.
    Unfortunately two pending Department of Labor (DOL) regulations 
would make the program virtually unusable for seasonal employers. 
Further, the program contains an arbitrary 66,000 cap (33,000 for each 
half of the fiscal year) on the number of H-2B workers permitted to 
work in the United States each year. As the economy begins to recover, 
this low cap could threaten to shut many landscape companies out of the 
program, as was the case in 2007 and 2008 when Congress allowed the H-
2B returning worker exemption to expire and the economy was still 
strong. A workable H-2B program is vital for seasonal employers and 
their permanent American workers whose jobs require the support of 
seasonal laborers.
    For the H-2B workers, the program allows workers to provide for 
their families in their home countries and contribute to the economic 
development of their communities. Further, the returning workers have 
proven repeatedly that they will not overstay their visas by returning 
to their native countries promptly after the completion of their 
seasonal work assignments.
    H-2B workers are well compensated and receive the same wages as 
Americans would if they applied for and accepted these jobs. The U.S. 
Department of Labor surveys companies in the geographic area of the 
employer to see what the industry currently pays workers doing similar 
jobs and thus sets a minimum variable wage rate per hour. This 
prevailing wage is always well above the federal minimum wage. Further, 
many companies pay their employees even more than is required by the 
Department of Labor.
    Unfortunately, DOL has targeted the H-2B program, and by extension 
those law-abiding employers that are forced to utilize it, for virtual 
elimination with punitive rules. A January 19, 2011 DOL rule seeks to 
artificially increase wage rates for the H-2B workers well above 
rational economic levels. According to DOL's own estimates, the rule 
will increase H-2B wages in the landscape industry by $4.32 per hour. 
The actual cost to employers will be much higher than DOL's estimate 
since DOL fails to account for wage increases for similarly employed 
American workers or more experienced American workers whose pay should 
reflect their greater skill or expertise level. The DOL estimate also 
does not include additional payrolls costs, workers compensation 
insurance, overtime costs and other associated increases. Luckily, 
Congress has blocked this rule from taking effect through fiscal 2012 
appropriations legislation and subsequent continuing resolutions. We 
hope Congress will continue to block the regulation after the current 
continuing resolution expires on March 27.
    DOL promulgated another harmful rule on March 18, 2011 that would 
make the program even more costly and complicated. The rule was so 
egregious that a federal court in Florida issued a temporary injunction 
against it. In addition, both the Senate Committee on Appropriations 
and the House Committee on Appropriations approved legislation during 
the 112th Congress that would have blocked the rule from being 
implemented, but Congress adjourned without passing that appropriations 
bill. We urge Congress to prevent the implementation of this rule, 
along with the wage rule.
    It is clear that the intent of these rules is to ensure that the H-
2B program is made unusable, threatening America's seasonal businesses 
and their full-time employees. In these challenging economic times, the 
U.S. economy can ill afford the severe economic impacts associated with 
the loss of American jobs and commerce that are supported by the 
landscape industry and other seasonal industries that use the H-2B 
program.
    DOL has suggested that these rules are necessary because of 
employers who abuse the program. However, there is no evident to 
support the allegation of widespread program abuse. Many landscape 
contractors have been using the program for more than five years. They 
are good employers who use a lawful program and treat their workers 
well, as is evidenced by the fact that the same H-2B employees return 
year after year. As companies grow, these workers often refer relatives 
and friends to the employer. For fiscal year 2007 through fiscal year 
2012 there were 377,256 visas issued by the State Department under the 
H-2B program; yet the allegations made about systemic program abuse 
relate to only a few specific employers. There will always be a few bad 
individuals who abuse federal programs. They should be fully prosecuted 
under the law. ANLA and PLANET support the strong enforcement of 
program abuses.
    Most landscape industry businesses assist their H-2B workers with 
finding places to live, transportation to work, and other living 
necessities for roughly 10 months. Many rent or own apartments for 
their employees, provide free English language classes, and a means of 
transportation to stores, churches, and more. Our industry uses these 
workers year after year, so they want them to be successful in their 
jobs and have positive experiences. After their first year of the job, 
returning workers often refer friends and relatives to the employer 
because of their positive experiences and the great opportunity that 
the H-2B program provides.
    Further, the H-2B program is expensive. Employers only turn to the 
program after exhausting efforts to find and retain American workers. 
An H-2B employer has to pay a $325.00 application fee, a $150.00 anti-
fraud fee, and a $1,225 premium processing fee (all do so they are not 
put at the end of the line of applications) to U.S. Citizenship and 
Immigration Service. The cost for newspaper advertising for local 
workers can average around $600.00. Because of the paperwork involved 
and the need to find workers, the large majority of employers hire a 
company to help them with processing. This fee can range from $3,000 to 
$5,000. So an employer can spend between $5,070 and $8,470, which does 
not include any other expenses spent on the specific employees. 
Further, these employers are paying both the American and H-2B workers 
prevailing wages, which are often well above the minimum wage. While 
incurring these expenses, H-2B employers are sometimes competing 
against companies that do not pay these fees and wages because they do 
not share their commitment to retaining a legal workforce.
    As Congress debates immigration reform legislation, we urge you and 
your colleagues to preserve a workable H-2B program free from an 
arbitrary cap that restricts economic growth and free from the types of 
regulations that the Department of Labor has promulgated. Wage rates 
should be based on economic realities and local markets and not 
arbitrary formulas well above wage rates in the local labor market. We 
also encourage the re-instatement of the H-2B returning worker 
exemption with the number of participants in the program being market-
based allowing for much need flexibility.
    In addition, we support the development of a non-seasonal temporary 
worker program for businesses whose labor need are non-seasonal. While 
most landscape industry jobs do have a seasonal component, there are 
some areas of the country where landscaping can be done year-around. 
Further, some seasonal employers may have a few year-round positions 
that they cannot fill will American workers.
