[House Hearing, 112 Congress]
[From the U.S. Government Printing Office]
WORKFORCE CHALLENGES FACING THE AGRICULTURE INDUSTRY
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
COMMITTEE ON EDUCATION
AND THE WORKFORCE
U.S. House of Representatives
ONE HUNDRED TWELFTH CONGRESS
HEARING HELD IN WASHINGTON, DC, SEPTEMBER 13, 2011
Serial No. 112-37
Printed for the use of the Committee on Education and the Workforce
Available via the World Wide Web:
Committee address: http://edworkforce.house.gov
U.S. GOVERNMENT PRINTING OFFICE
68-264 WASHINGTON : 2011
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC
area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC
COMMITTEE ON EDUCATION AND THE WORKFORCE
JOHN KLINE, Minnesota, Chairman
Thomas E. Petri, Wisconsin George Miller, California,
Howard P. ``Buck'' McKeon, Senior Democratic Member
California Dale E. Kildee, Michigan
Judy Biggert, Illinois Donald M. Payne, New Jersey
Todd Russell Platts, Pennsylvania Robert E. Andrews, New Jersey
Joe Wilson, South Carolina Robert C. ``Bobby'' Scott,
Virginia Foxx, North Carolina Virginia
Bob Goodlatte, Virginia Lynn C. Woolsey, California
Duncan Hunter, California Ruben Hinojosa, Texas
David P. Roe, Tennessee Carolyn McCarthy, New York
Glenn Thompson, Pennsylvania John F. Tierney, Massachusetts
Tim Walberg, Michigan Dennis J. Kucinich, Ohio
Scott DesJarlais, Tennessee Rush D. Holt, New Jersey
Richard L. Hanna, New York Susan A. Davis, California
Todd Rokita, Indiana Raul M. Grijalva, Arizona
Larry Bucshon, Indiana Timothy H. Bishop, New York
Trey Gowdy, South Carolina David Loebsack, Iowa
Lou Barletta, Pennsylvania Mazie K. Hirono, Hawaii
Kristi L. Noem, South Dakota Jason Altmire, Pennsylvania
Martha Roby, Alabama
Joseph J. Heck, Nevada
Dennis A. Ross, Florida
Mike Kelly, Pennsylvania
Barrett Karr, Staff Director
Jody Calemine, Minority Staff Director
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
TIM WALBERG, Michigan, Chairman
John Kline, Minnesota Lynn C. Woolsey, California,
Bob Goodlatte, Virginia Ranking
Todd Rokita, Indiana Donald M. Payne, New Jersey
Larry Bucshon, Indiana Dennis J. Kucinich, Ohio
Trey Gowdy, South Carolina Timothy H. Bishop, New York
Kristi L. Noem, South Dakota Mazie K. Hirono, Hawaii
Dennis A. Ross, Florida George Miller, California
Mike Kelly, Pennsylvania
C O N T E N T S
Hearing held on September 13, 2011............................... 1
Statement of Members:
Walberg, Hon. Tim, Chairman, Subcommittee on Workforce
Prepared statement of.................................... 3
Woolsey, Hon. Lynn, ranking minority member, Subcommittee on
Workforce Protections...................................... 4
Statement of Witnesses:
Bailey, Joe, Bailey Nurseries, Inc........................... 22
Prepared statement of.................................... 24
Goldstein, Bruce, president, Farmworker Justice.............. 35
Prepared statement of.................................... 36
Oates, Hon. Jane, Assistant Secretary for the Employment and
Training Administration, U.S. Department of Labor.......... 6
Prepared statement of.................................... 7
Sequeira, Hon. Leon R., senior counsel, Seyfarth Shaw LLP.... 40
Prepared statement of.................................... 42
Whitley, Elizabeth (Libby), on behalf of the National Council
of Agricultural Employers.................................. 27
Prepared statement of.................................... 29
Response to questions submitted for the record........... 73
Questions submitted for the record....................... 70
National Council of Agricultural Employers survey........ 60
Farmworker Justice report: ``No Way to Treat a Guest,''
Internet address to.................................... 56
Internal deliberative document: ``Department of Labor's
Follow-up Response to Questions Regarding H-2A
Table: ``Office of Foreign Labor Certification H-2A
Appeals Information''.................................. 59
WORKFORCE CHALLENGES FACING
THE AGRICULTURE INDUSTRY
Tuesday, September 13, 2011
U.S. House of Representatives
Subcommittee on Workforce Protections
Committee on Education and the Workforce
The subcommittee met, pursuant to call, at 10:01 a.m., in
room 2175, Rayburn House Office Building, Hon. Tim Walberg
[chairman of the subcommittee] presiding.
