[House Hearing, 110 Congress]
[From the U.S. Government Printing Office]
HEARING TO REVIEW THE LABOR NEEDS OF AMERICAN AGRICULTURE
COMMITTEE ON AGRICULTURE
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
THURSDAY, OCTOBER 4, 2007
Serial No. 110-30
Printed for the use of the Committee on Agriculture
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COMMITTEE ON AGRICULTURE
COLLIN C. PETERSON, Minnesota, Chairman
TIM HOLDEN, Pennsylvania, BOB GOODLATTE, Virginia, Ranking
Vice Chairman Minority Member
MIKE McINTYRE, North Carolina TERRY EVERETT, Alabama
BOB ETHERIDGE, North Carolina FRANK D. LUCAS, Oklahoma
LEONARD L. BOSWELL, Iowa JERRY MORAN, Kansas
JOE BACA, California ROBIN HAYES, North Carolina
DENNIS A. CARDOZA, California TIMOTHY V. JOHNSON, Illinois
DAVID SCOTT, Georgia SAM GRAVES, Missouri
JIM MARSHALL, Georgia JO BONNER, Alabama
STEPHANIE HERSETH SANDLIN, South MIKE ROGERS, Alabama
Dakota STEVE KING, Iowa
HENRY CUELLAR, Texas MARILYN N. MUSGRAVE, Colorado
JIM COSTA, California RANDY NEUGEBAUER, Texas
JOHN T. SALAZAR, Colorado CHARLES W. BOUSTANY, Jr.,
BRAD ELLSWORTH, Indiana Louisiana
NANCY E. BOYDA, Kansas JOHN R. ``RANDY'' KUHL, Jr., New
ZACHARY T. SPACE, Ohio York
TIMOTHY J. WALZ, Minnesota VIRGINIA FOXX, North Carolina
KIRSTEN E. GILLIBRAND, New York K. MICHAEL CONAWAY, Texas
STEVE KAGEN, Wisconsin JEFF FORTENBERRY, Nebraska
EARL POMEROY, North Dakota JEAN SCHMIDT, Ohio
LINCOLN DAVIS, Tennessee ADRIAN SMITH, Nebraska
JOHN BARROW, Georgia TIM WALBERG, Michigan
NICK LAMPSON, Texas
JOE DONNELLY, Indiana
TIM MAHONEY, Florida
Robert L. Larew, Chief of Staff
Andrew W. Baker, Chief Counsel
April Slayton, Communications Director
William E. O'Conner, Jr., Minority Staff Director
C O N T E N T S
Baca, Hon. Joe, a Representative in Congress from California,
prepared statement............................................. 6
Cuellar, Hon. Henry, a Representative in Congress from Texas,
prepared statement............................................. 7
Goodlatte, Hon. Bob, a Representative in Congress from Virginia,
opening statement.............................................. 2
Graves, Hon. Sam, a Representative in Congress from Missouri,
prepared statement............................................. 8
King, Hon. Steve, a Representative in Congress from Iowa, opening
Kuhl, Jr., Hon. John R. ``Randy'', a Representative in Congress
from New York, prepared statement.............................. 9
Lampson, Hon. Nick, a Representative in Congress from Texas,
prepared statement............................................. 7
Mahoney, Hon. Tim, a Representative in Congress from Florida,
opening statement.............................................. 4
Peterson, Hon. Collin C., a Representative in Congress from
Minnesota, opening statement................................... 1
Prepared statement........................................... 2
Smith, Hon. Adrian, a Representative in Congress from Nebraska,
prepared statement............................................. 9
Walberg, Hon. Tim, a Representative in Congress from Michigan,
prepared statement............................................. 10
Holt, Ph.D., James S., President and Principal, James S. Holt &
Co., LLC; Agricultural Labor Economist, Washington, D.C........ 11
Prepared statement........................................... 13
Stallman, Bob, President, American Farm Bureau Federation; Rice
and Cattle Producer, Columbus, TX.............................. 19
Prepared statement........................................... 21
Wicker, H. Lee, Deputy Director, North Carolina Growers
Association, Vass, NC.......................................... 51
Prepared statement........................................... 52
Herring, C. Scott, Executive Vice President and COO, Farm Credit
of Western New York, ACA, Batavia, NY.......................... 53
Prepared statement........................................... 55
Goldstein, Bruce, Executive Director, Farmworker Justice,
Washington, D.C................................................ 57
Prepared statement........................................... 58
Brown, Michael J., Senior Vice President, Legislative Affairs,
American Meat Institute, Washington, D.C....................... 61
Prepared statement........................................... 63
Carnes, J Allen, President, Winter Garden Produce; Chairman,
Texas Vegetable Association; Director, South Texas Onion
Committee, Texas Produce Association; Vice President, Carnes
Farms Inc., Uvalde, TX......................................... 91
Prepared statement........................................... 93
Smoak, Mason G., Citrus Producer and Cattle Rancher, Lake Placid,
Prepared statement........................................... 98
Yates, Harry B., Past-President, North Carolina Christmas Tree
Association; Member, Board of Directors, National Christmas
Tree Association, Boone, NC.................................... 99
Prepared statement........................................... 101
Mouw, Randall D., Dairy Producer; Chairman, District 12,
California Milk Advisory Board, Ontario, CA; on behalf of
Western United Dairymen; Dairy Farmers of America; and National
Milk Producers Federation...................................... 102
Prepared statement........................................... 104
Atkinson, Keith, President, Virginia Agricultural Growers
Association; Apple and Tobacco Producer, Java, VA.............. 106
Prepared statement........................................... 108
Roth, Rick, President and Principal Owner, Roth Farms, Inc.; Vice
President and Member, Board of Directors, Florida Farm Bureau;
Member, Board of Directors, Florida Fruit and Vegetable
Association; Member, Board of Directors, Sugar Cane Growers
Cooperative of Florida, Belle Glade, FL........................ 111
Prepared statement........................................... 113
Agriculture Coalition for Immigration Reform, submitted article
entitled, Time Fast Running Out for American Agriculture . . .. 145
Hallstrom, Luawanna, Regelbrugge, Craig J., and Young, John, ACIR
Co-Chairs, Agriculture Coalition for Immigration Reform,
prepared statement............................................. 142
Herseth Sandlin, Hon. Stephanie, submitted prepared statement and
letters for Amber S. Brady, General Counsel/Director of
Agricultural Policy, South Dakota Department of Agriculture,
Pierre, SD..................................................... 136
King, Hon. Steve, submitted CRS report........................... 121
Kuhl, Jr., Hon. John R. ``Randy'', submitted report entitled,
Farm Labor Crisis: A New York State Perspective................ 119
HEARING TO REVIEW THE LABOR NEEDS OF AMERICAN AGRICULTURE
THURSDAY, OCTOBER 4, 2007
House of Representatives,
Committee on Agriculture,
The Committee met, pursuant to call, at 11:02 a.m., in Room
1300 of the Longworth House Office Building, Hon. Collin C.
Peterson [Chairman of the Committee] presiding.
Members present: Representatives Peterson, Holden,
McIntyre, Etheridge, Boswell, Baca, Cardoza, Scott, Herseth
Sandlin, Cuellar, Costa, Salazar, Ellsworth, Boyda, Pomeroy,
Kagen, Mahoney, Donnelly, Goodlatte, Lucas, Moran, King,
Musgrave, Neugebauer, Foxx, Fortenberry, Conaway, Walberg, and
Staff present: Alejandra Gonzalez-Arias, Tony Jackson,
Tyler Jameson, Keith Jones, Rob Larew, John Riley, Sharon
Rusnak, Lisa Shelton, April Slayton, Kristin Sosanie, Patricia
Barr, Alise Kowalski, Stephanie Myers, and Jamie Weyer.
OPENING STATEMENT OF HON. COLLIN C. PETERSON, A REPRESENTATIVE
IN CONGRESS FROM MINNESOTA
The Chairman. The Committee will come to order. I want to
start by welcoming everyone to this hearing of the House
Agriculture Committee. As we have traveled across the country,
we have experienced firsthand the great diversity of
agriculture in this country. While some issues change depending
on the region, in every part of the country we have traveled,
the topic of labor always come up, and it is usually followed
by the word ``crisis.'' This is a major problem for producers,
and sooner or later, we must find a way to address it.
I want to thank Congressman Mahoney for his leadership in
requesting that we hold this hearing on this topic, and I know
that this is an important issue for the citrus growers and
other producers in his district that have experienced this
labor crisis firsthand.
Although the Judiciary Committee has an important role in
this matter, I think that it is important for this Committee to
review the significant impact that the situation has on the
agriculture industry. For better or for worse, agriculture has
been on the front line of this issue and has focused attention
on the serious consequence of labor shortage this country
continues to experience.
I believe that before we can find a meaningful solution,
Congress must understand the scope and the depth of the problem
across many industries, agriculture included. So this hearing
today will focus on improving our understanding of the labor
shortage and its impact on agriculture. This is not a hearing
to review specific legislation or proposals. We are here to
document the problem so that we can move forward as a Committee
to work with other committees that have jurisdiction on these
issues to be sure that the needs of agriculture are addressed
in whatever that final solution to this serious problem will
I again want to thank the witnesses who have joined us
today to provide an honest and complete picture of the labor
situation in American agriculture. I recognize that these are
controversial issues that are not easy to address, and I
appreciate the information that you will be providing to the
Committee today. So again, I thank the witnesses for being
here, and I am pleased to recognize my good friend, the Ranking
Member from Virginia, Mr. Goodlatte.
[The prepared statement of Mr. Peterson follows:]
Prepared Statement of Hon. Collin C. Peterson, a Representative in
Congress From Minnesota
I want to start by welcoming everyone to this hearing of the House
I've traveled across the country and have experienced first hand
the great diversity of agriculture in this country. While some issues
change, depending on the region, in every part of the country where
I've traveled, the topic of labor always comes up, and it is usually
followed by the word ``crisis.'' This is a major problem for producers,
and sooner or later, we must find a way to address it.
I want to thank Congressman Mahoney for requesting that we hold a
hearing on this topic, and I know this is an important issue for the
citrus growers and other producers in his district that have
experienced this labor crisis first hand.
Although the Judiciary Committee has an important role in this
matter, I think that it is important for this Committee to review the
significant impact that the situation has on the agriculture industry.
For better or for worse, agriculture has been on the front line of this
issue and has focused attention on the serious consequences of the
labor shortage this country continues to experience.
I believe that before we can find a meaningful solution, Congress
must understand the scope and depth of the problem across many
industries, agriculture included. So, this hearing today will focus on
improving our understanding of the labor shortage and its impact on
agriculture. This is not a hearing to review specific legislation or
proposals--we are here to document the problem so that we can move
forward as a Committee to work with the other Committees with
jurisdiction on these issues to be sure that the needs of agriculture
are addressed in whatever the final solution to this serious problem
I again want to thank the witnesses who have joined us today to
provide an honest and complete picture of the labor situation in
American agriculture. I recognize that these are controversial issues
that are not easy to address, and I appreciate the information that you
will be providing to this Committee today.
OPENING STATEMENT OF HON. BOB GOODLATTE, A REPRESENTATIVE IN
CONGRESS FROM VIRGINIA
Mr. Goodlatte. Well, thank you, Mr. Chairman, and thank you
for holding this hearing on this very important issue.
Throughout the past 2 years as this Committee traveled the
country and heard from farmers all over the nation regarding
the farm bill we are working on right now, one of the common
concerns shared by many farmers was the availability of
reliable farm labor.
What I have seen and heard leads me and many of my
colleagues to conclude that the H-2A Temporary Agricultural
Visa process is not working. I have talked face-to-face with
producers who have had to deal with participating in a costly,
time-consuming, and flawed program. Employers have to comply
with a lengthy labor certification process that is slow,
bureaucratic, and frustrating.
In addition, they are forced to pay an artificially
inflated wage rate. Many producers simply cannot afford the
time and cost of complying with the H-2A Program. However, in
order to find and retain the legal workers these employers
depend on for the viability of their operations, they have no
In addition, as a long-time Member of the Judiciary
Committee, I am aware of the illegal immigration crisis our
country currently faces. It is estimated that there are 11
million illegal aliens currently living in the United Stated
with over one million working in agriculture. Instead of
encouraging more illegal immigration, successful guest worker
reform should deter illegal immigration and help secure our
It is possible to simultaneously streamline the guest
worker program, reduce illegal immigration, and protect our
borders. That is why, as the Ranking Member of the House
Agriculture Committee, and a Member of the Judiciary Committee,
I introduced H.R. 1792, the Temporary Agricultural Labor Reform
Act, a bipartisan bill that will reform the H-2A Guest Worker
Program and create a more streamlined and fair process for
everyone involved in the agriculture industry.
I do not believe in rewarding those who have broken our
nation's immigration laws by granting them blanket amnesty. And
H.R. 1792 would do no such thing. Instead my bill would
encourage the large population of illegal farm workers to come
out of hiding and participate legally in the guest worker
Potential workers would be required to return to their home
countries and apply for the program legally from there. This
would provide a legal temporary workforce that employers can
call on when insufficient American labor cannot be found and
help ensure that those temporary workers entering the country
are not threats to our national security.
We also need to address the troublesome wage issue.
Employers are currently required to pay an inflated wage called
the Adverse Effect Wage Rate, or AEWR. The AEWR was originally
designed to protect similarly situated domestic workers from
being adversely affected by guest workers coming into the
country on a seasonal basis and being paid lower wages.
However, the shortage of domestic workers in the farm
workforce forces employers to hire foreign workers and thus is
also forcing them to pay artificially inflated wages. My bill
abolishes this unfair wage rate and creates a prevailing wage
standard under which all workers are paid the same wage as
workers doing similar work in that region.
The facts are simple. The agriculture industry needs
reliable farm labor. Workers need access to stable, legal,
temporary employment. It is in our nation's interest to create
a sensible way for workers to come in on a temporary basis,
fill empty jobs, and go back to their home countries.
At this time, I would like to thank a member of our second
panel, Mr. Keith Atkinson, for participating today. Mr.
Atkinson is a tobacco grower from Virginia, and I appreciate
the fact that he has taken time out from a busy harvest period
on his farm to be here today to represent Virginia's
Mr. Chairman, I look forward to hearing from our witnesses
today and appreciate your efforts to bring this important issue
before the Committee for review.
The Chairman. I thank the gentleman for his statement, and
all Members will be allowed to put in a statement for the
record. I, however, told Mr. Mahoney that because of his
leadership and his interest, I want to tell the folks in
Florida that you have somebody who is really focused on this
and working hard. So I am going to allow Mr. Mahoney to make an
opening statement, and I guess if other Members feel the need,
we can deal with that as we go here. But Mr. Mahoney, we
appreciate your leadership, and it was because of him bugging
me that we got this hearing going. So, we are pleased to
recognize you for a statement.
OPENING STATEMENT OF HON. TIM MAHONEY, A REPRESENTATIVE IN
CONGRESS FROM FLORIDA
Mr. Mahoney. Thank you, Mr. Chairman. There has been a
great debate in this country concerning the fact that middle
and working class families are struggling. Average family
income has declined while taxes, gasoline, homeowners and
health insurance costs have skyrocketed. There has also been a
great debate over the estimated 12 million illegal workers who
are in this country and the urgent need to secure our borders.
I am thankful to Chairman Peterson and Ranking Member
Goodlatte for holding this important hearing today. It is
critical that, as we debate what Washington needs to do to help
American families prosper, we hear from the American farmer,
rancher, and grower. We need to give voice to American
agriculture's needs for labor, as there is much at stake for
our nation, should we not understand the reality of rural
We must not allow partisan politics, that is more
interested in political power than in the safety and security
of the American people, to foster unwise legislation that
prevents our crops from getting picked, thereby creating an
economic and national security crisis.
We have seen that a safe and secure food supply is vital to
protecting America in the war on terror. For too long, this
nation has taken its ranchers, farmers, and growers for
granted, entering into reckless international trade agreements
that give preference to foreign agriculture. For too long, we
have ignored the threats of pest and disease that threaten our
Now, the President, after he has failed to lead his party
and this nation in developing a comprehensive immigration
policy that secures our borders; enforces our laws; ensures
that those whose labor we rely on that are here illegally pay
their fair share; he wants to precipitate a crisis with a
change in policy that could jeopardize our ability to harvest
our crops, thereby increasing the cost of food, ruining the
livelihoods of those who feed us, and making America less
secure by becoming more dependent on foreign producers.
I am proud to represent a district in the great State of
Florida, which is a powerhouse of American agriculture. Florida
produces nearly 80 percent of the orange juice consumed in the
United States. Our agriculture industry creates 648,000 jobs
and contributes $97 billion to our economy annually. We are
proud to be able to put dinner on the table for millions of
Americans and be a reliable source of good, safe, and
Without enough workers, the crops will rot in our fields,
and the United States will be forced to import potentially
unsafe food from other countries. America could become a net
importer of food, just like we are with oil. This is a
dangerous prospect. It would put our farmers and the American
people at risk. It is time to put rhetoric aside and let the
American people understand the problem facing American farmers.
Let me be clear. I am not suggesting that illegal aliens
should be granted amnesty. We are here today to get a firsthand
assessment of the labor needs of our agriculture industry.
Before we talk about solutions, we need to understand the
problem. Our farmers are facing a growing threat, not just from
labor shortages, but also from piecemeal governmental policies
more interested in scoring political points than addressing the
This hearing today came about in part due to the Social
Security Administration and Department of Homeland Security's
decision to change their policy, and issue and enforce No-Match
letters to employers. This plan relies on inaccurate
information contained in Social Security databases that could
potentially jeopardize the jobs of American citizens.
It is unfair to punish our farmers in a political effort to
give the perception of getting tough on immigration without
actually doing so. We need policies that do get tough on
immigration by securing our borders, finding out who is here
illegally, and making them pay their fair share, while
punishing those who knowingly hire cheap, illegal labor. We
need to develop solutions that work for our farmers instead of
turning a blind eye on the broken system and forcing them to
have to choose between feeding their families and breaking the
I hope we all listen carefully today and understand it is
time to stop playing politics and start looking for real
practical solutions. This room and the Members of this
Committee are committed to the American farmer. This is one of
the very few places where partisan politics gets put away, and
Members representing farmers, ranchers, and growers from around
this great country come together to fight for agriculture.
I want to thank the witnesses for coming forward and giving
voice to this problem, and I look forward to working with my
fellow Members on solutions that make America safe and all
Americans prosper. Thank you, Mr. Chairman, I yield back my
The Chairman. Thank you, Mr. Mahoney, and thank you for
your leadership and your statement. Any other Members feel the
need to make a statement? Otherwise, your statements will be
made part of the record. You will be brief, Mr. King.
OPENING STATEMENT OF HON. STEVE KING, A REPRESENTATIVE IN
CONGRESS FROM IOWA
Mr. King. I thank you, Mr. Chairman, and I didn't intend to
offer a statement. I just think that it is appropriate for me
to just say a few words. And I would just ask that we keep this
discussion within the context of not the ``piecemeal,'' as the
gentleman said, but the broader perspective here that we have
with the immigration policy across the whole United States and
all the industries that we have. We will recognize that
industries compete against industries for labor; and we all
want to uphold the rule of law, and most of us are opposed to
If we can meet some of those standards, talk about the
impact of agriculture, maybe talk about how we could improve
some recruitment lines coming from the unemployed, unskilled
areas of the country over to the places where we need the
labor, it would be appropriate for us to try to raise the
overall average individual productivity of all of our workers
in America. And within that context, I am interested in this
testimony, and I thank the Chairman for yielding to me.
The Chairman. I thank the gentleman for that statement. All
other Members, your full statements will be made part of the
[The prepared statements of Messers. Baca, Cuellar,
Lampson, Graves, Kuhl, Smith, and Walberg follow:]
Prepared Statement of Hon. Joe Baca, a Representative in Congress From
I want to thank Chairman Peterson and Ranking Member Goodlatte for
holding this important hearing today.
I also want to thank each of our many witnesses for taking the time
out of their schedules to come here today.
I hope that you will be able to help us in Congress better
understand the consequences of the current labor shortage in
I also look forward to hearing your views on what the Federal
Government must do to help solve this problem.
As Chairman of the Nutrition Subcommittee, Chairman of the
Congressional Hispanic Caucus AND as a Member from California, farm
labor is an issue I have worked on for many years.
It's no secret that I am a firm believer in comprehensive
immigration reform that reflects American values such as family,
compassion, equal opportunity and security.
The current system is broken. People continue to live in fear, and
America continues to face a huge economic and humanitarian crisis.
Yet Congress has STILL failed to pass this urgently needed reform,
at the expense of American families.
And nowhere has this crisis been more apparent than in agriculture.
Make no mistake--a labor shortage in agriculture does exist.
One farmer from California said to me, ``I am at a point where I am
planting a seed in the ground and not knowing if I will be able to
This problem not only affects our farmers, but our families as
well. In the farm bill the Committee passed this summer, we invested
significant resources into nutrition programs and fresh fruits and
But how much good can these programs do when California lost 30% of
its pear crop last year because there weren't enough workers to pick
All of this is leading to higher food prices for working families
and increased dependence on foreign imports, potentially putting
Americans in danger.
Just this past summer the Agriculture Committee held hearings to
address contamination in imported food products from China.
This is unfortunate, because unlike many other issues we face, this
is a problem we CAN solve.
Our farmers NEED this workforce and we already HAVE people who want
to fill these jobs. We simply need to create a fair process that will
provide security for both employers and employees.
Failure to address this situation will hurt all of us--whether it's
the farmer, the worker or the consumer--because farm labor quite
literally puts food on our tables.
I look forward to working within and without the Committee, using
all my abilities and whatever resources available to solve this crisis.
Again, I want to thank Chairman Peterson and Ranking Member
Goodlatte for addressing this important issue.
I would also like to thank our witnesses for coming today and I
look forward to hearing from all of you.
Prepared Statement of Hon. Henry Cuellar, a Representative in Congress
Mr. Chairman, thank you for holding this hearing. And I thank the
witnesses for taking the time to come and testify here today.
I want to extend a special welcome to J Allen Carnes, a south Texas
vegetable producer who is here to testify today. J Allen is Vice
President of Carnes Farms, Inc., President of the Texas Vegetable
Association, Director of the Texas Produce Association, and Director of
the South Texas Onion Committee.
The labor needs of U.S. agriculture must be addressed by Congress.
Immigration policy for agriculture needs to be brought up to date
taking into account issues of homeland security, food safety, and food
Labor shortages are one of the most pressing issues facing U.S.
agriculture today. According to the Congressional Research Service,
more than half the seasonal workers working in agriculture are not
authorized to hold jobs in the United States.
South Texas and other border areas have unique problems and
opportunities with regard to the availability of agriculture workers
from Mexico. In addition, a long history of cross-border labor and
current homeland security border issues in general give south Texas a
unique perspective on this issue.
Some sectors of agriculture are dependent on non-American labor
sources to a greater extent than others.
In my district horticultural crops have seasonal labor needs,
generally peaking in June or July when fruits and vegetables are
Ranchers also face seasonal demand for labor during periods when
cattle are moved and shipped. Recent infestations of cattle fever ticks
have dramatically increased labor needs for ranchers, even during what
were formerly slow periods.
It is difficult to meet seasonal demands with locally available
labor. Local labor gravitates towards full-time, year-round employment.
To facilitate the use of temporary, legal labor from other countries,
the procedures for H-2A and other programs need to be streamlined and
We all have heard stories about growers who have cut back acreage
due to a lack of labor.
We have recently heard stories of producers taking production to
the worker by renting land in Mexico and shipping produce to the U.S.
Within the context of national security, guaranteeing employment
opportunities for American citizens, and providing a safe, dependable,
and efficient source of food; new policies must be developed to allow
agriculture to continue to serve the American people.
The H-2A program is complicated, unresponsive, expensive, and
litigation-plagued. It supplies only 2 percent of the agriculture labor
force. It cannot meet the needs of American growers and producers
unless it is substantially overhauled.
I look forward to the testimony from today's panels.
Prepared Statement of Hon. Nick Lampson, a Representative in Congress
Chairman Peterson and fellow colleagues, I am glad we are here
today to discuss the labor needs of American agriculture, and I thank
all of our panelists for coming here today to discuss this critical
issue with us. While this Congress has struggled the past few years to
address a broken immigration system and the need to secure our borders,
the needs of small business owners and farmers have been overlooked.
While we all agree that securing our borders, enforcing our laws, and
reforming immigration are immediate necessities, we must also realize
what our inability to put aside partisan rhetoric in order to solve
this problem is hurting our farmers, small business owners, their
American employees, and the seasonal workers who want to come to this
country to earn an honest living. And eventually, in the next few weeks
or months, ordinary American consumers will start to feel the affects
of our inaction.
I am greatly dismayed by the state of affairs and the paralyzing
affects our partisanship and lack of action are having on our nation's
agricultural producers. This issue was brought directly to my attention
2 days ago when an oyster farmer from my district called me
frantically. Because Congress failed to extend the waiver allowing
returning H-2B visa workers to be excluded from the cap, he will not be
able to get the 300 temporary employees he depends on to keep his
business open this season. He filled out all of the paperwork, got
approval from the Department of Labor, and waited his turn to file his
paperwork with USCIS. But on Monday he got the news that despite
following the law and going through the proper procedures, he would be
denied his temporary workers. Seasonal businesses throughout the
country encountered the same problem this week when they were notified
that as of September 27th the cap for H-2B visas had been reached for
the first half of FY 2008. Unfortunately, the oyster season begins and
ends within the first half the fiscal year and my constituent most
likely will have to shut down his operation for the first time. Not
only will this affect him and those temporary workers, but many other
constituents of mine that he employs, his distributors, and the
restaurants and consumers that buy oysters.
The economy of southeast Texas not only depends on the fish and
seafood harvested from the Gulf, but the rice, cotton, and sorghum
harvested in our fields. Although farmers use a specific agriculture
visa--H-2A--this affects all businesses that depend on seasonal workers
to keep our economy going. These seasonal workers also depend on this
income--which dwarves what they earn in their home countries--to get
their families through the year. So not only do they help our economy,
but their own by bringing home American dollars.
For the sake of our farmers, their employees, consumers, and all of
our constituents, we must put aside partisanship and rhetoric to reform
our broken system. Otherwise we risk putting people out of business,
losing jobs, and forcing higher prices for our food.
Prepared Statement of Hon. Sam Graves, a Representative in Congress
Thank you, Chairman Peterson and Ranking Member Goodlatte for
holding this important hearing. I look forward to hearing from today's
Agriculture is the economic engine of Missouri; it is the state's
top industry and it depends on labor. I believe we must work to fulfill
agriculture's labor needs, while always remaining vigilant against the
employment of illegal aliens.
The employment of illegal aliens is a threat to the security of our
food supply. Illegal aliens have already broken the laws of the United
States at least once. We cannot reward illegal aliens for breaking our
laws, but this goes even beyond that. We absolutely need to be able to
verify who is handling our food supply. It is a national security issue
without question. If we cannot do this, the potential for abuse and
damage is tremendous.
I strongly support efforts to give employers more tools to screen
potential employees. Employers should not have to be looking over their
shoulder for a discrimination lawsuit when they are just being diligent
in pursuing and verifying the information of their potential employees.
It is their duty and obligation to ask the tough questions, and they
should not be penalized for ensuring that job applications are legal.
Employers must have access to a system whereby they can immediately
verify a job applicant's legal status and whether or not a Social
Security Number is already in use by somebody else through the
Department of Homeland Security and Social Security Administration. We
must also enforce strict standards for what documents can be used and
accepted for employment purposes.
I have heard from many constituents that there is a shortage of
labor in many agricultural sectors. And I have also heard from these
very same constituents their abhorrence to employ illegal aliens. They
have rightly pointed out that fewer illegal aliens would be applying
for jobs in the United States if we successfully secured the border, so
accomplishing that is certainly an important part of the equation.
My only question to our witnesses today is what should we be doing
in Congress to make sure workers in the agricultural sector are
verifiable, eligible, and legal?
Thanks again for holding this timely hearing, and I look forward to
working with the Committee, the Executive Branch, and today's witnesses
to develop a program to do just that.
Prepared Statement of Hon. John R. ``Randy'' Kuhl, Jr., a
Representative in Congress From New York
Mr. Chairman--I would like to offer an opening statement. Thank you
I rise today to address a serious issue that has steadily escalated
in our Congressional districts over the last few months: the debate
over immigration reform. While I recognize the importance of border
security, and am a supporter of border security bills, we cannot
sacrifice the needs of our farm community. At this time, it is
imperative that we establish reasonable and effective farm worker
programs in order to sustain our agricultural vitality.
In an agriculture and tourism rich district, such as the 29th
Congressional District in New York, many businesses depend on temporary
migrant workers. There are over: 6,000 farms in my district alone,
covering over 1.2 million acres and employing thousands of workers. New
York State ranks third in the nation in dairy production, wine, and
juice grape production. New York State also produces a variety of
specialty crops, livestock, fruits and vegetables, as well as
traditional row crops including hay, soybeans, corn, oats and wheat.
Without workers, our farm community will close its doors, which we
cannot allow to happen.
The Farm Credit Associations of New York, the largest lenders to
New York State agriculture, recently released a statement describing
how the unprecedented and aggressive enforcement of U.S. immigration
laws is hurting farmers in New York State. In the statement, the
lenders said, ``Over the past months, the Immigration and Customs
Enforcement agency raids attempting to identify illegal immigrants have
been conducted on a number of New York farms. In some cases, farmers
have been unable to harvest or market crops as a result of these
disruptions.'' The lenders further state, ``If this continues, we
conservatively estimate that New York State will lose in excess of 900
farms, $195 million in value of agricultural production and over
200,000 acres in production in agriculture over the next 24 months.''
I have spoken to many farmers in my district over the past months
on immigration, and rest assured, I know the critical importance of
this issue to agriculture industry. I have worked for my entire career
in public life to do all that I can to support the agricultural
industry in New York, and I will absolutely support legislation that
allows an available agricultural workforce while ensuring that our
national security is also improved through appropriate controls. We
must put everything on the table and move forward in a manner that does
not harm the strength of the farm community. It is time that we, as
Members of Congress, work together to find a real solution to the
problem of illegal immigration.
As a strong proponent of meaningful border security measures, I
believe a non-amnesty agricultural guest worker program should be
discussed, debated, and enacted. Such a proposal should reasonably
address immigration reform in a way that protects our citizens while
acknowledging the important economic contribution of these temporary
I look forward to working with the Committee as this process
continues, and believe that we can establish an available agricultural
workforce without compromising our national security.
I would also like to submit into the Committee record a document
prepared by the New York Farm Bureau entitled ``Farm Labor Crisis: A
New York State Perspective,'' * which demonstrates the importance of
immigration reform in New York.
* The information referred to is at the end of the hearing on p.
Thank you, Mr. Chairman; I yield back the balance of my time.
Prepared Statement of Hon. Adrian Smith, a Representative in Congress
Good morning. I would like to thank Chairman Peterson for holding
today's hearing on an issue of great concern in my district.
This hearing provides us the opportunity to address some of the
challenges agriculture producers face in meeting their workforce needs.
Our goal in this Committee today is to address employers' concerns
in obtaining and maintaining a legal workforce. Agriculture producers,
as with other employers, must have a stable and reliable workforce in
order to produce safe products and be competitive in global markets. It
is both untenable and irresponsible for Congress to abdicate its duties
and instead make employers and business owners the sole source of
enforcement of our immigration laws.
I have long called for a comprehensive immigration plan which
targets this problem at its source--the border--rather than in our
fields and factories.
Therefore, as this Congress addresses the issues of immigration
reform and workforce needs, we must work to enforce our borders and
address the H-2A visa program to remove future uncertainties for
Mr. Chairman, I thank you for your leadership in holding this
hearing and I look forward to hearing from the witnesses.
Prepared Statement of Hon. Tim Walberg, a Representative in Congress
While it looks like the once red-hot immigration debate may have
cooled in Congress, immigration issues continue to affect most
Americans, especially in the agriculture community, every day.
This is especially true for the farmers of south-central Michigan.
Earlier this year I conducted a seven county, 2 day listening tour with
members of the agriculture community in south-central Michigan, and I
heard from multiple folks about how the immigration issue affects them
As we consider the issue of immigration and how it relates to
agriculture policy, it is important to first look to our past.
The United States is a nation of immigrants and was founded on
ideals that honor this tradition. For generations, freedom-loving
people from around the world have come to America to make a better life
for themselves and their families.
Immigrants wanting to join our citizenry should be encouraged and
assisted in doing so the same way millions of immigrants have legally
done so for generations.
Though the tenacity of individuals who immigrate to our nation is
admirable, the government has a duty to secure our borders and ensure
that those coming to our country do so legally. The U.S. Immigration
and Customs Enforcement agency estimates that around 500,000 illegal
immigrants enter the United States every year.
Illegal immigration poses an unacceptable threat to our national
security and must not be allowed to continue. It is my belief that any
and all attempts to enact immigration reform must not include amnesty
for illegal immigrants.
However, merely opposing amnesty for illegal immigrants is not
sufficient, especially if we want many of our local farms to survive.
Throughout Capitol Hill debates on immigration and the farm bill this
year, I have consistently stated that our country needs a work permit
program that meets the evolving needs of today's agriculture industry.
One of biggest problems in today's immigration system is
bureaucratic red-tape for agriculture employees. The current H-2A
program does not assist the average apple, dairy or corn farmer.
The H-2A program is also not fair in comparison to the H-2B
program. Although these two programs are very similar, the H-2A program
requires more funding and paperwork, adversely impacting employers who
rely upon this program.
Agriculture has traditionally been in the forefront of this debate,
but we must not forget that landscaping, construction, tourism and
other industries employing temporary workers have also been impacted by
the bureaucratic red-tape plaguing these programs.
While we all agree there is a major need for immigration reform in
the United States, this reform needs to ensure the security and economy
of our nation is protected.
If we can deny amnesty to illegal immigrants and eliminate the
massive amount of inefficient bureaucracy in today's immigration
system, we can successfully establish a work permit program that meets
the evolving needs of today's agriculture industry.
The Chairman. We are pleased to welcome the first panel,
Dr. James Holt from Washington, D.C.; Mr. Bob Stallman,
President of the American Farm Bureau Federation; Mr. Lee
Wicker, Deputy Director, North Carolina Growers Association;
Mr. Scott Herring, Executive Vice President and CEO of Farm
Credit of Western New York; Mr. Bruce Goldstein, Executive
Director, Farmworker Justice; and Mr. Mike Brown, Senior Vice
President for Legislative Affairs, AMI.
We have votes coming up. Five of them are 5 minute votes,
so I guess we are talking about a little over a half hour or 45
minutes. So I would recognize the first witness, and then we
will probably have to take a break, and we will resume as soon
as the votes are completed. So, Mr. Holt, welcome to the
STATEMENT OF JAMES S. HOLT, Ph.D., PRESIDENT AND
PRINCIPAL, JAMES S. HOLT & CO., LLC; AGRICULTURAL LABOR
ECONOMIST, WASHINGTON, D.C.
Dr. Holt. Thank you, Mr. Chairman, for the invitation to
provide testimony for this hearing on the labor needs of U.S.
agriculture, and, yes, I am going to follow the word ``labor''
The U.S. agricultural industry is in the midst of a labor
crisis, and let me cite just a few statistics to illustrate it.
More than 55,000 U.S. farmers hire labor and pay an estimated
payroll of $21 billion. The cost of hired labor accounts for $1
of every $8 of farm production expenses on average and
significantly more in the labor intensive fruit, vegetable, and
The more than three million agricultural jobs each year are
filled by an estimated 2.5 million hired farm workers. Seventy-
eight percent of the U.S. seasonal agricultural workforce are
foreign born. The U.S. Department of Labor documents that at
least 53 percent of U.S. seasonal agricultural workers are not
legally entitled to work in the United States. The actual
percentage is much higher.
One of every six seasonal agricultural workers is new to
the U.S. hired agricultural workforce each year, and an
astonishing 99 percent of those workers report they are not
legally entitled to work in the United States. Forty percent of
the U.S. seasonal agricultural workforce are international
migrants who reenter the country each year to perform
This system is no longer tenable. The reason for the U.S.
agricultural labor crisis is that for more than 2 decades,
economic growth and job creation in the U.S. have outpaced the
expansion of the U.S. labor force through natural birth and
legal immigration. There are now literally millions more jobs
in our economy than there are American workers, natural born or
legally admitted, to fill them.
Not surprisingly, the legal workers have gravitated to the
more attractive, easier, more permanent, more skilled jobs
close to their urban home and environment. Seasonal jobs,
manual jobs, rural jobs have suffered. In no industry has the
impact been greater than in agriculture, which is largely
seasonal, manual, and rural.
The proportion of seasonal agricultural workers who are
illegal has grown steadily for the past 2 decades, in spite of
the fact that wage rates in agriculture have grown more rapidly
than in non-agricultural wages. The average hourly wage for
U.S. field and livestock workers in the United States is now
$9.44 an hour.
No informed person seriously contends that wages, benefits,
and working conditions in seasonal agricultural work can be
raised sufficiently to attract workers away from their
permanent, non-agricultural jobs, and the numbers needed to
replace the illegal alien agricultural workforce and maintain
the economic competitiveness of producers. U.S. growers are in
economic competition with foreign growers in both U.S. domestic
and global agricultural markets.
If there is upward pressure on U.S. producers' production
costs from, for example, a shortage of labor, some domestic
production will become uncompetitive, and farmers will be
forced out of business. This adjustment will continue until the
competition for the remaining supply of labor has diminished to
the point where there is no longer upward pressure on farm
Given the huge proportion of illegal workers in the current
farm workforce, the downward adjustment in domestic
agricultural production that would have to take place to clear
the market of alien workers in agriculture is immense.
Consumers will likely feel little impact from this adjustment
because farm producers will quickly feel the void left by
However, domestic workers in the upstream and downstream
jobs will be heavily impacted, as will farmers. There are about
3.1 such upstream and downstream non-agricultural jobs that are
dependent on U.S. agricultural production. And many of these
Of even greater concern is that the U.S. will be
substantially more dependent on foreign suppliers for our food
and fiber. The only current program for legally employing
foreign workers in the United States is the H-2A Temporary
Agricultural Worker Program. Even though the H-2A Program has
grown substantially in the past few years, it still accounts
for a miniscule proportion of agricultural employment. Fewer
than 2 percent of U.S. agricultural job opportunities and
barely 1 percent of U.S. farmers are H-2A certified.
In short, we currently have two agricultural guest worker
programs operating in this country. A legal guest worker
program that fills a miniscule 2 percent of agricultural jobs
and an illegal guest worker program that fills at least half
and likely more than \3/4\ of U.S. agricultural jobs.
The nation's agricultural labor policy is in desperate need
of reform. Reforms are needed in both the administration of the
H-2A Program, the H-2A regulations, and the nation's basic
agricultural immigration statutes. Congress has had before it
for more than 6 years the Agricultural Job Opportunities and
Benefits Act. AgJOBS represents an historic milestone in that
it has brought together agricultural organizations, farm worker
advocacy organizations, farm worker unions, ethnic groups,
religious organizations that have historically battled over
agricultural labor and guest worker policies.
AgJOBS is a serious, well thought-out, well balanced
response to the nation's agricultural labor crisis and has the
support of the overwhelming majority of the agricultural
The Administration also has before it an agenda of
proposals for administrative and procedural streamlining of the
H-2A Program offered in response to the promulgation of the
Society Security mismatch regulations. These administrative
reforms are urgently needed. They are not a substitute for
legislative action. It is clear that the status quo , a U.S.
agricultural industry almost completely dependent on
unauthorized workers who have entered the U.S. illegally is
It is equally clear the ceding U.S. production of food and
fiber to foreign producers is untenable. Congress and the
Administration have ignored this problem for far too long. The
time to act is now. Thank you, Mr. Chairman.
[The prepared statement of Dr. Holt follows:]
Prepared Statement of James S. Holt, Ph.D., President and Principal,
James S. Holt & Co., LLC; Agricultural Labor Economist, Washington,
Mr. Chairman, thank you for the invitation to provide testimony for
I am an agricultural labor economist. I was a Professor of
Agricultural Economics and Farm Management at The Pennsylvania State
University for 16 years. For the past 30 years I have conducted
research, consulted and lectured on agricultural labor and human
resource management, immigration and employment issues, and the H-2A
temporary agricultural worker program for government agencies,
universities and private organizations. I have been a consultant to
many grower associations, individual farming operations and other
employers throughout the United States using the H-2A program, and to
national agricultural organizations, including the National Council of
Agricultural Employers (NCAE). However, I am not representing any
specific organization here today.
I do not speak lightly, nor engage in hyperbole, when I testify
today that the U.S. agricultural industry is in the midst of a labor
crises, the resolution of which will determine whether U.S. producers
of fruits, vegetables, and horticultural and other specialty
commodities are more than marginal participants in U.S. and global
markets for the commodities they produce in future decades. The current
agricultural labor crisis will also have a profound impact on the U.S.
dairy and sheep industries, U.S. grain producers, the agricultural
processing sector, and many other agricultural operations. It will also
largely determine the future of the domestic upstream and downstream
businesses that service these sectors.
The labor intensive fruit, vegetable and horticultural sectors are
already overwhelmingly dependent on foreign workers, the majority of
whom are working in the U.S. illegally. The U.S. dairy, meat packing,
and food processing sectors are significantly dependent on a foreign,
and preponderantly illegal, workforce and becoming more so every year.
U.S. custom combine operators who harvest the great plains grain crops,
and sheep producers in the western states, are heavily dependent on
foreign workers obtained through the nearly dysfunctional H-2A program.
The labor problems of U.S. agriculture have been ignored and swept
under the rug for decades, only to become more problematical with each
passing year. At a minimum, several hundred thousand new farm workers
have illegally entered the United States to work on U.S. farms, and
fill the jobs vacated several hundred thousand illegally present farm
workers who have moved into the non-farm workforce since the Members of
this Committee were last elected or re-elected. The public is now
insisting, and our national security demands, that our government and
the Congress squarely face and resolve this problem. How you resolve it
will determine the future of important sectors of U.S. agriculture.
Hired Farm Employment and the U.S. Hired Farm Work Force
Hired labor is an essential input in U.S. agriculture. More than
550,000 U.S. farmers hire workers to fill more than three million
agricultural jobs each year. The farms that hire labor are the backbone
of American agriculture, accounting for the overwhelming majority of
U.S. agricultural production.
Farmers pay an annual payroll estimated at $21 billion. Expenses
for hired and contract labor account, on average, for $1 of every $8 of
farm production expenses, and up to $1 of every $3 or more of farm
production expenses on farms in the labor intensive fruit, vegetable
and horticultural sectors.
Because a high proportion of U.S. agricultural jobs are seasonal,
the three million U.S. agricultural jobs each year are filled by a
hired farm workforce of about 2.5 million persons. About 1.6 million of
these are non-casual hired farm workers who perform more than 25 days
of hired farm work a year. Approximately 1.2 million of the non-casual
hired farm workforce are likely not authorized to work in the U.S.
The fact that the U.S. hired farm workforce is overwhelmingly
illegal is not speculative, it is well documented. Ironically,
agriculture is the one sector of the U.S. workforce for which the
Federal Government actually produces official statistics on illegal
alien employment. These come from the National Agricultural Worker
Survey (NAWS), a survey program begun after the enactment of the
Immigration Reform and Control Act of 1986, and conducted biannually by
the U.S. Department of Labor Among other questions, the survey asks
seasonal agricultural workers whether they are authorized to work in
the United States. In the first survey, conducted in FY 1989, 7% of
U.S. seasonal agricultural workers said they were unauthorized. By FY
1990-1991 the figure was 16%. By FY 1992-1993 it was 28%. By FY 1994-
1995 it was 37%. In the most recently published NAWS survey, 53 percent
of all seasonal agricultural workers admitted they were not authorized
to work in the U.S. Experience on the ground, based on work place
audits and other evidence, suggests that closer to 75 percent of U.S.
farm workers are not legally entitled to work in the U.S.
Even more significant for the future is that \1/6\ of seasonal
agricultural workers are ``newcomers'', working their first season in
U.S. agriculture. An astonishing 99 percent of these newcomers self-
identify that they are not authorized to work in the U.S. This means
that for all practical purposes every new worker entering the U.S.
hired crop workforce is illegal. The NAWS does not survey livestock
workers, and the percentage of illegal workers and replacements may be
somewhat lower than in the crop sector. However, it would be a huge
mistake to assume that illegal workers are not a large and rapidly
growing proportion of the hired workforce in the livestock sector as
well. Dairying, in particular, is heavily dependent on foreign born,
and likely preponderantly illegal, workers.