    In conclusion, ANLA and PLANET urge Congress to pass legislation 
continuing to prevent the US Department of Labor from implementing its 
wage methodology beyond March 27, 2013, as well as legislation 
preventing DOL from implementing the H-2B program rule. We would also 
like to see Congress address the arbitrary H-2B cap by re-instating the 
H-2B returning worker exemption and allowing the number of H-2B workers 
admitted to the U.S. each year to be based on market demand rather than 
an arbitrary cap. If the DOL regulations are allowed to go into effect, 
small businesses, American workers, H-2B workers, and the overall U.S. 
economy will suffer. The U.S. economy cannot afford the severe economic 
impacts associated with the implementation of these regulations. 
Further as the economy grows, Congress must address the H-2B cap so 
that small and seasonal businesses will have access to the H-2B workers 
they need to grow and create additional American jobs.
                                 ______
                                 
                utility sprayer alliance [october 2012]

                     Migrant Spray Industry Report
     General Information and History of the Migrant Spray Industry

    Note: Although we believe the industry information presented is 
generally consistent throughout the continental United States, our 
facts are derived primarily from direct experience and research in the 
``Greater South Eastern United States'' as depicted.

    The Migrant Spray Industry is an offshoot and evolution of the 
migrant reforestation industry (see attachment ``Low Volume Backpack 
Application--A Short History'').The practices employed by migrant spray 
crews did not exist commercially until the mid-1980s and was born out 
of a combination of new low volume backpack herbicide application 
technology and an available workforce capable of performing this 
migrant and labor intensive task (H-2B forestry workers). Prior to the 
development of this industry, vegetation management was performed with 
heavy machinery, helicopters or other nonselective application methods.
    In the last decade, low volume backpack application has become the 
primary means of controlling brush on electric utility rights of ways 
and has become an essential method used by utility companies to ensure 
electric reliability. The attached document, ``The Importance of 
Backpack Herbicide Treatments for Integrated Vegetation Management 
Programs,'' describes in detail the unique and beneficial aspects of 
migrant spray operations. In summary, these benefits include:
     The selective spraying of individual undesirable target 
species that pose a hazard or danger of nuisance
     The preservation of species that are endangered, are 
beneficial as pollinators, establish wildlife habitat, and are 
competitors to undesirable vegetation
     Increased safety and low impact on the environment with 
substantially reduced amount of product applied, as compared to other 
vegetation management methods
     More effective and efficient compliance with governmental 
regulations, including FERC, NERC and the Clean Water Act.
     Improved cost effectiveness of utility operations, which 
benefits consumers
    According to recent study commissioned by an Arkansas Electric 
Cooperative and conducted by an independent engineering firm, the 
projected cost savings by using an Integrated Vegetation Management 
Program as compared to traditional mechanical methods was expected to 
be over $50 million dollars. Document attached.
Electric Utilities Rely on Migrant Sprayers
    More than 80% of all Electric Utility Companies within the Greater 
South Eastern United States use low volume backpack application by 
migrant sprayer crews as a major part of their vegetation management 
program. These crews perform the same type of work using the same 
workforce as is used in vegetation management on forest lands, other 
rights of way, industrial sites and public use areas. More than 2000 H-
2B workers are employed by fifteen or more Forestry and Utility Spray 
companies that annually treat more than 1,000,000 acres for electric 
utilities.
    Electric Utility Companies fall into two broad categories:
    Large transmission companies deliver electricity to distribution 
companies via high voltage electric lines across multi-state areas. 
Although most of these companies are investor owned, one of the 
largest, The Tennessee Valley Authority, is a government agency. It 
operates over 16,000 miles of line across 7 states and serves over 
9,000,000 people. TVA alone treats over 60,000 acres annually using 
spray contractors who employ H-2B workers.
    Private companies of similar size include Duke Energy, the Southern 
Company, American Electric Power, Inc. and others. These companies are 
regulated by the Federal Energy Regulatory Commission (FERC) and the 
North Regulatory Electric Reliability Corporation (NERC) who mandate 
brush control specifications to maintain electric reliability across 
the U.S and North America.
    Distribution companies deliver electric power to individual 
customers. In the Greater South Eastern Region, the majority of these 
companies are Rural Electric Cooperatives (REC), which are not-for-
profit entities owned and managed by the members they serve. Typically, 
an REC will serve multiple rural counties or regions within a state. 
There are also investor owned and municipal entities that provide 
electricity and contract brush clearing and spraying to companies that 
utilize H-2B workers.
The Logistics Associated with Electric Utility Spray Contracts
    Although utilities typically establish general annual plans for 
treating vegetation along specific power lines, many factors can affect 
the timing and substance of the utility's decisions, including:
     ongoing surveys of vegetation growth, and analysis of what 
lines are in most need of treatment
     budget availability, which is often determined by the 
revenue from electric sales in the previous year or fiscal quarter
     mandated treatments to meet FERC and NERC compliance
     local weather conditions
     obtaining approval from Public Service Commissions or 
other governing bodies
    The final decision about what specific areas will be treated is 
frequently not made by the utility until shortly before the work is to 
start.
    Although some utility companies negotiate their work with a 
preferred vendor or have multi-year contracts in place, a majority of 
utilities put their intended work out for bid and contract with a 
vegetation management company on an annual basis. It is not unusual for 
final contracts to be awarded to vendors just prior to the commencement 
of work. It is also not unusual for the scope of work to be changed 
(increasing or decreasing application areas) after the contract has 
been awarded in response to the factors described above.
    Typically, a utility company does not impose a strict time frame 
defining the when the work is to be accomplished, other that it must be 
performed during the ``growing season,'' which may range from April to 
October, depending on geographical location and seasonal weather 
conditions. There are many times, however, when weather dictates when 
the work can and cannot be performed. Drought, rain, flooding, late or 
early frosts all impact the growing season and can affect and alter 
work schedules.