Present: Representatives Walberg, Kline, Goodlatte,
Bucshon, Woolsey, Payne, and Bishop.
Staff present: Katherine Bathgate, Press Assistant/New
Media Coordinator; Casey Buboltz, Coalitions and Member
Services Coordinator; Ed Gilroy, Director of Workforce Policy;
Benjamin Hoog, Legislative Assistant; Ryan Kearney, Legislative
Assistant; Donald McIntosh, Professional Staff Member; Brian
Newell, Deputy Communications Director; Krisann Pearce, General
Counsel; Molly McLaughlin Salmi, Deputy Director of Workforce
Policy; Linda Stevens, Chief Clerk/Assistant to the General
Counsel; Alissa Strawcutter, Deputy Clerk; Loren Sweatt, Senior
Policy Advisor; Joseph Wheeler, Professional Staff Member; Kate
Ahlgren, Investigative Counsel; Daniel Brown, Junior
Legislative Assistant; John D'Elia, Staff Assistant; Livia Lam,
Senior Labor Policy Advisor; Brian Levin, New Media Press
Assistant; Celine McNicholas, Labor Counsel; Megan O'Reilly,
General Counsel; Julie Peller, Deputy Staff Director; and
Michele Varnhagen, Chief Policy Advisor/Labor Policy Director.
Chairman Walberg. Well, good morning. A quorum being
present, the subcommittee will come to order.
We want to welcome all to the Subcommittee on Workforce
Protections and I would like to thank our witnesses for being
with us here today, and specifically the first panel, which
consists of one. We are looking forward to a good hearing, as
generally is the case in this subcommittee.
Across the country countless farmers and workers are
beginning to bring in this fall's harvest. I know my beans are
ready, and as I was telling the assistant secretary, it is the
best bean year I have had so far, and not expecting it earlier
this spring with the wet, but it has worked well for Michigan,
and we wish the best for the rest of the nation. A number of
states that are struggling with drought as well as too much
Despite the rapid advances of farming technology more than
a million workers are still needed to bring crops to market
each year. It is hard work that often goes unnoticed by the
average consumer in the local grocery store.
Without any doubt, the men and women who earn a living in
our nation's agriculture industry deserve our gratitude. For
these employers and workers timing is crucial. A missed day in
the field can result in a substantial loss of crops, which
means a decline in revenue for employers and lost wages for
And the consequences don't stop there. According to one
estimate, for every one farm worker there are 3.1 additional
jobs in agriculture and its supporting industries. Agriculture
remains an integral part of our economy.
As elected officials, we have a responsibility to ensure
federal programs and agencies operate efficiently and
effectively. This should be the standard of good government
under any circumstance, but especially when the country faces a
significant jobs deficit and a serious fiscal crisis.
Our farmers, workers, and taxpayers deserve nothing less,
and that is why we are here today. This hearing provides us
with an opportunity to examine whether an important program is
adequately meeting the demands of the nation's farms.
Each year agricultural employers across the country
petition the U.S. Department of Labor for thousands of seasonal
guest workers. Since 1986 the H-2A visa program has provided
these employers a legal avenue to hire the workers they need.