Social Security Administration No-Match statistics also document
the high level of illegal alien employment in agriculture. Agriculture,
which accounts for only 1.2 percent of U.S. employment, accounts for 17
percent of all Social Security no-matches, more than any other sector
of the U.S. labor force.
Some commentators blame U.S. agriculture for not attracting and
retaining a legal U.S. workforce. I believe that is misplaced blame.
The decade of the 1990's was a period of unprecedented economic growth
and job creation in the U.S. But it was also a decade when the rate of
growth in the native-born U.S. workforce continued to slow, and the
number of new labor force entrants from the native born population and
legally admitted foreign workers was far below the rate of new job
creation. At the beginning of the decade, 31% of the U.S. seasonal
agricultural workforce was still U.S. born. By the end of the decade,
only 19% was U.S. born. During the decade of the 1990's the real hourly
wage rate in agriculture increased at a more rapid rate than for the
non-agricultural workforce. But the lure of year round work, easier
jobs and more pleasant working conditions in most non-agricultural
employment was obviously enough to attract many U.S. workers out of
agriculture, even into jobs in which the nominal hourly wage was lower
than in agriculture. By the FY 1997-1998 NAWS survey, 81% of U.S.
seasonal agricultural workers were foreign born and 77% were born in
Mexico. One-third had immigrated to the U.S. within the last 2 years.
More than \1/3\ were under the age of 25, and \2/3\ were under the age
The U.S. seasonal agricultural workforce is a very diverse
workforce in many respects. One of the respects in which it is diverse
is in its international migratory status. About 40% of U.S. seasonal
agricultural workers are international migrants whose permanent
residence is outside the United States and who come into the U.S.
temporarily to perform agricultural work. This workforce is
preponderantly young, single and illegal. The other 60% of the seasonal
agricultural workforce are permanent residents of the U.S. This group
includes most U.S. born farm workers, but is also majority foreign born
and majority illegal. Over-all, only \1/2\ of the U.S. seasonal
agricultural workforce are married, and only \1/4\ have children with
whom they reside in the U.S.
Agricultural migrancy within the U.S. is the exception rather than
the rule. Almost \2/3\ of U.S. seasonal agricultural workers hold only
one farm job in the U.S. during the year, and more than 90% hold three
or fewer jobs per year. Only 1% hold as many as six different
agricultural jobs during the year. Only 17% are what are traditional
``follow-the-crop'' migrants, who hold two or more agricultural jobs
during the year which are more than 75 miles apart and are more than 75
miles from their residence.
The Impact of Immigration Policy on Agriculture
Now let us relate this to immigration policy.
Economic growth in the United States (or any other country in the
world) is determined by two factors, growth in the labor force--the
number of persons who are engaged in producing goods and services--and
growth in productivity--the quantity of goods and services each worker
produces each hour and each day they work. The story of how the United
States has become the economic engine of the world is largely the story
of an expanding labor force coupled with phenomenal improvements in
worker productivity. Although often overlooked or taken for granted in
this story, the phenomenal growth in U.S. agricultural productivity has
been a critical contributor to U.S. economic growth. It has enabled an
ever larger proportion of the U.S. labor force to engage in the
production of other goods and services rather than food and fiber, to
the point where less than 2 percent of the U.S. labor force is now
engaged in agriculture.
Immigration has also been an important historical factor in the
nation's economic growth. It has enabled the expansion of the U.S.
labor force far more rapidly than would have occurred through normal
reproduction by the native born population. Imagine, for example, that
we had stopped immigration in 1776 and relied only on natural birth
after that, or that we had closed our borders in 1812, or 1865, or
1910, or even 1950.
Immigration is even more important to sustaining U.S. economic
growth today than it was in any of those past periods. That is because,
like Japan and Western Europe before us, and increasingly even Mexico,
China, India, and second world countries, the birth rate of native born
Americans is declining. In some developed countries birth rates have
declined to the point where they are not even replacing, much less
expanding, the labor force. It is important that we understand that
even in the U.S. we long ago passed the point where we were producing
enough native born workers to fill all the new jobs being created in
the U.S. economy. In fact, we long ago passed the point where we were
producing enough native born workers AND legally admitting enough
aliens, to fill all of the jobs we were creating in the U.S.
When I hear people say illegal aliens only take the jobs Americans
won't do, I say that is a result, not a cause. Illegal aliens take the
jobs there aren't enough American workers to fill. There are literally
millions more JOBS in our economy than there are American workers to
fill them, even if we include in the term ``American worker'' every
person who is legally entitled to work in the United States, whether
they were born here or not. Given this huge imbalance between jobs and
workers, it is not surprising that American workers gravitate to the
more attractive jobs, leaving the less attractive ones to be filled by
The reality is that the U.S. is dependent on illegal immigration
for economic growth, and growing more so by the year. The rate of
growth in the native born labor force continues to decline, and could
become negative as it already has in some developed economies. The only
way we can sustain our current level of economic activity, much less
expand it, is through in-migration of alien workers. That is why Alan
Greenspan was so concerned about immigration policy while he was
Chairman of the Federal Reserve. Job creation is one of the most
important engines of economic growth. But job creation can not occur if
there are not workers to fill the jobs. The economic slow down after 9/
11 provided a window on the importance of immigration to the national
economy. One of the most important contributors to that slow down was a
temporary reduction in both legal and illegal immigration, coupled with
a small exodus of foreign workers already here, because some foreign
workers were afraid to be in the United States.
Imagine, therefore, what the economic impact of really effective
border control that stopped illegal immigration would be. And then
imagine, if you dare, what the economic impact would be of removing
from the workforce, through effective work place enforcement or
otherwise, the illegal workers who are already here.
Some suggest that such a scenario would be a good thing. According
to this view, agricultural employers should be left to ``compete in the
labor market just like other employers have to do.'' Under this
scenario, there would be strict workplace enforcement and no guest
workers. To secure legal workers and remain in business, agricultural
employers would have to attract sufficient workers away from competing
non-agricultural employers by raising wages and benefits. Those who
were unwilling or unable to do so would have to go out of business or
move their production outside the United States. Meanwhile, according
to this scenario, the domestic workers remaining in farm work would
enjoy higher wages and improved working conditions.
No informed person seriously contends that wages, benefits and
working conditions in seasonal agricultural work can be raised
sufficiently to attract workers away from their permanent
nonagricultural jobs in the numbers needed to replace the illegal alien
agricultural workforce and maintain the economic competitiveness of
U.S. producers. With hired labor accounting, on average, for 12 percent
of all farm production costs, a substantial increase in wage and/or
benefit costs will have a substantial impact on growers' over-all
production costs. U.S. growers are economically competitive with
foreign producers at approximately current production costs. If U.S.
producers' production costs are forced up by, for example, restricting
the supply of labor, some U.S. production will become uncompetitive in
the foreign and domestic markets in which U.S. and foreign producers
compete. U.S. producers will be forced out of business until the
competition for domestic farm workers has diminished to the point where
the remaining U.S. producers' production costs are again at global
equilibrium levels. The end result of this process will be that
domestic farm worker wages and working conditions (and the production
costs of surviving producers) will be at approximately current levels,
while the volume of domestic production will have declined sufficiently
that there is no longer upward pressure on domestic farm worker wages.
Given the large proportion of illegal workers in the current farm labor
market, the reduction in domestic production is likely to have to be
very substantial to clear the labor force of illegal workers. Consumers
will likely feel little impact, because the market share abandoned by
U.S. producers will be quickly filled by foreign production.
The domestic employment impacts of this adjustment will not be
limited to alien farm workers and U.S. farmers. Since agricultural
production is tied to the land, the labor intensive functions of the
agricultural production process cannot be foreign-sourced without
foreign-sourcing the entire production process. We cannot, for example,
send the harvesting process or the thinning process overseas. Either
the product is entirely grown, harvested, transported and in many cases
initially processed in the United States, or all of these functions are
done somewhere else, even though only one or two steps in the
production process may be highly labor intensive. When the product is
grown, harvested, transported and processed somewhere else, all the
jobs associated with these functions are exported, not just the
seasonal field jobs. These include the so-called ``upstream'' and
``downstream'' jobs that support, and are created by, the growing of
agricultural products. U.S. Department of Agriculture studies indicate
that there are about 3.1 such upstream and downstream jobs for every
on-farm job. Most of these upstream and downstream jobs are ``good''
jobs, i.e. permanent, average or better paying jobs held by citizens
and permanent residents. Thus, we would be exporting about three times
as many jobs of U.S. citizens and permanent residents as we would farm
jobs filled by aliens if we restrict access to alien agricultural
The U.S. farm workers and workers in upstream and downstream jobs
that would be displaced by the elimination of the alien farm labor
supply would presumably be absorbed into the non-agricultural economy,
which would be hungry for domestic workers to replace the foreign
workers to whom they no longer had access. But the total volume of U.S.
economic activity (and GDP) would have been reduced. And the U.S. would
be substantially more dependent on foreign suppliers for food.
Background on the H-2A Temporary Agricultural Worker Program
The only current program for legally employing foreign agricultural
workers in the United States is the H-2A temporary agricultural worker
program. This program was enacted 55 years ago as a part of the
Immigration and Nationality Act of 1952. From 1952 until 1986, there
was no statutory distinction between temporary agricultural and non-
agricultural workers--both entered under the ``H-2'' program. However,
almost from the outset the Department of Labor promulgated separate
regulations governing the requirements for H-2 agricultural and non-
agricultural programs, and this distinction was recognized statutorily
in the division of the H-2 admission category into H-2A and H-2B in the
Immigration Reform and Control Act of 1986.
From 1970 through the late 1990's the number of H-2 and H-2A
agricultural job opportunities certified fluctuated from about 15,000
to 25,000 annually. In the past decade usage has increased
substantially, with 59,112 H-2A agricultural job opportunities
certified in FY 2006. Many alien workers fill two or more H-2A
certified job opportunities within the same season, so only about half
as many individual H-2A aliens are admitted each year as the number of
job opportunities which are H-2A certified.
Despite its recent dramatic growth, use of the H-2A program is
miniscule in comparison with U.S. agricultural employment. Fewer than 2
percent of the three million U.S. agricultural job opportunities are H-
2A certified, and only about 1 percent of the hired farm workforce are
The above statistics underscore that we currently have two
agricultural guest worker programs operating in this country--a legal
guest worker program that fills a miniscule 2 percent of U.S.
agricultural jobs, and an illegal guest worker program that fills at
least half, and likely more than \3/4\, of U.S. agricultural jobs. This
situation exists as a result of a cascade of failures--failure of our
border control system, failure of our system for interior enforcement,
failure of our work authorization documentation procedures, failure of
our immigration laws to address realistic labor force needs, and the
Labor Department's antagonistic administration of the H-2A program.
Benefits and Problems of the H-2A Program
A legal, workable agricultural guest worker program benefits
farmers, alien farm workers, domestic farm workers, and the nation.
It benefits farmers by providing assurance of an adequate supply of
seasonal workers at known terms and conditions of employment. In an
industry where more than 80 percent of jobs are seasonal, and a
workforce must be reassembled at the beginning of every season, it
provides assurance that when farmers and their families invest millions
in farm production assets, there will be a labor force to perform the
work. It also promotes continuity, stability and productivity in
agriculture. While there are no official statistics, anecdotal evidence
is that \3/4\ or more of the H-2A workforce in any given year are
returning workers, and H-2A employers almost universally find that this
stable, experienced workforce is more productive, and employers can get
by with fewer workers than when they are recruiting a new,
inexperienced workforce every year.
A workable guest worker program benefits alien workers by providing
a legal, regulated way for aliens to work in the United States in jobs
where their services are needed. It may surprise Members of the
Committee to learn that the pressure on employers to participate in the
H-2A program often comes from their illegal workers, who pay exorbitant
costs to be smuggled into the U.S., often under life threatening
conditions, and face fear and abuse while they are here. As H-2A guest
workers, they enter legally and work with rights and guarantees. Not
withstanding the allegations of opponents of the program, H-2A aliens
value their jobs, are careful to comply with program requirements, and
return as legal workers year after year. In the words of one former
illegal alien whose employer got into the H-2A program, ``I thank God
every day for the H-2A program''.
The program also benefits domestic farm workers. It assures open
recruitment for and access to H-2A certified job opportunities for
local and non-local domestic workers who want such work. It assures
that U.S. workers have preference in these jobs, even if they are
already filled by aliens. It provides labor standards and employment
guarantees that are above the norms for most agricultural jobs and for
many rural non-agricultural jobs. Equally important, the H-2A program
assures the viability of the jobs of U.S. workers in the upstream and
downstream jobs that are dependent on agricultural production in the
An adequate supply of legal labor also benefits the nation. Food
and fiber are basic commodities. It is not in our national interest to
be significantly dependent on foreign sources for such commodities.
However, it is also clearly not in our national interest to have such a
basic industry as food and fiber production almost entirely dependent
on a workforce which has entered the U.S. and is living and working
here illegally and without control. In a mature economy like that of
the U.S., where the native born workforce is growing at a substantially
lower rate than job growth, our only policy options are a workable
agricultural guest worker program or dependence on foreign producers
for our food and fiber.
That is what works about the H-2A program. What often doesn't work
are the cumbersome, bureaucratic procedures of the program. Farmers
seeking to use the program must first apply for a labor certification
from the U.S. Department of Labor and attempt to recruit qualified U.S.
workers. If the employer's application meets the requirements of the
Department of Labor and sufficient U.S. workers cannot be found, a
labor certification is issued. The employer then files a petition with
the U.S. Citizenship and Immigration Service (USCIS) for the admission
of H-2A aliens. Meanwhile, a supply of alien workers must be recruited.
If the employer's petition is granted, it is transmitted to the U.S.
consulate where the aliens will apply for visas. The aliens complete
visa applications and are interviewed. They must meet the same criteria
as any other applicant for a non-immigrant visa. The aliens who are
granted visas then travel to the port of entry and apply for admission
to the U.S. Those who are admitted travel to the employer's farm. In
order for workers to arrive at the by the employer's date of need, this
entire process must take place in 45 days. Once the workers arrive, H-
2A employers face a barrage of compliance monitoring and enforcement
officers, outreach workers, social service agencies and legal service
activists. Nowhere else are so few monitored by so many. Lawsuits are
Many employers are daunted by the imposing H-2A administrative
processes, and simply never try to use the program. Those who do use it
must navigate a gauntlet of obstacles. Not withstanding statutory
performance deadlines, H-2A labor certifications are often issued late
and after interminable haggling over the wording of application
documents. The problem of late labor certifications is compounded by
processing delays in approving petitions at the Department of Homeland
Security and in securing appointments for visa applicants at U.S.
consulates. During the 2007 season, the arrival of many H-2A workers
was seriously delayed, imposing substantial costs and potential losses
on employers who are paying a premium to do things right and comply
with the law. Even brief delays in the arrival of workers can be
disastrous to producers of perishable agricultural commodities.
The H-2A certification process is also unnecessarily complicated.
Even though 97.5 percent of H-2A labor certification applications, and
92 percent of the job opportunities on those applications, were
certified in FY 2006, it nevertheless required an extremely labor
intensive, paper intensive process for individually processing,
recruiting on and adjudicating every single one of the 6,717 H-2A
applications certified. This process is repeated annually, not
withstanding the fact that approval rates have been in the 90 percent
range for decades, and the availability of legal U.S. workers as a
percentage of the need has been in single digits. This repetitious and
labor intensive process for demonstrating annually that there are not
sufficient able, willing and qualified eligible (i.e. legal) workers to
take the jobs offered for each and every application, even when the
same labor market is tested multiple times a week and month for
identical job opportunities, and when the USDOL's own statistics show
that more than half of the domestic agricultural workforce is illegal,
is government bureaucracy at its worst.
The Need for Reform
The nation's agricultural labor policy is in desperate need of
reform. Reforms are needed in the administration of the H-2A program,
the H-2A regulations, and the nation's basic agricultural immigration
In August of this year the Administration announced its intent to
incorporate Social Security No-Match information into its strategy for
immigration enforcement, and the rules employers would be expected to
follow upon receipt of No-Match notifications in order to protect
themselves from charges of knowing hiring or continued employment of
illegal workers. In recognition of the impact the No-Match regulation
was likely to have on agriculture, the Administration also promised to
make every effort to reform the H-2A administrative procedures and
regulations in order to make it as useable an option as possible for
agricultural employers to meet their needs for adequate legal labor.
The National Council of Agricultural Employers has presented the
Administration with a list of more than three dozen administrative and
regulatory actions that need to be taken to remove obstacles and
bottlenecks in the H-2A program and make it reasonably cost competitive
for potential users. I understand that the NCAE is filing these letters
with the Committee in a written statement for the record, and I will
not reiterate them here. Suffice it to say here that the labor
certification process, in particular, is predicated on woefully
outdated assumptions with respect to the demographics of the U.S.
agricultural workforce and labor supply and U.S. agricultural labor
markets. This is compounded by a culture of hostility toward the
program and program users within the Department of Labor. The H-2A
petition adjudication and visa issuance processes are bogged down by
the shear volume of other work these agencies are mandated to perform.
Unless the No-Match regulation is blocked by the courts, it will
begin having an immediate impact on agriculture in the southern growing
areas this winter, and its effects will quickly march northward with
the 2008 growing season. It is imperative that the Administration make
a good faith effort to quickly implement the administrative reforms,
and immediately begin work on regulatory reform. However, it is also
imperative that Congress realize that administrative and regulatory
reform of the H-2A program is not enough. Many of the most important
long term reforms of our broken agricultural labor system can only be
made statutorily. The responsibility for these statutory reforms lies
squarely with the Congress.
The Agricultural Job Opportunities and Benefits Act (AgJOBS)
In 2001 agricultural employers and farm worker advocates and unions
achieved an historic milestone in negotiating an H-2A reform
legislation package known as the Agricultural Job Opportunities and
Benefits Act, or AgJOBS. AgJOBS has broad bipartisan support in
Congress as well as among ethnic groups, religious groups, and farm
worker and agricultural organizations that have historically battled
over agricultural guest worker policy and procedures. It is intended to
address many of the economic, justice and administrative problems with
the current H-2A program.
AgJOBS reforms the administrative structure of the H-2A program to
make it more efficient and more reliable as a source of timely legal
labor. It also reforms the conditions for use of the program, making it
more economically accessible to agricultural employers. It does this in
a way that protects U.S. farm workers and assures access to
agricultural jobs for those who want them. It also protects alien farm
workers. Finally, it addresses the heavy reliance of U.S. agriculture
on a currently illegal workforce by providing a pathway to adjustment
of status for illegal farm workers that is humane, and which will not
cause chaos and disruption in the U.S. agricultural economy.
It is impossible to overstate the significance of the broad support
AgJOBS has among historic adversaries. AgJOBS has the support of the
two major U.S. farm worker unions, the United Farm Workers and the Farm
Labor Organizing Committee, hundreds of other immigrant advocacy and
labor advocacy groups, religious organizations, and the overwhelming
majority of agricultural employer organizations.
The United States faces a serious economic, labor market and
security challenge. The demographics of the U.S. population are such
that we are barely replacing the existing workforce through native born
workers. We are not coming close to producing enough native born
workers to meet the requirements of our growing economy. This has been
true for more than a decade. Yet our legal immigration policies have
been largely blind to the labor force needs of the economy. As a
consequence, we now have millions of persons living and working in the
U.S. illegally. And a good thing for us that this is so. Our economic
growth over the past decade has been sustained and nourished by our
failed immigration policies.
Agriculture has been particularly affected by the shortage of legal
native born and immigrant workers, for reasons that are obvious on
their face. With more available jobs than legal workers, the legal
workers have migrated to the more skilled, year round, more pleasant,
urban, higher paying jobs. This is not an indictment of U.S.
agricultural jobs. It is a reflection of the reality that when there
are more jobs than workers, the less attractive jobs are more likely to
go unfilled. If these jobs were not critical to our national economy
and security, this would not necessarily pose a problem. But when they
are in an industry as critical as the food and fiber sector, it poses a
It is clear that the status quo--a U.S. agricultural industry
almost completely dependent on unauthorized workers who have entered
the U.S. illegally, is untenable. It is equally clear that ceding U.S.
production of food and fiber to foreign producers is untenable.
Congress and the administration have ignored this problem far too long.
Mr. Holden [presiding.] Thank you, Dr. Holt. And on
consultation with the Ranking Member, we believe we better
adjourn now for the votes and return in about 45 minutes. The
Committee stands adjourned.
The Chairman. The Committee will come back to order. Now we
are pleased to recognize a good friend and somebody who has
been a real leader on this issue, bringing this forward all
over the country. Mr. Bob Stallman, the President of the
American Farm Bureau Federation. Thank you, Bob.
STATEMENT OF BOB STALLMAN, PRESIDENT, AMERICAN FARM BUREAU
FEDERATION; RICE AND CATTLE PRODUCER, COLUMBUS, TX
Mr. Stallman. Mr. Chairman, Members of the Committee, I am
a rice and cattle producer from Columbus, Texas and President
of the American Farm Bureau Federation. And thank you for the
invitation to testify. This hearing could not come at a more
crucial time. As I travel around the country, I am constantly
asked by farmers when is Congress going to fix our labor
problem. Of course, I can't answer that question, only you can.
But I am here today to ask you to find an answer and find
it quickly. Why is that? Today, agriculture hires about one
million hired workers. It is the highest proportion in our
history, and it has been that way for nearly 2 decades, but the
stability of that labor force is now in doubt.
The U.S. Department of Labor estimates that at least half
our workers lack authorization. Some people put that figure
much higher. Demand for workers is tight and growing tighter. A
significant disruption in the supply of workers will increase
farmers' costs, put more foreign-grown produce in our
supermarkets, strengthen our international competitors, weaken
our nation's food security, and put many farmers out of
business as they lose their workers or the costs of labor get
beyond their reach.
We shouldn't let that happen, and I hope you won't. To
those who say if you only paid more, we wouldn't have this
problem, I say look at the facts. We are paying workers more
today than we ever have. The average hired farm worker wage in
2005 was $9.50 an hour. With a benefits package, the average
cost per worker was in the $11 to $12 an hour range. For
farmers who use the H-2A Program, labor costs are even higher.
And there are ten million people working in our economy today
who work for lower wages than they could get working in the
To those who say we turn a blind eye to the law, I say look
again and see what the law makes us do. Go to the U.S.
Department of Agriculture website today, and you can read for
yourself what advice they are giving farmers. To quote from the
U.S. Government, ``employers with four or more employees are
prohibited from document abuse. Document abuse occurs when an
employer requests an employee or applicant to produce a
specific document or more or different documents than are
required to establish employment eligibility or rejects valid
documents that reasonably appear genuine on their face.
Applicants should not be asked where they were born or whether
they're legally entitled to work in the United States.''
Some people say the No-Match rule issued by the Department
of Homeland Security will fix this. In fact, it won't. The rule
raises significant concerns. The DHS rule tells an employer
what he must do if he wants to avoid having DHS charge him with
knowingly employing an illegal worker. If he follows the DHS
steps but keeps the employee, the DHS says it may charge him
with breaking the law. But if he follows those same steps and
discharges the employee, he can be sued by the employee. And
DHS says it won't even shield employers from such a result. And
this type of legal jeopardy is in addition to the threat
constantly posed by legal services attorneys who dislike the H-
2A Program and are only too ready to take farmers to court.
We all know the law needs to be changed. Farmers know that.
We support it. Our nation must secure its borders. We must
assure that those who are working here are entitled to do so,
but don't cripple agriculture in the process. Last year, the
American Farm Bureau Federation released a report, a copy of
which is attached to our submission, detailing the impact to
our sector, if we were to lose our current supply of labor.
Let me highlight just two figures for you. Without a
stable, legal supply of labor to replace the presence of
currently unauthorized workers, the fresh fruit and vegetable
sector could see U.S. production decline by up to $9 billion a
year. Similarly, an abrupt loss of our labor supply would cause
net farm income to drop by up to $5 billion annually. We cannot
let this problem continue.
Let me outline five suggestions that should frame your
approach. One, don't make matters worse. The No-Match rule
issued by DHS has the potential to put farmers in legal
jeopardy even when they follow the regulation. That is wrong.
It should not happen.
Two, do what you can now. The Administration is attempting
to reform the H-2A Program through regulation to make it more
efficient, more responsive, and more readily usable by growers
while protecting the rights of workers. We urge all Members of
Congress to support this effort.
Three, face reality. U.S. agriculture depends on migrant
labor. We all know that. Don't make farmers check boxes and
jump through meaningless hoops only to get their workers weeks
after they need them. Expedite the visa process for guest
workers by using creative solutions. For instance, we have
suggested an expedited process whereby an appropriate entity in
a state could certify at the start of the year that an
agricultural labor deficit exists in that state. Such a
certification could trigger expedited handling and processing
of guest workers up to a certain limit.
Four, take up legislation without delay. We all recognize
the difficult issues that arise in the immigration debate.
Ignoring them will not solve them. Any legislation solution for
agriculture must be a fair, balanced approach that does provide
an opportunity for current workers in agriculture to legalize
their status while laying the foundation for a long-term
solution. Above all, we do not want a Band-Aid fix that means
we will have to revisit this issue in a few years.
And five, don't let state and local governments fill the
void. Immigration is a national issue. Policy should be set in
Washington, D.C. The longer the issue is left unresolved, the
more likely it is that we will see states and localities step
in to fill that void. We need a national policy with national
guidelines. Only Congress can give us that.
Mr. Chairman, Members of the Committee, thank you for
allowing me to be here today, and I look forward to answering
[The prepared statement of Mr. Stallman follows:]
Prepared Statement of Bob Stallman, President, American Farm Bureau
Federation; Rice and Cattle Producer, Columbus, TX
My name is Bob Stallman. I am a rice and cattle producer from
Columbus, Texas and I am president of the American Farm Bureau
Federation. On behalf of Farm Bureau, the nation's largest general farm
organization, I want to express my appreciation for the invitation to
testify this morning on a topic that is on the minds of farmers and
ranchers across the country--the critical need in agriculture for a
legal, stable supply of labor.
This hearing could not come at a more crucial time. I make frequent
trips around the country, meeting with producers from every facet of
the agricultural community--dairy producers, fruit and vegetable
growers, poultry and hog farmers, row croppers, nurserymen and others.
Because of the nature of agriculture, our labor situation is closely
linked with the issue of immigration reform. I do not think there is
any question I get asked more frequently than: When is Congress going
to fix our labor issues?
Of course, I can not answer that question. It is one that only the
Members of this Committee and your colleagues in the House and Senate
can answer. But I am here today to ask you--to urge you--to find an
answer. We know it is tough. We respect the fact that Members from both
sides of the aisle, from all over the country look at the problem
differently. But all of us need to come together, to work through our
differences, to appreciate one another's perspective and to find a
solution that works for our country, for our cities and communities,
and for our national security and for our economy.
Nowhere is the problem more acute than in agriculture. In many
ways, we are on the front lines of this debate. Let me take a moment to
share with you a few facts--to give you an idea of the reality farmers
and ranchers face today.
Periodically, the U.S. Department of Labor conducts a survey--known
as the National Agricultural Worker Survey, or NAWS--that gives a
profile of labor in the agricultural sector. In the NAWS report, the
department stated that in 2001 and 2002, 53 percent of the hired crop
labor force lacked work authorization. (See Figure 1.) Economists at
Farm Bureau believe this is probably a lower-bound estimate because the
figure is based on a response volunteered by individuals to government-
authorized questioners. In other words, it seems reasonable that at
least some individuals would not, and did not, volunteer the fact that
they were not legally authorized to work.
Looking at another government survey, this one from the National
Agricultural Statistics Service or NASS, which is a part of the U.S.
Department of Agriculture (USDA), you will get a fuller picture of the
employment situation in agriculture.
After almost a century of shedding excess labor to the rest of the
economy, agricultural labor demand stabilized over the last 20 years at
about three million workers. (See Figure 2.) This is due to multiple
factors, such as increased mechanization, the aging of the farm
operator pool, decreasing farm family size, economic opportunities
elsewhere in the economy and the continued movement of people off the
farm. Of the three million workers required to operate the sector,
approximately two million are drawn from farm families. About one
million are hired from non-family sources. Thus, pairing NASS labor
figures and DOL's statistic indicating that at least 50 percent of
hired workers in agriculture are unauthorized, Farm Bureau estimates
there are at least 500,000 agricultural workers who lack proper
This change in the balance between farm labor supply and demand is
reflected in increased hired worker wages (See Figure 3.) USDA's
National Agricultural Labor Survey indicates the average hired farm
worker wage in 1985 was $4.50 per hour. By 2005, the wage had increased
to $9.50 per hour and included an improved benefits package that pushed
the average cost up to $11 to $12 an hour. (Please note that wages and
benefits for H-2A workers are higher.) Compare this with a 2005 minimum
wage of $5.15 per hour and DOL survey results showing starkly different
wages in jobs with similar skill requirements, ranging from $6.65 per
hour for food preparation, $11 per hour for janitorial workers and
$14.35 per hour for construction labor.
Overall worker numbers and wages do not tell the whole story.
Recent quarterly labor trends published by NASS paint a more disturbing
picture. When considering the third quarter--the quarter in which
farmers require the most labor--data indicate there has been
progressive tightening in the supply of agriculture labor. (See Figure
4.) The quarter-to-quarter difference from 2005 to 2006 shows a decline
of 60,000 hired workers. For farmers in need of additional labor, that
fact is the story behind this hearing today. It demonstrates quite
clearly the difficult situation farmers face as they scramble for
additional labor in an economy with a relatively low unemployment rate
and a lack of individuals willing to work in the agriculture industry.
Figure 4. Number of Hired Workers in Agriculture by Quarter
That trend should be put in perspective by mentioning agricultural
production, because labor is one of the major inputs for the sector. In
recent years, the agriculture sector has realized significant gains in
productivity, while enduring a decline in the overall agriculture labor
force. (See Figure 5.) Productivity gains may be attributed to a number
of factors such as better management practices, better technology, and
the residual effects of mechanization in previous decades.
These productivity gains have allowed the United States to meet the
strong demand for agricultural products in both domestic and
international markets. However, sustaining our current level of
productivity is contingent on a stable, reliable and legal workforce.
America's farmers have proven time and again they can grow two blades
of grass where there was only one before--but this requires workers.
The bottom line is this: a significant disruption in the supply of
agricultural workers will increase farmers' costs, put more foreign-
grown produce in our supermarkets, strengthen our international
competitors, weaken our nation's food security and put many farmers out
of business as they lose their workers or the costs of labor get beyond
As you can see, production is up. We are now producing almost 20
percent more than we did a decade ago. Demand for our products is high.
Labor is tight. Wages are rising.
Some might look at that picture and say, ``What are you complaining
about? It shows a healthy, robust agricultural sector.'' But you must
put these numbers together with those we discussed earlier from the
Remember, the lower-bound estimate for our labor force shows that a
significant proportion, probably more than half, is not authorized to
work. Over the last few years, and particularly since 9/11, we have
seen a significant change in the nation's response to terrorist
threats. That response includes--quite appropriately--tightening our
borders to prevent illegal entry. Farm Bureau supports this national
effort. First and foremost, we want our nation to be secure. We do not
want our laws to be ignored. We also want to make sure that the workers
we hire are legal. We want to be a part of the solution to this
problem, because it affects us more than most.
How we make these adjustments is critical. Twenty years ago,
Congress substantially revised our immigration laws. They laid down the
ground rules that employers follow today. We all recognize that those
ground rules must change.
But let me refresh the Members' recollections about exactly what
the current law requires. I want to do this for a simple reason. There
are some misconceptions that have developed into conventional wisdom,
but like a lot of conventional wisdom, it is wrong. For instance, you
often hear the statement that ``if farmers would just pay more, we
would not have that problem.'' The statistics I cited earlier clearly
show that is not the case. Right now, in our economy, there are ten
million workers--over 7 percent of the entire nation's workforce--who
work for lower wages than they could make in agriculture. They have
made a conscious decision not to work in the fields. That is their
choice. People should not lose sight of the fact that in America today,
low wages are not keeping people out of agriculture.
I want to put another big misconception to rest. Many people
believe farmers know exactly what they are doing when they hire illegal
workers, that they simply do not care about the law and that they know
perfectly well the individuals they hire are here illegally.
Let me also draw your attention to another government document,
this one from USDA. It is a website hosted by USDA's chief economist. I
have attached a copy of a page from the website to my testimony
(Attachment #1), but you and your staff can access it easily (at http:/
/www.usda.gov/oce/labor.ina.htm). This page offers advice to farmers on
what they must do to comply with the 1986 Immigration Reform and
Control Act (IRCA). Despite what many people think, farmers simply
cannot turn away potential workers if they suspect those workers are
To quote the U.S. Government:
Employers with four or more employees are prohibited from
committing document abuse. Document abuse occurs when an
employer requests an employee or applicant to produce a
specific document, or more or different documents than are
required, to establish employment eligibility or rejects valid
documents that reasonably appear genuine on their face.
Employers must accept any of the documents or combination of
documents listed on the back of the INS Form I-9 to establish
identity and employment eligibility. Examples of document abuse
include requiring immigrants to present a specific document,
such as a ``green card'' or any INS-ISSUED document, upon hire
to establish employment eligibility, and refusing to accept
tendered documents that appear reasonable on their face and
that relate to the individual.
* * * * *
Applicants should not be asked where they were born or whether
they are legally entitled to work in the United States.
Mr. Chairman and Members of the Committee, this is the United
States Department of Agriculture advising farmers how to act. Farmers
naturally view this as authoritative. Moreover, remember that the
farmers we are talking about are not Fortune 500 companies. They do not
have in-house legal counsel and a human resources department advising
them about what to do. The average fruit and vegetable grower has a
gross income that does not even equal the Members Representational
Allowance (MRA) each Member of Congress is provided to run their D.C.
and district offices. Yet, they face these employment situations
constantly. The fact is a farmer cannot turn away an applicant because
the worker does not speak English or does not present a green card or
appears to lack proper authorization. If he does, the farmer can be--
and is--sued by legal activists. Farmers and ranchers do not ask to be
in this situation. But we are in it. It is based on the law Congress
passed 21 years ago. It is up to you to help us get out of it.
Some people say all this will be fixed by the proposed No-Match
rule published by DHS. Let me caution you about this regulation. In one
fell swoop, the Federal Government seems to be making a 180 degree turn
on employers. From providing farmers with no tools whatsoever to check
for legal authorization, they are practically deputizing them as
unofficial document checkers for the Immigration and Customs
The reality is that we may be in a worse situation after the rule
than before it. Let me explain.
Under the DHS rule, employers' obligations under the law are not
changed at all. The rule merely provides employers a `safe harbor' from
prosecution, provided they follow a series of steps laid out by the
department. In others words, if they receive from the Social Security
Administration a notice that a name and Social Security Number do not
match, they have 30 days to identify the cause (for instance,
transposition of a letter or number). If the cause is identified, the
matter is resolved. If not, the employer must approach the employee to
ask that the employee rectify the matter with SSA. If, after 90 days,
the employee maintains that the documentation he has provided is
correct, then the employer has 3 days in which to re-verify that
employee with new documentation. If the employee is indeed unauthorized
and the employer does not follow these steps and discharge the
employee, DHS says it may impute to the employer `constructive
knowledge' that he has knowingly employed an illegal worker.
What should an employer do? If he follows those steps and retains
the employee, he runs the risk of prosecution by DHS. But if he
discharges the employee out of fear he will be charged by DHS with a
crime, the employee may file a lawsuit against the employer for
discrimination based on a separate statute. Of course, DHS has said it
will not shield employers from such a consequence if they take the step
of discharging the employee, yet DHS's rules tell them to do so anyway.
This is a Hobson's choice for farmers. Last year, when DHS proposed
this rule, AFBF filed comments with the agency on the problems the rule
poses for farmers. These problems are real, and they are not yet
resolved. I have attached to my statement (Attachment #2) a copy of the
comments we submitted to the agency last year in connection with this
rule. I urge the Members to familiarize themselves with these comments
because they will affect farmers, and you will be hearing from your
constituents about it.
This type of legal jeopardy is in addition to the threat constantly
posed by legal services attorneys who dislike the H-2A program and are
only too ready to take farmers to court. Congress needs to reaffirm
support for this program and not see it killed by a thousand cuts from
activists who are pursuing their own agendas.
There is no question the law must be changed. We must secure our
borders. We must assure that those who are working here are entitled to
do so. But nothing is more critical than how we go about this
Early last year, AFBF released a report prepared by our economists
on the impacts to our sector if we were to lose our current supply of
labor. A copy of that report is included with this testimony as an
attachment (Attachment #3). Let me highlight just a couple of points
because I think they are sobering:
c Without a stable, legal supply of labor to replace the presence of
currently unauthorized workers, the fresh fruit and vegetable
sector could see U.S. production decline by up to $9 billion a
c Similarly, an abrupt loss of our labor supply would cause net farm
income to drop by up to $5 billion annually.
Mr. Chairman, these are direct effects on agriculture--in other
words, workers directly involved in production agriculture. But
indirect effects are also substantial. For instance, if the processing
plant that is supposed to receive your hogs is raided by ICE the day
you are supposed to get those hogs to market, this can have a
devastating impact on your operations.
The longer you delay, the more likely it is that states and
localities will take matters into their own hands. We are already
seeing that across the country. It makes it more difficult for farmers
to do their business and it strains relations within our communities.
The only reason we are seeing these initiatives is because Congress has
not acted and people feel the need to fill the vacuum. That's not how
we're going to solve this problem.
Farmers need to plan their futures. We have reports that some
apricot growers have decided not to replant their orchards because they
fear the labor will not be there. One blueberry farmer in Mississippi
has gotten out of the fresh fruit business--even though it is more
profitable--because she doesn't want to deal with labor issues. One
cooperative has decided that next year it will plant 30 percent fewer
acres of pickling cucumbers because they simply won't be able to
harvest when the time comes. Most disturbingly, The New York Times
recently ran a story about a farmer who has leased land in Mexico
because he is not sure he will be able to harvest his crop in the U.S.
Clearly, agriculture today is desperately in need of a solution to
this problem. Let me outline a few suggestions that, in our view, can
help us through these problems.
1. Do not make matters worse. The No-Match rule issued by DHS has
the potential to tighten labor markets further or, even worse,
put farmers in legal jeopardy as they follow the law. That is
wrong. It should not be allowed to happen.
2. Some things can be done now. DO THEM! The existing H-2A program
is broken. The Administration recently announced it would
attempt to reform the program through regulation to make it
more efficient, more responsive and more readily usable by
growers while protecting the rights of workers. We agree with
and support this initiative. We are in the process of preparing
an exhaustive list of recommendations to submit to the
administration for its consideration. We urge all Members of
Congress to support this effort as well.
3. Face reality. U.S. agriculture depends on migrant labor. We all
know that. Do not make farmers jump through meaningless hoops
to prove something that we all recognize. Expedite the visa
process for H-2A workers by using creative solutions. For
instance, we have suggested an expedited process whereby an
appropriate entity in a state--a Governor, a State Secretary of
Agriculture or labor, or a combination of the three--could
certify at the start of the year that an agricultural labor
deficit exists in that state. Such a certification could
trigger expedited handling and processing of guest workers up
to a certain limit. By placing such a certification in the
hands of a public official, you would build in a fail-safe
mechanism whereby a state could limit the number of guest
workers that receive expedited processing (for instance, when
there is a slowdown in the state's economy).
4. Take up legislation without delay. We recognize the difficult
issues that arise in the context of the immigration debate.
Ignoring them, however, will not solve them. We urge all
Members, from both sides of the aisle and from around the
country, to put aside partisan or ideological biases with the
goal of doing what is right for the country. U.S. agriculture
simply cannot wait any longer for a solution. Any legislative
solution for agriculture must be a fair, balanced approach that
provides an opportunity for current workers in agriculture to
legalize their status and provides a framework for a long-term
solution, such as a revamped H-2A program, that assures we will
not have to revisit this issue in the future.
5. Don't let state and local governments fill the void. Immigration
is a national issue; policy should be set in Washington, D.C.
The longer the issue is left unresolved, the more likely it is
we will see states and localities step in to fill the void. For
example, we should not have a situation under which some states
require employers to use E-verify while other states prohibit
it. We need a national policy with national guidelines. Only
Congress can give us that.
Mr. Chairman and Members of the Committee, thank you for providing
me this opportunity to testify this morning. I will be pleased to
answer any questions the Members may have.
IRCA Anti-descrimination Provisions
The Immigration Reform and Control Act of 1986 (IRCA) was enacted
to control unauthorized immigration to the United States. Under IRCA,
employers may be sanctioned by the Immigration and Naturalization
Service (INS) for knowingly hiring non-U.S. citizens who are not
authorized to work in the United States. To address the fear that
employers would overreact to the threat of sanctions and discriminate
against individuals who sounded or appeared ``foreign,'' Congress also
passed IRCA's anti-discrimination provisions.
The Office of Special Counsel for Immigration-Related Unfair
Employment Practices (OSC), Civil Rights Division, U.S. Department of
Justice, enforces the anti-discrimination provisions. The OSC
investigates and prosecutes employers charged with national origin and
citizenship status discrimination with respect to hiring, firing and
recruitment or referral for a fee, unfair documentary practices
concerning the hiring process (document abuse), and retaliation under
the anti-discrimination provisions of the Immigration and Nationality
Act (INA), 8 U.S.C. 1324b. The OSC may be reached by telephone at
202-616-5594 and 1-800-255-7688.
Employers with four or more employees are prohibited from
discriminating on the basis of citizenship status, which occurs when
adverse employment decisions are made based upon an individual's real
or perceived citizenship or immigration status. Examples of citizenship
status discrimination include employers who hire only U.S. citizens or
U.S. citizens and green card holders, employers who refuse to hire
asylees or refugees because their employment authorization documents
contain expiration dates, and employers who prefer to employ
unauthorized workers or temporary visa holders rather than U.S.
citizens and other workers with employment authorization.
Employers with four or more employees are prohibited from
committing document abuse. Document abuse occurs when an employer
requests an employee or applicant to produce a specific document, or
more or different documents than are required, to establish employment
eligibility or rejects valid documents that reasonably appear genuine
on their face. Employers must accept any of the documents or
combination of documents listed on the back of the INS Form I-9 to
establish identity and employment eligibility. Examples of document
abuse include requiring immigrants to present a specific document, such
as a ``green card'' or any INS-ISSUED document, upon hire to establish
employment eligibility, and refusing to accept tendered documents that
appear reasonable on their face and that relate to the individual. U.S.
citizens and all immigrants with employment authorization are protected
from document abuse.
The anti-discrimination provisions also prohibit small employers
(e.g., those with four to fourteen employees) from committing national
origin discrimination against any U.S. citizen or individual with
employment authorization. Larger employers are already covered by Title
VII of the Civil Rights Act of 1964, which is enforced by the Equal
Employment Opportunity Commission. In addition, employers may not
retaliate against workers who file a complaint, cooperate in an
investigation or testify at a hearing.
IRCA requires all farm employers to complete and retain an I-9 form
for each new hire. Employees are required to complete the first section
of the form and provide a document or documents that establish identity
and employment eligibility. Acceptable documents are listed on the back
of the I-9 form.
Employers are required to complete the second section of the I-9
form and must accept the proffered documents if they ``reasonably
appear to be genuine on their face'' and relate to the individual.
Remember, it is unlawful for an employer to practice ``document abuse''
by requiring prospective employees to present specific employment
For purposes of completing tax documentation, employers may ask new
employees for their social security cards. To avoid allegations of
document abuse, the employer should do this separate and apart from the
To avoid potential charges of discrimination, it is recommended
that employers not initiate the I-9 process until after the decision to
hire has been made and communicated to the employee. Applicants should
not be asked where they were born or whether they are legally entitled
to work in the United States.
Subsequent to employment, an employer who has reason to believe
that a fraudulent document has been presented, perhaps as a result of
an INS investigation, should not terminate the employee without first
discussing the allegations with him or her. Depending upon the
circumstances, the employee can be given an opportunity to provide
other documents or additional information for employment verification
If the I-9 form is a photocopy of an original, be sure to copy both
sides of the form to provide to newly hired employees and the separate
instruction page. It is good practice to retain copies of employees'
eligibility documents. But if this is done, copies should be made of
the documents of all employees in order to avoid charges of
The Office of Special Counsel for Immigration Related Unfair
Employment Practices enforces the statute prohibiting employment
discrimination under IRCA, and has the responsibility for handling
complaints against all employers alleging citizenship status
discrimination, document abuse, retaliation and, if the employer has
four to 14 employees, national origin discrimination. The Equal
Employment Opportunity Commission handles national origin
discrimination complaints against employers with fifteen or more
Back pay (for lost wages), instatement or reinstatement, etc., may
be awarded to victims of unlawful discrimination.