The Difficult Nature of the Work
    Migrant spraying is labor intensive work that requires workers to 
walk up to 10 miles per day, regardless of whether the application 
takes place on forested land, along roads, trails, or rights-of-way. 
The work is almost exclusively conducted in remote locations far from 
major roads or towns. Because the vegetation removal occurs during the 
growing season in the southeastern U.S., the weather is typically hot 
and humid. The worker must cover this rough terrain carrying a backpack 
sprayer that weighs as much as 35 pounds, identify target species and 
apply herbicide. Workers also frequently carry and operate other hand 
and power tools to remove vegetation.
The Seasonal and Migrant Nature of the Work
    Low volume foliar application can only be performed during the 
growing season and by its nature is a seasonal activity. Typically the 
work takes place over 8-10 months, depending on geography and weather. 
Depending on the type of treatment, application can occur at different 
times during the year. On a calendar-year basis, application of pre-
emergent or early post-emergent herbicides typically begins in late 
winter/early spring (February-March) depending on the locale and 
application needs. There are some dormant stem treatments that can take 
place either late fall/early winter (October-November). However, the 
overwhelming majority of work performed by Migrant Sprayers consists of 
post-emergent herbicide application occurring from the spring through 
the fall.
    Decisions by utility companies about what power lines to spray, the 
selection of contractors through the bid process, and changes to the 
scope of work due to weather, budgets or mandates make advanced 
scheduling with precision impossible. Spray crews must be flexible in 
order to respond to these variables and serve the utility industry.
    Large transmission utility companies may have work in multiple 
states, with power lines spanning hundreds of miles, requiring the 
movement of crews to different locations multiple times during 
performance of the contract. Larger regional distribution utilities may 
cover a wide geographical area and require similar movement. Contracts 
with smaller distribution utilities can often be performed from a 
single location, but a typical contract only lasts a few weeks and the 
crew then moves to another location to perform work on another 
contract. A typical crew might move locations a dozen or more times 
across several states performing work on several contracts during a 
single season.
Historical H-2B Certification of Migrant Sprayers
    For over two decades the Department of Labor (DOL) had been 
processing H-2B applications for migratory workers that perform 
vegetation removal with DOT Job Code 459.67-010 Title: LABORER, BRUSH 
CLEARING (any industry).
    When DOL switched to using O*NET for job classifications, 
applications for these workers were often processed with the O*NET Code 
45-4011, Forestry and Conservation Worker.
    Under either code, however, DOL processed H-2B applications for 
these migrant workers on an itinerary pursuant to TEGL 27-06, Forestry-
related Special Procedures, regardless of whether the brush clearing 
activities were performed on tree plantations or along rights-of-way, 
trails, roads, or railroad tracks. In addition, these employers that 
operated under TEGL 27-06 also complied with the Migrant and Seasonal 
Agriculture Worker Protection Act (MSPA) requirements applicable to 
forestry workers.
    However, in recent years when some employers requested prevailing 
wage rates for this work under the 45-4011 job code, the DOL sometimes 
returned wage rates for 37-3012 job code, Pesticide Handlers, Sprayers, 
and Applicators, Vegetation.
    Some employers who then submitted applications for H-2B workers 
using the 37-3012 job code provided by DOL were subsequently certified 
under the Forestry-related Special Procedures without question. These 
employers submitted master applications, itineraries and proof of MSPA 
compliance. But other employers certified with the 37-3012 job code for 
the same work were not permitted to work on an itinerary pursuant to 
the Forestry-related Special Procedures and thus were not required to 
comply with MSPA.
    Still other employers applying with 37-3012 job code provided by 
DOL for work that included utility right-of-way spraying were provided 
the option by DOL to utilize TEGL 27-06, if the employer provided 
additional information about the work itinerary and evidence of 
compliance with MSPA.
    Currently a portion of the industry is working under the 45-4011 
code, while others work under the 37-3012 code. Of those working under 
the 37-3012 code, some are working pursuant to TEGL 27-06, while others 
are not. Regardless of the Department's inconsistent processing and 
guidance, however, this work is still migratory in nature even if the 
employer is not operating on an itinerary.
    Rarely, if ever, would an employer have only one contract in a 
growing season to remove brush in just one localized area. That 
arrangement would not be a sustainable business model because of the 
significant capital investment required to perform this work. There is 
limited work available in any particular localized remote area and that 
work only lasts for a few weeks, at most. Thus, it would impossible for 
a vegetation removal company to stay in business for long if it 
performed only one contract for a few weeks each year. The very nature 
of this business requires scheduled movement from one contract to the 
next throughout the growing season in order to provide the maximum 
amount of work for the company and its U.S. and foreign employees.
Job Categories Associated with Migrant Spraying
    Within the industry, there are typically 4 categories of workers 
associated with vegetation removal that includes spraying. Below are 
brief sample descriptions of each position category from the lower 
skill level to the higher skill level:
    Migrant Sprayer / Laborer / Groundsman--An entry level, labor 
intensive position. No experience or minimum education necessary but 
must be able to identify species of vegetation and apply herbicide 
properly after training period. Wears backpack and removes brush 
through various means, including spraying.
    Team Leader / Senior Groundsman--A minimum one year experience or 
equivalent education is required. Employee must have valid driver's 
license and good driving record to transport workers. Mixes herbicide 
with supervision, supplies herbicide mixture to sprayers, keeps spray 
equipment in working order, and maintain daily records. Employee works 
under direct supervision of Crew Foreman.
    Crew Foreman--Experience as a Team Leader or equivalent education 
or work history. Responsible for the oversight of two to four Teams 
(multiple teams make up a crew) with each team typically comprised of a 
Team Leader and five or more Sprayers/Laborers/Groundsmen. Supervises 
all aspects of field operations, maintains detailed reporting, and 
performs other tasks at the direction of a Manager.