An employer's petition must pass two tests intended to
protect American workers: First, the employer must demonstrate
there is an insufficient number of U.S. workers available to
perform the work as needed; second, the employer must attest
that employing guest workers will not adversely affect U.S.
workers. If the Department denies an employer's petition that
employer must appeal the decision to an administrative law
This is a program that has proven invaluable to employers.
One farmer in my Michigan district described the program as
``critical'' to hiring the workers necessary for success.
However, despite the importance of the program it has long
been plagued by a number of challenges that stretch across
party lines. In 2008 the Bush administration finalized a
proposal intended to streamline the program for employers and
strengthen protection for workers. Yet, in the early months of
the Obama administration these new policies were suspended, and
last year a new set of rules were adopted.
I recognize that a change of administration can usher in
new policies and priorities, but those changes should improve
the support and services the American people rely upon, not
undermine their success.
Unfortunately, the facts suggest this may not be the case
for the H-2A visa program. Since the new policies were enacted
the frequency of disapprovals for employers' petitions has
increased significantly and the number of appeals filed before
the administrative law judge has risen dramatically.
This year it is estimated more than 700 appeals will be
filed. To put this estimate in perspective, only 158 appeals
were requested last year. Is the Department trying to root out
bureaucratic delay, or is it administering an overly burdensome
program that provides little benefit to employers?
In an effort to answer the question, Madam Assistant
Secretary, we look forward to receiving your testimony this
This program is an important piece of our effort to ensure
a strong, legal workforce. We hope you will take this
opportunity to assure the nation's agricultural employees that
you remain committed to administering an effective and
efficient H-2A visa program.
At this time I would like to recognize my colleague from
California, Lynn Woolsey, the ranking Democratic member of the
subcommittee, for her opening remarks.
[The statement of Chairman Walberg follows:]
Prepared Statement of Hon. Tim Walberg, Chairman,
Subcommittee on Workforce Protections
Good morning and welcome to the Subcommittee on Workforce
Protections. I would like to thank our witnesses for being with us
Across the country, countless farmers and workers are beginning to
bring in this fall's harvest. Despite the rapid advances of farming
technology, more than a million workers are still needed to bring crops
to market each year. It is hard work that often goes unnoticed by the
average consumer in the local grocery store. Without any doubt, the men
and women who earn a living in our nation's agriculture industry
deserve our gratitude.
For these employers and workers, timing is crucial. A missed day in
the field can result in a substantial loss of crops, which means a
decline in revenue for employers and lost wages for workers. And the
consequences don't stop there. According to one estimate, for every one
farm worker there are 3.1 additional jobs in agriculture and its
supporting industries. Agriculture remains an integral part of the
As elected officials, we have a responsibility to ensure federal
programs and agencies operate efficiently and effectively. This should
be the standard of good government under any circumstance, but
especially when the country faces a significant jobs deficit and a
serious fiscal crisis. Our farmers, workers, and taxpayers deserve
nothing less. And that is why we are here today. This hearing provides
us with an opportunity to examine whether an important program is
adequately meeting the demands of the nation's farms.
Each year, agricultural employers across the country petition the
U.S. Department of Labor for thousands of seasonal guest workers. Since
1986, the H-2A visa program has provided these employers a legal avenue
to hire the workers they need. An employer's petition must pass two
tests intended to protect American workers: First, the employer must
demonstrate there is an insufficient number of U.S. workers available
to perform the work as needed. Second, the employer must attest that
employing guest workers will not adversely affect U.S. workers. If the
department denies an employer's petition, that employer may appeal the
decision to an Administrative Law Judge.
This is a program that has proven invaluable to employers. One
farmer in my Michigan district described the program as ``critical'' to
hiring the workers necessary for success. However, despite the
importance of the program, it has long been plagued by a number of
challenges that stretch across party lines.