Penalties for discrimination range between $275 and $2,200 for each
victim for the first offense, $2,200 to $5,500 for the second offense,
and $3,300 to $11,000 for the third offense. Fines for document abuse
range from $110 to $1,100 for each victim.
U.S. citizens and work authorized immigrants who are victims of
workplace discrimination based upon immigration status, national origin
discrimination or document abuse may file complaints with the Office of
Special Counsel for Immigration-Related Unfair Employment Practices
(OSC) at the U.S. Department of Justice. The OSC has multilingual
personnel, produces educational materials in up to seven different
languages, and provides language services and information in more than
100 languages via the AT&T Language Line. The OSC may be reached by
telephone at 202-616-5594 and 1-800-255-7688 (toll free) or contacting
the U.S. Department of Justice, Office of Special Counsel.
Last Modified: 05/16/2006.
August 14, 2006
Director, Regulatory Management Division,
U.S. Citizenship and Immigration Services.
DHS Docket No. ICEB-2006-0004
Department of Homeland Security,
111 Massachusetts Avenue, NW, 2nd Floor,
Washington, D.C. 20529
Subject: Proposed Rule; Safe-Harbor Procedures for Employers Who
Receive a No-Match Letter, 71 Fed. Reg. 34281 (June 14, 2006)
To Whom It May Concern:
The American Farm Bureau Federation (AFBF) appreciates the
opportunity to offer the following comments on the above referenced
Under current law, it is illegal for a U.S. employer knowingly to
hire or continue to employ a person who is not authorized to work in
the United States (8 U.S.C. 1324a). ``Knowing'' is a term defined in
current regulations that goes beyond actual knowledge to include that
``which may fairly be inferred through notice of certain facts and
circumstances which would lead a person, through exercise of reasonable
care, to know about a certain condition'' or, in other words, to have
``constructive knowledge'' (8 C.F.R. 274a.1(l)). The proposed rule
would further define this second category or ``constructive knowledge''
to provide that employers would become subject to a finding upon
failing to take reasonable steps after receiving written notice from
either the Social Security Administration (SSA) or the Department of
Homeland Security (DHS) that a wage report or document does not match
agency records. The rule also describes a set of ``reasonable steps''
employer may take to avoid a finding of constructive (but not actual)
knowledge; employers following the outlined steps would obtain a ``safe
harbor'' from prosecution over a finding of ``constructive knowledge.''
AFBF commends DHS for proposing a safe harbor for employers who do
not knowingly employ unauthorized workers. For more than a decade, the
SSA No-Match notice has raised questions about an employer's
obligations under the employment authorization provisions of
immigration law after that employer has taken all appropriate steps to
verify employment eligibility. U.S. agriculture has repeatedly
requested guidance on whether and how an employer is to respond to such
a notice without putting the employer in legal jeopardy due to the
employer's obligation under anti-discrimination provisions of the same
law (8 U.S.C. 1324b). In part, this proposed rule represents an
attempt to address those concerns and provide employers with guidelines
in hiring and firing decisions. We appreciate DHS efforts.
Unfortunately, there are a number of situations--many of which are
unique to the agricultural sector--that may not have been fully
considered during development of the safe harbor provisions. With these
comments, we identify such situations and strongly urge that the final
regulation incorporate our recommended changes to ensure that the safe
harbor provisions are equally available to all employers and all parts
Apply the Safe Harbor to Seasonal Employers
The proposed rule states that employers would be deemed not to have
constructive knowledge and thus obtain a safe harbor from prosecution
if the employers take the following steps in response to a No-Match
notice. Upon receiving notice, employers would have 14 days to check
records and report to SSA or DHS regarding any necessary corrections
or, if records cannot be corrected, to instruct the worker to go to the
local SSA or DHS office to fix the problem. A Social Security mismatch
would not be resolved until the employer has first verified the new
information with SSA. If the employee does not return with new or
corrected information within 60 days of the employer's receipt of the
mismatch letter, the employer then has 3 days to complete a new Form I-
9. When completing a new form, the employer would not be allowed to use
documents containing the Social Security or alien identification number
that was subject to the earlier No-Match notice. At the same time, no
document without a photograph could be used to establish identity or
identity and employment authorization. (71 Fed. Reg. 34285.)
Our reading of the proposed regulation is that each step would need
to be followed as spelled out in the rule in order for the employer to
become eligible for the safe harbor. This is important because while
DHS acknowledges that there may be other reasonable steps that could
lead to a safe harbor, the employer, in following procedures other than
the ones outlined in the rule, could ``face the risk that DHS may not
agree'' (71 Fed. Reg. 34283). The practical effect of this approach
could have a significant detrimental effect on seasonal employers and
effectively vitiate the protections of the safe harbor for a large
segment of agriculture. One set of employers should not be given the
certainty of a prescribed safe harbor while another is forced to define
one on a case-by-case basis with DHS approval; seasonal employers
should not be denied the benefit of safe harbor provisions just because
their business is seasonal in nature.
There are several situations, in which an agricultural employer may
not be able to take all of the required steps to obtain the safe
1. Single season workers. While timing will vary with crop, season,
and other criteria, seasonal farmers (in the Midwest, for
example) generally submit wage reports to the IRS (Forms W-2)
in February for employees who were employed during the previous
harvest season and, in most instances, are no longer employed.
Should a report on such an employee generate an SSA No-Match
notice, such a notice in all likelihood would not be sent to an
employer until late winter or the following spring--well over a
year since the individual was employed. In many instances, such
employees do not return to the original place of employment.
For those who do, depending on crop and nature of work, such
employees would not be re-hired until 14, 60, or 63 days after
the employer has received the notice. Further, many farm
workers may ``follow the crops'' by migrating from state to
state, and these workers may not permanently reside locally.
Few such workers leave forwarding information since the
prevailing practice is to terminate, not layoff, the worker
between seasons. While the employer could meet the safe harbor
requirement to check his or her records, the employer would not
be able to meet the other requirements. The employer would not
be able to reach employees despite making every reasonable
effort. We strongly believe that these employers should not be
denied the safe harbor for reasons that are beyond employer
control. Recommendation: We urge DHS to clarify in the final
rule that the safe harbor extends to employers who, in addition
to meeting the requirement to check records, can document
attempts to reach a former employee who is the subject of a No-
2. Off-season workers. As stated in 1. above, some workers listed
on a previous No-Match notice may not be re-hired until 14, 60,
or 63 days after the employer has received the notice. Few farm
workers leave forwarding information and therefore may not be
reachable off-season. Recommendation: If an employee who is
subject to a previous No-Match notice returns in a following
season, we would recommend that the clock start ticking on the
first day of re-hire after receipt of the notice. For off-
season workers who fail to return in a subsequent season, we
would offer the same recommendation as stated in 1. above.
3. Short season workers. The duration of a season may vary widely
across the United States depending on crop and location. For
example, in the State of Washington, approximately 75,000
migrant and seasonal workers are employed each year on small
family-owned farms; many of these workers are employed for
periods as short as 2 weeks. Under these circumstances, an
employer may be able to check records, ask the employee to
confirm those records and in the event there are no errors,
instruct the employee to follow up with SSA or DHS all within
14 days. But, if the employee migrates from crop to crop, there
may not be an opportunity for the employee to resolve the issue
with SSA or DHS within the 60 days prescribed by the rule. Once
the employee has moved on, there would not be an opportunity
for the employer to take the next step, which is to complete a
new Form I-9. Recommendation: The 14, 60, and 63 day periods
should toll only while the employee is employed with the
employer. For example, if the employee moved on to the next
crop on day 15, the clock would stop. Upon re-hire in the next
season, the clock would re-start and the employee would have 45
days (for a total of 60 days) in which to follow up with DHS or
SSA and report any corrections to the employer. Again, for
short season workers who fail to return in a subsequent season,
we would offer the same recommendation as stated in 1. above.
All of the above examples pertain to situations in which an
employer is not able to follow every one of the necessary steps to
obtain the safe harbor. The reverse situation could also occur: The
employer follows every step outlined in the regulation but the No-Match
issue is not resolved.
1. Wage Report Mismatch. For I-9 Form purposes, an employee may
provide documents that do not contain a Social Security or
alien identification number--a birth certificate and driver's
license with a photograph, for example. But because the
employer has submitted a Form W-2, the employer may receive a
No-Match notice from the SSA if there are sufficient numbers of
mismatches. It is not clear from the proposed rule whether the
employer could simply re-use the same documents on the new Form
I-9 in this instance. It is also not clear whether the employer
would be held liable if the employee writes in Section 1 of the
new form a Social Security Number that is the subject of a
notice but does not provide a Social Security card.
Recommendation: DHS should clarify whether an employer would be
deemed to have constructive knowledge under these
circumstances; if so, DHS should specify the employer's legal
obligations under immigration law including the anti-
discrimination provisions (8 U.S.C. 1324b).
2. Multiple Season Mismatches. An employer may take every step
outlined in the proposed rule, up to and including completing a
new I-9 Form, yet receive a No-Match notice next season. During
a 2 week harvest when producers are working nearly round the
clock to harvest a perishable crop in a short time-frame when
every day is precious, it may be difficult for larger seasonal
employers (e.g., 500-750 employees) to keep track of every one
of the returning employees. Even if the employer recognizes and
can keep track of every single worker, the rule does not appear
to preclude the employer from obtaining the safe harbor if the
employee keeps responding with new information to each document
request. For example, an employee might provide one Social
Security card the first year which triggers a No-Match notice
the following year, provide another Social Security card in the
second year in response to the original notice which cannot be
verified with SSA in 60 days and then provide yet a third
Social Security card for the new I-9 Form between day 61 and
day 63. Recommendation: DHS should clarify whether an employer
under these circumstances could still obtain the safe harbor
from a constructive knowledge finding. If so, DHS should
clarify whether it would deem such employer as having actual
knowledge of the worker's unauthorized status.
Many farmers hire and pay an independent contractor to provide
workers during the season, with the understanding that the contractor
will be the employer for all purposes, including employment eligibility
verification. Yet the Department of Labor could determine that both the
farmer and the contractor are ``joint employers'' under the Fair Labor
Standards Act (29 U.S.C. 201 et seq.) or the Migrant and Seasonal
Agricultural Worker Protection Act (29 U.S.C. 1801 et seq.). However,
it is not clear from the rule whether the farmer or the contractor
would have to obtain the safe harbor to avoid prosecution.
Recommendation: DHS should clarify the employer's obligations under
immigration law relative to the agricultural joint employment
Some seasonal agricultural employers hire non-immigrants with a
temporary work authorization (e.g., under the H-2A program) or
immigrants with permanent work authorization. The proposed rule
expressly identifies a ``labor certification or application for
prospective employer'' as information that could prompt a constructive
knowledge finding. But while the rule would describe the steps for an
employer to take upon receipt of written notice from SSA or DHS over a
wage report or document, it does not include any steps for a labor
certification. An employer should not be denied the certainty of a
prescribed safe harbor just because the employer hires a worker
requiring a labor certification. Recommendation: DHS should specify a
safe harbor for employers of workers requiring a permanent or temporary
Apply the Safe Harbor to Hiring Decisions
In the notice of proposed rulemaking, DHS expressly states that
following the safe harbor requirements ``will eliminate the possibility
that DHS . . . will allege, based on the totality of relevant
circumstances, that an employer had constructive knowledge that it was
employing an alien not authorized to work in the Unites States'' (71
Fed. Reg. 34282). However, it is not clear whether the safe harbor
would also apply to hiring decisions.
As outlined above, there are several reasons why an employer would
be prevented from meeting all of the steps necessary to obtain the safe
harbor. A good example is when the worker quits: some employees, when
confronted with the No-Match notice, will quit without offering a
reason. The employer would have checked his or her records and found no
errors, meeting the first step. He or she may be asking the employee to
confirm records or instructing the employee to follow up with SSA or
DHS, which is the second step. Nevertheless, the employee would fail to
respond within 60 days (the third requirement), and the employer would
not be able to comply with the final requirement to fill out a new I-9
Form within 63 days.
While we are confident that DHS would not prosecute this employer
for continuing to employ the worker (after all, the employee quit in
this instance), there is still a question as to whether the employer's
receipt of the No-Match letter would still be grounds for a finding
that the employer had constructive knowledge of hiring an unauthorized
worker. A reasonable person might infer from the worker quitting that
the worker is avoiding detection as an unauthorized worker.
However, we do not believe a constructive knowledge finding can or
should be imputed to an employer merely based on the fact that the
employer has received a No-Match notice. Because the worker did not
offer a reason for quitting, the employer could not have actual
knowledge that the worker quit to avoid detection. And if the employer
had properly completed the Form I-9, the employer would not have reason
to suspect that the employee was not employment eligible.
Recommendation: We recommend that DHS clarify that the safe harbor
would apply to previous hiring decisions under these circumstances.
Extend the 14 and 60 Day Deadlines
Under the proposed rule, upon receiving notice employers would have
14 days to check records and report back to SSA or DHS or instruct the
worker to follow up directly with SSA or DHS. If the employee does not
return with corrected information within 60 days, the employer would
then have 3 days to complete a new Form I-9. (71 Fed. Reg. 34285.)
In the agricultural sector, more than 90 percent of operations are
family owned and operated. The size of the operation may vary from a
single hired worker up to 500 or more workers. Some operate year round
while others plant, cultivate or harvest during seasons that may range
from as few as 2 weeks to as many as 48 weeks a year. For example, in
Washington, where there are approximately 75,000 seasonal and migrant
workers employed each year on small family farms, many are employed for
periods as short as 2 weeks. At a typical operation, one office person
will hire more than 100 workers at one time.
On the farm, the grower's spouse often constitutes the ``Human
Resources Department'' and the spouse may not work full time. Access to
a computer or to a local branch of SSA or DHS may be limited in more
remote areas of the country. Mail may not be processed at a frequency
greater than once a week or the notice might arrive when the grower is
off-season, on vacation or at a trade conference. While employers with
a dedicated H.R. department and staff may be able to check and correct
records or notify the employee within 14 days, not every agricultural
employer would be able to do so. Recommendation: We recommend extending
the timeframe for the first deadline (in which an employer must check,
correct or inform) to at least 30 days.
Similarly, 60 days may be too short a time period for farm workers
to comply with the second requirement (to respond with new or corrected
information). On a grape farm in New York State, for instance, the
workers are working nearly round-the-clock for about 2 months in the
spring and about 3 months solid in the fall between harvest, crushing,
fermenting, and subsequent ``cellaring.'' Asking them to take a long
time out to drive to the nearest SSA office may not be completely
practical. Recommendation: DHS should extend the second deadline to at
least 90 days.
Address Discrimination Issues
The current regulatory definition of ``knowingly'' includes the
``Nothing in this definition should be interpreted as
permitting an employer to request more or different documents
than are required under [8 U.S.C. 1324a(b)] or to refuse to
honor documents tendered that on their face reasonably appear
to be genuine and to relate to the individual.'' 8 C.F.R.
In the proposed rule, DHS adds a clause to this provision to
exclude documents that are subject to a No-Match notice: ``, except a
document about which the employer has received a notice described in
paragraph (l)(1)(iii) of this section and with respect to which the
employer has received no verification as described in paragraph
(l)(2)(i)(B) or (l)(2)(ii)(B).'' The proposed rule would not address
the anti-discrimination provisions under Title VII of the 1964 Civil
Rights Act (``Title VII'') (42 U.S.C. 2000e-2).
AFBF applauds DHS for attempting to provide employers with some
certainty in their hiring and firing decisions, beyond the limited
protection afforded by completing an I-9 Form. Under current law, an
employer who is not sufficiently aggressive in examining documents
would run the risk of violating the employment authorization provisions
of immigration law (8 U.S.C. 1324a). But, by being too aggressive,
the same employer would run the risk of violating the anti-
discrimination provisions in the same law, and there have been more
growers charged with discrimination under the immigration law than with
employer sanctions. Excluding No-Match documents from anti-
discrimination provisions would make it much easier for employers to
meet the employer authorization provisions.
However, AFBF strongly urges DHS to make whatever changes to the
proposed rule necessary to ensure the rule will not lead to additional
discrimination lawsuits under Title VII. For decades, agriculture has
been plagued with nuisance suits, the purpose of which has been not
necessarily to win on the merits but to outspend the grower so as to
make an example for the wider agricultural community. If the legal and
social costs are high enough, farmers will settle instead. The
questionable tactics of these lawyers have been well documented in Rael
Jean Isaac's Harvest of Injustice (please see http://www.nlpc.org/
harvest.asp). For a more recent example, please see Malacara v. Garber
(5th Cir. December 9, 2003) (LSC-funded lawyers sued a 70-year-old Ohio
vegetable farmer under a Federal law that did not even apply to small
family farmers; the farmer won in lower court and at appeal but it cost
him more than $100,000 of his hard-earned money to prove the complaint
lacked merit.). If history is any indication, we would expect activist
attorneys to test the boundaries of the proposed rule in court, and
agricultural employers are the most likely test subjects; agriculture
should not have to pay additional legal expenses because the proposed
rule fails to address considerable legal issues.
There also may be legal arguments against the rule in its proposed
For example, the Tenth Circuit Court of Appeals in Zamora v. Elite
Logistics, Inc. (10th Cir. June 6, 2006) recently reversed a lower
court decision for the employer and let a Title VII national-origin
claim go to a jury. The employer was acting on a tip he could have
received from DHS (i.e., an employee was using a Social Security Number
for I-9 Form purposes that another had used multiple times in another
state). He responded by taking precisely the step required to qualify
for the safe harbor (i.e., the employer requested another document).
The safe harbor would not protect employers from Title VII. And all
some lawyers need is an argument, not even a strong one, to compel
growers to settle. If DHS does not adequately address these issues, it
will defeat the purpose of the proposed rule, which is to facilitate
compliance with 8 U.S.C. 1324a.
Clarify Whether Name Or Number Trigger Constructive Knowledge Finding
Employers would be subject to a constructive knowledge finding if
failing to take reasonable steps upon receiving written notice from SSA
that the ``combination'' of name and Social Security Number does not
match agency records. But SSA has sent several forms of the No-Match
letter in the past; one takes the form of a simple list of numbers with
no corresponding identifying names. If the employer receives this form
of the letter, one could not conclude that the name also mismatches
agency records. It appears that both the name and the number must not
match to become subject to the rule. Recommendation: DHS should clarify
precisely what is meant by a ``combination'' mismatch.
Apply the Final Rule Prospectively
The proposed rule does not stipulate when the regulation would
apply to employers. Given the many resource and other issues that are
unique to agriculture, we would not support applying the rule on a
retroactive basis. Recommendation: DHS should apply the rule
prospectively from its effective date.
Delay the Final Rule Pending Congressional Efforts
Both the U.S. Senate and House of Representatives have approved
separate legislation (S. 2611 and H.R. 4437) that would address many of
the same issues addressed in this proposed rule and reform of this part
of the law is a high priority for the Administration. Thus, it is
possible that there may be new law respecting exactly these matters
before the end of the year. Farmers do not want to be in position of
having to change their operating procedures twice--once to accommodate
this proposed rule and once again to accommodate a subsequent rule
prompted by a new immigration law. Employers require certainty in
Federal regulations in order to continue to grow and thrive.
While we recognize that employers need not use the safe harbor, if
employees are not able to present documents consistent with the
proposed rule, employers will be compelled to terminate those workers
or risk a constructive knowledge finding and prosecution. AFBF has
conducted an extensive economic study of the immigration impacts on
agriculture. The study shows that of all the sectors of the U.S.
economy, domestic agricultural production could be most severely and
disproportionately affected on the order of $5 to $9 billion annually
if labor restrictions take effect before growers have access to an
adequate legal workforce. Federal surveys suggest that between a high
percentage of agriculture's hired workforce may lack proper
documentation, and we have already mechanized to a large extent. We
would somehow have to replace those workers at a time when few
Americans have shown a willing to take farm jobs. The impact of this
proposed rule could be devastating, prompting many farmers to raise
their prices at a time when the United States is opening its produce
markets to significant foreign competition under North and Central
American Free Trade Agreements.
Recommendation: We strongly urge DHS to postpone further action on
a final regulation until Congress acts on this issue.
AFBF appreciates the opportunity to comment on this proposed rule
and would be happy to assist you in any way we can. Please feel free to
contact me or Austin Perez at 202-406-3669 ([email protected]) if you have
any questions or require additional information.
Impact of Migrant Labor Restrictions on the Agricultural Sector
American Farm Bureau Federation--Economic Analysis Team
This report assesses the impact on U.S. agriculture of eliminating
access to migrant farm labor.\1\ The report concludes that the
agricultural sector would suffer significant economic losses if the law
that governs the hiring of migrant labor were changed without providing
for a viable guest worker program and a reasonable transition into such
\1\ The term ``migrant labor'' as used in this report refers to
foreign-born workers who travel to the U.S. for employment in the
agricultural sector. The report does not consider migrant labor working
in agriculture-related industries such as the livestock slaughter and
packing industry. This definition is consistent with the definition
used in USDA survey activities but differs from the definition of
migrant labor (any and all workers who routinely move to different work
sites) used in the Department of Labor survey activities and reporting.
Of all the major sectors of the U.S. economy, agriculture is the
most dependent on migrant labor. After almost a century of transferring
excess labor to the rest of the economy, agriculture's demand for labor
has stabilized at approximately three million workers. Of these three
million workers required to operate the sector, approximately two
million are drawn from farm families and about one million are hired
from non-family sources. An estimated 500,000 or more of this one
million would be affected by restrictions on the hiring of migrant
This report concludes that if agriculture's access to migrant labor
were cut off, as much as $5-$9 billion in annual production of
primarily import-sensitive commodities most dependent on migrant labor
would be lost in the short term. Over the longer term, this annual loss
would increase to $6.5-$12 billion as the shock worked its way through
the sector. This compares to an annual production average for the
entire agricultural sector of $208 billion over the last decade.
Production of fresh fruits, vegetables, and nursery products would
be hit hardest as 10-20 percent of output would shift to other
countries, and increasing the U.S. trade deficit on virtually a dollar-
for-dollar basis. A fifth to a third of production for the fastest
growing fresh component of the fruit and vegetable market would be
lost. An adequate labor force is critical to the economic health of our
fruit and vegetable industry. Fruit and vegetable production is labor
intensive and producers are already confronted with competitiveness
issues due to low cost labor available in competing markets.
Costs would rise and production would fall in the other field crop
and livestock sectors which are not as sensitive to imports or as
dependent on migrant labor. With higher costs, these farm operators
would produce a smaller volume of products ranging from grains,
oilseeds and cotton to meat and milk. However, with labor accounting
for a smaller share of costs, the drop in production would be more
limited than in the fruit and vegetable sector. In addition, with the
U.S. a major exporter rather than importer of most of these products,
import displacement would be minimal. Hence, most of the impact on
field crop and livestock operations would be concentrated in higher
costs on remaining production.
The impact of this combination of lower production and higher costs
on the farm sector as a whole would be a $1.5-$5 billion loss in farm
income in the short term and a $2.5-$8 billion loss in the longer term
(Table 1). The drop in production would reduce market receipts and net
farm income. With farmers being price-takers rather than price-makers,
much of the increase in production costs would also have to be paid for
out of farm income. Aside from the specialty crop sector, this combined
farm income impact would be most pronounced in livestock operations
(such as dairy) where structural changes have increased dependence on
hired labor. In dairy and many other livestock categories, the typical
farm family workforce has simply become too small to operate
enterprises large enough to capture economies of scale. These losses
compare to a sector income average of $56 billion per year over the
Table 1. Losses in Farm Production and Income With the Elimination of
The reason for these losses is simple. There is no readily
available pool of excess labor in the farm sector, the rural economy,
or the general economy to draw upon to replace 500,000 or more migrant
workers. The sector has already exhausted most on-the-shelf
mechanization alternatives and next-generation robotics are decades
away. Hired farm worker wages would have to increase significantly
above and beyond the increases necessary over the last 2 decades to
attract and hold workers in an increasingly tight labor market. This
effort to replace lost migrant farm workers would be complicated by the
demanding and often seasonal nature of many hired jobs in agriculture.
It would be further complicated by similar efforts by employers in
other sectors of the economy affected by migrant worker restrictions to
attract and hold their own replacement workers. At a minimum, hired
farm worker wages would have to increase from the current $9.50 average
to possibly $11 to $14 per hour or more in order to attract and hold
labor currently employed in other jobs requiring comparable skills.
The analysis reported here draws on farm labor data developed by
USDA and the Department of Labor (DOL) and basic labor supply and
demand relationships to estimate the wage impact of replacing lost
migrant labor.\2\ The analysis then uses farm income accounts developed
by USDA as part of the income reporting program as well as Census of
Agriculture data on the distribution of farm income to estimate sector
vulnerability to higher labor costs.\3\ The relationships built into
the agricultural sector model developed at the University of Missouri's
Food and Agricultural Policy Research Institute (FAPRI) were then used
to estimate farm economy impacts.
\2\ The two most important sources of data are the National
Agricultural Labor Survey (NALS) conducted by USDA's National
Agricultural Statistics Service and the National Agricultural Workers
Survey (NAWS) conducted by the Department of Labor.
\3\ USDA's farm income information is available at
www.ers.usda.gov/data/FarmIncome and www.usda.gov/data/ARMS while the
Census of Agriculture data is available at www.nass.usda.gov/census.
The main body of this report looks first at the changing supply and
demand for hired farm labor. The second section looks at several of the
factors driving farm labor demand. The third section looks at the
impact of bidding for hired farm labor, and the fourth section looks at
mechanization as a possible answer to labor shortages. The report then
looks at the key components of a viable guest worker program from an
agricultural economic perspective. The report closes with a methodology
Table 2. State Impacts of Migrant Labor Reduction
In the mid-l980s, after almost a century of transferring surplus
labor to the rest of the economy, the farm labor market shifted into
balance, with the supply of readily available labor roughly equal to
the labor needed to operate the sector. Figure 1 makes this point
drawing on USDA data collected as part of its agricultural labor survey
activities. As recently as the l960s and l970s, the farm workforce
declined by 100,000-200,000 workers per year. From l985 forward,
however, the sector has operated with a more or less steady workforce
of just under three million. About two million of these workers come
from within the farm sector and include farm operators and their family
members. About one million are hired from non-family sources.
The Census Bureau's population estimates indicate that average farm
family size has also decreased sharply over this same period,
reflecting both a general trend in the overall population and the fact
that older farmers generally have fewer family members to draw on in
operating the farm. In addition, the Census Bureau's population
estimates show that the farm population continued to shift to jobs
elsewhere in the rural economy or the urban sector. Combined, these
factors translate into the smallest family farm labor pool on record.
In absolute terms, the labor force hired to augment farm family
labor has also declined over time. As many as two million hired workers
(less than a fourth of the total) were drawn from the rural economy as
recently as the l960s. Since 1985, the number has stabilized at the
current level of one million. Measured as a share of the total farm
workforce (\1/3\), this figure is at an all-time high.
This change in the balance between farm labor supply and demand has
been reflected in increased hired worker wages (Figure 2). USDA's
National Agricultural Labor Survey indicates that the average hired
farm worker wage in l985 was $4.50 per hour. This was close to the
minimum wage in effect for the general economy and included a very
limited benefits package. By 2005, the wage had increased to $9.50 per
hour and included an improved benefits package that pushed the average
cost up to $11-$12 an hour. This compares with a 2005 minimum wage of
$5.15 per hour and DOL survey results showing wages in representative
jobs with similar skill requirements ranging from $6.65 per hour for
food preparation to $11 for janitorial workers and $14.34 for
construction labor, according to DOL surveys.
This farm sector demand for three million workers reflects several
factors. The long-standing substitution of capital for labor reduced
the demand for labor. Sustained increases in labor productivity allowed
farmers to operate with less labor. Offsetting this, however, were
changes in consumer demand, farm structure, and farm size that worked
in reverse to increase demand for labor.
For example, consumer demand for farm products has changed
dramatically since l985. The change has been especially pronounced in
the fruit and vegetable sector, where demand for fresh products has
increased from 30-45 percent of an expanding produce consumption total
(Figure 3). Where possible, growers have met this demand using existing
resources--particularly machinery resources. However, the fresh market
puts a premium on top quality, peak ripeness and visual appeal. This
limits the extent to which functions such as picking and packing can be
mechanized. Existing mechanization technology often cannot meet added
technical concerns such as lack of uniform maturity, incomplete fruit
removal, and differences in readiness criteria common in the specialty
sector. Simply stated, human dexterity and judgment are necessary in
the fresh produce sector.
This dependence on labor is reflected in produce costs and prices.
Fresh fruits and vegetables meeting stringent consumer expectations can
receive a 50-100 percent premium over produce used for processing.
However, hired labor costs for operations specializing in production
for the fresh market also range from \1/3\ to over half of the total
cost of production. This compares to an agricultural sector labor cost
average of 14 percent.
For example, the typical dairy farm identified in the Agricultural
Resource Management Survey conducted by USDA's Economic Research
Service (ERS) reported spending $21,000 on hired labor as recently as
l995 (Figure 4). However, the same operation spent $40,000 in 2004 as
machinery operation and livestock management jobs grew more demanding.
While relatively slower, growth in dependence on hired labor in the
field crop sector has been significant as more mechanized operations
require more labor to run high-cost machinery than most operators can
Looking more broadly across the entire agricultural sectors, growth
in the average size of farm enterprises indicates that commercial
production has simply outgrown family labor. The typical commercial
enterprise (i.e., farms selling more than $100,000 in products per
year) increased from sales of about $335,000 per year to over $480,000
over the last decade. Supplementing this USDA survey data with Census
of Agriculture data suggests size in the mid-l980s was below $275,000.
These farms produce about 85 percent of the sector's output and account
for an equally large share of labor. In a growing number of cases, even
after adjusting for inflation, these operations are simply too large to
operate with family labor alone (Figure 5).
Perhaps even more telling, however, is the fact that farm jobs are
difficult to fill with either the rural or urban unemployed given the
nature of the work involved. This is particularly true in the fruit,
vegetable and nursery sector where approximately half of hired workers
are employed and where the work requires difficult manual labor. Nor is
it a ``job'' in the conventional sense that some take it to be. The
work at any one location can be temporary, and sustained employment
often requires the willingness and ability to move from site to site
over a broad area and work for more than one employer, coinciding with
the crop-harvesting calendar. But even site-specific jobs in the
livestock and field crop sectors are difficult to fill despite the
significantly lower wages that the DOL reports for jobs elsewhere in
the economy with comparable skill requirements.
IV. Bidding for Hired Labor
In this setting of balanced farm labor supply and demand, a change
in Federal law that effectively cuts off farmers' access to migrant
labor would necessarily force the agricultural sector to bid in the
general economy for replacement workers. While there is no precise
count of the migrant workers that would be affected, DOL's National
Agricultural Worker Survey suggests that 500,000--50 percent of
agriculture's hired workforce--would be affected. Other, less formal,
counts put the number affected significantly higher.
How high agriculture would have to bid to replace this large a
share of its workforce would depend on labor supply and wages in the
general economy for jobs with similar skill requirements. DOL surveys
of wages and employment identify large pools of workers and the average
wages for these pools. Figure 7 shows representative pools and wages
for a range of jobs with skills comparable to those typically required
of hired farm workers.
The DOL surveys indicate that the number of workers now employed in
food preparation at wages averaging $6.65 per hour far exceed the
number that would be needed in agriculture. As already noted, farm
wages average $9.50 per hour. Food preparation workers could raise
their earnings today by switching to farm employment, yet very few do.
Agricultural employers have not been able to enlist these workers in
farm employment, and that fact is buttressed by widespread, anecdotal
reports from farm operators about recruitment difficulties. In short,
the perception of farm jobs is such that a large segment of the native
worker population apparently prefers to take lower paying food
preparation jobs rather than higher paying farm jobs.
[GRAPHIC] [TIFF OMITTED] EMENT NEEDS: A JANITORIAL CLASSIFICATION WITH WAGES AVERAGING $11 PER HOUR AND A`_5�CONSTRUCTION LABORER CLASSIFICATION WITH WAGES AVERAGING $14.%x
per hour. With workers in lower paying jobs such as the food
preparation classification choosing not to work in agriculture, farm
operators would have to bid for workers in these higher-paid categories
to replace migrant workers. This would entail raising wages from the
current average of $9.50 to possibly $11-$14 per hour.While there
are more than enough workers in the janitorial category with $11 per
hour wages to fill agriculture's replacement needs, several
considerations suggest that replacement wages would have to tend toward
the upper end of this $11-$14 range. First, the number of replacement
workers needed would be large compared to the number of workers in this
pool. Many workers in this pool would likely choose to stay in their
current jobs. This suggests that agriculture would have to be prepared
to tap the higher paid construction worker pool. This replacement
effort would be complicated by the fact that, as already noted, farm
work is often perceived as less desirable work.
Second, employers in these higher wage pools would likely respond
to any significant loss of labor to agriculture with wage increases of
their own to maintain their workforce. Equally important, these other
sectors also employ migrant workers and would be affected by hiring
restrictions. Hence, they would face the same replacement pressure--
albeit less acutely than agriculture given the smaller proportion of
migrant labor in their overall workforces--as farm operators.
As Figure 8 indicates, this broader pressure to find replacement
workers would tend to drive up wages generally. Theoretically, the
labor supply curve describing the number of workers available at
specific wages would shift up and to the right. This means that, all
other factors constant, the cost of the same number of workers
providing the same services would be higher even before a specific
sector such as agriculture moved to attract workers from elsewhere in
[GRAPHIC] [TIFF OMITTED] 49.50
into this $11-$14.35 per hour range on the sector would vary depending
on producers' use of migrant labor. As already noted, half of this
replacement labor would be demanded by fruit, vegetable and nursery
producers, particularly for fresh produce operations. This dependence
on migrant labor combined with their exposure to imports suggests that
the greatest impact would be in this sector.USDA's Agricultural
Resources Management Survey provides a snapshot of the financial health
of these fruit, vegetable, and nursery producers and an indication of
the impact a significant increase in labor costs would have. Surveys
from 2003 indicate that, on average, about 10 percent of producers in
the specialty crop category are financially vulnerable (Figure 9). That
is, these producers report negative farm incomes and debt-to-asset
ratios over 40 percent. They are currently generating too little
revenue to pay all of their bills and have essentially borrowed what
most banks will lend on farm assets.
USDA's farm income records and farm financial analysis indicate
that, historically, operations in this category are most dependent on
continuation of the status quo--in this case continuation of a $9.50
wage. However, while operating at the margin, these producers supply a
significant share of sector production. And with year-to-year
developments in weather and local marketing circumstances, producers
can shift in and out of this category over time.
With migrant labor eliminated and replacement labor costs up 16-51
percent, the situation would worsen significantly for these vulnerable
producers. Fresh fruit and vegetable producers most dependent on hired
migrant labor would be the most severely affected. However, the rest of
the specialty crop sector would also face sharp cost increases. We
expect that the 11 percent of fruit, vegetable and nursery producers
who fall into this ``vulnerable'' category would ultimately fail with
the replacement of $9.50 per hour labor with $11-$14 per hour labor
[GRAPHIC] [TIFF OMITTED] 49.50
per hour labor into the vulnerable category with $11-$14 labor. USDA
research on farm financial vulnerability and Census of Agriculture data
on the distribution of farm income suggest that raising wages to $11
per hour would move an additional 2 to 3 percent of fruit, vegetable
and nursery producers into this vulnerable category (Figure 10). The
same data indicate that raising wages to $14.35 would likely put
another 10 percent of these producers in this vulnerable category
(Figure 11).It is important to note that this 10-20 percent loss
would be for the fruit and vegetable sector as a whole. A fifth to a
third of the fastest growing fresh fruit and vegetable component would
be affected as production shifted abroad.
The loss in U.S. production would be roughly comparable with the
loss of producers. USDA vulnerability research suggests that smaller
producers make up a larger share of at-risk farmers. In this case,
however, the challenge of finding replacement labor would tend to favor
small producers. Small producers could, in theory, improvise by using
overtime family labor, part time laborers or local replacement workers
to a greater extent than larger operators faced with a much larger
labor deficit. Hence, migrant labor restrictions would pull larger
producers into the vulnerable category and keep the drop in production
and producers roughly comparable.
The resulting loss of $5-$9 billion in fruit and vegetable
production reflects not only wage increases but also the availability
of large replacement supplies of fruits and vegetables from outside the
U.S. The rapid growth in imports over the last decade indicates the
readily available supply of foreign fruit and vegetables with U.S. farm
wages at the current $9.50 per hour (Figure 12).
With a significant share of U.S. specialty crop production
essentially out-sourced, the affected farm resources would be available
for alternative uses. Normally, at least some of the resources of
displaced producers are bought up by generally larger, more profitable
operators. This works to reduce the net drop in production. Given USDA
survey indications of the value of the resources (such as land and
water) in question, the resources affected would generally have to
continue to be used in high return activities such as specialty
cropping. However, this potential for offsetting resource shifts would
be limited in the migrant worker case since other operators normally
looking to expand would themselves be under pressure due to higher
The much smaller role played by hired labor and the more limited
potential for imports would translate into a different adjustment in
the rest of the agricultural sector. Loss of migrant labor would
translate into higher production costs and the loss of a small
proportion of field crop and livestock producers, most of whose
resources would likely be bid away by more profitable operators. The
agricultural sector models used at FAPRI and USDA to develop
agricultural baseline projections suggest that the responsiveness of
field crop and livestock sectors to increases in cost is approximately
0.2 (i.e., a 10 percent increase in costs is associated with a 2
percent decrease in production). Consequently, the drop in production
would be small.
However, the vast majority of field crop and livestock producers
who remained in business would face higher costs for their ongoing
production activities. Given the farm sector's historical role as a
price-taker rather than a price-maker, most of the cost increase
associated with $11-$14 per hour labor could not be passed on in the
form of higher prices. Historically, half or more of cost increases
come out of farm income.
In conclusion, overall agricultural production would fall $5-$9
billion in the short term and $6.5-$12 billion in the longer term as
the shock of a labor shortage and wages increases worked through the
sector. This would be due to large losses in the fresh fruit and
vegetable sector and smaller losses in the rest of the fruit and
vegetable sector and in the field crop and livestock sectors (Table 1).
Producers who remained in production would face a sector-wide increase
in costs of $2.5-$7 billion in the short term and $3-$9 billion in the
These two impacts can be converted into a farm income loss using
USDA's farm accounts to estimate the share of production dollars that
normally accrue to farmers as income and the share of production
expenses that typically come out of farm income. The farm accounts data
suggest that 20-30 percent of production receipts accrue to farmers as
income. The same accounts and the agricultural sectors models used here
suggest that 50-66 percent of an increase in production expenses
normally is paid out of income. These parameters change with the size
of the change in production and expenses considered. Using them as
guidelines, the production losses and cost increases estimated here
translate into a $1.5-$5 billion income loss in the short term and
$2.5-$8 billion loss in the longer term (Table 1).\4\ These estimates
compare to an annual farm income average of $56 billion over the last
\4\ Note: For example, the $1.5-$5 billion in short term income
loss assumes that $4 billion out of the $5-$9 billion in lost
production would have generated no income and that the income loss on
the remaining $1-$5 billion ($5-$9 billion minus $4 billion) would be
$250 million to $1.25 billion. The $2.5-$7 billion in higher costs
translate into $1.25-$3.5 billion in income loss, assuming farmers can
only pass along half of their cost increase. This puts the total short
term loss, after rounding to the nearest $500 million, at $1.5-$5
billion. Over the longer term, the $2.5-$8 billion in income loss
assumes that $4 billion out of the $6.5-$12 billion in lost production
would have generated no income and that the income generated on the
remaining $2.5-$8 billion ($6.5-$12 billion minus $4 billion) would be
$625 million to $2 billion. The $3-$9 billion in higher costs
translates into $2-$6 billion in income loss using a .66 long term
ratio versus a .5 short term ratio for cost increases absorbed by
farmers. Rounding to the nearest $500 million puts the total income
loss for the long term at $2.5-$8 billion per year.
Table 1. Losses in Farm Production and Income With the Elimination of
Given the limited experience agriculture and the broader economy
has had with labor disruptions even approaching the magnitude involve
in restricting migrant labor, these production and income estimates
could prove conservative. Several factors could work to raise them
substantially. For example, underlying the analysis is the assumption
that labor moves freely and immediately between jobs in the U.S.
economy. In other words, agriculture would pay more to bid labor away
from the general economy while the majority of operators continue to
function with higher costs but without interruption. Vulnerable
producers leave the sector. In actual fact, labor markets are far more
rigid and the adjustments more complicated. Moving 500,000 replacement
workers between sectors would require considerable time and involve
This is a particularly important assumption in the agricultural
sector, given production cycles that make many producers sensitive to
short term disruptions. This potential for disruption is most marked in
the fruit and vegetable sectors--i.e. the sector with the most
perishable product and greatest dependence on migrant workers. However,
vulnerability to labor disruption extends to livestock operations, such
as dairy, and field crop operations faced with harvest-time labor
needs. As a result, an analysis based solely on wage rates may
seriously understates farm impacts. How restrictions on migrant labor
were implemented would also be of critical importance. The estimates
outlined here assume implicitly that restrictions were implemented with
enough lead-time for the sector to adjust. Without this lead-time, the
impact would be significantly greater than estimated here.
In addition, the analysis makes no provision for the upward
pressure on wages above the $14.35 per hour level that eliminating
migrant workers could have. While there is no precise count of the
total number of migrant workers currently in the U.S., even the 10-11
million estimates at the low end of the range would be large enough to
spark an economy-wide increase in wages. In this setting, agriculture
would have to match the new wages in effect rather than the old $11-$14
per hour wages. This could also increase farm sector adjustment costs
Other factors could potentially work to lower adjustment costs. For
example, the estimates describe here also make no provision for the
sector's capacity to make structural changes that minimize the need to
hire replacement labor. This would work to lower adjustment costs.
While limited in the short term, the sector has adjusted to input cost
increases in the past by modifying production technologies and changing
the mix of inputs used in the production process. The adjustment that
comes to mind immediately is falling back on the substitution of
machinery for labor. As the following discussion suggests, however, the
potential in the short term of 1 to 5 years is limited at best.
One alternative to the adjustments identified in this report often
cited by supporters of restricting migrant workers is increased
mechanization. However, a closer look at the supply of mechanization
technology on the shelf, the long lead-time involved in developing new
technology and the changing nature of hired labor demand suggests that
mechanization would have a very limited role to play in the short and
Farmers have historically favored development and adoption of
mechanization technology as a means of controlling costs, boosting
incomes and minimizing the difficulties involved in hiring and
retaining non-family labor. Consequently, most of the ready stock of
mechanization technology has already been adopted. Decreased public and
private investment in research and development over the last 2 decades
has also worked to limit new technology in the pipeline. Given the farm
sector's past experience with mechanization, the lead-times in question
could be 10-15 years.
Mechanization of processing tomatoes, for example, took 10-15 years
from the late 1940s through the early l960s. There were none of the
challenges associated with fresh fruits and vegetables where quality
and appearance are at a premium. The process involved a concerted
effort by several universities' agricultural engineering departments,
USDA support and strong grower interest. Once available, the technology
was quickly adopted and proved to be a major factor in making the U.S.
one of the most competitive producers of processing tomatoes in the
world. But the quick adoption once there was a prototype may be the
exception, not the rule.
Mechanization in other commodity markets has made sense only at
scales large enough to rule out adoption for all but a minority of
operators. The livestock sector, such as dairy, is a good example.
Advances have been made in mechanical milking with the use of robotics
but the technology generally requires 1,000 or more milk cows to reach
the minimum scale necessary to justify the investment. Robotic milkers
were introduced several years ago, yet costs are still so high that
such a chance is prohibitive for 95 percent of all dairy operators.
While there is certainly potential for some added mechanization
over the long term, the potential for many commodities is very limited
or non-existent, regardless of the time frame. The fresh fruit and
vegetable market is a good example. As already noted, human dexterity
and judgment is needed in the picking and packing of produce to meet
consumer demand and to address concerns about the lack of uniform
maturity, incomplete mechanical fruit removal, mechanical bruising, and
differences in readiness criteria. Next generation technology that
addresses these needs is not even on a drawing board at this time.
Hence, advanced mechanization alternatives would require a revival
of public-private investment in public-private research and development
and a long-term Congressional funding commitment. Even then, the
contribution would likely be limited to some products and not others,
concentrated in the longer term, and economically viable only at large
enough scale to further restrict its impact.
VI. Designing a Viable Guest Worker Program
One approach to meeting U.S. homeland security concerns while
accommodating agriculture's need for labor is to develop a viable guest
worker program as an integral part of any legislation affecting migrant
labor. The economic considerations identified earlier in this report
suggest that such a program would have to have several critical
First, a viable guest worker program would have to accommodate a
large number of workers efficiently. Providing just the agricultural
sector with an uninterrupted supply of guest workers would require a
program capable of handling 500,000 workers each year. The current H-2A
program accommodates about 30,000. Handling the much larger volumes
needed in agriculture would require streamlining the application and
review process in both the U.S. and the country of origin in order to
protect homeland security and facilitate worker flow.