    Manager--Typically requires formal education or related experience 
and licensing pursuant to State and/or Federal requirements. Manager is 
responsible for the oversight of multiple Crews. Manager must possess 
good communication skills to deal with public and customers. Ensure 
that crews meet quality/safety standard and complies with applicable 
State and Federal regulations relating to herbicide application.
Sample Job Descriptions
    Although there is presently no O*NET job description for this 
position, the actual job encompasses virtually the entire description 
of 45-4011, and could be said to also include a few of the tasks from 
37-3012. The following hybrid descriptions would fairly describe how 
these jobs operate in practice.
            1. Sample Job Description of Migrant Sprayer
    Under supervision, perform manual labor necessary to clear 
vegetation, including applying herbicides through sprays, granules, or 
other chemical application on target trees, shrubs, weeds, vines or 
grasses on areas such as utility rights of way, highway roadsides, rail 
road rights of way, forested areas, woodlands, industrial sites, 
wetlands, and rangelands to control unwanted (target) vegetation. May 
also use other hand tools to cut, kill or remove vegetation.
    This is a seasonal position beginning in spring and ending in the 
fall, lasting approximately 8-10 months, based on seasonal conditions. 
Work is typically 5 to 6 days per week, with some overtime may be 
required based on weather conditions, crew schedules and contract 
provisions.
    Sample of job titles: Brush Clearer, Forestry Worker, Utility 
Sprayer, Herbicide Applicator, Spray Technician, Laborer, Ground 
Crewman
                minimum requirements for migrant sprayer
     Must be 18 years old
     No minimum education required
     Must successfully complete one week training session or 
have previous equivalent experience
     May require State or Federal certification with company to 
provide paid training to pass certification tests
     Must be physically able to perform outdoor work
    --Carry approximately 35 pounds (back pack) and traverse difficult 
terrains (steep, rocky, brushy) walking up to 10 miles per day
    --Be able to work in adverse weather conditions (primarily hot and 
humid)
    --After two weeks be able to meet minimum production standards
    --Safely operate tools and equipment, including power tools
     Must be able to travel with crew to various multi-state 
locations continuously during spray season
                   primary tasks for migrant sprayer
     Identify target vegetation and spray proper amounts of 
herbicide on leaves and/or bark.
     Use machete to treat target vegetation too tall or large 
to spray with backpack, by making cuts in trees at specified intervals 
and spraying proper amounts of herbicide mix in cuts with spray bottle.
     Check equipment to ensure that it is operating properly.
     Fill backpacks with premixed herbicide mixture.
     Work in coordination with crew to ensure proper coverage 
of assigned areas.
     Take all precautions necessary to prevent spray drift and/
or damage to all non-target species or areas
     Follow all guidelines, procedures and training to maintain 
a safe operation and prevent injury or damage to self, other persons 
and/or the environment
     Clean and store equipment properly at end of work day.
             primary tools & equipment for migrant sprayer
     Backpack sprayer
     Machete
     Spray Bottle
     Personal Protective Equipment that may include gloves, 
glasses, uniforms, or other equipment
                  secondary tasks for migrant sprayer
     Cut or remove vegetation using brush saws, chain saws or 
other hand tools
     Use power sprayers to treat target brush with proper 
amounts of herbicide mixture
     Connect and pull hoses associated with power sprayers
     Start motors and engage pumps on power sprayers
     Clean, service and maintain power sprayer, pumps, motors 
and related equipment
           secondary tools and equipment for migrant sprayer
     Chain saws
     Brush saws
     Power sprayers
          knowledge, abilities and skills for migrant sprayer
     After training, worker must have the ability to identify 
target species
     After training, worker must have the ability to identify 
non-target areas
     Worker must be able to follow basic instructions
     After training, worker must be able to operate and 
maintain basic hand tools associated with job, including power tools
     Worker must have the manual dexterity to operate tools
     Job requires worker to be dependable, responsible and 
reliable for fulfilling job obligations
    This is an entry level, manual labor activity for which all 
necessary knowledge, ability and skill can be reasonably achieved 
during an initial one week training period and an additional two weeks 
of on the job training.
        additional information regarding specific industry tasks
    Worker's primary task is to selectively spray, cut, treat or 
otherwise remove unwanted vegetation, referred to as ``target 
vegetation'', while preserving desirable vegetation that is 
environmentally, commercially, aesthetically or otherwise beneficial.
    For electric utility companies, workers will selectively control 
tall growing vegetation that will interfere with electric lines and 
affect electric reliability or otherwise impede access on rights of 
ways while not damaging low growing shrubs, grasses or other desirable 
vegetation, beneficial for wildlife and the environment.
    On highway roadsides, workers will selectively control brush and 
tall growing weeds that create safety hazards by obstructing view, 
while preserving beneficial low growing grasses that prevent erosion.
    In natural areas, rights of way, forests, rangelands, wetlands and 
on other sites, workers will selectively control invasive species and 
noxious weeds that pose a hazard to the ecology.
    On forested land, workers will selectively control those weed and 
tree species that adversely impact the growth of desirable timber.