In 2008, the Bush administration finalized a proposal intended to
streamline the program for employers and strengthen protections for
workers. Yet in the early months of the Obama administration, these new
policies were suspended, and last year a new set of rules were adopted.
I recognize that a change of administrations can usher in new policies
and priorities. But those changes should improve the support and
services the American people rely upon, not undermine their success.
Unfortunately, the facts suggest this may not be the case for the
H-2A visa program. Since the new policies were enacted, the frequency
of disapprovals for employers' petitions has increased significantly
and the number of appeals filed before an Administrative Law Judge has
risen dramatically. This year, it is estimated more than 700 appeals
will be filed. To put this estimate into perspective, only 158 appeals
were requested last year.
Is the department trying to root out bureaucratic delay, or is it
administering an overly burdensome program that provides little benefit
to employers? In an effort to answer the question, Madam Assistant
Secretary, we look forward to receiving your testimony. This program is
an important piece of our effort to ensure a strong, legal workforce.
We hope you will take this opportunity to assure the nation's
agricultural employers that you remain committed to administering an
effective and efficient H-2A visa program.
At this time, I would like to recognize my colleague from
California, Lynn Woolsey, the senior Democratic member of the
Subcommittee, for her opening remarks.
Ms. Woolsey. Thank you, Mr. Chairman.
Today's meeting to discuss the workforce challenges facing
the ag industry is very, very important. And of course, in
these economic times, our focus must be to do everything we can
to get Americans back to work. So my global goal--my goal for
today's discussion--will focus on ensuring that U.S. workers
have a real shot at jobs in the ag industry and that these jobs
have--provide a decent wage and basic protections for workers
both during the hiring process and after they are employed.
The H-2A visa program allows farmers to hire foreign
workers for seasonal agricultural work under regulations issued
by the Department of Labor, and the reality is this: these
workers perform grueling work, routinely putting in 15 hours a
day and enjoying very few workplace protections such as wage
and hour and safety protections. H-2A workers are not covered
by the National Labor Relations Act and have little resources
to protest working conditions if they are not favorable.
They are tied to their employer. If they are treated
unfairly or required to perform dangerous work they risk being
fired, and if they are fired they are sent home if they even
In short, they are not afforded the same quality of life or
protections in the workplace that most of us take for granted.
Despite this, there are some who complain that the rules
and regulations covering the H-2A program are burdensome and
expensive. In reality, the current H-2A rules are quite modest
and are similar to those issued during the Reagan
During the George W. Bush administration the Department of
Labor loosened the rules governing the H-2A program and ag
employers merely had to state or attest that they had attempted
to recruit U.S. workers for open positions. They no longer had
to demonstrate their recruitment efforts or coordinate with
state workforce agencies, so they just needed to say, ``Yes, we
did it and there are no American workers available.''
So the Bush administration also adjusted wage requirements
to allow farmers to pay H-2A workers lower wages, which
resulted in an average reduction of farm worker wages overall
of $1 to $2 per hour, which depressed wages for all
agricultural workers. Under common sense rules issued by the
Obama administration in 2010 many of the damaging changes the
Bush administration made to the H-2A program have been
Ag employers must again demonstrate that they actually
attempted to recruit U.S. workers first before petitioning for
H-2A workers. There is no question that foreign workers are
eager to find jobs in the United States. However, it seems
really unreasonable to argue that there are no United States
workers to fill these positions.
Nearly 25 million Americans are either unemployed or
underemployed. It seems perfectly reasonable to me that farmers
should first make a good-faith effort to hire U.S. workers
before being granted the authority to bring in foreign workers
to do the exact same work. And it is also shortsighted, I
believe, to assume that there is no U.S. workforce for these
It is a closed circle, Mr. Chairman. If workers come in on
an H-2A visa with poor working conditions, are underpaid and
underappreciated, those jobs will certainly be less attractive
to U.S. workers.
So in addition, when programs like the H-2A visa program
fail to provide adequate wages and protections and they are not
properly enforced all workers lose. And that does not work to
the advantage of employing U.S. workers.