Second, a viable guest worker program would allow the open market
to determine wages and benefits. The existing program's ``adverse
effect'' provisions have led DOL to issue arbitrary guidelines to
protect the American worker from an influx of low-cost foreign labor
that would bid down wage rates. Such has not been the case. As noted
earlier, agricultural wages are well above the minimum wage and wages
in other industries such as food preparation. The DOL provisions in
question do, however, work to raise wages and benefits for foreign farm
workers above market-clearing levels without leading to any increase in
Americans seeking farm jobs. Migrant farm labor hired through the
program often costs $14-$17 per hour compared to the $9.50 average for
the sector. The increase in hired farm worker wages shown in Figure 2,
combined with farm operator difficulties in securing American workers
even at the higher wages paid over the last decade, indicate that any
adverse impact on American workers is minimal at best. Market forces
would prevent any widespread abuse in the future as Americans vote with
their feet for jobs elsewhere in the economy even at substantially
lower wages. Access to administrative remedies would be sufficient to
address any isolated cases of abuse.
Third, a viable program would include provisions designed to meet
agriculture's unique labor needs. For example, farmers generally need
to lock in labor well in advance as part of their farm management
plans. However, fluctuations in weather could move up or push back the
dates labor is actually needed. Given the perishable nature of
agricultural production, many farmers in question would not be able to
``wait in line'' behind other employers with non-perishable products.
Many farmers' labor needs are also concentrated in short periods of
time centered around harvest. Hence, a viable program would allow for
worker movement between employers to provide a guest worker with long
enough employment to make the program worthwhile. Many other farmers
need year round labor that would not ``fit'' into a seasonal worker
Fourth, the NAWS survey indicates that migrant workers typically
have an established work history with specific employers. The NAWS
survey indicates that the average migrant worker has worked for the
same employer/employers for more than 4 years and has been doing farm
work in the U.S. for up to 10 years. A viable guest program would
provide for continuing these established employer-employee links.
Note on Methodology
This analysis is subject to several limitations relating to data
and methodology. On balance, these limitations suggest that the impact
ranges cited in the text are best interpreted as orders of magnitude
rather than precise estimates.
Regarding data, there are several sources with often conflicting
observations. While the data tend to paint the same general picture,
they can differ on specifics in any 1 year. For the purposes of this
report, the National Agricultural Labor Survey conducted by USDA and
the National Agricultural Workers Survey done by the Department of
Labor were treated as definitive. Hence, for example, the report
assumes than 53 percent of agriculture's hired workforce would be
affected by restrictions on migrant labor despite indications from
other largely anecdotal sources that the number affected would be
higher and the impact of restrictions consequently greater.
Regarding methodology, there has been relatively little research on
farm labor markets done by USDA or the land grant universities. Hence,
the econometric basis for doing impact analysis does not exist. The
same is true for the broader labor market, particularly for the range
of jobs relevant for this analysis. The analysis here is based on the
assumption that farmers would have to bid in the open market for labor
to replace lost migrant workers. This makes understanding how labor
markets operate and how the agricultural sector adjusts to across-the-
board increases in labor costs critical.
Regarding operation of labor markets, this analysis assumes that
the Department of Labor's surveys of wages and employment can be used
to develop a rough approximation of the labor supply curve for the
range of jobs relevant for a farm labor analysis. There are undoubtedly
many other job categories with wages that fall between Figure 7's
benchmarks, but not with sufficient numbers likely to shift to fill
agriculture's job vacancies. In addition, the wages shown are averages,
with distributions including significantly higher and lower wages.
However, it was assumed that Figure 7's benchmarks could be used to
sketch out a rudimentary schedule of the higher wages agriculture could
expect to pay to attract and hold replacement workers.
As already noted, the analysis also assumes that labor moves freely
between categories, and that labor movement between categories is based
solely on relative wages as opposed to a combination of wages and job
characteristics. And as already noted, the analysis makes no provision
for the generalized upward pressure on wages above the $14.35 per hour
level that eliminating migrant workers across the economy could have.
All of these labor assumptions work to reduce and ``smooth out'' the
labor adjustment in agriculture.
These are particularly important assumptions for the agricultural
sector, given production cycles that make producers sensitive to short
term disruptions. This potential for disruption is most marked in the
fruit and vegetable sectors--i.e. the sector with the most perishable
product and greatest dependence on migrant workers. However,
vulnerability to labor disruption extends to livestock operations faced
with day-to-day operational needs and field crop operations faced with
harvest-time labor needs. This suggests that an analysis based solely
on replacement wage rates understates farm impacts. It also suggests
that how restrictions on migrant labor are implemented is also of
critical importance. The estimates outlined here assume implicitly that
restrictions were implemented with enough lead-time for the sector to
adjust--to find replacement workers. Without this lead-time, the impact
would be significantly greater than estimated here.
Regarding operation of the agricultural economy, this analysis
assumes that farmers have little flexibility in substituting other
inputs for hired labor. The analysis also assumes that the farm sector
would have difficulty passing higher labor costs on to consumers. The
elasticities for the short and long term were .50-.66, indicating that
half or more of the impact of a labor cost increase would take the form
of an added production expense and income deduction. The analysis also
assumes that the long term relationship between production receipts and
income holds--that is, farmers loose $.25 in income for every dollar in
production displaced. These assumptions are consistent with the
relationships at work in the Food and Agricultural Policy Institute's
agricultural sector model and the USDA analysis underpinning the
Department's Baseline. While these assumptions about the labor market
and the agricultural economy suggest that this report's estimates of
the costs of restricting migrant labor could be low, several factors
suggest that they could be high. For example, the estimates describe
here make no provision for the sector's capacity to make structural
changes that would minimize the need to hire replacement labor. While
limited in the short term, the sector has adjusted to input cost
increases in the past by modifying production technologies and changing
the mix of inputs used in the production process. The materials
presented here suggest, however, that the potential in the short term
of 1 to 5 years is limited at best.
The analysis also provides for a distinction between short and long
term impacts. The short term impacts are defined as 1-2 year impacts
and do not provide for the full effect of a sustained across-the-board
labor cost increase. The longer term impacts--3 years or more--provide
for the full impact of higher wages as agriculture moves up toward the
top end of the $11-$14.35 range discussed in the text. The longer term
impacts also incorporate the full impact of cost increases working
through the vulnerability analysis to reduce production and raise
These assumptions can be varied to establish a range around the
income estimates described here. A lower bound on the income loss
estimate can be established by assuming labor replacement costs would
be lower, that farmers can pass along more of a cost increase to
consumers, and that less production will exit the sector. This would
lower the $1.5-$5 billion estimate to $1-$3.5 billion in the short term
and the $2.5-$8 billion estimate for the long term to $1.5-$5 billion.
Alternatively, assuming replacement wages are higher, that farmers are
less able to pass along cost increases to consumers, and that more
producers are forced to exit, the short term income loss would be $2-
$6.5 billion and $4-$9.5 billion in the longer term.
In short, the impact of restricting agriculture's access to migrant
labor is significant even with alternative more favorable assumptions
for key parameters.
Legal, Stable Workforce Critical for Agriculture
Washington, D.C., October 4, 2007--Agriculture is on the front
lines of the immigration debate in America and farmers, ranchers and
growers desperately need a solution to the labor challenges they face,
the American Farm Bureau Federation told Congress today.
``Sustaining our current level of productivity is contingent on a
stable, reliable and legal workforce. Nowhere is the problem more acute
than in agriculture,'' AFBF President Bob Stallman testified at a House
Agriculture Committee hearing on the labor needs of American
agriculture. ``The labor situation on America's farms and ranches is
closely linked with the issue of immigration reform.''
To illustrate the severity of the problem, Stallman cited Labor
Department surveys indicating that in 2001 and 2005, 53 percent of the
hired crop labor force was not authorized to work in the U.S.
``We believe this is probably a low estimate because it is based on
responses volunteered by individuals to government-authorized
interviewers,'' Stallman said. ``It seems reasonable that at least some
individuals surveyed did not volunteer that they were not legally
authorized to work.''
Using National Agricultural Statistics Service figures that peg the
number of non-family farm workers at one million, Farm Bureau estimates
at least 500,000 agricultural workers in the U.S. lack proper
Analysis of additional NASS data reveals a progressive tightening
in the supply of agricultural labor, according to AFBF. Farmers
normally require the most labor for their operations during the third
quarter of each year. But a comparison of the third quarter of 2005 to
the third quarter 1 year later indicates there were 60,000 fewer farm
workers during this critical time period in 2006.
The change in the balance between farm labor supply and demand is
reflected in higher average wages for hired farm workers compared to
other types ofworkers. According to the Labor Department, in 2005,
hired farm workers earned an average of $11 to $12 per hour, compared
to workers earning $6.65 per hour for food preparation, $11 per hour
for janitorial jobs and $14.65 for construction labor. In fact, there
are currently 10 million workers--more than 7 percent of the total U.S.
workforce--who work for lower wages than they could earn in
``Clearly, farmers are facing a difficult situation as they
scramble for additional labor in an economy with a relatively low
unemployment rate and a lack of individuals willing to work in
agriculture,'' Stallman said.
``Without a stable, legal supply of labor to replace currently
unauthorized workers, the fresh fruit and vegetable sector could see
U.S. production decline by up to $9 billion a year,'' Stallman said.
``Similarly, an abrupt loss of our labor supply could cause net farm
income to drop by up to $5 billion annually.''
AFBF continues to urge Members of Congress to set aside their
partisan and ideological differences and do what is right for
agriculture, and the U.S. as a whole, by approving national immigration
legislation reform legislation without delay.
The Chairman. Thank you very much, Mr. Stallman, for that
testimony. We now will recognize Mr. Lee Wicker, the Deputy
Director of North Carolina Growers Association. Welcome to the
STATEMENT OF H. LEE WICKER, DEPUTY DIRECTOR, NORTH CAROLINA
GROWERS ASSOCIATION, VASS, NC
Mr. Wicker. Mr. Chairman, thank you for the opportunity to
participate in this important hearing. I am Lee Wicker, Deputy
Director of the North Carolina Growers Association, the largest
H-2A Program user in the nation.
North Carolina growers has 725 members this year and will
employ nearly 7,500 workers. I represent the best, most
compliant farmers in the nation, and I am extremely proud of
them. I am the only person on this distinguished panel of
experts who is a former government bureaucrat, a consultant, an
advocate, a farm worker, a farmer, and an H-2A Program user. I
am uniquely qualified to talk about this issue from a clinical
and practical perspective.
Unfortunately the issue of farm labor has become hyper
politicized, due in part to the amnesty provisions contained in
the AgJOBS bill. Farmers need workers to grow food, not
amnesty. To ensure that growers have an adequate and legal
labor force, the solution is not amnesty but rather repair of
the broken H-2A Program so that growers will use it.
Currently H-2A is too litigious, too expensive, and too
much of a bureaucratic morass at the three Federal agencies
that oversee the program. In order to fix H-2A so that it is
workable for farmers, there are four crucial areas of the
program that must be corrected.
Number one, change the wage rate to prevailing. Every other
visa program pays prevailing wage. Why should agriculture with
its entry-level, low skill jobs be treated differently? The
current H-2A minimum wage in North Carolina is $9.02 per hour.
In the last 16 years, the wage is North Carolina has gone up a
staggering 76 percent. Farmers cannot afford to pay that much,
especially on top of the free housing, utilities, and
transportation required by law.
Number two, require binding mediation and arbitration.
Growers and workers should be required to resolve legal issues
through mediation and arbitration. Growers sign contracts all
the time that contain mandatory mediation agreements. If it is
okay for farmers, then it should be okay for farm workers.
Since 1989, the growers of NCGA have been sued over 30 times
and have paid over $5 million in attorneys' fees and settlement
This is a common experience among H-2A Program users around
the country. I believe that you can protect farm workers
without being sued by an attorney with a political and social
agenda, and I am deeply troubled that growers who are making a
good faith effort to do things legally and responsibly are
Number three, visa cost and transportation reimbursement.
Cost associated with the worker applying for the visa should be
paid for by the worker. Inbound transportation should be
reimbursed to the worker upon completion of 50 percent of the
contract. If the money is reimbursed upon arrival, the
financial incentive for the worker to remain on the farm is
removed. And guess where the workers will be. Gone.
Number four, streamline and simplify the H-2A process.
There are many delays with the U.S. Departments of Labor,
Homeland Security, and most problematic has been the issue of
getting enough appointments from the State Department for the
one-on-one interviews and background checks. The system needs
to be streamlined and simplified, eliminating redundant
needless rubber stamping by bureaucrats.
Most experts agree that if the number of H-2A workers were
to double, the program would collapse under its own
bureaucratic weight. The infrastructure is not in place for
In summary, without these four changes, the H-2A Program is
simply too expensive and too litigious for most growers to use.
Most farmers prefer to employ illegals because it is cheaper,
and they remain off the Federal and legal radar screens. If you
employ H-2A workers, you can expect to have investigations by
the U.S. Departments of Labor, Homeland Security, Justice,
State, the FBI, the IRS, reporters, attorneys, and farm worker
As Agriculture Committee Members, you have the forum and
the ability to articulate the problem and offer policy
solutions that will ensure American agriculture has an adequate
and legal labor force. Please remember our growers need a
workable H-2A Program, not amnesty. Amnesty did not work in
1986, and AgJOBS, with its amnesty provisions, will not work
today. It will only make matters worse.
The North Carolina Growers Association supports H.R. 1792,
the Temporary Agricultural Labor Reform Act of 2007. I thank
you for your attention.
[The prepared statement of Mr. Wicker follows:]
Prepared Statement of H. Lee Wicker, Deputy Director, North Carolina
Growers Association, Vass, NC
Mr. Chairman, thank you for the opportunity to participate in this
important hearing. I'm Lee Wicker, Deputy Director for the North
Carolina Growers Association, the largest H-2A program user in the
nation. The NC Growers Association has 725 members and will employ
nearly 7,500 H-2A farmworkers in 2007. I represent the best most
compliant farmers in the nation and I am extremely proud of them. I am
the only person on this distinguished panel of experts who is a former
government bureaucrat, a consultant, an advocate, a farmworker, a
farmer and an H-2A program user. I am uniquely qualified to talk about
this issue from a clinical and practical perspective.
Unfortunately, the issue of farm labor has become hyper
politicized--due, in part, to the amnesty provisions contained in the
AgJOBS bill. Farmers need workers to grow food, not amnesty.
To ensure that growers have an adequate and legal labor force, the
solution is not amnesty, but rather repair of the broken H-2A program
so that growers will use it. Currently, H-2A is too litigious, too
expensive and too much of a bureaucratic morass at three Federal
agencies that oversee the program.
In order to fix H-2A so that it is workable for farmers, there are
four crucial aspects of the program that must be corrected:
1. Change the wage rate to prevailing. Every other visa program
pays prevailing wage. Why should Agriculture, with its entry
level, low skill jobs, be treated differently? The current H-2A
minimum wage rate in NC is $9.02 per hour. In the last 16 years
the wage in NC has gone up a staggering 76%. Farmers cannot
afford to pay that much, especially on top of the free housing,
utilities, and transportation required by law.
2. Require Binding Mediation and Arbitration. Growers and workers
should be required to resolve legal issues through mediation
and arbitration. Growers sign contracts all the time that
contain mandatory mediation arbitration agreements. If it is
okay for farmers, then it should be okay for farmworkers. Since
1989, the growers' of NCGA have been sued over 30 times and
have paid over $5 million in attorneys fees and settlement
costs. This is a common experience among H-2A program users
around the country. I believe that you can protect farm workers
without being sued by an attorney with a political and social
agenda. I am deeply troubled that growers who are making a good
faith effort to do things legally and responsibly are being
3. Visa Costs and Transportation Reimbursement. Costs associated
with the worker applying for the visa should be paid for by the
worker. Inbound transportation should be reimbursed to the
worker upon completion of 50% of the contract. If the money is
reimbursed upon arrival, the financial incentive for the worker
to remain on the farm is removed--and guess where the workers
will be . . . gone.
4. Streamline and Simplify the H-2A Process. There are many delays
with U.S. DOL, Homeland Security and most problematic has been
the issue of getting enough appointments from the State
Department for the one-on-one interviews and background checks.
The system needs to be streamlined and simplified, eliminating
redundant and needless rubber-stamping by bureaucrats. Most
experts agree that if the number of H-2A workers were to
double, the program would collapse under its own bureaucratic
weight. The infrastructure is not in place for significant
In summary, without these four changes, the H-2A program is simply
too expensive and too litigious for most growers to use. Most farmers
prefer to employ illegals because it is cheaper and they remain off the
Federal and legal radars. If you employ H-2A workers you can expect to
have investigations by the U.S. Departments of Labor, Homeland
Security, Justice, State, the FBI, the IRS, reporters, attorneys, and
As Agriculture Committee Members you have the forum and the ability
to articulate the problem and offer policy solutions that will ensure
that American Agriculture has an adequate and legal labor force. Please
remember, our growers need a workable H-2A program, not amnesty.
Amnesty did not work in 1986 and AgJOBS, with its amnesty provisions,
will not work today, it will only make matters worse.
Thank you for your attention.
The Chairman. I thank the gentleman. I am now pleased to
recognize--if I can get organized here--Mr. Scott Herring, the
Executive Vice President and CEO of Farm Credit of Western New
York. Welcome to the Committee.
STATEMENT OF C. SCOTT HERRING, EXECUTIVE VICE
PRESIDENT AND COO, FARM CREDIT OF WESTERN NEW YORK, ACA,
Mr. Herring. Mr. Chairman, Members of the Committee, thank
you for the opportunity to testify on the labor needs of
American agriculture. My name is Scott Herring, and I am the
Chief Operating Officer for Farm Credit of Western New York,
and we extend credit and other financial services to over 3,500
The current farm labor situation is of great concern to our
farmer members and to our organization. During the past decade,
farm businesses have had difficulty hiring local workers to
meet their needs and, as a result, have employed growing
numbers of immigrant labor.
Over the past few years, there have been more labor
disruptions in western New York as a result of actions by ICE,
local police, or simply because farm workers believe that the
farm that they worked on would be targeted for enforcement
In light of the concern of farm labor availability, the New
York Farm Credit Associations have estimated the economic
impact of the loss of immigrant labor on New York farms. New
York agriculture includes significant production in dairy,
vegetables, fruit, and the greenhouse nursery sector. These
sectors can be the most vulnerable to shortages in labor. The
fact is that labor disruptions can quickly result in severe
financial problems on many farms. Most farms simply do not have
the financial resources to survive if they cannot fully harvest
With the increasing consumer demand for quality products, a
delay in harvesting can also have a dramatic negative impact.
While farmers must deal with natural disasters and with wide
farm price fluctuations, a labor shortage causes farms to go
out of business, shrink in size, and if possible move to more
Our analysis indicates that a prolonged severe disruption
in labor availability as a result of enforcement actions
without enhanced worker programs would have the following
impact: We estimate that about 800 New York farms are highly
vulnerable to going out of business or will be forced into
part-time farms with severe labor shortages.
The primary impact would be on dairy farms, with fruit,
vegetable, and greenhouse nurseries also severely impacted.
These farms have total sales estimated to be in excess of $700
million, and realistically as many as 7,000 full-time
equivalent positions would be impacted. These farms operate
approximately 750,000 acres of cropland, and if these farm's
businesses were to cease operating, some of this acreage would
switch into less intensive agriculture, but hundreds of
thousands of acres would be vulnerable to being discontinued
from crop production and be converted to non-farm uses.
The economic impact goes beyond the farm gate and could
undermine in part the state's ag infrastructure that all farms
depend on. In addition to the loss of farm employment, jobs
would decline in the farm service input processing and
marketing sectors. From a farmer or a lender perspective, not
having a stable and reliable labor supply to harvest
production, milk dairy cows, or undertake other necessary
production and marketing tasks could be a catastrophic
Farms can deal with low prices and poor production for at
least 1 and sometimes 2 years. The same could be said of a
severe labor shortage that reduces harvest for a year or 2. But
after a year or 2, the farm's cash reserves are exhausted, the
line of credit is used up, and the farmer is likely eroding
When this happens, the business is looking seriously at its
options. The farm simply cannot risk making future investments
if they don't feel that they can be successful in the harvest
and in other areas of bringing production to market. As a
lender, we are concerned, and we know that many other lenders
share that concern. Farm businesses have significant capital
investment and limited financial resources to deal with labor
shortages. They must also compete in a highly competitive world
It is critical to New York, the American farmers, and
ultimately for the American consumer that agriculture
immigration reform be adopted. We support the need to secure
our nation's border and control the entry of immigrants on
America's terms. A critical part of that solution is a workable
program for agriculture that meets those objectives while
providing America's farms with a reliable source of farm labor.
Any reform solution must deal with certain realities.
First, it must provide means for seasonal workers to enter,
work, and then return to their homeland in an efficient and
timely manner. Second, it must provide a means to hire workers,
many who have years of service and have advanced into key
positions yet lack proper legal status. Providing these year-
round, experienced workers a way to earn legal status is
essential. We believe the urgency is real. The uncertainty
surrounding it makes it very difficult for farmers to plan for
the future. And we thank you for your consideration.
[The prepared statement of Mr. Herring follows:]
Prepared Statement of C. Scott Herring, Executive Vice President and
COO, Farm Credit of Western New York, ACA, Batavia, NY
Thank you for the opportunity to testify on the labor needs of
American agriculture. My name is Scott Herring, I am the Executive Vice
President and Chief Operating Officer for Farm Credit of Western New
York. Farm Credit of Western New York extends credit and other
financial services to over 3,500 customer-members in a 16 county area
in western New York.
Farm Credit of Western New York is part of the nationwide Farm
Credit System. This analysis on farm labor and the potential impact of
labor shortages was done by Farm Credit of Western New York, First
Pioneer Farm Credit and Yankee Farm Credit. The analysis is based on
data from the New York State 2002 Census of Agriculture and covers the
entire state. As customer-owned cooperatives, Farm Credit institutions
are owned and governed by farmers. In New York State, these Farm Credit
institutions serve 8,500 members with in excess $1 billion in loans and
have a market share of institutional farm debt of approximately 60%.
The current farm labor situation is of great concern to our farmer-
members and to our organization. We are the largest lender to
agriculture in western New York. During the past decade, farm
businesses in New York have had increasing difficulty hiring local
workers to meet their needs and as a result have employed growing
numbers of immigrant labor.
Over the past few years there have been more labor disruptions in
western New York as a result of actions by Immigration and Customs
Enforcement, local police departments or because farm workers believed
that the farm that they worked on would be targeted for enforcement
actions. In light of the concern with farm labor availability, Farm
Credit of Western New York and the other New York Farm Credit
associations estimated the economic impact of the loss of immigrant
labor on New York farms last year. We recently modified our estimates
as we have received more input from farmers and our farm business
consultants. Attempting to establish impact numbers requires making a
number of assumptions and should be viewed as estimates only.
New York agriculture is very diverse and includes significant
production in dairy, vegetable, fruit and the greenhouse-nursery
sectors. These sectors can be most vulnerable to shortages of labor.
The fact is that labor disruptions can quickly result in severe
financial problems on many farms. Most farms simply do not have the
financial resources to survive if they can not fully harvest their
products. With the increasing consumer demand on quality production, a
delay in harvesting can also have a dramatic negative impact. While
farmers must deal with natural disasters and with wide farm price
fluctuations, a labor shortage causes farms to go out of business,
shrink in size or if possible move more to mechanization.
Our analysis, which is based on New York State agricultural Census
data, indicates that a pro-longed severe disruption in labor
availability as a result of enforcement actions without enhanced guest
worker initiatives would have the following impact:
We estimate that about 800 New York farms are highly
vulnerable to going out of business or forced to part-time
farms from a severe labor shortage. The primary impact would be
on dairy farms with fruit, vegetable and greenhouse-nursery
operations also severely impacted. Larger farms would feel the
impact of this first, but many mid-sized farms could also be
severely affected and have to change or cease operations.
These farms have total sales estimated to be in excess of
Thousands of on-farm jobs would be lost if these farms go
out of business. Realistically, as many as 7,000 FTE positions
(Full Time Equivalents) could be impacted.
The economic impact of this situation goes well beyond the
farm-gate and could undermine, in part, the state's
agricultural infrastructure that all farms depend on. In
addition to the potential loss of farm employment, jobs would
decline in the farm service, input, processing and marketing
sectors. Some economists estimate that three to four jobs in
the upstream and downstream economy are created by the
production associated with each farm worker job.
The vulnerable farms operate approximately 750,000 acres of
cropland. If these farm businesses were to cease operating,
some of this acreage would switch into less intensive
agriculture, but hundreds of thousands of acres would be
vulnerable to being discontinued from crop production and
converted to non-farm uses.
As a lender we are concerned and we know that many other lenders
share that concern. Farm businesses have significant capital investment
and limited financial resources to deal with a severe labor shortage
situation. They also must compete in a highly competitive world market.
It is critical to New York State and American farmers and ultimately
for the American consumer that agricultural immigration reform with
appropriate farm worker provisions be adopted.
We support the need to secure our nation's borders and control
entry of immigrants on America's terms. A critical part of that
solution is a workable program for agriculture that meets those
objectives while providing America's farms with a reliable source of
farm labor. Any reform solution must deal with several realities.
First, it must provide means for seasonal and migrant workers to enter,
work, and return to their homeland in an efficient and timely manner.
Secondly it must provide means to hire workers, many who have years of
service and have advanced into key positions, yet lack proper legal
status. Providing these workers a way to earn legal status is
Thank you for your consideration of our views.
C. Scott Herring,
Executive Vice President and Chief Operating Officer,
Farm Credit of Western New York, ACA.
The Chairman. Thank you very much. I will recognize Mr.
Bruce--is it Goldstein?
Mr. Goldstein. Goldstein.
The Chairman. Goldstein, I'm sorry. Executive Director of
the Farmworker Justice from Washington, D.C. Welcome to the
STATEMENT OF BRUCE GOLDSTEIN, EXECUTIVE DIRECTOR, FARMWORKER
JUSTICE, WASHINGTON, D.C.
Mr. Goldstein. Thank you very much for the opportunity to
testify today on the labor needs of American agriculture.
Farmworker Justice is a 26-year-old national advocacy group
that seeks to empower migrant and seasonal farm workers to
improve their labor rights, immigration policy, and
occupational safety and health. Over 100 farm workers are on
Capitol Hill this week visiting Members of Congress to discuss
the issues in this hearing today.
Congress needs to address the farm labor problem in this
country now. A conflict over policy has been festering since
1995. A remarkable compromise endorsed by farm worker unions,
agricultural employers, and a wide array of other
constituencies has won substantial support from Republicans and
Democrats across the ideological spectrum. It deserves to be
The majority of farm workers in the United States today are
undocumented. Out of about 2.5 million agricultural workers in
the United States, probably 60 percent or 1.5 million, possibly
more, are immigrants who are not authorized to work.
The presence of so many undocumented workers in an
occupation translates into weak bargaining power for all farm
workers. Farm workers' income is very low, usually less than
$13,000 a year. Housing is scarce and often decrepit. Very few
farm workers receive even basic fringe benefits such as paid
sick leave or holidays. Agriculture is ranked among the three
most dangerous jobs in the United States. Without legal
immigration status, farm workers find it difficult to win
better job terms or government policy.
Employers who hire farm workers now face a greater threat
of immigration rates, border control, and other immigration
enforcement that can deprive them of an adequate labor force.
Of course, agricultural employers should improve wages and
working conditions to attract job applicants and retain them.
Congress should end the discrimination in overtime pay, safety
and health regulations, and other laws that deprive farm
workers of needed labor protections that other employees enjoy.
The government also needs to substantially improve its labor
law enforcement efforts.
The reality, however, is that if we deported a substantial
number of undocumented farm workers, there would be a
tremendous labor shortage. Robots and other machines are not
yet available to replace human beings in harvesting many of the
fruits and vegetables we consume. America needs its farm
workers. We are eating healthier and are buying more fruits and
vegetables. In fact, the USDA has good news for us on trade. We
are exporting more and more fruits and vegetables to consume in
other nations. The people who create this bounty and place the
food on the world's dining tables should be treated with
A responsible solution to this farm labor problem would
also allow our law enforcement agencies to focus on finding
criminals and terrorists, rather than on deporting poor
immigrants simply seeking to support their families by
producing Americans' food.
For years, there has been a stalemate in Congress that had
three main warring positions. First, farm worker advocates
wanted a legalization program like the 1986 law that permitted
1.1 million undocumented workers to become permanent
immigrants. We were not able to pass that.
Second, many agribusiness groups lobbied for changes to the
H-2A Program. We view the H-2A Program as abusive and overly
skewed towards employers' interests and against the workers'
interests. These proposals would have drastically reduced wage
rates, minimized workers' opportunities for jobs if they are
U.S. citizens, weakened housing requirements, and they would
prevent guest workers from obtaining legal aid.
H-2A workers lack the economic freedom and democratic
rights that this country prides itself on. The grower groups
that sought these reforms failed to pass their bill, and most
of them eventually began to discuss a compromise.
Third, there is a group that seeks to do nothing except
perhaps allow the problem to worsen as immigration enforcement
expands and both farm workers and employers suffer the
consequences. Doing nothing, in our view, is irresponsible, end
There is a reasonable solution that has widespread support.
AgJOBS is the nickname for the bill. The united farm workers
played the leading role in negotiating on behalf of farm
workers with major agribusiness groups to resolve years of
A bipartisan group of legislators in both Houses spent
many, many hours ironing out the settlement of hard-fought
positions among organizations that have traditionally refused
to negotiate with one another.
The compromise is a win-win solution. Farm workers who earn
immigration status would increase their bargaining power with
employers to be treated fairly. Businesses would obtain a
legal, stable labor supply of experienced farm workers. And if
labor shortages were to occur in the future, the H-2A Program
would be available.
This is a practical, reasonable solution. The opponents
would preserve the unacceptable status quo. AgJOBS may not be
perfect, but it is a responsible, balanced approach to meet the
labor needs of American agriculture. Thank you.
[The prepared statement of Mr. Goldstein follows:]
Prepared Statement of Bruce Goldstein, Executive Director, Farmworker
Justice, Washington, D.C.
Mr. Chairman and Members of the Agriculture Committee, thank you
for the opportunity to testify today on the labor needs of American
agriculture. My organization, Farmworker Justice, is a 26-year old
national advocacy group that seeks to empower migrant and seasonal
farmworkers to improve labor rights, immigration policy, and
occupational safety and health. We have numerous publications on the
issues the Committee is considering; I invite Members to visit our
website, www.farmworkerjustice.org, to take advantage of these
Congress needs to address the farm labor problem in this country
now. A conflict over policy has been festering since 1995. A remarkable
compromise endorsed by farmworker unions, agricultural employers, and a
wide array of other constituencies has won substantial support from
Republicans and Democrats across the ideological spectrum. The majority
of responsible legislators should assert themselves and end the
The principal farm labor problem is that the majority of farm
workers in the United States are undocumented. Out of about 2.5 million
agricultural employees in the U.S., probably 60% or 1.5 million,
possibly more, are immigrants who are not authorized to work.
The presence of so many undocumented workers in an occupation
translates into weak bargaining power for all farmworkers. Most are too
fearful of deportation to challenge unfair or illegal conduct or join a
labor union. Even the citizens and authorized immigrants are reluctant
to make demands on their employers if they won't have the support of
their exploitable co-workers. The consequences of this untenable
situation are serious. Farmworkers' incomes are very low, usually less
than $13,000 a year. Housing is scarce and often decrepit. Very few
farmworkers receive even basic fringe benefits, such as paid sick leave
or holidays. Health care is rarely offered to farmworkers by their
employers, and the undocumented and even new authorized immigrants to
the U.S. are not eligible for Medicaid or other public benefits.
Agriculture is ranked among the three most dangerous jobs in the United
States. Without a legal immigration status, farmworkers find it
difficult to win better job terms or government policy.
Employers who hire farmworkers now face a greater threat of
immigration raids, border control and other immigration enforcement
that can deprive them of an adequate labor force. Many growers have
sought to evade immigration law sanctions by using farm labor
contractors to recruit and supervise workers in the fields. Some
growers frivolously claim that they are not the ``employer'' of the
farmworkers in their fields and that only the labor contractor is
liable for violations of immigration and labor laws.
Of course, agricultural employers should end labor contracting
abuses and improve wages and working conditions to attract job
applicants and retain them. Congress should end the discrimination in
overtime pay, safety and health regulations, and other laws that
deprive of farmworkers of needed labor protections that other employees
enjoy. The government also needs to increase its labor law enforcement
The reality is, however, that if we deported a substantial number
of undocumented farmworkers there would be a tremendous labor shortage.
Robots and other machines are not yet available to replace human beings
in harvesting many of the fresh fruits and vegetables we consume.
America needs its farmworkers. We are eating healthier and are
buying more fruits and vegetables. In fact, the U.S. Department of
Agriculture has good news for us on trade: we are exporting more and
more fruits and vegetables to consumers in other nations. The people
who create this bounty and place the food on the world's dining tables
should be treated with dignity.
We as a nation are concerned about security. We should want to know
who is living and working in this country, but we don't really know who
is performing more than half the farm work in this country. A
responsible solution to this farm labor problem would allow our law
enforcement agencies to focus on finding criminals and terrorists,
rather than on deporting poor immigrants simply seeking to support
their families by producing America's food.
For years, there had been a stalemate in Congress that had three
main warring positions. First, we farmworker advocates wanted Congress
to follow the precedent of the 1986 immigration law that permitted
undocumented farmworkers, after proving their recent agricultural work
in the U.S. and complying with other immigration law obligations, to
obtain a temporary immigration status and later a permanent status with
a path to citizenship. Our argument being that if we need workers in
America to perform jobs, we should invite people in as immigrants,
rather than as exploitable indentured servants. This country
experimented with the massive Bracero guest worker program for 22
years, ending in 1964. Despite significant labor protections in the
Bracero program, it was widely recognized as abusive and a national
embarrassment. We farmworker advocates had not been successful in our
legislative advocacy for a replay of the 1986 legalization program.
Second, many agribusiness groups lobbied heavily in the 1990's for
changes to the H-2A agricultural guest worker program. They sought to
make it easier for employers to hire guest workers on temporary work
visas with no path to immigration status (or citizenship), lower the
program's wage rates dramatically, minimize U.S. workers' opportunities
to obtain jobs, weaken housing requirements, prevent guest workers from
obtaining legal aid, and reduce government oversight. The growers
sought to transform the farm labor system into a system of exploitable
guest workers and set their wages and other job terms at unconscionably
low levels. H-2A workers have little bargaining power: they may not
switch employers; they must leave the country when their job ends; if
they wish to return the following season they must hope that their
employer will apply for a visa for them. Thus, guest workers lack the
economic freedoms and democratic rights that this country prides itself
on. The grower groups failed to pass their bill and most eventually
began to discuss a compromise. However, some legislators, egged on by
some employer organizations and others, have continued efforts to pass
similar legislation that also have failed.
Third, there is a group that seeks to do nothing except perhaps
allow the problem to worsen as immigration enforcement expands and both
farmworkers and employers suffer the consequences.
Doing nothing, in our view, is extraordinarily irresponsible.
Congress should end its stalemate. A vocal minority of opponents should
not be permitted to perpetuate this absurd status quo. There is a
reasonable solution that has widespread support. AgJOBS is the nickname
for the Agricultural Job Opportunity, Benefits and Security Act. The
United Farm Workers played the leading role in negotiating on behalf of
farmworkers with major agribusiness groups to resolve years of harsh
conflict. A bipartisan group of legislators in the House and the Senate
spent many, many hours ironing out the settlement of hard-fought
positions among organizations that had traditionally refused to
negotiate with one another.
The bill contains two parts. First, it would create an ``earned
legalization'' program. Applicants could obtain a temporary immigration
status by proving that they been employed in U.S. agriculture in the
past 2 years, either as a legal guest worker or as an undocumented
worker. If the temporary resident then performs a specified amount of
agricultural work, during a 3 to 5 year period, he or she could convert
to lawful permanent resident status and receive a ``green card.''
Security checks would prevent terrorists, criminals and other unwanted
individuals from using the program. During the 3 to 5 years of the
future work requirement, the participants would be permitted to work
for any employer and in any occupation as long as the agricultural work
was performed. The farmworker's spouse and minor children also would
eventually become eligible to be immigrants. Several hundred thousand
current farmworkers would be eligible for this program.
Second, AgJOBS would revise the existing H-2A agricultural guest
worker program, which allows employers to hire foreign citizens on
temporary, nonimmigrant work visas. The H-2A program's history of
abuses made negotiations by farmworker advocates with employers
difficult. The reforms would benefit employers by making the program
easier and quicker to use and lowering the wage rates. The compromise
would retain important wage protections that employers had sought to
eliminate. AgJOBS also retains or expands other important labor
standards to prevent job losses and wage cuts among U.S. workers
(including the participants in the new earned legalization program) and
protect foreign workers from exploitation. Regrettably, the compromise
would not permit H-2A workers to earn a path to citizenship.
The compromise is win-win-win solution even though (or, perhaps,
because) it required painful concessions all around. Farmworkers who
earn immigration status would increase their bargaining power with
employers. Businesses would obtain a legal, stable labor supply of
experienced farmworkers. If labor shortages were to occur in the
future, the H-2A program would be available. Moreover, the U.S.
government would know who resides within our borders and would be
better able to enforce immigration and labor laws in agriculture.
Some object to AgJOBS saying that it's not a good enough deal for
agricultural employers; they want the H-2A wage rates lowered even
further, the housing requirement stripped out, the elimination of the
job preference for U.S. workers, and other changes. These selfish
demands were made in earlier legislation and failed. Congress needs to
Some opponents argue that people who crossed our borders illegally
should not be rewarded with an ``amnesty.'' AgJOBS is not an
``amnesty.'' It contains tough, multi-year work requirements, financial
costs, and other obstacles to earn immigration status.
The opponents would preserve the current unacceptable situation.
They have no reasonable solution. They certainly have no legislation
that could pass Congress. In the meantime, farmworkers face terrible
choices, employers risk losing their businesses and this nation
continues to allow a situation in which a majority of the employees of
an entire economic sector lack authorized immigration status.
We need solutions, not hollow rhetoric or more ideological
stalemate. AgJOBS is not perfect but it is a responsible, balanced
approach to meet the needs of American agriculture.
Thank you for the opportunity to present testimony on behalf of
The Chairman. Thank you very much, Mr. Goldstein. And now
our last panelist on this panel is Mr. Mike Brown, the Senior
Vice President for Legislative Affairs of the American Meat
Institute. Welcome to the Committee.
STATEMENT OF MICHAEL J. BROWN, SENIOR VICE
PRESIDENT, LEGISLATIVE AFFAIRS, AMERICAN MEAT
INSTITUTE, WASHINGTON, D.C.
Mr. Brown. Mr. Chairman, thank you very much, and Members
of the Committee. I appreciate the honor and privilege to
appear here before you today. I will abbreviate my remarks but
hope that my full testimony, written testimony, will be in the
record. I would also like to thank my son, Dan, who has joined
me today to offer support and to watch this Committee do its
work. Thank you, Dan.
And just to elaborate on Mr. Goldstein's testimony, I want
to point out to the Committee that we are also producing,
consuming and exporting more meat today than we ever have
AMI would like to express its appreciation to the Committee
for holding this hearing on the critical issue of agricultural
labor. This is one of the most important issues facing AMI
members in our nation. It is clear that the employment and
immigration laws that govern the hiring and employment process
in this country are dysfunctional and in urgent need of reform.
In the mid 1990s, AMI members in the Midwest had their meat
packing operations disrupted when they were audited by the
Immigration and Naturalization Service and informed that many
of their experienced employees, who were vital to their
operations, had provided fraudulent documents at the time of
Given these circumstances, many AMI members sought to more
carefully scrutinize employment authorization documents, and,
ironically, faced discrimination charges at the same time for
being too vigilant in seeking to employ authorized workers.
Employers are required to walk an impossible legal
tightrope, due to the failures in the immigration laws to
provide bright lines for compliance. AMI and its members took
the initiative to address this problem by successfully urging
Congress in 1999 to extend the scope of the basic pilot program
beyond the original five states that were approved, to include
the State of Nebraska, where many AMI members are located.
This tool enabled a number of meat packing companies to
enter into agreements with INS to participate in the basic
pilot program. Nearly 5 years ago, AMI members lobbied to have
the program expanded to all 50 states, allowing all industries
and all meat and poultry companies the opportunity to use the
The experience of AMI members participating in the basic
pilot program has been mixed. While the electronic verification
mechanisms of the program have screened out a number of
unauthorized workers at the point of hire, the mere fact that
the company is participating in the program deters many
individuals from even applying for work.
The program nonetheless is only partially effective. It
does not solve the problem of identity theft. In addition,
there are delays by DHS in updating its databases to include
the most recent change in status of aliens. These delays can
result in an employer receiving false information regarding the
legal work status of an individual.
Moreover, the basic pilot program does not have the ability
to determine when an individual's name and Social Security
Number are being reported by several employers at the same
time. Unfortunately the problem of identity theft is
widespread, and, notwithstanding the extensive use of the basic
pilot program by meat and poultry companies, it has resulted in
continued disruption of AMI member companies.
There have been a number of highly publicized raids of
well-known meat packing companies that are participating in the
program, that have worked closely with DHS in attempting to
comply with the law. The raids of these companies have been
devastating, resulting in significant disruptions of their
operations and in some cases, losses in the tens of millions of
Unfortunately, the basic pilot program will continue as an
inadequate system until Congress takes the steps to correct its
Mr. Chairman, AMI believes it is imperative that Congress
undertake the effort to improve the program now, as it is set
to expire in September of 2008. We have less than a year to
work on this problem. Extension and improvement of the basic
pilot program, consistent with the following four principles,
is among the American Meat Institute's highest legislative
One, individuals engaged in identity theft must be detected
at the time of hire. It is essential that a biometric
technology be included on documents to determine whether the
person presenting a work authorization and identity document is
in fact the person to whom the document relates.
Two, the number of documents that an employer must accept
for purposes of determining whether a person is authorized must
be reduced. Currently, we have to accept one of any 29 document
Three, DHS and the Social Security Administration must be
given the resources to ensure that individual's status changes
are current so that verification checks will have real time
Four, employers that comply with the electronic eligibility
verification requirements under the basic pilot program must be
provided adequate protection from both the Department of
Homeland Security enforcement actions as well as discrimination
lawsuits. AMI urges the introduction of legislation this year
which will achieve the above described objectives.
Mr. Chairman and Members of the Committee, AMI and its
members look forward to working with you to find an immediate
legislative solution to the critical challenges that our broken
immigration system poses to the meat and poultry processing
I will be happy to answer any questions that the Members of
the Committee may have as time allows. Thank you very much.
[The prepared statement of Mr. Brown follows:]
Prepared Statement of Michael J. Brown, Senior Vice President,
Legislative Affairs, American Meat Institute, Washington, D.C.
Mr. Chairman, Ranking Member, and Members of the Committee, thank
you for the opportunity to appear before this Committee. My name is
Mike Brown and I am Senior Vice President for Legislative Affairs of
the American Meat Institute (AMI). AMI has provided service for more
than 100 years to America's meat and poultry industry--an industry that
employs more than 500,000 individuals and provides more than $100
billion dollars in sales to the nation's economy.
AMI's members include America's most well-known meat and poultry
manufacturers. Collectively, they produce more than ninety percent of
the beef, veal, pork and lamb food products and seventy-five percent of
the turkey food products in the U.S. Among AMI's member companies, over
sixty percent are small family-owned businesses employing fewer than a
hundred individuals and some are publicly traded and employ tens of
thousands. These companies operate, compete, sometimes struggle and
mostly thrive in one of the toughest, most competitive and certainly
the most scrutinized sectors of our economy--meat and poultry packing
AMI would like to express its appreciation to the Committee for
holding this hearing on the critical issue of agricultural labor. This
is one of the most important issues facing AMI members. AMI has
actively supported comprehensive immigration reform during the past
several Congresses. The employment and immigration laws that govern the
hiring and employment process are dysfunctional and in urgent need of
reform. The lack of viable legal channels for workers to enter the U.S.
to work in industries that have demonstrable shortages of U.S. workers
contributes to the illegal immigration problem facing this country and
restricts the growth of our economy.