    On all sites and in all industries, non-target areas shall include
    1. Agricultural crops
    2. Fruit trees, ornamentals, and other vegetation in maintained 
yards unless specifically instructed otherwise
    3. Any area not specifically permitted on the herbicide label or by 
State or Federal Regulation
    4. Residential or public use areas unless specifically instructed 
otherwise
            2. Job Description for Migrant Sprayer Team Leader
    In addition to the job description for Migrant Sprayer, a Migrant 
Sprayer Team Leader shall perform the additional tasks and possess the 
additional knowledge, abilities and skills as listed below:
          minimum requirements for migrant sprayer team leader
     Have, obtain, and maintain a valid driver's license and 
meet DOT driving requirements
     Must have and maintain a good driving record
     Have, obtain, and maintain a valid FLCE license
     Successfully complete Driver Safety Training course
     Minimum one year's experience as Migrant Sprayer or 
equivalent
     Must be physically able to perform job functions
      primary tasks for equipment for migrant sprayer team leader
     Transport assigned crew to designated work locations
     Mix pre-set herbicide mixtures for application
     Keep Migrant Sprayers supplied with herbicide mixture 
throughout the day
     Communicate with crew and provide information as requested
     Follow mapped locations to determine daily spray routes
     Assist foremen with daily application reports, crew time 
logs and additional information as needed
     Maintain vehicle in safe, working order
       primary tools & equipment for migrant sprayer team leader
     Cell phone and/or two way radio
     Herbicide mixing equipment
     Company vehicle
    knowledge, abilities and skills for migrant sprayer team leader
     Must be able to maintain/complete various forms required 
for daily herbicide application reports and for daily driving logs 
required by US Department of Transportation
     Must be able to read and follow a map
     Ability to receive instructions from foreman and relay to 
crew
     Must be able to administer first aid
            3. Job Description for Migrant Sprayer Crew Foreman
    In addition to the job description for Migrant Sprayer and Migrant 
Sprayer Team Leader, a Migrant Sprayer Crew Foreman shall perform the 
additional tasks and possess the additional knowledge abilities and 
skills as listed below:
                          minimum requirements
     Must be able to effectively communicate with customers, 
office staff and teams
     Must be able to manage multiple Teams (Crews)
     Must have basic knowledge of math
     Must be computer literate
     Must be able to operate independently when not directly 
supervised by manager
                             primary tasks
     Complete electronic daily and weekly reporting
     Coordinate Crews, assign map segments to Team Leaders
     Maintain herbicide inventories at job sites
     Provide on-site training to Crews as needed
     Perform quality control and safety audits, maintain 
quality and safety standards and compliance with applicable State and 
Federal Regulations
       primary tools & equipment for migrant sprayer team leader
     Computer and GPS Equipment
                    knowledge, abilities and skills
     Must be able to create work schedule and meet production 
standards based on weather, holidays, customer demand, regulatory 
requirements, and other factors
     Must have critical thinking skills to use logic and 
reasoning to solve problems
     Must have basic knowledge of tools and products used in 
connection with job
Existing Job Description for Governmental Agency
    As previously discussed in this report, one of the largest 
utilities in U.S., the Tennessee Valley Authority (TVA), is a 
governmental entity and relies on Migrant Sprayers for vegetation 
management. Immediately following are pages extracted from TVA's 
contract specifications relating to employees performing brush clearing 
and spraying along TVA's rights of way.
Summary of Key Points About Migrant Spray Industry
    The migrant spray industry is an evolution of the reforestation 
industry and began about 2O years ago. Many migrant spray companies 
also perform spraying on forestry land and use the same work force and 
brush control techniques regardless of whether the work is performed on 
rights-of-way, roadsides, or in forests.
    Almost all migrant spray work is performed by H-2B workers. These 
workers did not replace an existing U.S. workforce doing the same type 
of work. Prior to the availability of a migrant work force, right-of-
way brush clearing was done mechanically with heavy equipment or 
helicopters.
    Migrant spray work is now an essential part of Integrated 
Vegetation Management programs implemented by utility companies to 
maintain electric reliability. Hand application of herbicide is more 
effective and environmentally friendly than the outdated mechanical 
methods.
    In just the Greater South Eastern United States, we estimate that 
there are more than 15 companies employing more than 2000 H-2B workers 
performing migrant spray work for utility customers. Almost all of the 
companies that perform this work also perform more traditional forestry 
related work including tree planting, pre-commercial thinning, as well 
as forestry spraying for site preparation and herbaceous weed control.
    The Department of Labor has been certifying employers with H-2B 
workers performing migratory brush clearing, including right-of-way 
spraying, on itineraries for over two decades. Until recently, these H-
2B applications have been approved for the job title Brush Clearer (45-
4011) exclusively under the Forestry-related Special Procedures 
outlined in TEGL 27-06. In the last few years, however, some employers 
have been instructed by DOL to submit H-2B applications for this work 
under the job title Sprayer (37-3012). Some of these ``sprayer'' 
applications have been processed under TEGL 27-06 and others have not.
    Utilities that hire companies with migrant sprayers typically do 
not make final decisions about where vegetation management work will be 
located until just prior to the work beginning. Even then, weather, 
budgets, governmental mandates and other factors often change tentative 
work schedules. Typically there is no specific start or end date 
mandated by utility companies, other than the general dates associated 
with the spraying season, spring through fall. Because of the remote 
locations where the work takes place and the limited amount of work in 
any specific geographic area, this work is migratory in nature and must 
be completed along an itinerary.
                                 ______
                                 

     Prepared Statement of Shawn McBurney, Senior Vice President, 
       Governmental Affairs, American Hotel & Lodging Association

    On behalf of the American Hotel & Lodging Association and our 
members throughout the United States, thank you for allowing me to 
comment on an acute problem in our industry--the ability to locate and 
hire lower-skilled workers.
    Serving the hospitality industry for more than a century, AH&LA is 
the sole national association representing all sectors and stakeholders 
in the lodging industry, including individual hotel property members, 
hotel companies, student and faculty members, and industry suppliers.
    AH&LA's membership ranges from the smallest independent properties 
to the largest convention hotels with a high degree of franchising and 
independent ownership. Every hotel or motel in our country is unique 
due to factors that include size, type, location, services offered, 
clientele, ownership, and status as an independent or chain affiliate.
Background on Lodging Industry
    In 2011, the lodging industry generated $137.5 billion in total 
revenue, supported 1.8 million jobs, and represented 1% of U.S. GDP. 
The leisure and hospitality sector is the fifth largest employer in the 
United States and with the lodging industry alone poised to add 141,000 
jobs in the next 7 years according to the U.S. Bureau of Labor 
Statistics (BLS).
    The hospitality sector serves as a top 10 industry in 48 out of 50 
states providing employment, investment, and opportunity and leading 
economic recovery with 12 consecutive quarters of growth and providing 
job creation in every region of the country.
    We are proud that the lodging industry offers career growth 
potential for our employees where they can rise from entry level to 
management without the need for a college diploma.
Lodging Industry Recruitment and Retention Efforts
    The lodging industry invests heavily in attracting and retaining 
more employees. For more than 60 years, the American Hotel & Lodging 
Educational Foundation (AH&LEF) has been the primary source of 
financial support for industry-related scholarships and maintains 
school-to-career and workforce development initiatives. The Foundation 
awarded $7.4 million in scholarships to hospitality management students 
with $514,500 being awarded in 2012 alone.
    Hoteliers spend considerable time, money and resources attempting 
to fill the jobs they are creating. They advertise in local papers, 
attend job fairs, work with community-based organizations, canvas job 
centers, and recruit at military bases, high schools, and colleges. The 
industry is a leader in both the welfare-to-work and school-to-work 
efforts, and AH&LA has partnered with prominent organizations to 
promote careers in lodging.
    Despite the generous pay and growth potential the lodging industry 
offers, many jobs in lodging go unfilled due to the growth of our 
industry and workers seeking employment in other sectors of the 
economy.
    Lodging employers can legally bring in some temporary workers from 
abroad through educational and other visas, but not nearly enough to 
fill all their vacancies. Neither option provides a long-term solution 
to our worker shortage.
Experience with H-2B Program
    While worker shortages are common among hotels throughout the 
country, the problem is most acute in seasonal properties. This is 
especially true for many resorts. The ability to keep their doors open 
and retain their full-time employees is contingent upon making enough 
money during their peak season to offset the rest of the year when 
their business is slow.
    During their busy seasons, they must supplement their permanent 
staffs with temporary seasonal employees. In order to fill these 
positions, they spend thousands of dollars and hundreds of hours in 
aggressive recruitment. Unfortunately, there are not enough American 
workers available to fill those positions despite generous pay and 
benefits offered.
    At one time, employers could rely on college students and other 
individuals who would accept temporary jobs on a seasonal basis. That 
is no longer the case, however. School and seasonal scheduling has 
changed--properties have lengthened their seasons into spring and fall, 
while school years have lengthened, making students simply unavailable. 
In addition, many students no longer prefer to work in traditional 
``summer'' positions.
    As a result of this dramatic decline in workers willing to accept 
temporary positions, many hoteliers have been forced to turn to the 
federal government's H-2B worker program as a final option to find 
short-term workers.
    Although it is a complex, time-consuming and expensive process that 
requires employers to navigate through three separate federal and one 
state government agency, seasonal employers have turned to the program 
because their season, and therefore their entire business, depends on 
the ability to fill temporary seasonal jobs.
Needs in Immigration Reform
    Due to the unique nature of seasonal businesses, a new temporary 
worker program should be crafted that retains the H-2B visa program as 
a distinct category of visas.
    A seasonal hotelier may spend hundreds of hours and thousands of 
dollars to secure a worker under the H-2B program after efforts to find 
American workers were unsuccessful. The job the H-2B worker fills may 
only last approximately four months. That represents a very large 
investment for a very short-term worker.
    Further, if the H-2B program was eliminated and seasonal employers 
were required to seek workers through a new program that offered 
positions with multi-year employment, those seasonal jobs would be much 
less attractive to those workers in comparison, resulting in a more 
severe worker shortage for seasonal hoteliers.
    Given the necessity of the program and the success of the previous 
H-2B cap exemption policy, Congress should approve a permanent 
reinstatement of that cap exemption.
    Most immediately, the two rules issued by the U.S. Department of 
Labor (DOL), one on January 19, 2011 and the other on March 18, 2011 
should be permanently blocked by Congress. Those two rules would make 
the H-2B program virtually unusable, if they are allowed to be 
implemented, many seasonal businesses will be forced to close and lay 
off their full-time American workers.
    A new lower-skilled temporary worker program is necessary to 
address the worker shortages that hoteliers throughout the country are 
experiencing (and which will become worse as the economy recovers).
    A new program should be established to allow hoteliers to be 
certified as being unable to find American workers for their available 
positions and eligible to hire temporary foreign workers through the 
new program.
    Unlike the H-2B program, those positions should be able to be 
filled for up to two years by a temporary worker, with the option of 
having that visa renewed. This will permit hoteliers to secure the 
workers they need and provide some stability in their workforces for 
non-seasonal properties.
    Hotels are in the hospitality business. Hospitality cannot be 
outsourced or automated. Employees remain the lifeblood of our 
businesses and it is critical that a legal process is created so that 
there is access to foreign workers when no Americans are available.
    Thank you very much for allowing us to comment on this vitally 
important issue to our industry.
                                 ______
                                 
                                       [Via Email],
           The National Hispanic Landscape Alliance (NHLA),
                                                    March 13, 2013.
Hon. Tim Walberg, Chairman, Subcommittee on Workforce Protections,
Committee on Education and the Workforce, U.S. House of 
        Representatives, Washington, DC.
    Dear Chairman Walberg: We appreciate the opportunity to submit this 
statement for the record, and thank The House Subcommittee on Workforce 
Protections for holding a hearing to examine the role of lower-skilled 
guest worker programs in today's economy. The National Hispanic 
Landscape Alliance (NHLA) is a member-based trade association that 
advances the interests of the more than 500,000 Hispanic families that 
depend upon the landscape industry for their livelihood. The landscape 
industry in the US conservatively accounts for $18.75 billion, or 3% of 
total US Latino household income.