For employers in the nation's meat and poultry industry, the
Federal Government's failure to enact legislation solving this problem
is especially frustrating. AMI's members have been in the forefront of
the efforts to bring integrity to employment authorization verification
process enacted by Congress in the Immigration Reform and Control Act
(IRCA) in 1986. After it became apparent that the paper-based
employment authorization process was woefully inadequate to screen out
fraudulent employment documents, Congress enacted the Illegal
Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996,
establishing the Basic Pilot telephonic and electronic employment
verification program. This program was voluntary and was intended to
screen out fraudulent Social Security Numbers and alien work
authorization documents provided by job applicants to employers at the
time of hire.
In the mid-1990's, AMI members in the Midwest had their meatpacking
operations disrupted when they were audited by the Immigration and
Naturalization Service (INS) and informed that many of their
experienced employees who were vital to their operations had provided
fraudulent documents. These employers, in compliance with the paper-
based employment verification procedures enforced by INS, were unable
to screen out those who provided invalid work authorization documents.
While AMI members typically were not cited by INS for violating the
immigration laws, they had to terminate large numbers of employees in
whom they had invested substantial training costs, they also suffered
economic losses due to worker shortages.
Given these enforcement efforts, many AMI members took steps to
more carefully scrutinize employment authorization documents and,
ironically, faced discrimination charges under the unfair immigration-
related employment practice provisions of IRCA for being too vigilant
in seeking to employ legally authorized workers. Needless to say, AMI
members were and continue to be frustrated by the vice in which they
find themselves in trying to comply with IRCA's inherently
contradictory provisions. Employers are required to walk an impossible
legal tightrope due to the law's failure to provide ``bright lines''
AMI and its members took the initiative to address this problem by
successfully urging Congress in 1999 to extend the scope of the Basic
Pilot program beyond the original five pilot states to include the
State of Nebraska, where many AMI members are located. This enabled a
number of meatpacking companies to enter into agreements with INS to
participate in the Basic Pilot program.
Let me briefly describe how the voluntary Basic Pilot program
works. The Basic Pilot recently has been renamed as E-Verify by the
Department of Homeland Security (DHS), which now is responsible for
administering it as the successor agency to INS. Participants are
required to complete I-9 Forms for all newly hired workers. Upon
receipt of identity and work authorization documents, employers seek
confirmation of the documents through the pilot program's automated
system by entering employee information, such as a Social Security
Number or alien registration document number, into the pilot website
within 3 days of the employee's hire. The program electronically
matches that information against information in the Social Security
Administration (SSA) database, and if an alien document is used, a
match is attempted against DHS databases, to determine if the employee
is authorized to work. The Basic Pilot then notifies the employer
whether the employee is authorized to work. If the employee's
information cannot be confirmed, the employee is given several days to
contact SSA or DHS to resolve any inaccuracies in his/her records and
to contest the non-confirmation. Employers are required to terminate
employees who do not contest or cannot successfully resolve their non-
The experience of AMI members participating in the Basic Pilot
program has been mixed. The electronic verification mechanisms of the
Basic Pilot have screened out a number of unauthorized workers at the
point of hire and the mere fact that a company is participating in the
program deters many individuals from even applying for work. The
program, nonetheless, is only partially effective. It does not
effectively solve the problem of identity theft, through which
individuals who have stolen the name and Social Security or alien
document numbers from their rightful owners who are authorized to work
use the stolen information to gain employment. The system cannot
determine whether the person presenting the name and document number is
the person to whom they relate.
In addition, there are delays by DHS in updating its databases to
include the most recent change in status of aliens. These delays can
result in an employer receiving false information regarding whether an
individual is or is not authorized to work. ``Real time'' updating of
alien status information is critical to the effective functioning of
the Basic Pilot program. It is costly and administratively burdensome
for employers to hire and train an individual whom it believes is
authorized to work, only to be later informed that a mistake was made
and to have to terminate the individual.
Moreover, the Basic Pilot program does not have the ability to
determine through its access to the Social Security Administration's
(SSA) database when an individual's name and Social Security Number are
being reported by several employers at the same time, especially when
the employers are not located in close proximity to each other. Such
information should be more effectively acquired and used to target
individuals seeking employment who are engaged in identity fraud.
Unfortunately, the problem of identity theft is widespread and,
notwithstanding the extensive use of the Basic Pilot program by meat
and poultry processing companies, it has resulted in the continued
disruption of AMI member companies. There have been a number of highly
publicized raids of well-known meat packing companies, including AMI
member companies, that are participating in the Basic Pilot program and
that have worked closely with DHS in attempting to comply with the law.
DHS apparently targeted these companies upon receipt of information
that a number of employees had engaged in identity theft. The raids of
these companies have been devastating, resulting in significant
disruptions of their operations and losses in the millions of dollars.
The use of the Basic Pilot program by law-abiding companies that went
the extra mile to seek a legal workforce has not served them well. It
will continue as an inadequate system until Congress takes steps to
correct its deficiencies.
Mr. Chairman, AMI is committed to improving the Basic Pilot program
under which its members operate. We seek the support of the Members of
this Committee in our efforts to extend and improve the Basic Pilot
program so that it will better serve its intended purpose of screening
out fraudulent documents and imposters using stolen identity and work
authorization documents. It is imperative that Congress undertake this
effort now, as the Basic Pilot expires in a year (September 2008) and
the problems associated with its failures are accelerating as DHS
increases its worksite enforcement activities.
Extension and improvement of the Basic Pilot program consistent
with the following four principles is among AMI's highest legislative
1. Individuals engaged in identity theft must be detected at the
time of hire. The program must be improved to detect when there
are duplicate active records in the SSA database evidencing
that an employee's name and Social Security Number are being
used in multiple places at the same time. In addition to the
current Basic Pilot program, employers should be allowed to
participate on a voluntary basis in a separate verification
program that uses a biometric technology to determine whether
the person presenting a work authorization and identity
document is in fact the person to whom the document relates.
The technology exists and should be used in a pilot program
targeted at identity fraud.
2. The number of documents that an employer must accept for
purposes of determining whether a person is authorized to work
and their identity must be reduced to avoid confusion and
3. DHS and SSA must be given the resources to ensure that
individual status changes are current so that verification
checks will have ``real time'' accuracy and avoid the delays
and administrative burdens that accompany non-confirmation or
incorrect confirmation of worker eligibility.
4. Employers that comply with electronic eligibility verification
requirements under the Basic Pilot program must be provided
adequate protection from both DHS enforcement actions, as well
as discrimination lawsuits that may result if employees are
terminated after employers have properly complied with program
AMI urges the introduction of legislation this year that will
achieve the above-described objectives by extending the Basic Pilot
program for an additional 5 years beyond its current expiration date.
As in past extensions of the Basic Pilot program, we anticipate that
the legislation will enjoy broad bipartisan support. AMI believes that
an improved program must remain voluntary until such time as Congress
enacts broad comprehensive immigration reform that allows adequate
legal channels for foreign workers when there are shortages of U.S.
workers and effectively addresses the undocumented worker population
already working in this country.
As with the current Basic Pilot program, we believe that new
legislation should apply to only the persons who are newly hired after
the program is enacted. Consistent with the principles that we have
outlined, we also feel that it is imperative that the Basic Pilot
program provide, in addition to its current verification model, an
option that employers may elect that has a biometric component. Through
biometric technology, fingerprint, retina and other comparisons can be
made at the time of hire that will enable employers to ascertain the
identity of persons presenting documents to ensure that they are who
they say they are. To the extent there are concerns about the
government's capacity to administer such a system on a universal level,
a voluntary system based on biometrics would provide an opportunity to
test and perfect such a system on a more limited basis in anticipation
of broader application in the future.
Mr. Chairman and Members of the Committee, we appreciate very much
the opportunity to testify this afternoon. We look forward to working
with you to find an immediate legislative solution to the critical
challenges that our broken immigration system poses to the meat and
poultry processing industry. While we recognize that immigration reform
is inherently controversial and politically challenging, we believe
that your support of the extension and improvement of the Basic Pilot
program so that it more effectively solves the problem of illegal
immigration in the work place is sound public policy. It also is the
fair thing to do for those employers that have gone the extra mile to
comply with our laws by using the Basic Pilot program, as well as
consistent with the will of the American people who want our laws
The Chairman. Thank you very much, and I want to thank the
panel for that excellent testimony. And we will move to
questions, and I am going to yield my time to the gentleman
from Florida, Mr. Mahoney.
Mr. Mahoney. Thank you, Mr. Chairman. And thank you,
panelists, for being here today discussing this important
You know we have some very interesting statistics that Dr.
Holt provided us at the very beginning in terms of the
magnitude of the problem, the number of illegals that are
working on our farms and in our processing plants, and the
dependency of the whole industry on an illegal workforce.
I guess my first question is that, about a month ago,
Social Security Administration and Department of Homeland
Security decided that they were going to change their policy
and start to enforce the No-Match letters. In my district, this
created quite an uproar on the part of my citrus growers and my
specialty crop folks. That was the impetus for this hearing
today because of the anger that my growers and farmers felt
about this change in policy.
And I would be interested to hear from each of you what
your view would be if the Administration moves forward on this
decision of change in policy. Dr. Holt?
Dr. Holt. Congressman, clearly the mismatch regulation will
have a tremendous impact because the statistics speak for
themselves. And unless there is an option for employers to
obtain legal workers, then enforcing the law with respect to
illegal workers simply leaves them with no alternative.
And so it is kind of as simple as that in my view. It might
be interesting. The latest statistics I have seen are that 17
percent of all of the mismatches in the United States are
attributable to agricultural employers. You compare that with
the fact that 1.2 percent of the workforce is in agriculture,
and it gives you an idea of the magnitude of the problem.
Mr. Mahoney. Thank you, Dr. Holt. Mr. Stallman?
Mr. Stallman. Well, I will certainly concur with what Dr.
Holt said. In our submission, we provided a letter that we sent
to DHS about the middle of August, detailing all of the
problems with that including some suggestions for some changes
to make the rule work better but----
Mr. Mahoney. Will this be an immediate problem?
Mr. Stallman. Yes, as soon as it is fully implemented, it
will be an immediate problem.
Mr. Mahoney. Okay, and the result of which would be what? A
Mr. Stallman. Well, everything from a lack of workers to
legal prosecution. I mean the range of things that will occur
for producers are all in the negative category.
Mr. Mahoney. Mr. Wicker?
Mr. Wicker. It would have zero impact on our growers. Our
growers are in the H-2A Program. Their workers are legal.
Mr. Mahoney. And so all of your growers fall into the 2
percent of the American----
Mr. Wicker. Correct.
Mr. Mahoney. And the H-2A Program works perfectly fine for
Mr. Wicker. No, I would not say that it works perfectly
Mr. Mahoney. I have to tell you. I don't know too many
people that have participated in the H-2A Program in my
district who think that it is a very good program.
Mr. Wicker. It is a very expensive and painful program, and
the growers are afraid to use it because it is too expensive.
And they are afraid they are going to get sued.
Mr. Mahoney. Okay, Mr. Herring?
Mr. Herring. It would probably be one of the things that
starts the disruption. I mean people will have difficulty
having the labor on the farms and in the processing and market
aspects of their business. And they will begin to make
decisions on what to do next.
Mr. Mahoney. Mr. Goldstein?
Mr. Goldstein. In addition to what has been said already,
it is going to exacerbate some developments. More and more
employers are probably going to resort to hiring farm labor
contractors to hire their farm workers in an effort to say the
labor contractors are responsible for dealing with immigration;
``I don't employ any of those farm workers on my fields.''
Mr. Mahoney. Right, so they are going to move the liability
to somebody else who is willing to take on the legal risk?
Mr. Goldstein. Right. I mean while the workers go more and
more underground and live in fear, and families get broken up,
and the farmers lose their workforce.
Mr. Mahoney. Mr. Brown?
Mr. Brown. Mr. Mahoney, it would have zero impact on our
plants, but I think it just highlights the fact that this 21-
year-old immigration law is broken and needs fixing.
Mr. Mahoney. Now, one of the questions--we are running out
of time here. But one of the other questions is that there are
a lot of people that are excited about doing AgJOBS, and if we
are serious about securing the country's borders, wouldn't
AgJOBS actually be just another highway for people to come into
this country initially legally: like they are doing through JFK
Airport right now on tourist visas and end up, when they have
the opportunity to get a better job in the construction trades
or the housing industry to make more money. It would just be an
opportunity for them to opt out of the program, so to speak,
and go work some place else illegally? Mr. Stallman?
Mr. Stallman. We view the AgJOBS bill as being a partial
solution to some of the issues we are facing. Short term, you
are right in the characterization that over the longer term
from 3 to 5 years, those workers which would get blue cards
would transition into green cards, and then move into other
employment sectors. That was the result that we experienced
with the 1986 law, so we would expect the same thing to happen.
So it is sort of a short-term solution, but we need a guest
worker program for the long term once we get through that
initial period. And that is why we think the H-2A Program, if
significantly reformed, could play that role.
Mr. Mahoney. So what you are saying is if we do AgJOBS, the
only way that you could see that it would work is that there
would have to be a clear path to citizenship going from the
AgJOBS to a green card situation in order to prevent people
Mr. Stallman. Well, I am not sure about the citizenship
part of it. I don't know that that would solve the problem.
Mr. Mahoney. And the green card.
Mr. Stallman. The issue is that the blue card workers would
be required to remain in agriculture, unless they move into
green card, they can go into other industries. And we have no
further avenue for workers to come after that.
Mr. Mahoney. Okay, Mr. Wicker, one quick question for you.
I mean one of the concerns that I have about what I see going
on in the Administration as a result of a lot of these policies
regarding homeland security is a tax, a hidden tax on business.
Do you think it is the responsibility of your growers in North
Carolina to have to be responsible for immigration and
naturalization in your industry in terms of being able to
monitor and manage these problems?
Mr. Wicker. No, I don't, but that is not an issue for us
because all of our growers come on H-2A visas and are legal.
Mr. Mahoney. And how much does that cost your growers to
participate in H-2A?
Mr. Wicker. It varies from farm to farm, but I think the
range is going to go from $11 to $14, $15 an hour when you
factor in the wage rate, the housing, the transportation, the
visa cost. It goes on.
Mr. Mahoney. And do you think that the cost that you are
bearing to participate in the program is something that your
growers should be responsible for?
Mr. Wicker. Well, I think we have to pay workers for
working, but I think that the wage and benefit package is so
expensive that our growers are going to quit using the program.
And they are either going to turn back to illegal workers, or
they are going to quit production all together. And I think
Mr. Mahoney. So what you are saying is that given the
options today, that it is the best option. But in a perfect
world, do you think that you your growers should be responsible
for the immigration policies of the United States?
Mr. Wicker. No.
Mr. Mahoney. How about you, Mr. Herring? What do you think,
being from New York State?
Mr. Herring. Well, being from New York State, but not being
the labor expert that the others are, here on the panel, I
don't have a real good answer for what the solution is. I do
know that when it comes to what happens on the farm from a
financial standpoint, and what they have to deal with in that
market, this will be a disruption. And it will be very
difficult for them to get through if there was a labor
shortage, and it happened immediately.
Mr. Mahoney. Yeah, just before I turn it back over, I would
just like to say I appreciate you taking these questions. And I
just want you to know that there are different kinds of taxes,
and this immigration issue has become a hidden tax on
And when I take a look at the profitability of the
agriculture industry, and I take a look at the risks of the
people that are participating in it, I think it is unreasonable
for the Federal Government to ask the industry to bear that
burden. And with that, Mr. Chairman, I will turn back my time
The Chairman. I thank the gentleman. I am pleased to
recognize the Ranking Member, Mr. Goodlatte, from Virginia.
Mr. Goodlatte. Thank you, Mr. Chairman. Back when the last
amnesty bill was passed by the Congress in 1986, I was an
immigration lawyer, and at the time, I was pretty appalled and
concerned by the results that occurred, which I think we are
still paying for today. In fact, what Mr. Stallman just
indicated was indeed the case for many farmers. What they found
was that if they had an individual who was working on that
farm, sometimes for many years, and they suddenly were able to
get a green card, even though they had entered the country
illegally, they were off to find employment in sectors of our
economy where the work is not as hard and is not as difficult
as farm work is.
And yet, we also know that this is a tremendous opportunity
for foreign workers. I don't think there is anybody in this
room, with maybe one or two exceptions, who doesn't acknowledge
that it is very, very hard to find sufficient American workers
to do what needs to be done on our farms. This is tough, hard,
backbreaking work, and Americans often choose many, many other
So I have never been a fan of the Adverse Effect Wage Rate
that is in the H-2A Program because that program really sets an
artificial barrier to its usage, and I am very proud of the
fact Mr. Wicker and a number of other people do use it. But
they constitute only about 2 percent of farm workers in the
And so it seems to me to address this problem is to have a
guest worker program that works, not one that provides what has
been referred to as a pathway to citizenship. The foreign
worker benefits tremendously because the wages that are paid
under any wage rate that will competitively draw them to work,
in my legislation, is the prevailing wage that I think makes
the most sense. But no matter what that wage rate is, it is far
superior to what most of these individuals are getting in the
country from which they have come.
And if you had a program that worked where they could come
into the country for the better part of a year, maybe even
extend that so 2 years could be linked together, but then
return to their own country for 20 or 25 percent of the time
and then come back again, many would like to avail themselves
of that. Their native language and culture and customs, the
cost of living, their extended family are all back home.
But under the current situation with an unworkable H-2A
Program and the tremendous need that we have in this country
for agricultural workers, they come across the border
illegally, or they may come legally and then overstay their
visa. I suspect most of the agricultural workers have come
across the border illegally.
And then they are not going back again. In fact, they are
going to bring their family with them because they are not
planning on ever trying to do that again. It is very risky. It
is expensive to hire the coyotes that bring them into the
country. They risk dying of thirst in the desert or suffocating
in the back of a tractor trailer, and they are not going to do
We have developed this underclass in our society that has
become a security risk. It is not advantageous to them, but it
is also not a good thing for our society. So it seems to me
that the best way to solve this problem is to correct the
deficiencies in the current H-2A Program and not to reinvent
So, Mr. Goldstein, if I might ask: The H-2A provisions the
AgJOBS bill would maintain nearly all of the current
requirements with which the H-2A employers must comply, such as
paying mandatory guaranteed wages far above those prevailing in
the area, providing free housing to workers, and guaranteeing
payment for 75 percent of the work hours promised at the time
of hire, to mention a few.
H-2A workers are not particularly different from other farm
workers, except that they came here legally. But under the
proposal you support, a million legalized farm workers would be
afforded none of those benefits, which you deem to be in need
of protection because the law would still require that only H-
2A employers provide such things.
It seems that if undocumented workers have been exploited
for years by low wages and a lack of safe housing and other
protections, you would want to ensure that inferior pay and
working conditions would be addressed before they are legally
available to the same growers you contend exploit them. So why
does the proposal you support require only H-2A employers to
provide such additional protections? And would you oppose a
plan that would convert illegal workers into H-2A workers
instead of permanent residents? And if so, why?
Mr. Goldstein. Thank you for the opportunity to answer a
series of very good questions that require some complex
answers, but the bottom line is this. First of all, we could
have a country in which we decide that a lot of low-wage
industries really don't attract many Americans anymore, and we
could have a long list of occupations that could add up to
several million people doing those jobs.
We in America need to ask ourselves--let us say it is five
million for all those occupations including agriculture, but
could be building service workers, whatever. It could be ten
million people. Do you want----
Mr. Goodlatte. But let me note a difference between
building service workers and agricultural workers. Building
service workers are not affected by international competition
that American farmers and ranchers have to compete in an
international environment. And therefore, you could make a much
stronger argument that the pay scale that is offered in
industries that are not affected by this can be treated very
differently under the law than in industries like agriculture
where it is clear that almost any amount you pay, you can't get
the workers for this very hard, difficult, back-breaking work.
Mr. Goldstein. Okay, my question is this. Do we want
millions of people in this country who may only work for the
one employer that got them the visa for that job and can only
stay in that job and have to go home at the end of that job?
Because that is the way the H-2A Program works. You have no
ability to switch employers, and you are dependent upon the
employer to give you that visa in the following year.
Mr. Goodlatte. Well, let me make----
Mr. Goldstein. And as a result of being so dependent upon
the employer to get that visa, you are really not capable of
asking for more money in wages. And you never get the right to
vote because under H-2A right now, there is no path to
permanent immigration status or to citizenship. Do we want
millions of people in this country to have a non-immigrant
guest worker status where they never get the right to vote?
And as far as the Adverse Effect Wage Rate, the Adverse
Effect Wage Rate under the H-2A Program, the phrase comes from
the statute. The law says you shall not bring in guest workers
under wages and working conditions that will adversely affect
similarly employed U.S. workers. Between 20 percent and 40
percent of farm workers in this country are legal immigrants or
Mr. Goodlatte. Let me----
Mr. Goldstein. They make a certain amount of money.
Mr. Goodlatte. Let me cut you off right there.
Mr. Goldstein. Two more sentences.
Mr. Goodlatte. Mr. Goldstein, now let me----
Mr. Goldstein. Two more sentences.
Mr. Goodlatte. No, my time has already expired. I am, by
the good graces of the Chairman, going to make this point. The
situation you described is the situation that we have right now
because 98 percent of the workers are working here illegally in
the conditions that you describe. Improvements to the guest
worker program will assure them that they are getting
prevailing wages, will assure them that they are treated fairly
in the process. And what you have described does not address
the concern that Mr. Stallman just raised, which is that if you
put all of these people who are working right now on a pathway
to citizenship, you are then going to be very shortly
confronted with the problem of replacing all of them.
Mr. Goldstein. Every commission that has looked at this
Mr. Goodlatte. This is my time, not the gentleman's.
Mr. Goldstein. Every commission and government study and--
Mr. Goodlatte. Mr. Chairman.
Mr. Goldstein.--academic study has concluded for the last
70 years that the way to stop the flow outside of agriculture
is to improve wages and working conditions to stabilize the
workforce. We are a capitalist country. If you are afraid that
the workers will go to other industries, then that means that
employers in agriculture need to compete for those workers by
improving wages and working conditions.
Mr. Goodlatte. We are allowing people into our country in
what is a great opportunity for them to earn far more than they
earn in their own country, and they are happy to take those
jobs. And they would be happier still if they had the ability
to transit across our border with a secure identification
system and not be faced with the current environment that they
are in and our economy is in.
Mr. Goldstein, your time is finished, and I am going to
finish up my time so the Chairman can go on to recognize
another individual. But the situation that you describe is an
unworkable one because it will increase the flow of individuals
coming into this country. It will not decrease it because you
will transit people out of this work area.
Now, the law is the same for everybody. If you come into
this country and you are a college student, and you then
subsequently gain a new job skill or you marry a United States
citizen or you have a family member that can petition for you,
you can then transit out of that. But we do not create a
special category that says if you have been working here for a
limited period of time, you can then suddenly avail yourselves
of things that other people, who have lawfully entered this
country and sometimes wait in line for decades to accomplish,
simply by virtue of the fact that you originally came here
illegally and now you want to transit out.
We need to address this problem from the standpoint of our
farmers and ranchers. We need to address it from the standpoint
of the workers being treated fairly under a legal, workable
system. And we need to address it from the standpoint of what
is in the best national and security interest of the country.
And I don't think your approach does it. Thank you, Mr.
The Chairman. I thank the gentleman. And I am pleased to
recognize one of our Subcommittee Chairmen, Mr. Etheridge, from
Mr. Etheridge. Thank you, Mr. Chairman. Mr. Chairman, I
would ask unanimous consent that the document from Ms. Herseth
Sandlin be entered into the record.
The Chairman. Without objection, so ordered.
[The document referred to is at the end of the hearing on
Mr. Etheridge. Thank you, Mr. Chairman. Let me thank you
for holding this hearing and for our panelists for being here.
This is critically important certainly to this whole country,
and very much so to my district and my state.
Mr. Stallman, I appreciate you highlighting the problems
our producers are facing in making and planning a decision
because of a need of labor. I have probably one of the most
diverse agriculture districts in America. Sweet potatoes,
poultry, pork, watermelons, you name the products, we have them
to include all the things that you are here with, tobacco, et
My question is this though. I talked with a fellow that
grows a lot of cucumbers. We do a lot of pickling right outside
the district. Is it fair to say that what we do about
immigration and labor reform, whatever you call that, really
presents a choice as to whether we want to grow food here in
the United States or allowing imports as we do with oil? Would
you elaborate on that point please, sir?
Mr. Stallman. Well, specifically with respect to pickling
cucumbers, it is my understanding that plants are having to
Mr. Etheridge. That is correct.
Mr. Stallman.--cucumbers from India at this point.
Mr. Etheridge. That is correct.
Mr. Stallman. I was discussing that subject 2 weeks ago,
and that is what we are facing if we don't provide adequate
labor for our farms and ranches. Our own study shows that we
will have that production moving outside the borders of this
country, and we will be sourcing product from outside the
borders of this country. And I am not sure the American
citizens are really ready for that to happen.
Mr. Etheridge. Well, I wanted to get that on the record
because I am not sure people understand what is at stake. Mr.
Wicker, since you are from my district and I think you
indicated that we have one of the highest state-to-labor
numbers in the country.
My question is as one of the highest users of it, you
testified earlier that your association facilitated the
employment of about 7,500 legal H-2A workers for the seasonal
employment of 2007. How does this number compare with previous
Mr. Wicker. It has dropped from about 1,100 growers, 10,000
workers in 2001, and the problem is that every time the wage
rate goes up or we provide more benefits, more growers quit.
They quit production, or they move back to illegal workers to
source their labor.
Mr. Etheridge. Let me follow up very quickly because I have
one more question, Mr. Stallman. And you would understand this
better than anybody sitting at the table. Some of those deal
with tobacco, and a lot of that has gone to mechanization. Now,
I know a lot of the other--because a farmer may have sweet
potatoes; he may have tobacco; he may have cucumbers; he may
have a variety of things. Would that have had any impact
because the mechanization in one area or not? Do you know that,
Mr. Wicker. I am sorry. I did not understand your question.
Mr. Etheridge. Well, if you are a farmer, a lot of our
farmers in North Carolina and certainly in our district may
Mr. Wicker. Yes.
Mr. Etheridge.--tobacco, sweet potatoes, peanuts, a host of
those where they would use the same laborers. Has the fact that
a lot of that has gone to mechanization had any impact on the
Mr. Wicker. I would say that it obviously has to have some
impact, but not significantly.
Mr. Etheridge. Okay, thank you. Mr. Stallman, you touched
on something that I heard recently from a number of our folks
at home, and when I talk about the farm, please understand I am
talking about that whole stream all the way to the packing
operation because it is a continuous stream.
Regarding the No-Match letters that they have heard of from
producers getting. They are not so clear about what they are
supposed to do when they receive one of them, and it has them
quite alarmed. Could you elaborate on this a little further?
You touched on it earlier. Do you have any specific examples of
this occurring across the country? Because you would be in the
unique position to share that with this Committee.
Mr. Stallman. Well, with regard specifically to the
proposed DHS No-Match letters, right now, that is in
litigation, and so we haven't had to face the situation in the
country under the new regime where employers will be expected,
in essence, to become enforcement agents to a certain extent on
the immigration issue when they receive these No-Match letters.
The thing that really concerns us is the liability that
exists for not following the DHS procedures when they receive
the No-Match letter. It puts them in jeopardy because if they
follow them and discharge an employee on the basis of that No-
Match letter after they go through a series of steps, then they
are subject to being sued by employment attorneys on the basis
of a wrongful discharge. And so I mean it is catch-22. You
can't win, and that is what we are concerned about.
The full impact hasn't hit yet. It won't until we actually
get into that after the litigation is settled. But when it
hits, I suspect it is going to have a broad reaching impact
that will be negative for producers.
Mr. Etheridge. I know my time has expired, but with the
Chairman's indulgence, I want to ask Dr. Holt one question
because I think it gets to the heart of some of this.
You touched in your testimony, and in your written
testimony, about no matter what we do here, we still have a
number of jobs out there that we don't have people to fill in
agricultural, in that whole vast agricultural area. Would you,
for the record, expand on that just a little bit more, please,
Dr. Holt. Well, I might point out that this is an economy-
wide problem, not just an agricultural problem.
Mr. Etheridge. I understand that, but if you----
Dr. Holt. We are simply not--the other places it will be
Mr. Etheridge. Agriculture.
Mr. Holt.--the rate of job creation in this country. We are
creating jobs in this country more rapidly than we are, if you
will, creating workers to fill the jobs through natural birth
and through legal immigration. And, in fact, that has gone on
long enough now that we have probably somewhere in the
magnitude of ten million more jobs in this economy than we have
native-born and legally admitted workers to fill them.
And every year, that continues. Secretary Gutierrez the
other day pointed out that the growth in the labor force
currently is something like 0.2 percent a year. Our average
rate of job creation is 1.2 percent a year. Now, it is first
grade arithmetic to subtract 0.2 from 1.2, and you have a
shortfall. And that 1 percent shortfall amounts to over a
million jobs a year, so we are creating more than a million
jobs a year more than the people that we have to fill them.
I haven't heard anybody in Congress advocate negative
economic growth as the solution to the immigration problem.
Therefore, the only other way--there are only two places these
workers can come from--natural birth and immigration. We are
simply going to have to have realistic immigration policies to
allow people to fill these jobs.
Mr. Etheridge. Thank you, Dr. Holt. I appreciate it. I
yield back, Mr. Chairman. Thank you.
The Chairman. I recognize the lady from North Carolina, Ms.
Ms. Foxx. Thank you, Mr. Chairman, I appreciate it, and I
appreciate very much particularly Mr. Wicker being here from
North Carolina to help us understand this problem better.
I want to get a clarification from you because so much of
what we have heard is that the H-2A Program is a good program.
It works, but there are problems with it administratively, and
I want to get something clear from you.
You said that--my understanding is in the H-2A regulations,
transportation reimbursement is already stipulated as being due
to the worker upon completion of 50 percent of their contract.
But in your point number three, you said a crucial change for
the H-2A Program that inbound transportation should be
reimbursed upon the completion of 50 percent of the contract.
Since the regulations already stipulate that it is due upon
completion of 50 percent of the contract, what exactly are you
saying that needs to be changed in the way it is being
Mr. Wicker. We were sued by lawyers several years ago under
the Fair Labor Standards Act, and their legal argument is that
we are required to reimburse these costs to the worker during
the first week to make sure that it doesn't cut in to their
minimum wage. And so activist lawyers pursue changes through
litigation, and while the regulations clearly state that
transportation reimbursement is due at 50 percent of the
contract period, the courts have held that growers have to
reimburse it in the first week. And that is not consistent with
the Department of Labor's enforcement posture over the last 20
years. We have been investigated since 1989 every year by wage
and hour auditors, and we have never been cited for failure to
pay the wages under this legal theory.
And we have been asking for an opinion letter from the U.S.
Department of Labor since 1994. We initially asked for that
through Congressman Lancaster's office, and so the courts have
held something different than the Department of Labor. And it
has increased our growers cost by about $200--well, $350 per
Ms. Foxx. Mr. Chairman, one more quick comment. Having
learned a lot about the H-2A Program, having used the H-2A
Program a long time ago in my own family business and being
familiar with Mr. Yates and other people who--Mr. Yates is
going to testify shortly about the program. Would it be fair to
say that we could help solve a lot of the problems that we are
having with matching willing workers to willing employers if we
would simplify this program and make it a lot easier for
employers to use. Could you see us bringing many of these
people who are here illegally now into the program as Ranking
Member Goodlatte has recommended? Do you see that helping us
fill that tremendous gap? And having a program that protects
workers. I want a program that protects the people who come
here to work. I want to treat them fairly and give them an
opportunity for this. Do you think we can make it happen?
Mr. Wicker. Yes, Congressman, we can. I agree. I want to
protect workers too. Our workers are legal so they are not
afraid to talk to lawyers or to union representatives or to
worker advocates. Illegal workers are afraid to talk, but
growers are afraid. Growers are afraid to use this program
because they don't want to get sued. And they don't want to go
to court, and so, yes, the answer to your question is if we
make improvements, growers and workers will benefit from a
Ms. Foxx. Thank you, Mr. Chairman.
The Chairman. I thank the gentlelady. The gentleman from
California, Mr. Baca.
Mr. Baca. Thank you very much, and thank you, Mr. Chairman,
for having this hearing today, which I feel is very important
to a lot of us as we look at the needs of our agriculture in
reference to jobs. I think I have everything that is going on.
Excuse me a second.
The Chairman. Well, we are short of time here, and we have
to go, folks.
Mr. Baca. Yes, let me ask this quick question of the
panelists that are here right now. And one of the questions
that I want to ask--and I know because of the bullying, the
fear that has been going on in the creation of the immigration
issue by a lot of the Republicans.
And they have been creating fear amongst many individuals,
and it has been a bully syndrome that they have done. If we
didn't have the immigration crisis that they have created right
now or the problems, and we would just allow human beings
wanting jobs to come out and apply for jobs, would we still
have--if we didn't have all of this, would we still have the
labor crisis? I would like to start with Dr. Holt. If we just
allowed farmers and others to hire individuals without any of
these other kinds of regulations in meeting the demands of our
labor needs, would we be able to do that?
Dr. Holt. Essentially that is what is happening now with 98
percent of the workforce. Only 2 percent of it is coming
through the regulated program. But we have to recognize that
Mr. Baca. I am saying the law is in place. You know, we
don't have to worry about whether you are legal, illegal. We
are just talking about having bodies, people, to harvest our
crops. Would we be able to have the labor force that is
necessary if we didn't have all of these bully syndromes that
are still there right now?
Dr. Holt. We would not be able to have that labor force
without workers coming from outside the United States, and that
raises the security issues that require a structure for these
workers to come into the United States legally so that we know
who they are.
Mr. Baca. Okay, thank you. Let me ask this quick question
if I can of Mr. Goldstein. We are hearing a lot of complaints
today about the H-2A Program. What do farm worker advocate's
think about the way that H-2A is being administered, the
Mr. Goldstein. Well, we have a lot of concerns about the
way the H-2A Program operates. In our view, the Department of
Labor consistently approves H-2A applications for employers
when U.S. workers have applied for those jobs, that is legal
immigrants or U.S. citizens have applied for those jobs, and
the employers turn them away because they prefer guest workers.
And the Department of Labor still certifies them and allows
them to bring in guest workers. We have concerns that the
Department of Labor routinely approves job offers that violate
the requirements of the H-2A Program by not offering the wages
and working conditions required.
We think there needs to be a lot more oversight and
enforcement of the H-2A Program. Our view is that the wages are
not too high. In fact, they are too low. H-2A wage rate, all it
is is you have to pay last year's average hourly wage rate paid
to field and livestock workers combined, non-supervisory farm
workers. It is just the average. By definition, an average
means some employers are paying more, and some are paying less.
If you claim that you can't find any U.S. workers to work
for you, shouldn't you be competing with some other employers
that are paying more before you are allowed to bring in foreign
workers based on a labor shortage?
The bottom line is this: AgJOBS contains a compromise that
we can live with. It is very hard fought. There is a lot of
controversy to it. There are a lot of concessions, that both we
made and employers made. And some people want more. They just
say, ``It is not good enough for the employers. We want the
wages even lower. We want less protections.''
AgJOBS is a balance we can live with and so can most of the
grower groups. That is what we should do.
Mr. Baca. Mr. Stallman, one quick question. Can machines
replace human beings in doing the job?
Mr. Stallman. Well, I am a believer in technology, and I
believe in the long term that could be the case. There is a
question of cost. And frankly that is what the industry will be
driven to if we are going to maintain an industry here if we
don't have an adequate guest worker program. But right now,
that is not the case.
Mr. Baca. Would it be cost effective if we went in that
direction? Would we be able to harvest and pick the crops
versus a human being that notices it, picks it up, versus a
machine that may destroy it?
Mr. Stallman. Maybe over the long term it could be cost
effective but not anywhere in the near term.
The Chairman. Gentlemen, I have to go vote, or we are going
to miss it. So I thank the gentlemen. Panel I, I am going to
have to ask you to stay because there are some Members that
want to ask questions if that works for you. We only have two
votes, so we should be back shortly.
The Chairman. The Committee will come back to order. I
recognize the gentleman from Michigan, Mr. Walberg.
Mr. Walberg. Thank you, Mr. Chairman. I guess it pays to be
a good student and get back to class early after you have
missed the first part of it. I apologize if, due to the fact of
missing preceding section here, that some of these questions
may have been addressed. But these were concerns that we have
taken from constituents on this issue and would like to address
them as well.
The first question I would ask, and let me ask that to Dr.
Holt. Mechanization on farm operations has improved greatly all
that goes on in agricultural life. For the record, why is hand
labor still of such great importance in the general agriculture
Dr. Holt. Well, you are right. Mechanization in particular,
and various labor productivity enhancing technologies, in
general, have been adopted at a very rapid rate in agriculture.
Labor productivity in agriculture, even in the current
environment, has been increasing at a rate equivalent to, and
in many cases in excess of, labor productivity in the
But there are many jobs involved with growing plants and
very perishable commodities that still require the careful
attention of the human hand, I guess is about the best way to
describe it. And while there are technologies that are being
worked on even for those activities, for a lot of tree fruit
harvesting activities, strawberries, asparagus, and so forth,
we are simply not there yet and may never get there in terms of
mechanizing those kind of activities.
I would also point out, however, that even if we do
mechanize, that doesn't necessarily solve the problem. There is
nothing more mechanized than the combining of grain, and yet
the entire grain crop in the Great Plains States, all the
custom combine crew workers are alien workers coming into the
United States under the H-2A Program. That is one of the bigger
users of H-2A. So even when you do mechanize, that doesn't
necessarily solve the problem.
Mr. Walberg. Okay, thank you. Second question: Let me
address this to Mr. Stallman. In the State of Michigan, many
of, let us say my district in Michigan, which is probably
arguably the most diverse agricultural area of the State of
Michigan. Many of the producers there are frustrated
significantly, to say the least, with the H-2A Program. What
core provisions within the program need to be addressed in
order to make the program work; and in fact, even more than
just work? A program that would give incentive to agriculture
and farmers and agricultural producers using the H-2A Program?
Mr. Stallman. Well, that list is long, but we do believe
that H-2A could be a viable program for the long term if we
made significant changes. The first is reverting to a
Prevailing Wage as opposed to the Adverse Effect Wage Rate. We
need to expand the coverage, and particularly dairy doesn't
qualify in some states as seasonal work. And there is a lot of
need for labor on dairy farms. Just less bureaucracy, all the
steps that a producer has to go through, and the timelines,
make it very difficult to get the labor when they need it under
the H-2A Program.
And greater flexibility, and just one example of that would
be using a housing voucher instead of mandated housing. You
know, solve the problem but provide some flexibility to do it,
and those are just some things.
One of the real issues for border states, which perhaps
doesn't affect Michigan as much in this regard though, is the
commuter program where workers come across the border on a
daily basis to work and go back, such as in Arizona. That
flexibility to allow that kind of work needs to occur also.
Mr. Walberg. Okay, thank you. Thank you, Mr. Chairman.
The Chairman. I thank the gentleman. The gentleman from
Colorado, Mr. Salazar.
Mr. Salazar. Thank you, Mr. Chairman. I don't know if some
of these questions were asked. I had to step out for a little
bit. But, Mr. Wicker, in your testimony, you stated that you
were fine with some of the provisions of AgJOBS, however you
were concerned about amnesty. Could you define ``amnesty'' or
your definition of ``amnesty'' to me?
Mr. Wicker. I really don't support any of the provisions of
AgJOBS. We would like to see the prevailing wage, less
litigation, and less bureaucracy.
Mr. Salazar. Could you define ``amnesty?'' You mentioned
that amnesty is something that you couldn't support?
Mr. Wicker. Well, I am not prepared to define ``amnesty.''
That is a big part of the public debate, but I can tell you
that amnesty doesn't put workers on the farm to harvest crops
that we can feed our country.
Mr. Salazar. Well amnesty to me, and when you look at the
definition in the dictionary, it means total forgiveness for a
wrongdoing of some kind and--I know that in the STRIVE Act, for
example, there are issues there that talk about heavy fines for
those who have broken the law, meaning that they would go back
to the back of the line if there is a path to citizenship. To
me, that is not amnesty, but that is where the big debate comes
in is how you define amnesty.
Mr. Goldstein, could you comment on my question, please?
Mr. Goldstein. Yes, thanks. We obviously think that
``amnesty'' is not a word that applies to AgJOBS. Under AgJOBS
is the earned legalization program. Farm workers who have been
working here in the United States would have to come forward
and report themselves as having been undocumented and prove
that they have been working in American agriculture during the
last 2 years, 150 days, in agriculture.
Then they would get a temporary status. In a temporary
status, they would have to continue to work in American
agriculture for 3 to 5 years, a certain number of days per year
depending. And they would have to pay fees. They would have to
pass security checks and meet other obstacles. It is a very
arduous process of earning legal immigration status. We don't
see how that should be called amnesty.
Mr. Salazar. I appreciate your comments, Mr. Goldstein. Mr.
Brown, I am sure you are aware of the almost bankruptcy of
Swift & Co. meatpacking plant in Greeley, Colorado in Mrs.
Musgrave's district when the raid occurred last year.
That plant was sold to an Argentinean family because of the
heavy fines imposed in Colorado. I understand what is going on,
and the labor force is not there. You talked about a biometric
ID system, which I tend to agree with you on. I believe that
that is the only way that you can ever enforce any kind of
immigration law, but if that happens, it has to be some kind of
a National ID System. Would you be willing to carry one of
these biometric IDs with you as well? Because otherwise, you
wouldn't be able to apply for a job?
Mr. Brown. If the question is would I personally be willing
to carry one, yes, I would.
Mr. Salazar. And do you agree with me that that is the only
way to really be able to enforce immigration law, if you have
some kind of tamper-proof ID system in place? Anyone can
comment on that.
Mr. Brown. In my view, the only way to deal with true
identity theft, whether that has to do with immigration law or
any of our domestic laws, the only way to deal with that is to
have a biometric and to have the Federal agencies, the various
Federal agencies be able to communicate with each other.
For instance, we used a basic pilot program. We submit the
name of the employee, the new employee, and their Social
Security to DHS. The Department of Homeland Security will then
get back to Swift or any other number of employers that use the
program, and they will verify yes, John Smith's Social Security
is X. What it does not verify is if there is a number of other
people using the name John Smith and the same Social Security
Number. That problem does not present itself until the end of
the year when employers are paying Social Security taxes on
employees, and you file your W-2 forms. Then you find out that
there are a number of John Smiths using the same number.
That is why if we had up-front biometric as well as the
Department of Homeland Security and the Social Security
Administration sharing information, we could reduce that
problem and, in essence, develop a border within a border and
allow employers to comply with the laws and to prevent raids
such as we had at Swift.
Mr. Salazar. Thank you. Thank you, Mr. Chairman.
The Chairman. I thank the gentleman. The gentleman from
Iowa, Mr. King.
Mr. King. Thank you, Mr. Chairman. I appreciate you holding
this hearing and the gathering of testimony that we have
received here. I hear the discussion about the definition of
``amnesty,'' and we have discussed that considerably over in
the Judiciary Committee and in the Immigration Subcommittee.
And the definition that I have consistently used, and one that
many of my colleagues consistently use, is this: that to grant
amnesty is to pardon immigration lawbreakers and reward them
with the objective of their crime.
I think that definition upholds against the rational
criticism that might come, unless one wanted to advocate for
amnesty, and in that case one might try to change that
definition. But we have laws, and if we enforce those laws,
that is my stand.
If you give someone legal status after having broken the
law, then you have granted them an amnesty for the law that
they have broken. So, I wanted to make that point.
And then I think maybe the subject matter that needs to be
explored in significant depth here is that each of us can
advocate for more access to higher quality and cheaper labor. I
have been an employer for 28 years, met payroll over 1,400 and
some consecutive weeks. So, I have always wanted more and
better employees that would actually work for an even cheaper
rate. But certainly I don't want to pay more than what they are
worth in the marketplace.
So it is a natural thing in business to be advocating for
that, and I understand that. We have a broader issue here, and
that is that this is a sovereign nation, and the borders of
this nation define the nation itself. And, of course, we must
defend those borders. But from a macroeconomic perspective, the
issues boil down to this for me. We have a workforce, according
the U.S. Department of Labor, of about 142 million workers. And
out of that 142 million workers, then we have an illegal
workforce in America--now, some of these statistics come from
different organizations, none from my calculations beyond the
math itself--that 4.7 percent of our workforce is the illegal
labor that we have. That 4.7 represents 6.9 million illegal
workers in America.
Now, if we have 12 million illegals--and I think it is
actually 20 million or more, but I am working with the 12--7 of
the 12 million from round figures are those that are working.
At any rate, you get a 58 percent employment rate out of those
numbers that come into the United States illegally: 6.9 million
workers out of a workforce of 142 million, representing 4.7
percent of the workforce, but being low skilled, only produce
2.2 percent of the actual GDP.
If they are doing 2.2 percent of the work, production, and
you came into the factory in the morning and you found out that
2.2 percent of your production workforce wasn't going to clock
in that morning, that amounts to, if you are going to do all
the work in America in an 8 hour day 7 days every week, that
would be 11 minutes out of each 8 hour day.
So, we have 69 million Americans of working age who are not
in the workforce. All we would have to do is hire one out of
every ten of those to replace those that are illegally working
in the United States, and we will have solved this labor
Now, I understand you have to set up recruitment lines and
do different training and people want to do different things,
and there are industries that are far more dependent and far
more critical than others. But if we never had this universe of
employees to go to across our borders of that labor, we would
have found other solutions. We have evolved into a dependency.
So, I would ask Dr. Holt to comment on those macro numbers
and tell me if it is in your estimation that it would be wise
for us to want to improve the average productivity of each
American who is lawfully present in the United States as a
priority. I would leave that question to you, Dr. Holt.
Dr. Holt. Well, if your question is improving productivity
of American workers, I think you need to look at the
statistics, the record of how the productivity of American
workers has increased. We have been increasing the productivity
of American workers. We have been increasing the productivity
both in agriculture and non-agriculture.
Mr. King. Excuse me. We agree on that then, and so, yes, we
agree on that point. But what are your comments with regard to
that macro equation that I have given about hiring one in ten
non-working Americans to replace those who are unlawfully
present in the United State or not legal to work.
Dr. Holt. Well, you ran through those statistics rather
quickly, and that was a complicated analysis. And I am not sure
I agree with all of those statistics. I am not prepared to
debate them at the moment until I would analyze them. With
respect to the agricultural situation, which is what we are
here discussing today, the question is do we have 800,000 to a
million persons in the United States who are not currently
working who are willing to become migrant workers, to leave
their places of residence, to go to the farms of the United
States, and to perform manual agricultural labor: I think the
answer to that question is clearly no, and in the----
Mr. King. I think, Dr. Holt, the question of 800,000 is
still a question. And the question of recruitment from other
professions is a subject matter that should be before this
Committee as well. But I recognize that I have run out of time,
and I appreciate your response and your testimony. I yield
back, Mr. Chairman.
The Chairman. Thank you very much. I think we are going to
go now to Mr. Pomeroy.
Mr. Pomeroy. Thank you, Mr. Chairman. I want to thank the
panel. I have found this to be an extremely informative
hearing, even though many of the issues are not of immediate
and significant impact in my district as they are others, given
the nature of agriculture up in the Great Plains. But obviously
it is a topic of urgent national importance.
Dr. Holt, I was quite astounded by some of the statistics
you quote in your testimony. What percentage of farm labor in
the U.S. do you believe is here on an undocumented basis?
Dr. Holt. Well, Congressman, interestingly enough,
agriculture is the one sector of our economy in which the U.S.
Government actually produces official statistics on illegal
alien employment. The Labor Department conducts something
called the National Agricultural Worker Survey on a biannual
basis where they go out, and our own government asks a large
sample of seasonal agricultural workers, among other things,
whether they are legally entitled to work in the United States.
The most recently published survey, 53 percent of the
respondents to that survey said they were not legally entitled
to work in the United States.
Out of the newcomers in any given year--and agriculture is
seasonal work--it is work in which workers move up and out into
better jobs. So \1/6\ of the agricultural workforce each year
are newcomers working their first year in agricultural work in
the United States. In the most recent survey, 99 percent of
those newcomers responded that they were not legally entitled
to work in the United States. These figures are not
speculative. These are official figures produced by the U.S.
Department of Labor.
Mr. Pomeroy. Your testimony notes that often the amount of
migrant labor involved in farming, those from other countries,
that would go through the H-2A visa process, would represent 2
percent of the labor actually required to produce today's
Dr. Holt. We have approximately 3.1 million job
opportunities in agriculture for hired agricultural workers
each year. Last year, which was the peak year for H-2A
employment, 59,000 of those jobs opportunities were H-2A
certified. That is 1.9 percent of all of the agricultural job
opportunities in the U.S. were H-2A certified.
Mr. Pomeroy. 1.9 percent. So the thing that we have that
deals with farm labor, other than a citizenship route, is
clearly not even making a token contribution to the overall
Now, you note in your testimony the imminent impact of the
immigration enforcement authorities, Social Security match
issue. Would you care to expand on that?
Dr. Holt. Well, what the Social Security mismatch
regulation will require is for employers who receive mismatch
notices to confront the employees in question and ask them ``to
correct the data.'' Well, of course, with very few exceptions,
the problem is not incorrect data. It is the fact that the
individual is not legally entitled to work in the United
States. They don't have a Social Security Number. The number is
either fraudulent, or it has been appropriated from someone
else. And so if the individual is unable to correct that
information within 90 days, the employer is required to
Mr. Pomeroy. Now, the Administration is announcing this
significant crackdown, which will have a potentially dramatic
impact on the identification of farm workers, working without
documentation, has said, ``Well, they are going to run this
program that presently deals with 1.9 percent of folks coming
in from outside the country in farm labor.'' Do you believe
there is any way they can ramp up the H-2A process sufficiently
to deal with the number of workers that will potentially be
identified and sent home under the enforcement crackdown?
Dr. Holt. Well, bear in mind that the mismatch regulations
aren't necessarily an enforcement crackdown. I mean the irony
is the employer will have to terminate workers who are unable
to correct their information, but nobody is going to go out and
pick these workers up and do anything with them.
What it is going to do is to churn the agricultural
workforce. The worker that I have to terminate is going to go
down the road and apply to work for Bob Stallman, and it is
going to have a document that appears on its face to be
genuine. So Bob is going to have to hire him. The worker that
Bob terminates is going to come down the road and apply to work
for me. And because he is going to have a document that appears
on its face to be genuine, I am going to have to hire him.
And then next year, there will be another round of mismatch
letters, and Bob will get the names I sent down the road to
him. And I will get the names that he sent down the road to me,
and we will churn it all over again. And we will send them down
to Lee Wicker and so forth and so on.
Mr. Pomeroy. Right.
Dr. Holt. We will just pass them up and down the table.
Nobody is actually going to go and pick these workers up and
remove them. So the mismatch regulation in and of itself
doesn't solve anything.
Mr. Pomeroy. It compounds the farce that we all have.
Dr. Holt. Exactly.
Mr. Pomeroy. I know my time is up, but I would like to ask
one more question. Mr. Goldstein, in the back and forth with
the Ranking Member, it appeared to me you had thoughts to
further express, but I would like you to speak specifically to
this. A concern that many of us have about guest workers is
that essentially these people never have status that is going
to get them out from under really a potentially exploitive
labor circumstance. Would you address that and talk about how
AgJOBS changes that?
Mr. Goldstein. Right, some of the proposals are just to
transform the entire agricultural workforce into a guest worker
system that is where the workers only hold a nonimmigrant
status, and they can only work for the one employer that got
them the visa. The minimum standards that are required by the
H-2A Program, as long as they are offered, have to be accepted.
Under H-2A, the employer has to offer these minimums, but if
the U.S. worker or foreign worker says I will work for 10 cents
more an hour, legally the employer can say no, I am not going
to do that and can go get another guest worker because that is
just the way that the system works.
So, under these programs, the workers really don't have any
bargaining power. They don't have a path to immigration status
or citizenship. They will never have the right to vote, and it
creates a real imbalance in the political representation
because the growers, their employers reside in those local
areas, and they vote. Their workers have interests too, but
they don't vote.
AgJOBS would allow currently undocumented farm workers in
the United States to, over a multiyear arduous process, to earn
legal immigration status, and at the same time, provide
employers with a stable workforce that they could then choose
to--in our private marketplace--they are supposed to compete
for the workers by improving wages and working conditions.
So that is the first part of AgJOBS. The second part would
reform the H-2A Program. It would make it easier to use. It
would reduce red tape. It would lower the wage rates by over a
dollar an hour and freeze them for 3 years while two studies
are done for Congress by the GAO and a special commission to
tell Congress about H-2A wage rates and let Congress then
decide how to approach the wage rates. There are a number of
other reforms to the H-2A Program. That would really be the
future program for the United States----
Mr. Pomeroy. Thank you.
Mr. Goldstein.--to bring in new agricultural workers.
The Chairman. The chair recognizes Mr. Fortenberry, 5
Mr. Fortenberry. Thank you, Mr. Chairman. Thank you,
panelists, for the engaging discussion particularly some of the
insights of the inherent problems from Mr. Wicker and Mr.
Goldstein both have pointed out in the H-2A Program.
At the outset, I would recommend, as a part of having a
responsible policy discussion about the appropriate needs of
the agricultural labor supply, that we take off the table a
blanket accommodation of illegal behavior or the hint of it as
a policy option. We must uphold the rule of law. We must
promote responsible citizenship and orderly immigration.
Now, to that end, we have heard a lot of the complexities
today, and I do appreciate your insights. My colleague from
North Dakota anticipated some of my questions regarding the
statistics. But I would like to further unpack some of those
statistics. Dr. Holt, you pointed out that approximately 53
percent of seasonal workers have illegal status here. But
overall agricultural workers, what is the division between
citizens and non-citizen? Then I want to ask the question, and
perhaps it is better asked sector by sector, as to whether or
not real wages have fallen or risen.
Dr. Holt. Well, the first question first. First of all, let
me mention that the 53 percent illegal is the number of people
who were responding in the survey that they were illegal. I
don't think anybody believes that the number is really that
low. These are simply the people that were willing to admit it.
Mr. Fortenberry. What is the extrapolated figure through
Dr. Holt. When workplace audits are conducted on the ground
and the authenticity of documents are examined, the typical
experience is that more like 75 percent or so.
Mr. Fortenberry. Okay.
Dr. Holt. I have seen figures in some instances in places
that you would not imagine are hotbeds of illegal immigration
like the upper Midwest as high as 90 percent. So \3/4\ is
probably--78 percent of the seasonal agricultural workforce are
foreign born. Now, some of those individuals may have become
citizens since--may have legally immigrated to the United
States and become citizens and are engaged in farm work. I
suspect the proportion of that 78 percent that that would
describe is probably quite low.
So 78 percent of our agricultural workforce in this country
came here from outside the United States originally.
Mr. Fortenberry. Seasonal agricultural workforce.
Dr. Holt. This is the seasonal agricultural workforce.
That's correct. Your second question, and I am sorry now, I
have forgotten what it was.
Mr. Fortenberry. Well, first of all, backing up. In terms
of overall agricultural labor, what is the percent of American
citizens versus non-citizens in the total workforce?
Dr. Holt. Well, the 23 percent that were born here
obviously are citizens.
Mr. Fortenberry. Getting away from the seasonal parameters.
Dr. Holt. Well, more than 80 percent of the agricultural
workforce is seasonal. We know that a substantial number of the
year round workers in agriculture are also illegal. That is one
of the concerns about simply saying that reforming the H-2A
Program solves the problem. It doesn't solve the problem
because a small but key component of our agricultural workforce
are workers that are no longer temporary or seasonal, are not
eligible for the H-2A Program, no matter how streamlined it
H-2A only permits, under current law, the admission of
workers into temporary or seasonal occupations. And one of the
reforms that is needed is to broaden that into, for example,
the livestock sector. But the----
Mr. Fortenberry. Real wages. We have to get that before we
run out of time.
Dr. Holt. Real wages, right. Real wages in agriculture have
increased. They have increased--I can't right off the top of my
head cite the statistics. Nominal wages, money wages, the rate
of increase in the hourly rate for field and livestock workers
compared to non-supervisory, non-agricultural workers--over the
past 20 years, agricultural wages have actually increased at a
more rapid rate. My recollection is roughly 39 percent more
Now, the actual wage in agriculture is still below the non-
agriculture wage because the skill range of workers in
agriculture is much narrower than the skill range of
Mr. Fortenberry. Okay, but with any statistical discussion,
you have to continue to unpack to understand clearly the
parameters, but it would be good to see what that trend is
versus non-skilled agricultural workers.
Dr. Holt. And I would be happy to try to provide----
Mr. Fortenberry. The point is to try to get to what was
intimated earlier in some of the earlier testimony about how
the impact of additional supply of agricultural labor, whether
it is legal or in our regulated programs, is impacting wage
growth. Because we do not, cannot advocate policies that would
simply increase the supply of labor in order to bring down
wages and pushing, of course, added social cost onto the rest
Dr. Holt. Well, I understand that, Congressman, but it is
hard to argue that the presence of foreign workers in
agriculture is having that impact, given the fact that the
agricultural workforce is overwhelmingly foreign and illegal,
and yet the nominal wage rate is rising, and the real wage rate
is rising more rapidly in agriculture than it is in non-
agriculture, which is less impacted overall by the employment
of illegal aliens.
Mr. Fortenberry. Indulge me for 15 more seconds. Let us
find out what the differential is that you are not able to
recall off the top of your head.
Dr. Holt. I will.
Mr. Fortenberry. I think that would be helpful statistic as
Dr. Holt. I will do that. My recollection, as I say, is
that over the 20 year period that I recently looked at these
statistics for, the relative rate of increase was about 39
percent higher in agriculture than in non-agriculture. I will
provide you with those.
Mr. Fortenberry. Thank you.
Mr. Mahoney [presiding.] Thank you very much. The chair
recognizes Mr. Costa.
Mr. Costa. Thank you very much, Mr. Chairman. To follow up,
Mr. Holt, and I thought all the testimony provides a basis for
more information for the Committee and the Congress to try to
address this issue. I have told some of my colleagues on the
floor when previous solutions were being offered that it
reminds me of denial, and denial is not a river in Egypt.
Denial is ignoring the numbers, Dr. Holt, that you have
explained in great detail.
When 1.5 percent of the total workforce is able to take
advantage of H-2A nationwide--and in California, I believe, the
number is 0.4--clearly this program doesn't address the needs
of the totality of the issue.
When you look at the total workforce here that is here
illegally today, it is also, I think it is important to note
that less than 20 percent is engaged in agriculture. So your
statistics stipulating that, in fact, we have more jobs today
in the economy and we are creating more jobs than we have
workers, I think we need to take note of.
Whether or not we support some version of guest worker
program or not, not to address it is to be in denial in some
legally fashionable way that protects employers and protects
employees and is fair. So why do you believe--and I am going to
make a point here--Dr. Holt, that the H-2A Program just doesn't
Dr. Holt. The question is why do I believe it doesn't work?
Mr. Costa. Right.
Dr. Holt. Well, clearly it does work for a very small
Mr. Costa. One and a half percent.
Mr. Costa. I would stipulate that that is not solving a
Dr. Holt. The detailed answer to that would be complicated,
but in general, the terms and conditions that it imposes on
many job opportunities simply are not competitive. So employers
can't afford to use it. Number two, the administrative
procedures of the program are too complicated to permit
employers to work with. And number three, at the present time,
the litigation and enforcement risks entailed with the program
are so high that many employers----
Mr. Costa. So notwithstanding the good idea, it just
Dr. Holt. It is a mechanism that could work.
Mr. Costa. Well----
Dr. Holt. It doesn't work.
Mr. Costa. But it would need significant changes to work.
Dr. Holt. It would need significant changes----
Mr. Costa. All right.
Dr. Holt.--including statutory changes.
Mr. Costa. Right, absolutely. I don't want to belabor the
issue of comprehensive reform, which I support, that has three
legs of the stool to stand on. Which is first, border security,
meaning increased border security, which we are doing some of
now today. But the second part is the status of those that are
presently here illegally today. And the third element of that
leg of the stool is a legitimate, fair, guest worker program
that I think is replicated in the AgJOBS proposal.
For those who argue that what we really need to do is to
correct the deficiencies in H-2A, I would stipulate that is
what the AgJOBS Program is. I think people need to understand.
First, it is a pilot project. The first step is that it
requires 150 days within the previous 2 years before you could
receive a blue card.
Second step would require that the 150 days per year for 3
years be substantiated before you would be eligible to apply
after 5 years for a green card.
Third, it would require an employer to verify that all of
these statements, pay stubs, W-2 forms are legitimized to prove
the previous work.
Fourth, it would be capped at 1\1/2\ million workers. I
mean that is a pilot project. That is an attempt to address the
issue within agriculture.
It would also, because of the seasonal nature of
agriculture, allow people after 100 to 150 workdays in each
year to then work another type of work that is non-seasonable
for that period of time.
It would also allow for those workers to travel within the
United States and to go back to their countries. It would
require a fine. It wouldn't be for free. It would require a
$500 fine for those that apply for it, and that you would have
to pay any previous taxes that were owed. And then it would
require, something very important, a biometric type
identification that Homeland Security would develop because
part of the issue is security, as we all agree upon. And this
would become very real.
This is an attempt to take the H-2A Program, in my view,
and make real modifications to it to make it work. I mean we
are calling it AgJOBS, but you could call it a modification of
the H-2A Program if you contain these elements in it. Do you
think those would go along the way, Dr. Holt, of working, Mr.
Stallman? Both of you, please.
Dr. Holt. Well, yes, I do. There are two critical
components to AgJOBS, and those two critical components both
have to be addressed for legislation to be effective. One is to
reform the mechanics of the requirements of the H-2A Program,
and probably 65 pages of the 104 pages of AgJOBS is focused on
those kind of reforms.
And the other is we have to address the resident illegal
agricultural workforce that is here that we frankly cannot do
without. That is the part of AgJOBS you have just described.
The adjustment of status does that in a humane way that does
require workers to pay a price if you will. What I like to
compare it to is sort of work release. That is a well-honored
tradition within our law enforcement system. Workers work off,
if you will, their having been here, having come into this
country in illegal status. And that is why you don't think you
could call this an amnesty.
Mr. Costa. You know the numbers with the employment
development departments in California and those that have
sought agricultural work?
Dr. Holt. Well, there was a--before Senator Feinstein
really became hands-on active in AgJOBS, she really put the
test to California farmers. She said I want you to go out. I
want you to work with EDD and really mount a serious effort to
try to recruit domestic workers. EDD offices up and down the
valley participated in this. There was all kinds of recruitment
efforts and so forth made. At the end of the day, that whole
effort produced three workers. And that is what caused Senator
Feinstein to say we need to do something statutorily about this
Mr. Stallman. Very briefly, I suppose, AgJOBS does help
with the short-term problem. What AgJOBS does not do is provide
that longer-term guest worker program.
Mr. Costa. Well, that is why I am supportive of the
comprehensive effort clearly.
Mr. Stallman. But concerning the Senate bill, we had some
real problems with the H-2A section in there because it
actually--well, the wage issue was one----
Mr. Costa. No, I understand.
Mr. Stallman. And, until we have an adequate guest worker
program, the temporary solution is fine, but we are going to be
right back dealing with the same issue.
Mr. Costa. My time has expired, Mr. Chairman. I have some
other questions I will submit, but if you bear with me for a
moment, I would like to recognize, and I will submit a written
statement in a memorial and Congressional record reflecting,
for those of us from California, Mr. Roy Gabriel who, for 35
years, worked for the California Farm Bureau on labor relations
issues. He would have probably been here in the audience today.
Came here 2 days ago and suddenly passed away, but he was a
passionate advocate on behalf of not just California
agriculture but solving these labor issues and worked closely
with not just farmers but farm workers. And we will miss Roy
Gabriel, and we will submit an appropriate statement.
Mr. Mahoney. Thank you, Mr. Costa. The chair recognizes the
gentlewoman from Kansas.
Mrs. Boyda. Thank you, Mr. Chairman. Thank you for being
here. I represent the eastern part of Kansas, which is
different than the western part of Kansas. I represent 26
counties that go from Nebraska down to Oklahoma. Clearly, Mr.
Moran, I get to serve on the Committee with him, and the issues
in western Kansas are just flat out a little different than the
ones in eastern Kansas.
What I would like to do is just to give you--you all have
been in my office and talking about some things. The one thing
that keeps us from moving forward, and you spoke about it,
Mike, and that was how do we decide who has been here legally.
We are talking about it, and I have heard it talked about. How
do we enforce any law that we put together?
So in the Second District, I don't mind saying the words
comprehensive immigration reform. I like throwing fuel on the
fire. I got into an elevator last week with the postman and
said what is on people's minds. Want to guess what it was?
It is almost to the point where on a given day, it is
becoming quite uncomfortable. It has gone from a fairly
rational discussion into something that on a given day can be
not very--I don't know what words I want to have in the record,
so I just won't go any further than that. But it is getting
worse, not better.
And what their main message is that I would like to share
again with you is we are not interested in putting all kinds of
penalties on people, whether they are the employers or the
people that are working here, until you can show me how you can
enforce this. Just show me how you can enforce it. Show me how
you intend to enforce it. Give me some idea that you might
enforce it. That is where the sticking point is.
So I would just offer with you to see if there is any way
that we can help come together. You all have, especially the
Farm Bureau, within the State of Kansas and in my district, you
have a great deal of trust, a great deal of respect. You have a
network all put together of people who will listen. So we have
to come back down off of this ledge.
But what they are going to be listening for is just show me
that you have some intention of enforcing it. Show me. Don't
tell me. I have had a good conversation with somebody when we
were talking about comprehensive immigration reform. So I came
back to just the issues that you were talking about and how do
we enforce it. And they said, ``Well, that is the problem. The
devil is in the details.'' Until we have those details worked
out, comprehensive immigration reform--the CBO judge said that
it wasn't going to do anything to substantially change illegal
immigration, less than 20 percent of it because the people in
Kansas' Second District didn't need any CBO report to tell them
People in my district are people who are good people. They
are also part of why things aren't moving forward and part of
why we aren't stuck because they have ground in and said,
``Until you can let me have some sense of faith that you are
going to enforce this, we are going to dig our heels in even
So I don't know whether you have any comments on that, but
my office would be more than willing to work with you in
helping to get out a message and shape a message and shape
those kinds of real solutions. We all talk about some kind of
biometrics, knowing that it is that issue that is holding a
bunch of things up.
Well, we have to get it off of the dime and move it forward
and have what could be a very complicated and maybe even
uncomfortable conversation. But it has to be moved forward, and
I would just offer our support from the office to do anything
we can to help you all move that forward. And I will take any
comments on that. Yes, Dr. Holt.
Dr. Holt. Congresswoman, may I suggest that this is perhaps
not as complicated as we think it is. We clearly can't have
effective enforcement without a labor supply, a guest worker
program along with it. We clearly don't want to have a guest
worker program without effective enforcement, and the thing we
seem to be stuck on is the advocates of enforcement before
guest worker and maybe the advocates of guest worker before
enforcement. I think that is where the comprehensive is so
Mrs. Boyda. Yes.
Dr. Holt. Is that both of these comments have to be done
together, and when we do that, then, as the gentleman at the
end of the table testified earlier, biometrics has to be part
of it. We need to know that when somebody presents a document,
that that document can be verified as being authentic and that
it belongs to the person presenting it.
The technology, DHS has the technology for doing that. It
exists. It is a matter of the will to implement it.
Mrs. Boyda. I couldn't agree with you more. Yes?
Mr. Goldstein. And just from a non-technical point of view,
I mean we farm worker advocates, the farm worker organizations
have the goal of ensuring that the farm labor force is legally
Mrs. Boyda. Yes, it is good for everybody.
Mr. Goldstein. Exactly, and we believe that AgJOBS would
accomplish that goal. We are convinced that the percentage of
undocumented workers would go down to close to zero initially
and that would stay very low into the future.
By the same token, however, we don't want to just transform
the farm workers into a system of guest workers because frankly
if you start weighing who is better off, a guest worker with
kind of no labor protections versus an undocumented worker,
that is not a debate we want to be involved in because under
neither situation is a farm worker going to be treated fairly.
And that is our goal here.
Mrs. Boyda. I would just say again in the district that I
represent, no one believes that there is a decision on how to
implement all of those. I know I represent somebody who is
going to stand and dig in the heels with the people of the
Second District of Kansas. So showing them what a system looks
like would be a good thing. Thank you so much.
Mr. Mahoney. Thank you very much. That concludes our first
panel. I want to thank the panel very much for being here. It
was very informative, and your testimony is very important in
establishing a baseline for what the situation is in
agriculture. So thank you very much. If we could bring the
second panel on, we have votes coming up here very quickly, and
I would like to get through the initial opening statements
before the votes happen. Thank you very much. Will the panel
take their seats please so we can get started? Any private
conversations, please take them outside the Committee room.
I would like to welcome our second panel. The first panel
we had sort of the industry experts talking a little bit about
the impact of the labor situation, and now we are going to be
honored to listen to the gentlemen who actually has the
responsibility for actually farming and having to deal with the
problem. And I would like to turn over to Mr. Cuellar the
opportunity to introduce one of the panel members.
Mr. Cuellar. Thank you very much, Mr. Chairman. I also have
a statement that I will go ahead and introduce for the record.
But it is my pleasure to welcome somebody from Texas. A special
welcome to J Allen Carnes, a south Texas vegetable producer who
is here to testify. J Allen is Vice President of Carnes Farms
Inc., President of the Texas Vegetable Association, Director of
the Texas Produce Association, Director of the South Texas
Onion Committee. He has a lot of experience, being from the
border, and I was listening to the conversation on immigration.
Being from right along the border, it is a topic that we
can go on and on. But certainly it is an issue that we need to
look at, and certainly need to look at H-2A and how we can make
that more efficient and more effective. Thank you, Mr.
Mr. Mahoney. Thank you, Mr. Cuellar. I would like to
introduce somebody from my home district, Mr. Mason Smoak, born
and raised in Lake Placid, Florida, a little piece of heaven
right in central Florida. And he is a third generation citrus
grower from Highlands and Hardy County.
Mason is active in managing over 3,000 acres, and that
includes citrus care taking and harvesting and hauling
operations. Mason and his family also manage 13,500 acres where
they run 2,300 head of cows--that is about 2,290 more than me--
in a commercial cow-calf operation. Mason is an active member
of Florida Citrus Mutual, Florida Farm Bureau, Federal and
Highlands County Citrus Growers Association. I am glad to have
you here, Mason.
I would like to also introduce Mr. Harry B. Yates, Board
Member of the National Christmas Tree Association and Christmas
Tree Producer, Boon County, Boon, North Carolina. I would like
to also introduce Mr. Randy Mouw from the Misty Morning Dairy
from Ontario, California. Mr. Keith Atkinson, tobacco producer
from Java, Virginia.
And I have another gentleman that is not quite in my
district, but we like him just the same. It is Mr. Rick Roth
who is a third generation farmer from Bell Glade, Florida and
is President and Principal Owner of Roth Farms, which is the
most diversified farming operation in the Everglades
agricultural area. The Roth family owns over 4,000 acres and
leases another 1,000 acres. They grow lettuce and leafy
vegetables, radishes, sugar cane, sod, sweet corn, green beans,
field grown palm trees, and rice, just about everything that
grows in Florida. Rick currently serves on the Board of
Directors of the Florida Farm Bureau and Florida Fruit and
Vegetable Association, Sugar Cane Growers Cooperative of
Florida. It is nice to have you here, Rick. With that, let us
Ms. Foxx. Mr. Chairman.
Mr. Mahoney. I am sorry. I didn't see you there.
Ms. Foxx. That is okay. Just one quick correction for the
record. Harry Yates is from the Fifth District of North
Carolina, my district.
Mr. Mahoney. Did you want to introduce him?
Ms. Foxx. Well, if I could just say that it is Watonga
County and the town of Boon. Harry has been a leader in
agriculture, and particularly in the growing of Christmas
trees, and a good friend for a long time. He is very well
versed in the issues that he is going to be presenting. He is a
former high school teacher, and I am just thrilled that he has
been able to come up today to be with us. Thank you.
Mr. Mahoney. Yeah, I am sorry I didn't see you down there.
My contacts don't go that far up here. I am usually a lot
closer to the action, being the most junior Member of the
Committee. With that, let us start with the testimony if Mr.
Carnes could go ahead and start.
STATEMENT OF J ALLEN CARNES, PRESIDENT, WINTER
GARDEN PRODUCE; CHAIRMAN, TEXAS VEGETABLE
ASSOCIATION; DIRECTOR, SOUTH TEXAS ONION
COMMITTEE, TEXAS PRODUCE ASSOCIATION; VICE
PRESIDENT, CARNES FARMS, INC., UVALDE, TX
Mr. Carnes. Yes, thank you Members of the Committee, and
thank you for the opportunity to testify before you and express
my perspectives on the labor shortage as it relates to my
business and as it relates to Texas vegetable industry as a
Sitting here and listening to some of the debate going back
and forth, I hope that this Committee will truly take the
perspectives of this panel because we are the on-the-ground
people. We have experienced this problem firsthand, and
whatever the political realities of fixing this problem, we
have a problem. And we need to fix it fast, or we are going to
sufficiently damage the oldest institution in the United States
of agriculture. And agriculture in Texas and the U.S. as we
know it will no longer exist.
Once again, my name is J Allen Carnes. I am the President
of Winter Garden Produce, the Vice President of our family
farming operation, and the current Chair and President of the
Texas Vegetable Association. We currently farm over 3,000 acres
in the south Texas area and ship over 2,000 acres of fresh
fruits and vegetables, amounting to 1.2 million packages.
I am going to go straight into my experiences with the
problem, and then I will expound on our workforce and how it
relates to Texas and where the shortages are coming from.
In 2004 and 2005, we began to see a major problem. Crews
became short, and those 2 years by themselves, we ended up
getting the crops harvested. It took a lot of doing and a lot
of jockeying back and forth amongst sheds, offering more money
here, more money there, but at the end of the day, it got
Now, we came to 2006, and we saw a major labor shortage. We
saw, to my knowledge, the first direct, out-of-the-pocket
expense to Winter Garden Produce based on that year. We had
direct losses of $75,000 based on solely shelf life and arrival
value of our produce. We also had to abandon 35 acres of
cabbage that we left unpicked, unharvested almost completely
because we didn't have the crews to do it. And the sales value
on that field alone was $150,000.
Now, sitting and seeing my family and my father particular
faced with the daily problem of not having a crew to harvest
our crops and seeing our crops affected by this. If you know
many farmers, sometimes watching a crop for 4 or 5 months grow
and come to fruition, they look on that crop and have as much
adoration for that crop as sometimes their firstborn child. So
it was a real heartbreaking experience to see my family deal
with the loss of a crop that we couldn't get harvested solely
because of labor.
We came to 2007, and every indication pointed towards a
much larger problem than we had in 2006. According to a study
at Texas A&M, the overall numbers in the spring onion
harvesting crews alone were down 21 percent from the last year.
So we expected to have a real storm.
Beginning in some of the harvest in May of 2007, we were
running already 4 and 5 days behind, and unfortunately then we
hit a major weather event. And some of the shortages were
unknown to us. We did lose a field of onions that, because we
were running 4 and 5 days behind, and then we hit so much rain
and so much weather, that we were unable to harvest. And the
sales value on that field alone was over $250,000.
We have a problem with not only a local labor force--and
that is kind of strange in itself that we are basically 50
miles from the border of Mexico, and we have a labor problem.
Right now, the unemployment in Texas has fallen to 4.2
percent. Texas employers are adding--they have added so far
this year 230,000 jobs. The economy in Texas and especially
along the border is growing at a substantial rate. In our
county, we saw these numbers dip to 5.2 percent. These are some
of the lowest numbers we have ever experienced.
The workforce numbers in Uvalde County of 18 years and
older that are authorized to work are at just over 10,000. The
job opportunities in Uvalde County are approaching 12,000. So
we have a huge imbalance, and being in agriculture and just the
nature of agriculture, it is hard to compete against that.
Being less attractive, it is very hard for an employer to
compete against those numbers.
So because of that, we have always relied somewhat on
Mexico and Mexican labor that cross using legal channels, and I
hopefully will have a later chance to expound on that.
But to finish my testimony, I would like to give you some
of the effects that this country and Congress has had over not
solving the immigration and the workforce shortage problem that
we have had since 1986. In the last 10 years, the onion acreage
alone in Mexico--which we have experienced a lot of shortages
on our onion harvest crews. The onion acreage in Mexico alone
has risen 12,000 acres. On cabbage, broccoli, spinach, and
carrots, some of my top crops and some of the top crops of
Texas, it has risen 28,000 acres.
In roughly that same time period, the shipments of Texas
products around the nation are down 77 million pounds. Our
agriculture is going into Mexico, and the logjam that we are
seeing on the Federal level on this issue is increasing how
fast it is going into Mexico. The question is not whether our
crops will be harvested by Mexican labor. The question is will
they be harvested in the United States, or will they be
harvested in Mexico?
And we all know that because of some of the concerns, food
safety, bioterrorism, and so forth that we are dealing with,
that we need a national food supply.
[The prepared statement of Mr. Carnes follows:]
Prepared Statement of J Allen Carnes, President, Winter Garden Produce;
Chairman, Texas Vegetable Association; Director, South Texas Onion
Committee, Texas Produce Association; Vice President, Carnes Farms,
Inc., Uvalde, TX
Chairman Peterson and Members of the Committee, thank you for the
opportunity to testify before the House Agricultural Committee to share
with you my perspectives on the labor shortage as it relates to my
business and to the Texas vegetable and citrus industries as a whole.
My name is J Allen Carnes. I am the President of Winter Garden
Produce, Inc., Vice President of our family farming operation, Carnes
Farms Inc., and the current Chair of the Texas Vegetable Association.
My family has been in the agriculture and produce industry in Texas
since 1950. We currently farm over 3000 acres around the Uvalde area in
south Texas. On those farms, we have grown a wide range of agricultural
products, one of the most important being vegetables. My family began
marketing and shipping a select group of those in 1992. My father, Eddy
Carnes, along with his father and brother formed Winter Garden Produce
to ship product grown on our farms. In addition, we contracted with
other farms in the area to harvest sell and ship their commodities. I
began working for Winter Garden Produce full time in 1997 and became
President of the company in 2006. At the present time, we harvest and
ship over 2000 acres of fresh fruits and vegetables. This translates
into approximately 1.2 million packages per year and over 10 million in
annual gross sales.
Due to the amount of product that we ship, we require a large
workforce. This workforce is very unique because of the seasonal nature
and the labor requirements of growing, harvesting, and packing our
various products. Our labor needs often vary widely from one day to the
next. Because of these factors, we see a large fluctuation in the
number of people we employ on a daily bases. Winter Garden Produce
begins harvest season in late October. During this time we employ 80-
120 people per day. At the peak point of harvest season, May through
June, we employ 400-450 people per day.
To satisfy the large and varying workforce we utilize several
channels, most of which are through contract labor. We use between four
and eight different labor contractors. These contractors provide us
with harvest crews ranging from 25-100 people. Our area uses a large
amount of Mexican labor that commutes on a daily or weekly basis to
fill a portion of these crews. To the best of our knowledge, these are
legal immigrant workers. A variety of legal channels allow them to work
and live in the U.S., but they choose to live in Mexico and commute
into the area on a daily or weekly basis. Many ``illegals'' were given
a legal right to work and reside under the 1986 IRCA legislation. Most
workers who could prove they were living in the U.S. at that time were
given identification cards. Workers who could prove they were working
in agriculture and crossing the border on a regular basis were given an
Agricultural ID card. During harvest season, on a given day, 15-50
people will cross out of Mexico with one of these cards to work for
Winter Garden Produce. At peak harvest time, we use 50-100 people who
have these documents and cross from Mexico each day. Also during peak
harvest time, our company and other companies around us use migrant
labor that comes up out of the Rio Grande Valley. Vans of family and
friends follow the onion harvest. They start in the valley, then come
and work in our area, and then move on to work in New Mexico and
Colorado. These two groups of workers, along with a diminishing number
of local workers, make up the vast majority of our harvesting crews.
The natural U.S. based labor force in our area has been in short
supply for as long as I can remember. In the last 2 years, we have seen
our labor shortage become much more severe. The Texas unemployment
numbers fell to 4.2 during the month of August. One year ago, the rate
was 4.9%. So far this year, employers in Texas have added 229,000 jobs,
up 2%. In Uvalde County, the labor force was estimated at 11,476 with
594 unemployed. This rate is at 5.2% down .6% from where it was last
month. We have an imbalance between our local population and our
workforce needs. The total population of people 18 years and older in
Uvalde County is only 10,094 and our civilian workforce is 11,476. We
have a junior college and some of those over 18 are in school. We have
more people in our workforce than are in the working age population. We
have to attract people from outside our county to meet our workforce
needs. Given this huge imbalance between jobs and workers, it is not
surprising that ``American workers'' gravitate to the more attractive
jobs, leaving the less attractive jobs (agriculture) to be filled by
immigrant workers. Second, our industry in Texas is presently in its
``off-season.'' Our shipping season begins in October and lasts until
July of the following year. Many of my workers are employed 9 to 10
months out of the year and then collect unemployment the other two.
These August 2007 unemployment numbers include a big portion of the
local agricultural labor force. We see a local labor force that cannot
fill all of our harvest labor force needs. We must have outside labor
in order to survive.
Because of our close proximity to Mexico, our area has always been
able to meet our additional labor needs during the spring onion harvest
by drawing workers out of Mexico. As a result of the IRCA legislation
of 1986, an estimated 1.2 million farm workers were legalized, many of
which had been working in the fields around Uvalde since the 1940's and
1950's. Some of the workforce that was legalized in 1986 is still being
utilized today. According to a Texas A&M University survey done in the
spring of 2007, an average of 48% of all labor used to harvest spring
onions is estimated to come from Mexico and is utilized by about \2/3\
of the firms shipping onions. Approximately 39% of the workers coming
from Mexico cross daily and 61% of those who cross weekly remain in the
United States for the duration of the harvest. But as I note that IRCA
provided some short term relief of worker shortages, I would be remiss
if I did not tell you that IRCA did not come close to solving the long-
term labor woes in the agricultural field. In the late 1980's after
IRCA, as few as 5% of agricultural workers were in the country
illegally, and according to the National Agricultural Worker Survey, by
2005 that number had risen to 76%. By some counts there are as many as
1.5 million illegal workers in the agricultural industry. Looking at
the numbers, IRCA legislation did nothing to provide a long term legal
workforce in agriculture. Within the last few years, this supply of
legal Mexican workers has been on steady decline, and companies such as
ours struggle to secure a legal workforce to survive. The legal
workforce out of Mexico that the agriculture industry in Texas employs
is declining. These workers are becoming older and older and there is
currently no viable legal way to replace them with younger workers. The
workforce that still exists is having an increasingly difficult time
crossing the border in a legal manner. Crossing time has tripled. Three
to 4 years ago, it took half an hour to cross the border legally to
work every day. Now it takes this legal workforce as much as 3 hours to
cross the border.
Another portion of our workforce is made up of migrant labor. Many
migrant harvesting crews are not coming to the Winter Garden area like
they have in the past. There is much speculation as to why this is
happening, but the most likely reason is that they have something to
hide and don't want to risk being in our area. Increased border
security, workplace raids, and the fear of raids are making the labor
shortages in south Texas worse every day. We have had an explosion of
Border Patrol agents in and around Uvalde. Apprehensions of illegal
aliens are down 44% along our stretch of the border. According to local
crew leaders, the amount of illegal aliens that are applying for jobs
in our area has dropped to almost 0%.
The biggest issue that Texas may face with ``illegal'' or
``undocumented workers'' is Social Security No-Match. Based on data
Texas Employers for Immigration Reform has compiled, there are 8.1
million employees who would face No-Match letters and potential
problems. Texas is figured to shoulder much of the problem with an
estimate 780,840 employees being targeted by No-Match. Winter Garden
Produce does everything in its power to have a legal workforce. For all
labor contractors we use, we require that they submit all I-9's and
copies of all documentation to verify their I-9's. Employers just
cannot be sure this is enough. For the record, the vast majority of
agricultural employers ARE playing by the current rules. We are
interviewing workers, reviewing documents that appear legitimate on
their face, filling out the Form I-9, withholding taxes and social
security, and complying with the wage laws. Yet, the simple fact is
that based on national estimates, at least 70% of the agricultural
labor force is working under fraudulent documents. In fact, I would
speculate that Texas has lived in denial about the extent of this
problem for a long time, under what might best be described as ``don't
ask, don't tell.'' So, the ``70% or more farm workers are illegal''
statistic is likely accurate in Texas.
Just as I have discussed that the IRCA legislation or ``Amnesty''
did little to solve the long-term needs of Agriculture, neither will a
reformed H-2A program by itself solve the problem, for the opposite
reason. At the present time H-2A fills fewer than 60,000 jobs out of a
total of over 3,030,000 jobs in agriculture. This translates into less
than 2% of the total job opportunities. The numbers are even less in
Texas. Currently only 1500 in Texas jobs are filled by H-2A. We have a
total of 166,117 agricultural job opportunities in Texas. This is less
than 1%. There is no possible way in a short period of time that
producers can go from less than 1% of the workforce to having a most of
the it met by this or any other guest worker program. Besides this,
there are many jobs in agriculture that cannot be filled by H-2A
workers. Under H-2A, both the worker and the job must be temporary or
seasonal (10 months or less). This precludes us from filling key
positions that are year round and cannot be filled by H-2A. Many
producers, ourselves included, lack the housing needed to participate
on H-2A. It will take time to work through the capital investment and
approvals needed to acquire housing. Also, it is imperative that we as
employers have an opportunity to retain key, experienced employees that
have been employed for many years with fraudulent documents that
employers had no way of knowing the status of these employees.
The labor shortage problem in our area reached a climax in the
spring of 2006 and shows signs of becoming worse, as a result of the
increased emphasis on workplace enforcement, border security, and the
lack of comprehensive immigration reform. During the spring, Winter
Garden Produce may employ as many as 400-450 workers, 200 of whom
harvest (clip onions) in the field. In May 2006, our harvesting crews
were down to 80-100 laborers. Most, if not all, of the decrease in
labor workforce includes daily crossers and migrant workers that come
from the Rio Grande Valley. Because of this shortage, we were running 2
weeks behind in harvest and it was affecting shelf life and arrival
value of onions at the direct cost to Winter Garden Produce of over
$75,000. Winter Garden Produce also had to abandon 35 acres of cabbage
because some of the cabbage harvesting workforce switched to onion
clipping crews because of the shortage of workers. The sales value on
that field alone was over $175,000. That field along with the onion
harvest being 2 weeks behind schedule cost our company over a quarter
of a million dollars in 2006.
This past season had every sign pointing toward a larger labor
shortage than the year before. Early in May of 2007, Winter Garden
Produce was running 4-5 days behind on our harvest schedule and then
the rains came. We completely lost an onion field that had a sales
value of $250,000. In the same study mentioned above conducted by Texas
A&M University, the total onion industry in Texas experienced around a
21 percent decrease, or 1051 workers, from the 2006 season. The
economic impact from the labor shortage during the 2007 spring onion
season in Texas was very substantial. Texas losses in business activity
related to agricultural support such as field operation, harvesting and
packing, pesticides and chemical manufacturing, and farm machinery and
equipment were estimated at $15 million, while associated income losses
are an additional $7.2 million and additional job losses were estimated
to be 310.
Timing is crucial. Farmers, growers, and producers need help now,
not when Congress feels like they can get to it. Texas has always
relied on a legal guest worker supply from Mexico. That labor force is
becoming smaller and smaller and there is currently no measurable way
to replace it. Every year the shortage becomes worse and worse. If we
continue down this same path the agricultural industry in Texas as we
know it will no longer exist.
We have to have major immigration reform on the Federal level, or
we are going to see an accelerated decline of our labor intensive
agriculture including the fruit and vegetable business. Local workers
simply are not available to do this work; it is not a matter of wages.
We must have a legal means to secure this workforce. Because of the
seasonality and perishable nature of our industry, we are at a greater
risk than most sectors of the U.S. economy. Texas agriculture simply
cannot endure a large scale work shortage and additional loss of our
labor force. Mexican workers will harvest much of Texas produce for
U.S. consumers; it is simply a question of whether they will harvest
crop in U.S. or Mexico. According to the Texas Produce Association half
of the fruits and vegetables being shipped in Texas are already being
grown across the border. The crop which I have experienced the greatest
labor shortage, onions, has increased in Mexico by 12,304 acres since
1996. Cabbage, spinach, broccoli and carrot acreage has also increased
by over 26,000 acres during the sane time frame. During roughly the
same time period (1999-2006) shipments from Texas decreased by 77
million pounds of the same commodities. As you can see a large potion
of the Texas industry has already shifted into Mexico and it will
continue to do so until we fix problems here on U.S. soil. Not only am
I concerned about my own business, I am worried that all domestic
agriculture will have to follow this trend of going abroad and
overseas. We are already dependent on foreign oil imports and if we
become reliant on food imports, we are in grave danger.