    It is our view that the current calamity of an estimated 11 million 
undocumented migrants serves as de facto proof that the nation suffers 
from unmet labor needs and is critically lacking of an adequate system 
to address those needs in an orderly manner. It is our hope that in 
considering the testimony provided, members will gain a greater 
understanding of the fact that creating the jobs Americans want and are 
able to fill requires the availability of sufficient workers to fill 
the jobs Americans do not want and are not able to fill.
    This truth is plainly evident to us in the landscape services 
industry where hard-to-fill seasonal needs, that are met by H-2B visa 
holders, enable firms to grow and expand the number of higher-level 
fulltime year-round positions to which American workers aspire, and 
which Hispanic-Americans due to their linguistic and cultural 
competencies are especially well suited to fill. We are therefore 
advocates of a flexible, employment-driven immigration system that is 
responsive to workplace needs and supportive of economic growth.
    Such programs should require employers to demonstrate the need for 
supplemental labor in a manner similar to that required of employers 
that utilized the H-2B program prior to the temporarily blocked new 
Department of Labor wage screening interested foreign workers. We 
further propose that the size of such visa programs should be 
determined by workplace needs, as measured by employer ability to 
demonstrate insufficient workforce supply rather than by caps that are, 
at best, established using lagging economic data.
    A few years ago, one of our member companies committed a filing 
error and was not certified for the H-2B visa program that year. Unable 
to fill 48 seasonal positions with foreign workers, and unwilling to 
hire undocumented immigrants, this employer hired more than 1,300 
workers during a nine month period in an attempt to keep the 48 
positions filled with US workers. Not only did the high turnover result 
in great strains of his human resources and training staff, the quality 
of his work suffered to the extent that a number of customers were 
lost, and the firm was force to reduce the size of its operations the 
following year and terminate year-round positions.
    We regret efforts by the U.S. Department of Labor (DOL) to burden 
the H-2B program with a series of rules that would render the program 
unusable and thus penalize the reputable companies that rely on the 
program to expand their operations, and the employees that would 
benefit from such growth. Thankfully, Congressional action has blocked 
the implementation of some of those new rules and court action has 
blocked implementation of the others.
    In our view, the goals of the DOL can best be advanced through the 
development of an exemplary H-2B employer recognition program. We 
believe that such a program modeled after the successful OSHA Voluntary 
Protection Programs (VPP) which recognize the outstanding efforts of 
employers and employees who have achieved exemplary occupational safety 
and health, would help raise the bar for practices by many H-2B 
employers by publicizing the actions of some of the best.
    In closing, we'd like to recommend that the H-2B program should 
remain as a distinct seasonal program in any reform, and that the 
program be improved by facilitating the year after year renewal of 
workers returning for subsequent seasons. Know that we welcome any 
opportunity to be of assistance in this matter.
            Sincerely,
                                          Ralph Egues, Jr.,
                                                Executive Director.
                                 ______
                                 

        Prepared Statement of Keesen Landscape Management, Inc.

    KLM has been a leading provider of commercial landscape maintenance 
services to the Denver metro area since 1972, with peak employment 
levels of about 220-240 employees. We have been utilizing the H-2B 
program since the mid-1990's and were one of the first companies in 
Colorado to do so. During our peak season, approximately 35% of our 
workforce consists of H-2B workers. All of our employees have been 
certified through the E-verify program.
    The H-2B program is exceptionally expensive and complicated to use; 
indeed it would be cheaper and easier to use American labor to fill our 
seasonal labor positions if it was available. But even at the bottom of 
the job market when unemployment was at its highest point nationally, 
we were able to fill only a small fraction of the positions needed in 
order for our company to service its contracts. In 2011 we had a need 
for 95 seasonal laborers. We were able to fill just 11 spots with 
American workers. None of these workers lasted more than 45 days on the 
job and most lasted just a couple of days to a couple of weeks. They 
were paid the prevailing wage determined by the Department of Labor 
which was around $9.19 per hour, the same as our H-2B workers. This is 
the minimum wage we are required to pay an H-2B worker or an American 
worker that applies for a position we are requesting seasonal labor 
for. For 2013, the prevailing wage is $9.36 and we need approximately 
100 workers. Our efforts to recruit through the newspaper, word of 
mouth, advertising on our company vehicles and through the state 
workforce agency netted exactly 1 application. This person did not 
respond to our attempts by phone or mail to schedule an interview.
    Because of the program's myriad of regulations and tight 
application timeframes, we use a company that is well-versed in cutting 
though the red tape associated with obtaining temporary workers on an 
H-2B visa. They navigate the 4 government agencies and masses of 
paperwork that must be filed each year in order for us to get our 
approximately 85 seasonal workers that will work from March through 
November. We begin that process in mid-summer the year prior to the 
time we will need these workers the following March.
    For all of the frustration and cost associated with the H-2B 
program, there are a great number of benefits derived from this 
relationship by both the employer and the H-2B workers. We receive 
reliable, trained workers who eagerly come back to work for us year 
after year. Indeed, they are like family to us. We cater in lunches and 
cook breakfast for them as a small way to say thank-you. The workers 
receive the benefit of job protections, such as worker's compensation 
and a safe work environment, which may not be available to them in 
their home country. The local and national economy benefits through 
increased orders for supplies, equipment and vehicles. And while they 
are here, they pay taxes on their earnings. They receive fair pay for a 
job that allows them to provide for their families back home. Those 
same families that are waiting to greet them when they return to their 
home country at the end of their visa. This unique relationship helps 
us keep quality levels high for our customers and allows us to remain 
competitive in a tight economy where many of our competitors have 
chosen to cut corners and may not always employ workers that are able 
to pass the rigors of the E-verify program. Our American workers, most 
of whom are managers or supervisors that work directly with or manage 
these H-2B work crews, are not employable if we do not have a trained 
and reliable source of labor. Their jobs are directly dependent on 
these H-2B workers.