Clear, sensible workplace enforcement combined with a temporary
guest worker program and a realistic way to retain our existing,
experienced workers would better secure our borders since fewer people
would try to come in illegally. It would restore law and order by
giving employers incentives and tools to reliably verify an employee's
legal status and avoid undeserved criminalization. In addition, it
would make sure we avoid a disastrous labor shortage which would, in
turn, jeopardize skilled jobs filled by Americans, and possibly disrupt
the food supply which could lead to higher prices for American
A comprehensive approach, including AgJOBS which is gaining
momentum in the Senate and a sensible Daily Crossing Program which
Texas along with Arizona and California are exploring, is the only way
to strengthen our border and increase homeland security. Continuing
with the ``Border security only'' policy with out addressing all facets
of the issue will be disastrous. A guest worker program, including a
legal path for the workers that are already here, coupled with
workplace screening, will provide an orderly, legal process for making
sure employers and needed workers are matched. This will give our
border patrol agents the ability to focus on terrorists, drug
traffickers and other criminals.
J Allen Carnes,
President, Winter Garden Produce, Inc.;
Vice President, Carnes Farms, Inc.;
Chairman, Texas Vegetable Association;
Director, Texas Produce Association;
Director, South Texas Onion Committee.
Mr. Mahoney. Thank you very much. Mr. Smoak, please try
to--because we have another vote coming up here, let us try to
get through. If you can be as precise as possible, but I want
to give you your opportunity to talk since you've been so
patient to wait. So let us see if we can't get through this
STATEMENT OF MASON G. SMOAK, CITRUS PRODUCER AND CATTLE
RANCHER, LAKE PLACID, FL
Mr. Smoak. Thank you, Mr. Chairman. I sincerely appreciate
the opportunity to testify in front of this esteemed Committee
today on behalf of my fellow citrus growers in the great State
of Florida. I want to thank Congressman Tim Mahoney who
represents my hometown, Lake Placid, for his steadfast support
of agriculture, specifically specialty crops such as citrus,
which is a major economic engine in our rural Florida
Our industry generates a statewide economic impact of close
to $9 billion a year and is the heart of my family's operation.
In Florida, we produce almost 80 percent of all orange juice
consumed in the United States. We supply a wholesome product
that provides our fellow citizens with essential vitamins and
My grandfather started our business back in 1933 with a
fourth grade education and 10 acres of thrown away orange
grove. Through many years of hard work and many blessings from
the good Lord above, that business has grown to over 3,100
acres of citrus and 13,000 plus acres of cattle and ranchland
and wildlife conservation areas.
As a third generation Florida citrus grower, the issue of
ag labor is critical to my family's business. The importance of
maintaining a safe, affordable and abundant domestic food
supply is something many Americans care deeply about and is
something I know growers care deeply about as well. Shifting
food production from our shores to overseas could compromise
food security and in turn homeland security.
If our citrus crop is left in the grove to rot because of
labor shortages, then our nation's citrus production will
eventually shift entirely to Central and South America. This is
not an attempt by me to paint a doomsday scenario. It is a
reality of fruit and vegetable production in this country and
specifically the Florida citrus industry.
I have heard and read many criticisms directed at farmers
that say the solution to our labor issue lies in either paying
workers more or turning to mechanical harvesting. I am proud of
the rates we pay our workers in Florida. A Florida harvester in
the citrus business averages close to $10 an hour, and I think
that is good.
As for mechanical harvesting, it is something we are
interested in using, and I hope the industry's mechanical
harvesting program continues to receive support from Congress.
It sure is a lot easier to manage a few machines than it is a
large harvesting crew. As growers, we have taxed ourselves and
actively worked through our trade associations to lobby our
State and Federal Representatives for research funds to study
mechanical harvesting and abscission chemicals to make the
process easier. However, these machines are multi-million
dollar pieces of equipment that are not financially feasible
for all growers to use at this time.
More importantly is the fact that the machines are not
technologically to the point where we can harvest fruit without
causing long-term tree damage as well as fruit damage. Even if
we could, mechanical harvesting still requires a crew of
workers to glean what fruit is left behind after the machines
Mechanical harvesting provides Florida growers with hope;
however, the process still has a long way to go before it
becomes an industry standard. So in the current environment,
growers have two options. We either have to try to find
domestic workers through traditional methods or use the costly
and cumbersome H-2A Agricultural Guest Worker Program.
Please believe me when I tell you that we want legal
workers. The last thing a grower wants to do is lay in bed at
night and stay awake wondering if his workforce is legal. We
have plenty of other things to worry about, including weather,
plant pests and diseases and energy costs. We want legal
In conclusion, we have worked very hard as an industry with
our partners in the agricultural community to push Congress to
create an efficient guest worker program that serves us better
than the current H-2A Program. As an industry, we are
disappointed that our best efforts toward comprehensive
immigration reform failed to pass this year. We are going to
continue to work hard until some kind of solution is eventually
The future sustainability of American agriculture is very
important to me as a farmer raising three children with my wife
Tracee. My family understands it is essential to have legal,
reliable workers harvesting our crops and helping put orange
juice on the breakfast tables across America. We also
understand that without these legal reliable workers, Florida
citrus industry will be another closed chapter in the history
of U.S. agriculture.
I thank the Committee for your time and look forward to
[The prepared statement of Mr. Smoak follows:]
Prepared Statement of Mason G. Smoak, Citrus Producer and Cattle
Rancher, Lake Placid, FL
Thank you Mr. Chairman.
I sincerely appreciate the opportunity to testify in front of this
esteemed Committee today on behalf of my fellow citrus growers in the
great State of Florida.
I want to thank Congressman Tim Mahoney who represents my hometown
of Lake Placid for his steadfast support of agriculture, specifically
Specialty Crops such as Citrus, which is a major economic engine in
rural Central Florida.
The Florida citrus industry generates a statewide economic impact
of close to $9 Billion a year and is the heart of my family's business.
In Florida we produce almost 80% of all orange juice consumed in the
United States. We supply a wholesome product that provides our fellow
citizens with essential vitamins and nutrients.
My grandfather started our family business in 1933 with a fourth
grade education and 10 acres of thrown away grove. Through years of
hard work along with countless blessings from the Lord, that business
has grown to over 3,100 acres of citrus and 13,000 acres of cattle
ranchland and wildlife conservation areas. As a 3rd generation Florida
citrus grower the issue of ag labor is critical to my family's
The importance of maintaining a safe, affordable and abundant
domestic food supply is something many Americans care deeply about and
is something I know growers care deeply about also.
Shifting food production from our shores to overseas could
compromise food security and in-turn homeland security.
If Florida's citrus crop is left in the grove to rot because of a
labor shortage then our Nation's citrus production will eventually
shift entirely to Central and South America.
This is not an attempt by me to paint a doomsday scenario, it is
the reality of fruit and vegetable production in this country and
specifically the Florida citrus industry.
I've heard and read many criticisms directed at farmers that say
the solution to our labor issue lies in either paying workers more or
turning to mechanical harvesting equipment.
But I'm here to tell you that the minimum wage rate in Florida is
$6.67 an hour which is higher than the Federal wage rate of $5.85. In
Florida a worker harvesting citrus averages close to $10.00 an hour.
I'm proud of the salaries we pay our employees.
As for mechanical harvesting it is something we are very interested
in using and I hope the industry's mechanical harvesting program
continues to receive support from Congress. It sure is a lot easier to
manage a few harvesting machines than a large workforce. As growers we
have actively worked through our trade associations such as Florida
Citrus Mutual to lobby our State and Federal Representatives for
research funds to study mechanical harvesting and abscission chemicals
to make the process easier.
However, these machines are multi-million dollar pieces of
equipment that are not financially feasible for medium and small
growers to use at this time. More importantly is the fact that the
machines are not technologically to the point where we can harvest
fruit without causing long term tree and fruit damage.
Even if we could, mechanical harvesting still requires a crew of
workers to glean what fruit is left on the tree and ground.
Mechanical harvesting provides Florida growers with hope, however,
the process still has a long way to go before it becomes an industry
So in the current environment growers have two options:
We either have to try to find legal domestic workers through
traditional methods or use the costly and cumbersome H-2A Agricultural
Please, believe me when I tell you that we want legal workers.
The last thing that a grower wants to keeping him awake at night is
wondering about the legal status of his workforce.
We have plenty of other things to worry about with weather, plant
pests and diseases, and energy costs.
I'll reiterate: We want legal workers.
In conclusion we have worked very hard as an industry with our
partners in the agricultural community to push Congress to create an
efficient guest worker program that serves us better than the current
As an industry we are disappointed that our best efforts toward
comprehensive immigration reform failed to pass this year.
We are going to continue to work hard so that some kind of solution
is eventually crafted.
The future sustainability of American agriculture is very important
to me as a farmer raising three children alongside my wife Tracee. My
family understands it is essential to have legal, reliable workers
harvesting our crops and helping put orange juice on breakfast tables
across America. We also understand that without legal, reliable
workers, Florida's citrus industry will be another closed chapter in
the history of U.S. agriculture.
I thank the Committee for your time.
Mr. Mahoney. Thank you, Mr. Smoak. We have time for one
more 5 minute presentation. Mr. Yates.
STATEMENT OF HARRY B. YATES, PAST-PRESIDENT, NORTH CAROLINA
CHRISTMAS TREE ASSOCIATION; MEMBER, BOARD OF DIRECTORS,
NATIONAL CHRISTMAS TREE
ASSOCIATION, BOONE, NC
Mr. Yates. Thank you. I am extremely honored and humbled
that you have asked me to speak before this esteemed Committee.
I farm and live in beautiful Boon, North Carolina. I began
growing Christmas trees 32 years ago in the rugged mountains of
western North Carolina. I have served the Christmas tree
industry as President of the North Carolina Christmas Tree
Association and on the Board of Directors of the National
Christmas Tree Association.
This is my tenth year using H-2A employees. I employ seven
men for 9\1/2\ months and three to six additional men for the
harvest season. Christmas trees are an extremely labor
intensive agricultural crop. Each tree receives eight to ten
visits per year from a farm worker for the 8 to 10 year life
cycle of that tree. Each activity requires physical labor and
challenging geographic conditions. These challenges, along with
the seasonality of the job, mean the Christmas tree industry
must have guest workers.
I made the decision 10 years ago to participate in the H-2A
Program because it was impossible to find legal workers seeking
agricultural employment. I also strongly believe that workers
should be documented. However, when I made my decision to
participate in H-2A, little did I know that I was putting
myself in a serious competitive disadvantage in the Christmas
The national real Christmas tree industry faces severe
economic challenges with the Chinese-produced artificial tree.
We are losing market share every year. Labor is our single
largest production expense. I am one of the few Christmas tree
growers who use H-2A. Most growers don't use H-2A because it is
too expensive and too burdened with regulations.
Some quick examples: By using H-2A, I pay $1,000 per year
per man, which covers visa fees, transportation costs,
association fees, et cetera. By law, the U.S. Department of
Labor tells me that I have to pay an Adverse Effect Wage Rate,
which is $9.02 for 2007 in North Carolina. This wage rate has
increased 76 percent in the last 16 years. I now know why they
call it Adverse Effect Wage Rate because it is certainly
adversely affecting my family farm.
By law, I am required to provide free of charge government-
inspected housing, transportation, utility costs, and all other
costs that go along with housing and transportation. Non-H-2A
growers don't provide these benefits to their workers. They
provide it for themselves, just like most Americans do. I also
pay workman's compensation.
When you total these expenses, my labor cost is $14 an hour
and climbing every year through H-2A. My competitors pay $7.50
to $8 an hour. It is extremely difficult to farm profitably at
these costs. It is truly contrary to the American way that
farmers who do things the legal and proper way are punished
What should Congress do to make the H-2A Program more
workable? I have three basic concepts here. Number one, entry
level wages should be prevailing and should be ``flexibility''-
allowed so that we may reward our long-term key employees with
higher rates of pay. Our wage rate now is so high that we don't
have that flexibility.
Growers and workers should be required to resolve legal
issues through mediation and arbitration. And number three, the
bureaucratic processes at the Department of Labor, Homeland
Security, and State Department must be streamlined and
simplified. Given the current delays with only 50,000 H-2A
workers nationally, drastic reforms must be made if we are to
provide upwards of one million workers per year.
I truly appreciate the H-2A Program and the continuity and
the stability it provides on my small family farm. However, I
do understand why many growers are afraid to use the program.
It is too expensive. It is too complicated. It is too slow, and
it is too likely to land you in court.
Please fix H-2A with prevailing wage, required mediation,
and streamline the process. Agriculture, our nation's food
supply, and in fact the very security of our nation depends on
Congress getting this one right. Thank you.
[The prepared statement of Mr. Yates follows:]
Prepared Statement of Harry B. Yates, Past-President, North Carolina
Christmas Tree Association; Member, Board of Directors, National
Christmas Tree Association, Boone, NC
I would like to thank the Committee for holding this important
hearing on agricultural labor. My name is Harry Yates. I farm and live
in beautiful Boone, North Carolina. I began growing trees 32 years ago
in the mountains of western North Carolina. I have served the Christmas
Tree industry as President of the North Carolina Christmas Tree
Association, and as a Member of the National Christmas Tree Association
Board of Directors.
This is my 10th year using H-2A and I employ seven workers for 9\1/
2\ months and three to six additional workers for the Christmas tree
Christmas trees are an extremely labor intensive agricultural crop.
Each tree receives eight to ten visits per year from a farmworker to
complete various treatments. This occurs each season during the 8 to 10
year life of the tree from planting to harvest. Each activity requires
physical labor in challenging geographic and climatic conditions. These
challenges, along with the seasonality of the job mean that the
Christmas tree industry needs temporary, seasonal workers.
I made the decision 10 years ago to participate in the H-2A program
because it was impossible to find legal workers seeking agricultural
employment and I strongly believe that workers should be properly
documented. However, when I made my decision to go H-2A, little did I
know that I was putting myself at a serious competitive disadvantage in
The real Christmas Tree industry faces serious economic challenges
with Chinese produced artificial trees. Labor is the single largest
production expense. I'm one of the few growers who use the H-2A
program--most don't use it because it is too expensive, too litigious
and too burdened with regulations. For example:
1. By using H-2A, I have to pay almost $1,000.00 a year per man,
which covers visa fees, transportation, association costs and
other government fees.
2. By law, the U.S. Department of Labor tells me I have to pay an
``Adverse Effect Wage Rate'', which is $9.02 per hour for 2007.
DOL has raised this wage rate 76% over the last 16 years. I
know now why they call it the ``Adverse Effect'' wage rate--
because it certainly is ``Adversely Effecting'' my family farm.
Non H-2A growers pay around $7.50 per hour!
3. By law, I am required to provide (free of charge) government
inspected housing (including all utilities and repair costs)
and all local transportation. Non H-2A growers don't have to
provide these benefits, their worker's provide it for
themselves--just like American workers have to do every day!
4. By law, I have to pay for workman's compensation insurance for
When you total these expenses my labor cost is at least $14.00 per
hour and climbing every year (and again my competitor pays around $7.50
per hour). It is extremely difficult to farm profitably at these costs.
It is truly contrary to the American way that the farmers who do
things the legal and proper way are punished economically. We should be
heralded, not sued.
What should Congress do to make the H-2A program more workable for
1. Entry-level wages for first time workers should be prevailing
wage and flexibility should be allowed so that loyal, long-term
employees can be rewarded with a higher pay rate set by the
2. Growers and workers should be required to resolve legal issues
through mediation and arbitration before going to court. This
is nothing new--Americans sign these type of contracts every
day, why can't H-2A workers.
3. The bureaucratic process at three Federal agencies (Labor,
Homeland Security, the State Department) must be streamlined &
simplified. Given the current delays with only 50,000 H-2A
workers nationally, drastic structural reforms must be made if
the program is to provide upwards of 1,000,000 workers per year
in the future.
I appreciate the H-2A program and the continuity/stability it
provides on my small family farm. But, I understand why so many growers
are afraid to use this program--it is too expensive, too complicated,
too slow, and too likely to land you in court. Please fix it with true
prevailing wage, required mediation and a streamlined process.
Agriculture, our nation's food supply, and in fact the very security of
our nation depends on Congress getting this right.
Harry B. Yates.
Mr. Mahoney. And with that, we are going to unfortunately
have to adjourn for probably--if you could, be back here in
recess for how long? Two votes? If you could be back in 20
minutes, and we will try to move on quickly. Thank you very
much. We are going to be in recess.
Mr. Mahoney. You want me to continue in the chair, Mr.
Chair? Okay, this is putting a lot of pressure on a rookie.
Okay, we have testimony of three additional people. Let us
start with Mr. Mouw.
STATEMENT OF RANDALL D. MOUW, DAIRY PRODUCER;
CHAIRMAN, DISTRICT 12, CALIFORNIA MILK ADVISORY BOARD, ONTARIO,
CA; ON BEHALF OF WESTERN UNITED DAIRYMEN; DAIRY FARMERS OF
AMERICA; AND NATIONAL MILK PRODUCERS FEDERATION
Mr. Mouw. I want to thank you for holding this hearing and
looking at the labor needs of our farms and ranches. My name is
Randy Mouw. My wife Rose and I milk 1,400 cows in Ontario,
California with 17 employees. One of our sons started his own
dairy 2 years ago, and my other son works for us as Assistant
I am here today on behalf of Western United Dairymen, which
represents more than 1,100 of the 1,800 dairy families in the
State of California, my cooperative, Dairy Farmers America,
which markets \1/3\ of the milk in the U.S. and has member
producers in 48 states and National Milk Producers Federation,
which represents dairy producers and the cooperatives they
The availability of labor on this country's dairy farms is
critical to those in our industry, but has far wider
implications for so many other sectors of the economy. Large
herds or small and in all parts of the country, dairies are
family owned and operated, but additional labor is a must.
Dairy farming is labor intensive, and well trained, outside
labor is a necessity on most farms.
All of the organizations I mentioned earlier are part of
the Ag Coalition for Immigration Reform. This broader based
coalition that has been seeking a fair, sensible, and workable
program to provide labor to our nation's farmers and ranchers
before it becomes a crisis.
Like the Coalition, I believe this issue is about border
security, food security, labor force security, and economic
security. Immigration reform is a must for U.S. agriculture. I
can tell you from my own experience that not one person that
has worked on my dairy in the last 5 years has been born in
And this is not a matter of cheap labor. I would invite any
Member of Congress who believes that to come and walk just a
day in my shoes. The jobs on my dairy are year round,
relatively high paying, and we provide a number of benefits
including health care, bonuses, and opportunities for
advancement. No, it is not a matter of wanting cheap labor. It
is a matter of having any labor at all.
Let me add here early and emphatically that I am a strong
supporter of the effective border security, as is every other
dairy farmer I know. People should not be coming to this
country illegally, but it is the responsibility of this
Congress to find political, viable solutions and enact them.
The farmers I know would also like to see recognition by
the Congress that this is nothing less than a food security
issue for our country. The headlines of the day tell us we are
too dependent on other countries for oil, and we don't want to
go down that road with being food dependent as well. Sure, our
food can be produced elsewhere. The question is why would we
make that choice?
We also read about outsourcing and jobs leaving this
country. I have already been asked to relocate to China with my
business. Without sensible immigration reform, the outsourcing
of our food production and processing is a very real
possibility. Is that what consumers really want? By all
accounts, border and port agents inspect only a very small
percentage of food shipments coming into the country, while
every tanker load of milk I ship is tested. Every animal I sell
is inspected for safety and quality. Consumers can take a great
amount of reassurance for so rigorous a system.
Farmers all across the country have supported several
attempts by the Congress to enact comprehensive immigration
reform. For many reasons, that has not happened. I am here
today to join with other witnesses at this hearing to encourage
Congress to enact what is achievable: to improve labor force
security by providing a sensible, fair, and workable program
for a legal immigrant agricultural workforce.
Jobs on dairies are year round. You have heard this before,
but I am going to say it again. The H-2A Program does not work
for dairy. Like many dairymen, I milk my cows three times a
day, and that means there is a harvest on my farms three times
a day, 365 days a year. The H-2A Program, on top of all the
other issues raised today, requires both the worker and the job
to be seasonal and temporary. We gave up seasonal dairy in this
country 50 years ago, and that is part of why we are the most
competitive volume milk producing country in the world.
For dairy, there are three key principles that must be
included in the legislation solution. One, an affordable and
efficient guest worker program that ensures the continued
availability of immigrant labor for all of agriculture,
including dairies. Two, a provision that allows those currently
employed or with recent employment history in the U.S. to earn
the right to work here legally regardless of their current
legal status. Three, a provision that specifies the
responsibility for ultimate verification of legal status of a
worker by the government, not with employers.
I have workers at my dairy who have been with me for more
than 15 years. In addition to enjoying relatively high paying,
year round jobs with some benefits, many of them perform work
that requires a significant amount of training and skill. The
cows must be well cared for or milk quality suffers, and my
culling rate goes up, both with negative effects on my bottom
Milk is also one of the most perishable foods produced in
this country. It cannot be stored for long periods on the farm
or waiting for a better price or labor to harvest it. The jobs
on my dairy working with cows and equipment are not for
amateurs. Well trained workers are simply a necessity on my
dairy, and nearly all other dairies in the country, every day
of the year.
Farms also provide open space, and that is very important
in my part of southern California. When a dairy farm goes out,
houses and parking lots come in. Milk production in California
is the largest industry in the state. It has a farmgate value
last year of nearly $5 billion and contributes $47.4 billion
and 434,000 jobs to the California economy. Average herd size
in California is now about 900 cows, and our dairy farms are
large because there is a large population to supply.
Farm land is expensive so economies of scale are the rule
instead of the exception. Producing a lot of milk is a
necessity in order to cash flow the cost of land, not to
mention the cost of all that corn that California dairy farmers
have to buy from the Midwest each day. That all adds up to the
need for outside labor, but people who were born in this
country do not seem to be interested in jobs on our dairy
farms. So dairymen have turned to those who are willing to do
this kind of work.
Some of my employees have been with me for many years, and
it is the same for most dairymen I know. Some of those
employees are like family to us. I have had employees come to
me for advice on family issues, like how to deal with certain
situations for their kids and where to buy a house. Like all
families, we are dedicated to one thing: getting the job done
for ourselves and our children.
Thank you again for the opportunity to be here today. And
no one in the dairy business has set out to break the law.
Dairy farmers need labor, and seeing an unmet need, workers
have come here for an opportunity. What we need now is an
enforceable law that provides a workable solution to this
problem this year. Nothing less than the food security of this
nation and the economic health of rural communities are at
stake. Thank you.
[The prepared statement of Mr. Mouw follows:]
Prepared Statement of Randall D. Mouw, Dairy Producer; Chairman,
District 12, California Milk Advisory Board, Ontario, CA; on Behalf of
Western United Dairymen; Dairy Farmers of America; and National Milk
Good afternoon Chairman Peterson, Ranking Member Goodlatte and
Members of the House Agriculture Committee. I want to thank you for
holding this hearing to look into the labor needs on our nation's farms
and ranches. While I'm told we are not here to take an in-depth look at
any specific legislation, I am happy to be here to add my voice to
those calling for a Federal legislative solution to the single most
difficult challenge facing food production in this country today.
My name is Randy Mouw. My wife Rose and I milk 1,400 cows in
Ontario, California with 17 employees. One of our sons started his own
dairy 2 years ago and another son is the assistant manager on our
dairy. I am here today on behalf of Western United Dairymen, which
represents more than 1,100 of the 1,800 dairy families in the State of
California; my cooperative, Dairy Farmers of America, which markets \1/
3\ of the milk in the U.S. and has Member producers in 48 states; and
National Milk Producers Federation, which represents dairy producers
and the cooperatives they collectively own. NMPF member cooperatives,
including DFA, market about 70% of the milk in the country.
The availability of labor on this country's dairy farms is critical
to those in our industry, but it has far wider implications for so many
other sectors of the economy. Large herds or small, and in all parts of
the country, dairies are family owned and operated, but additional
labor is a must. Dairy farming is labor intensive and well trained
outside labor is a necessity on most farms.
All of the organizations I mentioned earlier are part of the
Agriculture Coalition for Immigration Reform, the broader-based
coalition that has been seeking a fair, sensible and workable program
to provide labor to our nation's farmers and ranchers before it becomes
a crisis. Like the Coalition, I believe this issue is about border
security, food security, labor force security and economic security.
Immigration reform is a must for U.S. agriculture because I can
tell you from my own experience that not one person who has walked on
my dairy looking for work in the past 5 years is a person who was born
in this country. And based on my conversations with other dairymen,
they will tell you the same story.
This is not a matter of cheap labor, either. I would invite any
Member of Congress who believes that to come and walk just a day in my
shoes. The jobs on my dairy are year-round, relatively high paying and
we provide a number of benefits including--health care, bonuses, and
opportunities for advancement. No, it's not a matter of us wanting
cheap labor--it is a matter of us having any labor at all.
Let me add here early and emphatically that I am a strong supporter
of more effective border security as is every other dairy farmer I
know. People should not be coming to this country illegally. But the
fact is people are coming to this country, sometimes legally, sometimes
not, in search of an opportunity for a better life. And ordinary U.S.
citizens, including small businessmen like me, cannot be put in the
position of being made ``la migra,'' or the ``immigration police,''
responsible for sorting the real documents from the fake ones. It is
the responsibility of the Congress to find politically viable solutions
and enact them.
The farmers I know would also like to see recognition by the
Congress that this is nothing less than a food security issue for our
country. The headlines of the day tell us we're too dependent on other
countries for oil; we don't want to go down the road of being food
dependent as well. Sure, our food can be produced elsewhere. The
question is why would we make that choice? We also read about
outsourcing, and jobs leaving this country. I have already been asked
to relocate to China, with my business. Without sensible immigration
reform, the outsourcing of our food production and processing is a very
real possibility. Is that what consumers really want?
By all accounts border and port agents inspect only a very small
percentage of food shipments coming into this country while every
tanker load of milk I ship is tested and every animal I sell is
inspected for safety and quality. Consumers can take a great amount of
reassurance from so rigorous a system.
Farmers all across the country have supported several attempts by
the Congress to enact comprehensive immigration reform. For many
reasons, that has not happened. I am here today to join with other
witnesses at this hearing to encourage the Congress to enact what is
achievable--to improve labor force security by providing a sensible,
fair and workable program for a legal immigrant agricultural workforce.
Jobs on dairies are year-round. You have doubtless heard this
before but I must say it again--the H-2A program does not work for
dairy. Like many dairymen, I milk my cows three times per day. That
means there is a harvest on my farm three times a day 365 days a year,
weekends and holidays included. The H-2A program, on top of all the
issues others have raised about it here today, requires both the worker
and the job to be seasonal and temporary. We gave up seasonal dairying
in this country 50 years ago and that is part of why we are the most
competitive volume milk producing country in the world.
Something else we gave up in this country many years ago is asking
job applicants certain questions because of what they look like. I
don't know the residency status of my workers because our anti-
discrimination laws prevent me from asking. Let's not return to those
bad old days now.
For dairy, there are three key principles that must be included in
a legislative solution: (1) an affordable and efficient guest worker
program that ensures the continued availability of immigrant labor for
all of agriculture, including dairies; (2) a provision that allows
those currently employed or with recent employment history in the U.S.
to earn the right to work here legally, regardless of their current
legal status; and (3) a provision that specifies the responsibility for
ultimate verification of the legal status of a worker lies with the
government, not with employers.
I have workers at my dairy who have been with me for more than 15
years. In addition to enjoying relatively high paying year-round jobs
with some benefits, many of them perform work that requires a
significant amount of training and skill. The cows must be well cared
for or my milk quality suffers and my culling rate goes up, both with
negative effects on my bottom line. And mechanization is not an option
for all jobs on dairies. Cows must be monitored at calving and young
calves need specific kinds of care. Robotic milking machines may work
for some operations but the technology still needs to be perfected and
the cost to purchase and install them must come down significantly for
them to be a viable option on a large dairy.
Milk is also one of the most perishable foods produced in this
country. It cannot be stored for long periods on the farm awaiting a
better price or labor to harvest it. The jobs on my dairy, working with
cows and equipment, are not for amateurs. Well-trained workers are
simply a necessity on my dairy and nearly all other dairies in the
country every day of the year. Farms also provide open space. That is
very important in my part of southern California. When a dairy farm
goes out, houses and parking lots come in.
Milk production in California is the largest sector of the largest
industry in the state. It had a farmgate value last year of nearly $5
billion and contributes $47.4 billion and 434,000 jobs to the
California economy. Average herd size in California is now about 900
cows. Our dairy farms are large because there is a large population to
supply. And farmland is expensive so economies of scale are the rule
instead of the exception. Producing a lot of milk is a necessity in
order to cash flow the cost of the land, not to mention the cost of all
of that corn that California dairy farmers buy from the Midwest each
day. That all adds up to the need for outside labor. But people who
were born in this country do not seem to be interested in jobs on dairy
farms so dairymen have turned to those who are willing to do this kind
Some of my employees have been with me for years. It's the same for
most dairymen I know and some of those employees are like family to us.
I have had employees come to me for advice on family issues like how to
deal with certain situations with their kids and when and where to buy
house. Like all families we're dedicated to one thing--getting the job
done for ourselves and our children.
Thank you again Chairman Peterson, Ranking Member Goodlatte, my
Congressman, Representative Joe Baca, and the other Members of the
Agriculture Committee. No one in the dairy business has set out to
break the law. Dairy farmers need labor and, seeing an unmet need,
workers have come here for an opportunity. What we need now is an
enforceable law that provides a workable solution to this problem this
year. Nothing less than the food security of this nation and the
economic health of rural communities are at stake.
Mr. Mahoney. Thank you, Mr. Mouw. Mr. Atkinson.
STATEMENT OF KEITH ATKINSON, PRESIDENT, VIRGINIA
AGRICULTURAL GROWERS ASSOCIATION; APPLE AND
TOBACCO PRODUCER, JAVA, VA
Mr. Atkinson. Good afternoon, Mr. Chairman, Ranking Member
Goodlatte, and other Members of the Committee. My name is Keith
Atkinson. Along with my wife and four children, two of whom are
in college, two to enter college soon, I own and operate a
family farm in Southside, Virginia.
Were it not for the H-2A Program, we would be unable to
farm at all. However, this program has become so burdensome and
costly it is threatening our ability to continue.
I am also President of the Virginia Agricultural Growers
Association, an association of Southside, Virginia family farms
formed nearly 30 years ago to share the expense of complying
with the guest worker program. In 1998, our association has 579
farm members. Today, we only have 270 left. Many of our farmers
quit farming because they were unable to meet the H-2A Program
burdens, among them, the so-called Adverse Effect Wage Rate.
AEWR rates are much higher than area prevailing rates.
Every year, the AEWR increases on a percentage basis. Our AEWR
minimum wage went from $8.51 to $9.02 effective February 21,
2007. That is 6 percent. Incidentally, this is over ten times
the wage rate these H-2A guest workers could earn in Mexico. In
the future, H.R. 1792 ties H-2A wages to actual prevailing
wages in similar jobs. H.R. 1792 corrects an additional
obligation several courts have imposed on agriculture,
particularly guest worker programs.
Under this erroneous view, when workers are paid their
wages for the first week of employment after relocation to
accept employment, they must be reimbursed their relocation
transportation cost from their homes to the extent those costs
would otherwise cut into the worker's minimum wages for that
first week, as required by the Fair Labor Standards Act of
1935. There is no principal reason, no applicable FLSA
exemption, special clause to treat agriculture or the temporary
worker program differently than any other employment.
Current Internet advertisements for applicants for jobs
with the United States Houses of Representative plainly state,
``transportation and all related travel expenses associated
with interview and hiring process must be paid by the
applicant. Moving and related relocation expenses are not
available.'' I am puzzled as to why farm operations are held to
different standards than our own government is.
Under the previous H-2A Programs, several courts ruled that
the Department of Labor could only enforce a requirement still
applicable in the H-2A Program that farmers reimburse
relocation expenses once workers work 50 percent of the period
they agree to work. You will see that nobody ever argued that
FLSA requires first paycheck transportation reimbursement to
avoid a minimum wage violation. Any adverse ruling, while not
law, tends to have the same effect as law.
Growers have been attempting to obtain an opinion letter
from DOL's Wage and Hour Division on the transportation
reimbursement and related issues since 1992. Without
fulfillment of the Administrator's responsibility to issue
formal opinions, and passage of H.R. 1792, that recognizes that
jobs equally benefit workers and employers; the government and
many employers including growers are in jeopardy of an adverse
court ruling on the relocation expense issue.
As small farmers with limited resources, we are totally
defenseless against every non-meritorious lawsuit and wage hour
claim, every unfairly changed legal interpretation of old rules
by a DOL official.
We therefore must turn to our elected representatives for
help. H.R. 1792 also contributes to good immigration policy.
Seventy-five percent or more of the workers our association
members employ have been coming here for 10 years or more and
returning home every year in accordance with H-2A regs. They
are not part of an illegal workforce.
The really hard question for this Committee and for the
entire Congress is are we going to have labor-intense
production agriculture that requires guest workers in America
in the future? If so, the rest is easy. Congressman Goodlatte
has already done it for you. If not, I feel this Committee owes
us the courtesy of telling us so we can find another line of
Mr. Chairman, I would invite every Member of this Congress
to take a trip along the area just east and west of the
Allegheny Mountain chain that extends from the Northeast
through the Mid Atlantic to Florida and all of middle America.
Take in all those beautiful vistas that you will see. The mix
of hard woods and evergreens, neatly planted and maintained
crops, vineyards, and orchards growing in geometric patterns on
those gently rolling hills.
I want you to take a close look, and I want you to take
camera because if some serious changes are not made here in
this Congress, I can assure you that view and that part of the
American economy will be gone forever in a very few years.
Thank you for your attention.
[The prepared statement of Mr. Atkinson follows:]
Prepared Statement of Keith Atkinson, President, Virginia Agricultural
Growers Association; Apple and Tobacco Producer, Java, VA
Good morning Mr. Chairman, Ranking Member Goodlatte, and other
Members of the Committee:
My name is Keith Atkinson. Along with my wife and four children,
two of whom are in college, two to enter college soon, I own and
operate a family farm in Southside, Virginia. Were it not for the H-2A
guest worker program, broken, costly, and perilously litigation-prone
as it is, we would be unable to farm at all.
I also serve as President of the Virginia Agricultural Growers
Association (VAGA), an association of Southside, Virginia family
farmers formed nearly 30 years ago to share the expenses of completing
legally required procedures to obtain temporary foreign workers. In our
rural areas, we already could not locate enough U.S. workers--local
workers or Americans from other areas--who were willing to work during
our peak periods when we could not handle the intense labor needs of
our farms with our families and a handful of year-round employees.
When George Vanderbilt decided to build the grandest home ever
built in America--The Biltmore--he needed guest workers from abroad.
When Franklin Roosevelt learned there were not enough able workers left
in America to produce the food we needed to feed our people at home and
troops during World War II, he started what has become the critically
needed, but very cumbersome, very burdensome guest worker program that
today is known as the H-2A Program. I doubt either could have
envisioned the quagmire that American agriculture and small family
farms face with the red tape required in today's H-2A Program.
We still need a guest worker program for agriculture, and I
therefore urge the passage of the Temporary Agricultural Labor Reform
Act of 2007, H.R. 1792, sponsored by Congressman Goodlatte and others
whose efforts are much appreciated.
Once a farmer goes out of business, our experience is that our
local and national economies and our agricultural production capability
have lost that farm capacity forever. Compared with 1998 when our
Association had 579 farm members, today we have fewer than \1/2\--just
270 farms. One of the most frequently cited reasons our region's
farmers go out of business is that they simply cannot continue under
the burdens of the current H-2A Program--among them the substantially
higher hourly wage rates we must pay than prevail in our rural areas,
even for skilled year-round jobs. For example, in my locale, skilled,
year-round welders make $10.00 an hour, whereas I must pay $9.02.
(Incidentally, this amount is more than ten (10) times the wage rate
these H-2A workers could earn in Mexico.) Moreover, I know one day next
February or March, the Department of Labor (DOL) will publish an
immediately applicable new minimum wage--what's called an Adverse
Effect Wage Rate or AEWR--that may be substantially higher. My farm's
AEWR minimum wage went from $8.51 to $9.02 effective February 21, 2007,
whereas the Fair Labor Standards Act (FLSA) minimum wage for the rest
of America went from $5.15 to $5.85 in July--that's a difference of
$3.17 an hour.
I know you will understand the effect of percentage wage increases
over time. The AEWR base and methodology for increases were established
years ago. Over time, as the AEWR has been increased simply based on
percentage increases in overall agricultural pay, the DOLLAR difference
between actual prevailing wages and the AEWR has increased
substantially. Just one of the important improvements H.R. 1792 makes
is to tie H-2A wage rates to actual prevailing wage rates in similar
On top of these wages, we also must provide free worker housing and
utilities, bedding, and kitchen equipment, free transportation to and
from work every day and to the grocery store, and many other employment
benefits that no other American employers are required by law to
provide their employees.
Besides these terms and conditions that come from regulations
adopted by the United States Department of Labor, there are additional
obligations that courts have imposed that we believe are not required
under the FLSA. One such requirement is that at the time workers are
paid their wages for their first week of employment, they must be
reimbursed their incoming transportation costs from their homes in
Mexico, to the extent those costs would otherwise cut into the workers'
FLSA minimum wages for the hours they worked that first week. This
requirement has been imposed even though the H-2A regulations expressly
provide that such expenses are not owed unless and until workers
complete \1/2\ of the period they have agreed to work for an employer.
This so-called Arriaga requirement, named for the case holding that
such an FLSA requirement exists, has not generally been applied yet
outside agriculture or even outside the temporary worker program, but
there is no principled reason--no applicable exemption or special
clause--to treat agriculture or the temporary worker program
differently under the FLSA. I am puzzled as to why farm operations are
held to different standards than our own government is held under its
official personnel policies.
You may be interested to know that despite Congressional adoption
of the FLSA requirements to employees of the Congress, the current
Internet advertisements for applicants for jobs with the United States
House of Representatives plainly state:
``Transportation and all related travel expenses associated
with the interview and hiring process must be paid by the
applicant. Moving and related relocation expenses are not
available.'' See http://www.house.gov/cao-hr/welcome.shtml
Indeed, the Federal Office of Personnel Management authorizes
agencies of the United States government to offer relocation payment
assistance to employees only in limited circumstances. When such
payments are authorized, they are designated as a bonus, not as part of
the regular wage. These extra payments to defray relocation expenses
are not owed as a right under the FLSA at the same time an employee's
wages are paid for the first workweek but only after the employee has
entered ``into a written service agreement to complete a period of
employment with the agency, not longer than 4 years.'' See 5 U.S.C.
5753 (c)(1) and 5753 generally and 5 C.F.R. Parts 572 and 575. See
I submit to you that these stated-written-policies of the House of
Representatives are in compliance with the FLSA and with the employment
policies of the vast majority of American employers who, like the House
of Representatives, have no legal obligation to reimburse any
relocation travel expenses.
In numerous judicial proceedings under the predecessor H-2 Program,
the Courts ruled that DOL could not require farmers to advance guest H-
2 workers the costs of transportation from their homes to their U.S.
employers but could only enforce an existing requirement that farmers
reimburse relocation expenses once workers had worked 50% of the period
they had agreed to work. Growers had shown the courts data that
demonstrate what we are experiencing--too many workers collect
transportation reimbursement and disappear, thereby adding to the ranks
of illegal workers. I will be glad to provide the case decisions, and
if you study these cases, you will see that nobody ever argued that the
FLSA requires first paycheck transportation reimbursement to avoid a
minimum wage violation.
H.R. 1792 also corrects this Arriaga problem.
This matter is of critical importance to all employers. Growers
have been attempting to obtain an authoritative Opinion Letter from the
Administrator of DOL's Wage and Hour Division on the transportation
reimbursement and related issues since 1992. We understand there have
been other such requests in the last 15 years. A detailed analysis of
the issues and law and a renewed request was submitted since last year.
Besides favorable action on H.R. 1792, we also ask that this Committee
use its good offices to encourage the Administrator to complete any
necessary ``clearance review'' process on these issues that may include
consultation with the Office of the Solicitor of Labor and issue an
Opinion. Even if there are internal delays outside the Office of the
Administrator, at some point the Administrator should fulfill the
interpretative responsibility resident in that Office under statute and
issue a formal Opinion. Without fulfillment of the Administrator's
responsibility and passage of H.R. 1792, which recognizes that jobs
equally benefit workers and employers, our government--including the
Congress-growers, and in fact all employers are in jeopardy of a court
ruling that their policies of not paying employees' relocation expenses
In addition to urging adoption of H.R. 1792, I respectfully urge
that this Committee restate its intent to retain a key requirement of
the existing H-2A program: that the Department of Labor must consult
with the United States Department of Agriculture and the United States
Attorney General before issuing regulations to implement the H-2A
Program. See Section 301(e) of P.L. 99-603, as amended, P.L. 100-525,
Section 2(l)(4), October 24, 1988, 102 Stat. 2612. Meaningful
consultation, of course, requires more than a delivered copy of what
will be published in the Federal Register the next day; meaningful
consultation requires a willingness to explain why a provision or
change is necessary or desirable and to consider alternatives, among
many other points.
We also ask that this Committee express its concerns about the
failure of the DOL to fulfill applicable statutory mandates. First, it
must consult with the USDA and the Attorney General. Second, in
accordance with the Administrative Procedure Act, it must and publish
proposed new regulations and material changes in interpretations of old
regulations in the Federal Register if it moves forward with what its
representative announced to Florida farmers last week would be new
requirements in a number of areas under the H-2A Program.
Just one example is that in the future, DOL will take the position
that a farmer has waived his right to enforce a minimum production work
standard if it allows a worker who has not met the standard, but who is
trying hard and getting better, to continue working.
Another example: DOL will take the position that a friend or
retiree who is willing to help out in an H-2A certified job 1 day a
week or a few hours on Saturday must be treated as a full-time worker
in all respects: that means that he and I would have to pretend that I
had offered him work so many hours a day every day and that he had
declined those hours; I would have to keep meticulous records of hours
of work offered above and up to the guaranteed workday and undertake
many other obligations as though he were a full-time worker OR ELSE,
DOL will take the position that I owe that part-time--when he wants to
or is willing to work--friend wages for \3/4\ of the work hours I have
guaranteed H-2A and U.S. workers I have hired to work full-time for the
There is simply not time to explain in detail the very complex
rules we already operate under that no other employers must meet. H.R.
1792 addresses some of these unnecessary rules that are unfair. Still,
all of the work of the Congress can be subverted by such new
interpretations and new rules as we understand were just announced last
week in Florida. While those of us who had friends who were at the
meeting may be able to learn what our friends heard and can tell us,
that's just no way to announce public policy.
As small farmers we cannot afford lawyers to help us resist--we are
virtually defenseless against--every non-meritorious lawsuit and Wage-
Hour claim and every unfair, even unlawful, change in interpretation by
a Department of Labor official who may not know how particular rules
have been interpreted and applied--in many cases for decades. We
therefore must turn to our elected representatives for help.
The question that the Committee needs to ask and the decision it
needs to make is whether or not we are going to have labor intense,
production agriculture in America in the future. If we are to be able
to do so, we need passage of H.R. 1792 as a step in the right
direction. If not, then the Committee needs to tell us so we small
farmers can look for other work and hope that we will be able to afford
and find safe, imported food.
There is another important part of H.R. 1792 that I believe would
contribute to good immigration policy. About 75% of the workers our
Association's members employ have been coming here for 10 years or more
and returning home to Mexico every year. They are not part of an
illegal workforce. These workers use the money they earn here to build
homes in Mexico and to educate their children.
Finally, even to achieve these high objectives, if these workers
weren't being treated fairly in connection with their work, no
reasonable person could think they would be coming here 10 and more
years. A better H-2A Program is important to all of these workers as
well as to farmers like me, who need it to be able to continue farming,
as well as to our communities and our nation. Thank you very much for
Mahoney. Thank you very much, Mr. Atkinson. Mr. Roth.STATEMENT OF RICK
ROTH, PRESIDENT AND PRINCIPAL OWNER, ROTH FARMS, INC.; VICE PRESIDENT
AND MEMBER, BOARD OF DIRECTORS, FLORIDA FARM BUREAU; MEMBER, BOARD OF
DIRECTORS, FLORIDA FRUIT AND VEGETABLE ASSOCIATION; MEMBER, BOARD OF
DIRECTORS, SUGAR CANE GROWERS COOPERATIVE OF FLORIDA, BELLE GLADE, FL
Mr. Roth. Yes, sir. Good afternoon. My name is Rick Roth. I am a
third-generation farmer from Belle Glade, Florida. My father moved from
Cleveland, Ohio in 1949. I farm the Everglades agricultural area, which
is 800 square miles of some of the richest organic soils in the United
States south of Lake Okeechobee.
This region of Florida is first in the production of sugar, sweet
corn, and radishes. Our family, as I mentioned before, owns over 4,000
acres, leases another 1,000 acres, and we grow lettuce and leafy
vegetables, radishes, sugar cane, sod, sweet corn, green beans, field-
grown palm trees, and rice. We employ 55 people full time, and plus we
have another 220 seasonally.
I serve on many boards, but I just really appreciate the
opportunity to be here today. And I have enjoyed listening to some of
the comments, but I would also like to explain why we must pass some
meaningful immigration reform legislation immediately. And I ask you to
please share this information that I am going to give you with your
colleagues on both sides of the aisle so that we can get this done.
We do live in perilous times. We are at war with terrorism, and we
must prevent illegal immigration into this country. But just as
important, we must also simultaneously give employers like me the
ability to use legal, foreign workers.
Why? Because domestic food protection is the other national
security issue. Fruits and vegetables and other labor intensive crops
make up over 50 percent of our agricultural production today. Foreign-
born workers will plant, cultivate, and harvest the crops that make up
most of our food supply.
So will they do it here using our food safety guidelines; or will
they be in another country? So do you want to import labor to fill the
jobs needed, or do you want to import just more food? We already import
over 50 percent.
I live in Florida. When you say Florida, most visitors think of
Mickey Mouse, but if you want to see real-world marvels, you need to
come to Belle Glade. You will see hi-tech agriculture that produces
crops year round using fewer new nutrients, water, and chemicals per
unit of production than any other place in the United States. And I
will personally give you the farm tour, and my opening statement will
be, ``Welcome to paradise.''
One of the keys to the success of farming in the EAA is our ability
to farm year round and to maximize production through crop rotation.
Without an adequate legal labor force, we jeopardize that vegetable
industry, which produces on 25,000 acres of sweet corn, 10,000 acres of
green beans, 7,000 acres of lettuce, and 5,000 acres of radishes with
an annual average net value of $150 million a year.
Our family farm is one of 50 members of Sugar Cane Growers
Cooperative, one of the most successful co-ops in the United States.
And for the first 30 years of our 45 year existence, we relied
primarily on H-2A workers to harvest our sugar cane. Now, all the
burdensome regulations of the H-2A Program, including farm worker
housing and higher labor costs make this program a matter of last
The most onerous part was the farm worker housing. Now, due to the
current situation, capital costs, county zone and permitting
requirements, and negative public opinion, it will take many years for
employers to move to H-2A for their labor needs. So to use this
program, we must have this meaningful reform, but it is clearly not
We must provide a means for the current, experienced, agricultural
workers to earn legal status, subject to conditions that will require
them to work in agriculture.
Now, when we talk about jobs in Florida, we talk about the three-
legged stool: tourism, agriculture, and construction. Our economy in
Florida is already in a recession due to the doubling of prices of
houses, and I just cannot imagine what the degree of devastation to the
economy will be in Florida, but I can assure you that you can send the
U.S. economy into a depression if we deny employers access to a legal
Please remember that agriculture is not the largest user of
seasonal labor. We are just the most visible.
As I complete my statement, I would like to change the focus
towards you. In the past, legislation with H-2A reform and earn
adjustment of status provisions have enjoyed broad bipartisan support.
Today this issue is very emotional and controversial.
Thank God that our founding fathers did not create a true democracy
but instead a representative form of government. So it is your duty to
ignore all the hype and emotion, sift through all the opposing ideas
and options, and come up with a solution that will move this country
In closing, I say this. I play doubles tennis. The winning strategy
there also applies here. Down the middle, solve the riddle. I want to
thank you for this opportunity, and I look forward to answering any
questions. Thank you.
[The prepared statement of Mr. Roth follows:]
Prepared Statement of Rick Roth, President and Principal Owner, Roth
Farms, Inc.; Vice President and Member, Board of Directors, Florida
Farm Bureau; Member, Board of Directors, Florida Fruit and Vegetable
Association; Member, Board of Directors, Sugar Cane Growers
Cooperative of Florida, Belle Glade, FL
Good morning. My name is Rick Roth. I am a third generation farmer
from Belle Glade, Florida. I have been the President and Principal
Owner of Roth Farms, Inc. since 1986. I have the most diversified
farming operation in the Everglades Agricultural Area, 800 square miles
of rich organic soils south of Lake Okeechobee. This region of south
Florida is first in the production of sugar, sweet corn, and radishes
in the United States. Our family owns over 4,000 acres, and leases
another 1000 acres. We grow lettuce and leafy vegetables, radishes,
sugar cane, sod, sweet corn, green beans, field grown palm trees, and
rice. We employ 55 people full-time, plus 220 seasonally.
I currently serve on the Board of Directors of the Florida Farm
Bureau (10 years), the Florida Fruit and Vegetable Association (21
years), and Sugar Cane Growers Cooperative of Florida (13 years). I am
the Vice President of Florida Farm Bureau, and this is my 7th year of
I appreciate the opportunity to explain why we must pass
immigration reform legislation immediately and ask that you share the
information that you learn at this hearing with your colleagues on both
sides of the aisle . . . We live in perilous times. We are at war
against terrorism. We must prevent unwanted illegal migration into our
country. But, just as important, we must simultaneously give employers
like me the ability to use legal foreign workers. Why? Because domestic
food production is the other national security issue.
Fruits and vegetables and other labor-intensive crops make up 50%
of our agricultural production today. Foreign born workers will plant,
cultivate, and harvest the crops that make up most of our food supply.
Will they do it here, using our food safety guidelines, or in another
country? Do we want to import labor to fill unwanted farm labor jobs,
or do we import more of our food supply. We already import over 50%.
I live in Florida. When you say Florida, most visitors think
Mickey. If you want to see real world marvels, come to Belle Glade. You
will see high tech agriculture that produces crops year-round, using
fewer nutrients, water, and chemicals per unit of production than
anywhere in the United States. I will personally give you the tour, and
my opening statement will be, ``Welcome to PARADISE''.
One of our keys to success in the EAA is our ability to maximize
production with fewer chemicals through crop rotation. Without an
adequate legal labor force, we jeopardize our vegetable industry, which
produces approximately 25,000 acres of sweet corn, 10,000 acres of
green beans, 7,000 acres of lettuce, and 5,000 acres of radishes per
year with an annual value of $150 million.
Our family farm is one of 50 members who own one of the most
successful cooperatives in this country, Sugar Cane Growers Cooperative
of Florida. For the first 30 years of our 45 year existence, we relied
primarily on H-2A workers to harvest sugar cane. All the burdensome
regulations of the H-2A program, including farm-worker housing, and
higher labor costs make this program a matter of last resort. The most
onerous part of H-2A is farm-worker housing. Due to capital costs,
county zoning and permitting, and negative public opinion, it will take
many years for employers to move to H-2A for their labor needs. To use
this program, we must have meaningful reform. But H-2A alone is clearly
not enough. We must provide a means for the current experienced
agricultural workforce to earn legal status subject to conditions
including a future agricultural work requirement.
Such a proposal is essential to solve both the short and long-term
agricultural labor crisis. We need the earned status provisions as a
bridge to greatly expanded use of the H-2A program. It will provide the
much needed time to build the housing required of users of the H-2A
program and will allow our government to expand its consular offices in
foreign countries so that they can process foreign workers for
admission in a timely manner. Currently, with less than 2% of the
agricultural workforce entering under the H-2A program, growers are
experiencing harmful delays in getting their workers in a timely manner
to harvest highly perishable crops.
When we talk about jobs in Florida, we talk about the three-legged
stool: Tourism, agriculture, and construction. Our economy in Florida
is in a recession due to the dramatic increase in housing prices. New
home sales are at a standstill, and the forecast for over a year is it
will take 2 years to work our way out of the over-supply. I feel the
impact. Our wholesale sod sales are down 50% from a year ago. I can not
imagine the degree of devastation that will occur in Florida, but I can
assure you we can send the U.S. economy into a depression if you deny
employers access to a legal workforce. Agriculture is not the largest
user of seasonal labor; we are just the most visible.
As I complete my statement I would like to change the focus of my
remarks towards you. In the past, legislation with H-2A reform and
earned adjustment of status provisions has enjoyed broad bipartisan
support. Today, this issue is very emotional and controversial. Thank
God that our founding fathers did not create a true democracy, but
instead a representative form of government. It is your duty to ignore
all the hype and emotion, sift through all the opposing ideas and
options, and come up with a solution that will move this country
I play doubles tennis. The winning strategy there also applies
here. ``Down the middle, solve the riddle''. Thank you for giving me
this opportunity and I would be happy to answer questions later, if
Mr. Mahoney. All right. Thank you, Mr. Roth. And as all the
Members of Congress rush to the airport, I know that there are
people that are here that have flights, but I do want to ask a
question or two, and we can conclude this.
You know at the beginning, we were talking about the fact
that the Department of Homeland Security and the Social
Security Administration are changing their policy with regards
to these No-Match letters. And I would like to hear from the
growers really quickly in a couple of sentences what the impact
would be of this policy change to your businesses. We will
start with Mr. Carnes.
Mr. Carnes. Right now, the estimates are out that Texas has
over \3/4\ of a million employees that are going to be affected
by No-Match. The fact of the matter is for us as agricultural
people, we have key experienced, trained personnel that we
don't know. The fact is we really don't know what their status
Mr. Mahoney. But the question I am asking you is that if
they change this policy, does it impact your ability to get
access to labor right away, or is this something that is going
Mr. Carnes. I think it will affect our existing labor force
right away. Yes, I think we will lose a lot of key personnel
that we have no idea that the documents they have may not be
Mr. Mahoney. Mr. Smoak?
Mr. Smoak. The impact will be significant, and it will be
Mr. Mahoney. Well, that was brief. He must have a flight.
Mr. Yates. I am an H-2A user, so there would be no----
Mr. Mahoney. No issue for you? Mr. Mouw?
Mr. Mouw. Already with the letter that we get from Social
Security saying they don't match already does things with the
employees--I say you can't work here unless it is legal. If it
matches--if it doesn't match, I can't have you. So I already do
Mr. Mahoney. Yes, and Mr. Atkinson.
Mr. Atkinson. There would be no impact. We use H-2A.
Mr. Mahoney. H-2A, right. And, Mr. Roth?
Mr. Roth. I have a couple of comments. The first one is----
Mr. Mahoney. You get one comment.
Mr. Roth. One comment, okay. The impact will be great. I do
have very skilled workers in the lettuce business.
Mr. Mahoney. But would it be immediate?
Mr. Roth. So it would be immediate, but the thing you need
to think about is that these employees will probably shift
jobs, and it is very highly qualified. I can give you a perfect
example back in 2005.
Mr. Mahoney. That is okay. We don't have----
Mr. Roth. You don't have time, okay.
Mr. Mahoney. We don't have time. I am trying to respect
their time. I have another question which is: we are looking at
a couple of options. We have talked about two options today,
the two things that are presented. One is the AgJOBS. Another
is the H-2A Program of which we now know there is 2 percent of
the labor force in agriculture participates in that program.
And yet there is yet a potential third one, which is
comprehensive immigration reform that did not pass out of the
Senate and didn't even get to the House, which would be a
national comprehensive approach to having these people identify
themselves with a system where they could be here with a legal
status in this country.
If you take a look at where this legislation was going,
they were talking about having a system where there would be
the Department of Homeland Security responsibility to identify
these workers and then have some form of biometric card that
would be presented to you all for hiring.
So my question for each of you is of the three choices in
front of you, national comprehensive program, AgJOBS, or H-2A,
what works best for your operations? Mr. Carnes?
Mr. Carnes. I think we are here today to solely focus on
agriculture, and the one reason that agriculture is still in
this fight is because we have been forthright, and we have
worked this issue hard. And we can't afford to quit. Right now,
the best thing out there would be AgJOBS. I am not saying it is
perfect, but we need a comprehensive agricultural solution.
Mr. Mahoney. Okay, thank you.
Mr. Carnes. We have to keep the workers that we have. We
have to have a future path. I am sorry. I could go on.
Mr. Mahoney. We have heard the arguments. Mr. Smoak?
Mr. Smoak. I believe we need the long-term fix to get us
legal workers. That is what we need.
Mr. Mahoney. Mr. Yates.
Mr. Yates. H-2A reform would be the best long-term fix.
Mr. Mahoney. Okay, Mr. Mouw?
Mr. Mouw. I think that H-2A wouldn't work at all. AgJOBS
would be a possibility, but the long-term solution is complete
Mr. Mahoney. Mr. Atkinson?
Mr. Atkinson. H-2A reform.
Mr. Mahoney. And Mr. Roth?
Mr. Roth. We need the AgJOBS because we need to be able to
Mr. Mahoney. Okay, do any of the Members have any
The Chairman. If I could. Mr. Mouw, I was surprised to read
that you had been approached to move your dairy to China.
Mr. Mouw. I happen to live right on the edge of LA, and
there are people that the first dairy they see when they come
to LA to look at the dairies are mine, and they often stop. I
have had people from China, New Zealand, many other countries,
There just happened to be some people who stopped, an
operator from Beijing and two mainland Chinese nationals, one
who works in Chicago, one who works in Beijing, came by and
spent half a day with me asking questions. They just stopped in
and started talking, asking questions and said they really need
producer know-how expertise out there. And they offered to move
me out there because they are really looking to expand their
dairy industry out there and not having very much success very
quickly. But they are going to do it anyway.
The Chairman. All right, thank you.
Mr. Mahoney. Does anybody else have any questions? Let me
just conclude by just taking the privilege of being the chair
of saying that one of the things I love about agriculture is
that the people that represent the industry are the very best
that America has to offer. Hardworking, committed, law-abiding.
And I really commend all of you for working very hard to try to
deal with an impossible situation.
My experience with agriculture amounts to about 40 cows,
and I can tell you that talking to my neighbors what an
impossible task you find yourselves having to deal with all the
time. And I want you to know that you are probably the only
industry that I could think of in America that would have been
so willing to deal with this impossible situation; with an
approach to immigration that has put you in a position of
having to make tough choices between doing the right things,
doing the things that are for the law, and trying to take care
of your families.
And I would just hope that, as an industry, you stand up
for your rights, and you let people know that agriculture is
important because the message here in Congress needs to get
communicated as well.
So I want to thank everybody for being here today. It was a
long day, but your testimony is very critical, and it is going
to be an important part of the debate as we move forward with
what to do in this country with immigration.
With that, I am going to declare this hearing adjourned.
Thank you very much for your time.
[Whereupon, at 3:46 p.m., the Committee was adjourned.]
[Material submitted for inclusion in the record follows:]
Farm Labor Crisis: A New York State Perspective
New York is an agriculture state. Farms encompassed 25 percent of
the state's landscape and generated $3.6 billion for our economy in
2006. Currently, New York State has 7.5 million acres of farmland with
35,000 farms producing a variety of products. New York's leading
commodities include milk, apples, grapes, fresh vegetables, equine, and
New York's strong and diverse agricultural industry is dependent on
a reliable workforce. According to the National Agricultural Statistics
Service, in 2006 there were approximately 32,500 agricultural laborers
hired in the Northeast. New York State employs a vast number of these
It is estimated that a significant and growing percentage of the
workers who come to our farms are illegal and utilizing fraudulent
documents to secure employment. Not only is it hard to distinguish a
fraudulent document from a legitimate document but an employer who
takes action against an individual based on an assumption of false
documents or an illegal status may, in fact, violate the law and can
face charges of discrimination.
This situation puts farm businesses at an increased risk. A raid by
Immigration and Customs Enforcement can cause financial devastation in
an instant. If a labor force is not in place the entire harvest can be
lost and animals' health and welfare compromised.
When conducting immigration enforcement on a farm, agents may not
be aware of sensitive issues like bio-security and animal health. ICE
agents may unknowingly contaminate or spread disease between farms when
bio-security protocols are not followed. Also, if an animal is not
regularly milked on the established schedule it can lead to serious
animal health consequences including disease and severe animal
discomfort. For example, a dairy farm located in western New York had a
worker picked up while he was milking cows during an early morning
shift. Several hours later the farmer discovered the cows, still in the
parlor, with the milking equipment still running and the cows in
There simply must be procedures put into place that provides for
the notification of a farm operator if his or her workers are detained
by ICE and animals are left unattended or workers disappear from the
Farm raids have a human toll as well. Farm employers face possible
fines and jail time if they are found to have knowingly hired illegal
workers. Farm workers are also affected. Due to the fear of enforcement
actions farm workers are driven into the shadows and they are afraid to
access health clinics, child care, and other critical services. Some
farm workers refuse to live in worker housing and choose instead to
sleep in cars hidden in farm fields because of fear.
When farm workers are picked up their children are sometimes left
behind at child care centers. The ever present threat of parents being
separated from their children places tremendous stress on these
families. Parents leave their children in the mornings to go work in
the fields and packing houses and worry every minute if they will be
back together at the end of the day. Such elevated stress levels
adversely impact children's overall health and development. Parents are
avoiding parenting and ESL classes--the very things that can strengthen
their families and communities. Children and families, documented and
undocumented are suffering.
Farmers are also put at risk by disgruntled neighbors. Due to the
nature of a farm businesses and encroaching urban sprawl, neighbors,
who do not always understand sound agricultural practices, may become
disgruntled by the sights, sounds, and smells of a farm operation. ICE
will conduct raids on farms if they are given an anonymous tip as this
provides reasonable suspicion that illegal workers may be employed on
This is no way for a farmer to run a business and it is simply no
way for a farm worker to live.
Because of this risk and the fact that many of our migrant farm
workers are unwilling to return to New York because of increased
immigration enforcement within our state, many employers are turning to
the H-2A Agricultural Seasonal Worker Program. Data collected from the
U.S. and N.Y. Departments of Labor shows that more and more farmers in
New York are utilizing H-2A. In 2004 there were only 120 employers
certified in the program who requested about 2,200 H-2A workers, by
2006 that number had increased to over 200 employers requesting over
3,100 workers. That number is expected to increase once again this
year. Over 275 employers have requested almost 4,000 workers and we are
just now entering our fall harvest season. This trend is likely to
The H-2A program is available to our seasonal growers but does not
address the labor needs of our year round employers, e.g., dairy farms,
vineyards, fisheries, and equine operations. Of even more concern is
that fact that many of our members who do utilize H-2A have experienced
extreme delays in the processing of their applications and in some
instances gross negligence in the handling of their applications. One
particular apple grower's application was lost twice and the farmer is
concerned that his workers will not arrive in time for harvest. Many
other growers have shared similar stories of workers arriving up to a
The H-2A program needs major reforms in order to meet the needs of
New York's agricultural industry. Without H-2A reforms and/or a
comprehensive immigration reform bill or single sector agricultural
labor bill the future of farming in New York is insecure.
A conservative estimate from the Farm Credit Associations of NY
suggests that New York State will lose in excess of 900 farms, $195
million, and 200,000 acres of agricultural production over the next 2
years if current immigration policy is not changed.
Farmers desire a safe and secure homeland, but are also an integral
part of the security of our nation's food supply.
All of the above examples' portray the urgency for immigration
reform. This problem will only grow, and a solution must be found that
recognizes the reality of the future workforce today. We need to set
the politics aside and seek a bill that is bipartisan and solves the
immigration problem for agriculture immediately.
The strength of our family farms depends on immigration reform. Our
farm workers deserve a chance at a better way of living and working.
And the future of our safe, healthy, and local food supply depends upon
a reliable and legal workforce.
Dear Committee Members:
Enclosed are letters that our office has received from South Dakota
agricultural producers and agricultural businesses, regarding the labor
needs of American agriculture. Please consider these letters as written
testimony for today's public hearing at 11 a.m. in the Longworth House
Office Building, to review the labor needs of American agriculture.
Agriculture needs a consistent, stable workforce. Thank you for
your attention to this issue that plagues American agriculture. Please
feel free to contact our office for any further information on this
Amber S. Brady,
General Counsel/Director of Agricultural Policy,
South Dakota Department of Agriculture, Pierre, SD
Dear Committee Members:
I am writing to tell you how important a dependable labor force is
to my agricultural business. I own a large dairy-calf raising business
that was started about 4 years ago. My farm receives about 30 newborn
calves per day. These calves must be bottle fed their first weeks.
Currently, I employ about 15 workers in two shifts per day. This is
very physical hands-on work, and it goes on 16 hours per day, 365 days
of the year.
My community suffers from the lack of a workforce that is young and
able to work in the livestock industry. There are few residents that
are under 40 years of age. Our school had to consolidate 4 years ago
due to lack of children. The majority of the people in my community are
retired senior citizens.
Perhaps you think I don't pay well, or I've never advertised for
help. That's not true. I've advertised with job service and word of
mouth, to no avail. My employees earn $30,000 or more a year. The pay
scale is not what keeps them away. They want banker's hours and no
weekends, and little physical outdoor work. But baby calves need to eat
twice a day on Saturday & Sunday and Christmas Day, as well as the
Most of my workforce hold work visas and come from another country.
My employees that come from other countries enjoy working with
livestock. They take pride in doing their jobs well. I am proud to call
anyone of them a friend and neighbor. If it were not for these people
who work diligently and responsibly, I would not be in business. Yet
the current H&2A visa process limits an ag employee to only 10 months
employment in the United States. Then they must leave. It was developed
for the fruit and vegetable growers. Not all agriculture involves
growing and harvesting crops for a few months a year. Hogs, dairy, beef
feedlots and livestock processing all have year-round labor needs. Many
of these jobs take training and experience they gain with several
months of work. I find I spend \1/2\ of that time training them, only
to have their visa expire and they need to leave. Then, I start the
I have the opportunity to double the size of my calf raising
business in the next few months. That means double the labor I will
need to hire. My biggest obstacle is not the permitting process through
the local and state agencies for a large livestock operation. My
biggest nightmare is wondering if Congress will do something to allow
willing, dedicated foreign workers to fill the jobs on my farm that
people from my community can't or won't take. I need to be able to
access these foreign workers in a timely manner. I need to be able to
train these good people, and then keep them for more than 10 months.
Turnover costs any employer money.
I urge you to support the AgJOBS bill or similar legislation that
addresses the foreign labor force that keeps this country humming.
Support legislation that lets America produce and process its own food.
Someone needs to raise livestock in America. Without the legal &
workable means to utilize a foreign labor force for all types of
agriculture, (when American citizens can't or won't do the work
required to grow, care for, and process our food) we will be dependant
on other countries to feed us and millions of farmers will be out of
business in the United States.
Dear Committee Members:
I am a grain and livestock farmer with a custom harvest business.
My grandfather started the custom harvest business about 55 years ago.
My son now takes a crew to run the wheat harvest from Oklahoma to
Canada. For four generations, we have helped feed America. We also grow
corn, soybeans and wheat on our own land.
For the past 5 years, we have been unable to find enough seasonal
farm labor to keep our farm business going. We now have to depend on
H&2A visa labor, and most of them come from South Africa. Some of our
competitors are hiring H&2A labor from Europe. Not many years ago, our
labor force consisted of high school and college age young people. They
are no longer interested in the physical outdoors jobs we need to fill.
I'm not talking about pitching bundles into the threshing machine on
110 degree days under the blazing sun. We teach our employees to
operate combines, tractors, and trucks with state-of-the-art computer
assisted, air conditioned, GPS equipped, air-ride seats--in machines
that cost up to $250,000. I'm just asking for employees whom we will
teach everything that they need to know on state-of-the-art machinery.
I can't find any American workers to fill these positions.
The H&2A visa process was a workable solution for us until this
spring. I requested six visas to be approved, and at the last minute,
the consulate in their home country failed to approve \1/3\ of the
positions. My son had to leave for Oklahoma without a full crew.
I urge you to support the AgJOBS bill or similar legislation that
addresses the foreign labor force that keeps this country humming.
Support legislation that lets America produce and process its own food.
Without the legal & workable means to utilize a foreign labor force we
will be dependant on other countries to feed us and millions of farmers
will be out of business in the United States. Agriculture needs this.
Dear Committee Members:
The Midwest Dairy Institute is a 2,000 cow dairy farm in eastern
South Dakota owned by the Milbank Community Foundation. We are charged
with two missions: one is to operate this large commercial dairy farm,
and the other is to provide educational services to dairy producers and
Both as an employer and as educators, it has become obvious that
the shortage of legal farm labor has become a crisis that threatens to
destroy our industry. If we cannot find a legal source of quality
employees to work on our farms, this modem and efficient dairy industry
will cease to exist as we know it today.
We offer good pay and benefits but U.S. workers are rarely, if
ever, interested in working on a dairy farm. Our educational programs
designed to train workers for dairy employment are finding no one
interested in a future as a dairy employee. Every dairy producer I talk
to tells me the same thing. There are few if any quality employees
available from the U.S. workforce for employment on dairy farms.
The only way we can staff our farms and keep milking cows is to
hire foreign workers. We hire these workers taking their documentation
at face value, but we know that when ICE raids a dairy farm, many of
the workers assumed to be legal are deported. Every large dairy in the
U.S. lives in fear of ICE coming in and removing enough of their
workers to put them out of business.
The political bickering and turmoil over comprehensive immigration
reform is not even relative to the needs of the dairy industry. I, as a
dairy producer, have no agenda for comprehensive immigration reform. I
need to see an obsolete and unworkable agricultural guest worker
program reformed to fit the needs of modern dairy farming. An H&2A
temporary worker program does not work for an agricultural industry
that harvests milk 24/7/365.
Failure of the U.S. Congress to do something about this critical
labor shortage coupled with increased ICE enforcement will lead to the
destruction of the modern dairy industry. The economic disaster that
will result from that will ripple through our agricultural industries
all the way to the grocery store.
Dairy Farm Complex Manager,
Midwest Dairy Institute.
Dear Committee Members:
I'm a dairyman, hoping to invest in a large dairy in South Dakota.
At the moment, we hold both a county and state permit to build a 2,100
cow dairy near Bruce, SD, in Brookings County.
According to research from the University of Minnesota, (see web
link below), the economic ripple effect of a dairy cow to the local
economy is $13,737 per cow per year. Therefore a dairy of this size
should create an economic ripple effect of $28,847,700 per year.
My concern is that with unemployment so low in South Dakota and no
reform in immigration law, I won't be able to get sufficient qualified
staff for my dairy. This is especially true for veterinary staff. Last
year, only 80 large animal vets graduated in the U.S. as a whole. If
not enough vets are coming out of U.S. colleges we need to get them
from somewhere else.
Dear Committee Members:
We are dairy farmers who moved to Lake Norden, SD in February 2006
from Co. Fermanagh, Northern Ireland. South Dakota has been recruiting
dairy farmers from the United Kingdom, Ireland & Europe for a couple of
years now and we decided to emigrate here in 2005 but took 6 months to
complete U.S. Immigration through London (a much shorter process than
any I have heard about here in the USA). We have invested millions of
dollars in a brand new 1,400 cow dairy here in Hamlin County and have
been milking since December 2006.
I am writing to urge you to take action on an issue I am very
concerned about and that is essential to the smooth operation of my
farm--immigrant labor. We currently employ 22 people, 15 of whom are
Milkers and stall management operators. It is extremely difficult to
find local workers willing to do the hard work required to operate a
successful dairy farm. As a result, significant numbers of dairy farms
of all sizes across this country rely on immigrant labor to help
efficiently run their operations. I have tried to employ as many local
people as possible but 8 hour milking shifts are not popular and
because we milk three times a day we need three shifts of four staff to
cover a 24/7 operation. Currently all our Milkers are Hispanics with
Permanent Resident cards and Social Security Numbers.
The announcement by the Department of Homeland Security regarding
increased enforcement actions is increasing the level of frustration
and concern that I and my fellow dairy farmers feel at the government's
inability to tackle this important issue in a reasonable way. Many
long-standing employees that dairy farmers have employed in good faith
may well have to be let go in light of these efforts. When taking on
new staff they must have two forms of identification and we keep a copy
of these forms, however I do not feel that I have any special knowledge
or skills that allow me to screen employee's employment status. We are
just so grateful to have people looking for work. We need a
comprehensive solution to the challenge of immigration--not a one-sided
attack focused solely on punitive enforcement policies.
That is why I strongly urge you to actively support the passage of
the AgJOBS legislation. AgJOBS provides for a badly-needed temporary
worker program for agriculture and an orderly transition that
encourages experienced farm workers to remain working in agriculture
for a period of years. Equally important for dairy farmers, such as me,
it also includes a provision addressing the unique needs of dairy
farmers for a stable workforce.
Please work with your fellow Members of Congress to enact AgJOBS
without further delay. This carefully crafted compromise approach has
been out there for some time now--it's well past time for Congress to
put it into law!
Rodney & Dorothy Elliott,
Drumgoon Dairy LP.
Dear Committee Members:
We operate a 400 cow dairy and a crop farm in MN. On our dairy, we
milk three times a day. We have a Spanish labor force. If we did not
have them, there would be no dairy. Our Spanish laborers are dedicated,
hard-working people. They will work 7 days a week when needed. They do
their job well and are on time. They like rewards just like everyone
In our area of MN, Spanish laborers work for other local
businesses, including turkey processing, vegetable canning,
landscaping, building, or construction. All of these jobs are jobs that
white people don't want to do.
Immigrant laborers, and their families, should be allowed to come
to the U.S. to work. They invest a lot money back to local areas, as
well. They like and purchase nice things, including homes, cars, &
George & Charlene Duban,
Dear Committee Members:
My name is Amber, I am a resident of South Dakota, where
agriculture has been my primary source of income for the better part of
my life. During part of that time, I worked as an Assistant Herdsman
for a 1,400 head dairy. At this dairy, I worked directly with both male
and female immigrant workers who I found to be very pleasant and
valuable employees. They worked harder than anyone else, they treated
me with the utmost respect, and were always there to help me if I
needed it. They were also great at working with me to break the
language barrier and to develop an efficient workplace.
Immigrant workers are a valuable asset to American agriculture and
they should be treated like it.
Thank you for your time and consideration,
Dear Committee Members:
We represent the management company for five dairies in the I&29
corridor. The dairy industry is extremely labor intensive. We cannot
milk cows by computers and robots. There are a variety of tasks and
jobs to be done on a dairy, and all of them are performed 365 days a
Someone has to harvest the feed, mix the feed, deliver the feed,
attend the cows that are calving, tend to the newborn calves, watch
over the very fresh cows, treat the sick, clean the pens and stalls,
milk the cows, haul the cows to market, manage the workers, pay the
bills, market the milk, and the list goes on. It takes approximately
one person for every 100 cows.
Our company manages about 10,000 dairy cows, 3,000 dairy calves,
and 5,000 dairy heifers. Those numbers require about 180 employees.
While we have been able to hire employees for middle and upper
management, we struggle with filling the technical positions
(veterinarians & animal scientists) and of course, the people for the
less technical, but very labor intensive positions.
Whenever possible, we hire veterinarians through TN visas (NAFTA)
and a few laborers through H&2A visas. TN visas are renewable annually
for only 3 years, and H&2A visas are only for certain positions that
are not year-round--only for 10 months.
Our rural area would struggle if we only milked 500 cows. There
just are not the people that are interested in working with livestock
no matter what wage is paid. We have assisted people with housing,
moving, schools for their children, anything that will make our area
more attractive. We have few local residents that are under 40 years of
age. Our schools have consolidated for lack of students, our churches
have closed, main streets look like ghost towns. But in the communities
where we manage dairies, the main streets are busy, the schools see an
enrollment holding steady, and there is a feeling that maybe these
little towns won't die. Farm managers come with their families and
relocate into these rural communities.
Animal agriculture is a huge economic development engine. With a
workable & fair foreign labor immigration bill that addresses year-
round agriculture labor needs, we can continue to put people back into
our local rural communities. If foreign labor and rural labor needs are
not addressed ASAP, our food production and processing will move out of
America, and we will soon import our food and lose millions of farmers.
I urge you to support the AgJOBS bill or similar legislation that
addresses the foreign labor force that keeps this country humming.
Support legislation that lets America produce and process its own food.
Without the legal & workable means to utilize a foreign labor force we
will be dependant on other countries to feed us and millions of farmers
will be out of business in the United States. Agriculture's future
depends on this.
Prairie Ridge Management Company, Veblen, SD
Dear Committee Members:
Although I am not directly involved with the dairy industry, I
understand that as production agriculturists, dairymen are tasked with
running an operation that is an economic driver in rural America. They
are also struggling to obtain a sufficient labor force and must turn to
guest workers to keep the business running.
As a member of the community, I see guest workers as an
opportunity. True, they are able to save money and send it home to
their families; but, these guest workers also buy gas, groceries,
clothes, etc. from the communities in which they live. It is important
to have this workforce available to help keep rural America running.
Quinn & Associates,
Farm Bureau Financial Services,
Dear Committee Members:
We are partners in several large dairy operations in northeastern
South Dakota. The dairy industry is extremely labor intensive.
There are a variety of tasks and jobs to be done on a dairy, and
all of them are performed 365 days a year. Operating a dairy farm
requires one person per 100 cows. The work is quite physical. Someone
has to harvest the feed, mix the feed, deliver the feed, attend the
cows that are calving, tend to the newborn calves, watch over the very
fresh cows, treat the sick, clean the pens and stalls, milk the cows,
haul the cows to market, manage the workers, pay the bills, market the
milk, and the list goes on.
It is a daily struggle to fill the positions for these labor
intensive positions. We have a few positions that can be filled with
H&2A visas, but they are designed for seasonal farm labor only and do
not come close to addressing the labor needs on a dairy farm. They only
allow the employee to work for us for 10 months; then, they must return
Our rural area would still struggle even if we only milked 500
cows. There just are not the people that are interested in working with
livestock no matter what wage is paid. We have assisted people with
housing, moving, schools for their children, anything that will make
our area more attractive. We have few local residents that are under 40
years of age. Our schools have consolidated for lack of students, our
churches have closed, main streets look like ghost towns.
Animal agriculture is desperate to find employees. They are not
here in rural America. Animal agriculture can be a huge economic
development engine. Our worry is that if we cannot find labor for food
production and food processing in this country, these industries will
move out of America, and we will soon import our food and lose millions
We urge you to support the AgJOBS bill or similar legislation that
addresses the foreign labor force that keeps this country humming.
Support legislation that lets America produce and process its own food.
Without the legal & workable means to utilize a foreign labor force, we
will be dependent on other countries to feed us and millions of farmers
will be out of business in the United States. Agriculture's future
depends on this.
MCC Dairy, Veblen, SD & Five Star Dairy, Milnor, ND
Dear Committee Members:
We own a family-run dairy farm in south-central South Dakota. We
currently milk 240 cows, and we raise all of our own replacement cows,
making a total of around 500 head of livestock. We are in our late
30's/early 40's and have four kids--ages 10, 12, 14, 16. We farm 640
acres and have our parents on the farm with us. Dad, at age 77, still
puts in 10&12 hour days.
We currently employ two full time people besides ourselves, and we
employ our kids many hours each day. We have, in the past, employed
high school students and a few farm wives to help cover milking shifts
(a shift takes three people). However, due to the ``rain, snow or
shine'' aspect of dairy farming, this labor structure was no longer
working for us.
We have seen a significant decline in the quality of labor over the
years. Everyone wants to receive as much pay as possible for the least
amount of work, and they don't want to be responsible for filling out a
shift if it interferes with something more important--like a basketball
game that they just want to see.
Therefore, we have made a change to other labor sources. We
currently have two Mexican workers. They are hard working, responsible,
pay taxes, and are always looking for more work. They have a large
family network, so if they need to take time off, or want to leave the
position, there is always someone waiting to fill their shoes. The
language barrier has been a problem, but we are working around it. We
pay these laborers $10/hour (The starting rate is $8/hour in our local
community businesses). We also provide housing, meat and milk.
As far as we know, our help is in the country legally. However,
after the ICE raids at a dairy in North Dakota, all dairy employers of
any immigrant help are frightened. If we are to be responsible for the
legality of the papers of our employees, then the government needs to
provide training for employers to recognize proper legal documentation,
and we need to have a work program that does not contradict itself. The
current plan of ``No-Match'' letters is not adequate if that is the
only way that we can find out if our employees are legal. And, as the
letter states, we cannot fire them if they are legal, due to
discrimination laws. Most importantly, if we find out our employees are
not legal, how can we as employers go about getting valuable employees
legalized?! The current system is BROKEN and must be fixed!
We feel it is IMPERATIVE for some sort of AgJOBS provisions to
allow for year-round farm labor. The seasonal worker program is not
adequate to meet the needs of a 365 day per year profession.
Thank you for your time and your attention to this matter.
Joel & Susan Sybesma,
Dutch Made Dairy,
Dear Committee Members:
We are a family dairy in South Dakota, and we depend on people from
other countries to help us produce our milk. Our herd consists of 1,200
milking cows. We have 16 full-time employees of which 12 are
immigrants. They are hardworking, honest, and have restored our faith
in knowing people that still want to work. In order to save our food
processing industry, Congress must act quickly to ease the tightening
labor crunch we face in American agriculture. Hiring immigrants is the
only way of ensuring our food is produced on a daily basis. Our local
labor force has been tried, but fails to have the work ethic and
honesty that immigrants give to our industry. If immigrants are not
given labor reform, food and food-related industries will be
A high percentage of immigrants in this country do not want
citizenship. They want to be able to work legally, have a better life
for themselves and families, and then return to their home, after
earning enough income to better themselves.
As dairymen, we are faced with a year-round labor problem in rural
South Dakota. The same is true for others involved in South Dakota's
pork, beef, and meat processing industries. South Dakota also has a
growing number of seasonal crop producers who need a part-time labor
force. But, a worker program that only attacks the seasonal worker
problem is not the answer. We need a year-round labor force. And, we
need an immigration reform program that will assure us our workers are
legal. The Department of Agriculture in each state could monitor the
immigrant workers and issue an agricultural ``work permit.'' Congress
needs to realize the amount of labor needed in our industries and what
it takes to produce our food supply. We need to identify immigrant
workers, give them a ``work permit'' to work in one state, giving our
Labor Department the ability to track them and their employer, and give
them a life here that we take for granted.
This issue needs to be resolved soon and needs to be addressed in a
practical means of keeping our food supply secure.
Dear Committee Members:
We operate a dairy in western South Dakota, and employ eight people
full-time. The dairy runs 24 hours a day, so we need labor all day
long. We do shift work labor, and workers rotate between working days
and nights each month.
Our largest problem is that when we try to find help, we can not
get anyone to apply for the position. We have put ads in the local
newspaper, and the jobs are listed with a job service, and still, we do
not get anyone to apply. Generally, when we do get someone to apply,
they are unreliable, do not have good work ethics, and have an
undesirable background. Due to this, we have had to rely upon immigrant
Dan and Wanda Dunn,
Prepared Statement of Luawanna Hallstrom, Craig J. Regelbrugge, and
John Young, ACIR Co-Chairs, Agriculture Coalition for Immigration
Chairman Peterson, Ranking Member Goodlatte, and Members of the
The Agriculture Coalition for Immigration Reform (ACIR) appreciates
the opportunity to submit a written statement to the U.S. House of
Representatives, Committee on Agriculture. We appreciate the
Committee's understanding that the agricultural labor crisis in America
directly threatens the very survival, as well as the stability and
growth, of the fruit and vegetable, dairy, livestock, nursery,
greenhouse and Christmas tree industries.
ACIR is comprised of several hundred national, regional, and state
grower and producer organizations representing all facets of labor-
intensive agriculture in America. It was formed in 2001 to push for
lasting immigration reforms needed to ensure a stable and legal
agricultural labor force.
America Will Be More Secure With the Passage of Immigration Reform
Every American supports secure and well-managed borders. Yet, every
day the Border Patrol spends enormous resources attempting to apprehend
economic migrants who only seek to cling to the bottom rung of our
nation's economic ladder. And America needs them. Many find work in
agriculture milking cows or picking peaches, since Americans are not
raising their children to be farm laborers. Providing better legal
channels for farm workers to enter, work, and return home when the
season is over will free up Homeland Security resources to focus on
true threats to America's well-being.
Bipartisan legislation known as AgJOBS (H.R. 371) will facilitate
the stabilization and proper documentation of the trained and trusted
labor force here at work on America's farms and ranches. It will also
facilitate an orderly transition to substantially wider use of an
improved agricultural worker program, by reforming the decades-old and
dysfunctional H&2A program, as capacity is built on the farm and at
U.S. consulates abroad to enable wider use of the program. Presently,
H&2A workers fill roughly 1.9% of the job opportunities in American
agriculture. It will take at least several years to build the capacity
needed for more reliance on H&2A.
Immigrant farmworkers support American jobs. Agricultural
economists estimate that every farm worker job supports three to four
jobs in the surrounding economy. By and large these are good jobs,
filled by Americans, in packaging, processing, distribution, equipment,
other inputs, lending, and insurance. Most of these jobs will move
offshore if our production moves offshore.
Fruits, vegetables, and other labor-intensive specialty crops
represent half the value of American crop production, and constitute
much of America's food supply and a good diet. These industries, plus
others like dairy, nursery and livestock, cannot survive in America
without access to an adequate and affordable labor supply. Imagine a
future in which America relies on sometimes hostile foreign countries
for our food to the extend we do our oil today. Failure by Congress to
enact timely and meaningful immigration reform will force farms to move
out of the country, hastening American reliance on foreign countries to
Why Legislation like AgJOBS Is the Answer
The Agricultural Job Opportunity, Benefits, and Security Act of
2007 (AgJOBS) is equivalent to the agricultural provisions of S. 2611
that passed the U.S. Senate on May 25, 2006. AgJOBS restructures and
reforms the current H&2A temporary agricultural worker program. This is
accomplished by substantially streamlining the program's administrative
procedures, reforming the requirements of H&2A employers, streamlining
the process for admission of H&2A aliens, and allowing aliens not
currently in the program to acquire H&2A status. AgJOBS also creates a
means for aliens who have made a substantial commitment to agricultural
work in the United States, but do not have valid documentation, to earn
adjustment to legal status by meeting strict conditions including
specific pre- and post-enactment agricultural work requirements. The
adjustment provision will provide an opportunity for agricultural
employers to retain an experienced workforce while they anticipate and
prepare for future participation in a reformed H&2A program.
Proposals to solely reform H&2A, either legislatively or
administratively, will not stabilize the current experienced workforce
or provide essential transition time to wide reliance on H&2A. In
excess of 70% of the agricultural labor force is believed to be
unauthorized. The ``bandwidth'' does not exist for a large majority of
this workforce to leave the country, be processed, and return in a
seasonal context. While H&2A reform is essential as a long-term
solution, it cannot stand alone.
The Farm Labor Crisis Is Immediate, and Congress Must Act Now
Time is running out for family farms and businesses who cannot
plant, tend and harvest their fruit, vegetables, and animals without a
stable labor force. Hanging in the balance is our abundant, secure,
domestically produced food supply. Also at risk are thousands of
American jobs that depend on agriculture, jobs that will follow food
production to foreign countries if that is where it goes.
The labor force that sustains domestic agriculture was not born
here. Over 80% of farmworkers are foreign-born. The lack of adequate
legal ways for them to work here means that most are unauthorized under
our immigration laws. Although these workers are having taxes, Social
Security and Medicare withheld from their paychecks, increased
enforcement of full implementation of the Department of Homeland
Security's social security No-Match rule will cause employers to lose
the trained, experienced, and available labor force.
Few Americans are available or willing to do this work. Farm work
tends to be in rural areas. It is out in the weather, physically
demanding, often seasonal or intermittent, and sometimes even migrant.
Most Americans are not attracted to opportunities that are labor-
intensive and seasonal by nature. Most wage earners choose
opportunities with lower hourly pay than the $10.00 average for farm
work for these reasons. Intense but failed domestic recruitment
efforts, such as in California in the late 1990's, and last year in
Washington State, demonstrate that foreign-born workers will tend and
harvest America's livestock and crops. The question is, where will it
American agriculture needs and wants a stable, legal labor supply.
The Agriculture Coalition for Immigration Reform respectfully urges
Congress to finally act, and act wisely. Doing nothing simply
perpetuates the silent amnesty that exists across the country today.
AgJOBS is the bipartisan product of several years of negotiations among
farm employer and farm worker representatives. It will provide the
near-term and long-term workforce solution for the farm sector. The
agricultural sector is the most vulnerable sector of the American
economy. The failure of Congress to act will require farmers to force
farmers not to plant or harvest, and will require force Americans to
rely on foreign countries for their food supply--with dire economic and
Thank you again for the opportunity to submit testimony to the
hearing record. Please feel free to call upon the Agriculture Coalition
for Immigration Reform as a partner and resource for information
regarding the labor needs of American agriculture.
ACIR Co-Chair,American Nursery & Landscape Assn., D.C.;
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