    Perhaps the most important benefit derived from this program, 
though, is the certainty that it provides to us in terms of knowing 
that we will have available labor to service our contracts with our 
customers. This is critical to our ability to plan annually how much 
new work we can take on. Our employment of our American workers, our 
orders of supplies and equipment from our vendors--all of this is 
dependent on having a reliable, trained source of labor. And that is 
exactly what the H-2B program provides to us. Could it be less costly 
and more streamlined to use? You bet. But at this point it is far 
superior to the only other two options we would have if it were not 
available. The first option includes drastically cutting back the 
number of annual contracts we perform, thereby reducing the number of 
full-time, year around American workers that we employ and resulting in 
drastic cuts in orders to our vendors for supplies, equipment, and
    American-made trucks and trailers. Our other option is to throw in 
the towel and succumb to the pressures of trying to remain competitive 
in a system that seems to reward those who choose to circumvent the 
laws and seemingly seeks to punish the ones doing their very best to 
play by the rules.
    This issue is about small businesses and the jobs they create which 
allow them to employ America workers. A guest worker program is not a 
luxury. It is a basic business necessity critical to their survival and 
the continued employment of their American workers. I hope that message 
was communicated loud and clear today.
                                 ______
                                 
    Chairman Walberg. Without objection, so ordered. I thank 
them for their valuable input on these important issues.
    There being no further business before this committee, the 
committee stands adjourned.
    [A submission from Hon. Robert E. Andrews, a Representative 
in Congress from the State of New Jersey, follows:]

                                Government Affairs,
              National Association of Home Builders (NAHB),
                                                    March 18, 2013.
Hon. Robert Andrews, 2265 Rayburn House Office Building, Washington, DC 
    20515.

    Dear Congressman Andrews: On behalf of the more than 140,000 
members of the thank you for expressing interest in the health of the 
construction industry at the Workforce Protections Subcommittee hearing 
on lower-skilled guest worker programs on March 14, 2013. You 
questioned a witness from Greenberg Traurig, LLP on the current state 
of the industry, and while we appreciate and support the witness's 
testimony, I want reiterate the witness's own words that she does not 
represent the construction community. I also want to correct an 
inaccuracy from the witness's response: the residential construction 
community is, in fact, facing worker shortages at present.
    In March 2013, NAHB's Economics Department conducted a robust 
membership survey to determine the current needs and concerns of the 
membership at large. More than half of the builders reported that labor 
shortages over the past six months have caused them to pay higher wages 
or subcontractor bids to secure projects, and consequently, raise home 
prices. 46 percent of the builders surveyed experienced delays in 
completing projects on time. 15 percent of respondents had to turn down 
some projects, and nine percent lost or cancelled sales as a result of 
recent labor shortages. The Job Openings and Labor Turnover Survey data 
from the Bureau of Labor Statistics show that the month of January had 
the second highest number of unfilled positions in the last seventeen 
months.
    Residential construction is facing tangible worker shortages--
worker shortages that are impeding the housing recovery. Recognizing 
your strong support of the industry, I want to reiterate the importance 
of the housing industry to the economy at large. Housing construction 
and the value of housing-related services currently account for 
approximately 15% of Gross Domestic Product. The construction of 1,000 
single-family homes generates 3,050 jobs in construction and 
construction--related industries, approximately $145.4 million in 
wages, and more than $89.2 million in federal, state and local tax 
revenues and fees. It is therefore critical that Congress work to 
enhance, and not impede, the recovery effort.
    NAHB works diligently to address the continuing need for skilled 
labor within the nation's borders. In partnership with NAHB and Job 
Corps, the Home Building Institute (HBI) is a national leader for 
career training and job placement in the building industry. HBI's Job 
Corps training programs are national in scope but implemented locally, 
using proven models that can be customized to meet the workforce needs 
of communities across the United States and internationally. It 
prepares students with the skills and experience they need for 
successful careers through pre-apprenticeship training, job placement 
services, mentoring, certification programs, textbooks and curricula. 
With an 80 percent job placement rate for graduates, HBI Job Corps 
programs provide services for disadvantaged youth in 73 centers across 
the country.
    Yet, NAHB believes strongly that the nation should implement a new 
market-based visa system that would allow more immigrants to legally 
enter the construction workforce each year. Despite our efforts to 
recruit and train American workers, our industry faces a very real 
impediment to full recovery if work is delayed or even cancelled due to 
worker shortages. A new, workable visa program would complement our 
skills training efforts within the nation's borders, and fill the labor 
gaps needed to meet the nation's housing needs.
    For these reasons, NAHB is a member of the Essential Worker 
Immigration Coalition (EWIC), which advocates for the creation of a new 
program that will supply the U.S. economy with needed workers, 
replacing an illegal flow with a legal flow. We believe that a 
successful future guest worker program must include an annual visa cap 
that fluctuates based on a demand-driven system that reflects the real 
economic needs of the nation. This program would have a dual-intent 
process that allows some foreign workers who have demonstrated a 
commitment to their jobs and their communities to choose to petition 
for a change of status to a permanent legal status in the United 
States, while also incentivizing most foreign workers to return to 
their home country at the end of their visa period. The program would 
also require employers to treat these legal foreign workers in the same 
manner as U.S. workers--with all of the same benefits, workforce 
protections and wage rates as similarly-situated workers at the same 
location.
    I hope this information is helpful. If you have any additional 
questions about the health of the residential construction industry, 
NAHB's door is open to you and your staff for further discussion.
            Sincerely,
                                        James W. Tobin III.
                                 ______
                                 
    [Questions submitted for the record and their response 
follows:]










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    [Whereupon, at 11:23 a.m., the subcommittee was adjourned.]