So, Mr. Chairman, we don't need a race to the bottom. We
need to administer the H-2A program to ensure that U.S. workers
have the first chance at employment and foreign workers aren't
exploited. The H-2A regulations issued in 2010 are an important
step at accomplishing this.
However, there is no question that reforms are still
necessary. What is not necessary is the creation of a new
temporary worker program that loosens the critical protections
for farm workers--U.S. and guest workers alike.
Thank you, Mr. Chairman. I look forward to exploring these
issues and questioning and hearing from our witnesses. Thank
you very much.
Chairman Walberg. I thank the gentlelady.
Pursuant to Committee Rule 7c all members will be permitted
to submit written statements to be included in the permanent
hearing record. And without objection, the hearing record will
remain open for 14 days to allow questions for the record,
statements, and extraneous material referenced during the
hearing to be submitted for the official hearing record.
We have two distinguished panels of witnesses today, and I
would like to begin by introducing the first panel: Assistant
Secretary of Labor for the Employment and Training
Administration Jane Oates.
We welcome you here. And before I recognize you to provide
your testimony let me briefly explain our lighting system that
I am sure you are well aware of, but for the record to prove
that I have done a major portion of my job, and being a traffic
cop, which sometimes I get so wrapped up in the interest of the
testimony that I forget to do. You will help me with the light
One minute is left, the light will turn yellow. It is green
at the beginning of the 5 minutes. And when the time has
expired the light will turn red, at which point I will ask that
you wrap up your remarks as best as you are able.
And as is normal for the process when we have secretaries
or assistant secretaries we give a little more latitude than
normal, but I am not supposed to give any more latitude to my
committee members for that, and so we will make that a point as
We won't get into a battle here right now at that point.
Ms. Woolsey. Good to know.
Chairman Walberg. So have said all of that, I recognize the
assistant secretary for your testimony. Thanks for being here.
STATEMENT OF HON. JANE OATES, ASSISTANT SECRETARY, EMPLOYMENT
AND TRAINING ADMINISTRATION, U.S. DEPARTMENT OF LABOR
Ms. Oates. Thank you so much, Chairman Walberg.
And thank you, Ranking Member Woolsey, for inviting me here
today. And in respect for your time I won't read my testimony
that I have provided you all and instead just highlight some of
the successes that I would like to bring to your attention.
The Department of Labor has two primary concerns with
regard to the statutory mandate for the H-2A program. First is
maintaining a fair and reliable process for employers. They
have legitimate need for temporary foreign agricultural workers
and it is our job to help them get those temporary workers.
Second is enforcing necessary protections for both the workers
in the United States and for those temporary foreign workers.
Within these statutory mandates is the important
responsibility of ensuring that U.S. workers have first access
to these jobs.
To ensure that these mandates are met the Department
implements the H-2A regulations and accepts and processes
employer-filed H-2A applications for labor certifications. For
almost a quarter of a century, before 2008, the Department's H-
2A regulations remained largely unchanged. In 2008, as both of
you mentioned in your opening comments, the new regulations
were promulgated with significantly revised revisions to the
An extensive review of these changes during the beginning
days of the Obama administration and our Department's program
experience demonstrated that the new regulations did not
adequately satisfy the Department's mandate to protect U.S.
workers. It also found that the regulation failed to allow for
sufficient, robust, and meaningful enforcement.
To correct failures identified in this review the
Department published a final rule which became effective in
March 2010. As I noted in my written testimony, the 2010 final
rule in many ways reflects a return to the processes and
procedures which were in place for all but 13 months over a 24-
year period. This includes key features of the 2010 rule, such
as the documentation of compliance, the use of the USDA Farm
Labor Survey as the basis for determining wage rates, and the
role of the state workforce agency in inspection and approval
of employer-provided housing.
The Department believes that the enforcement provisions in
the 2010 final rule better achieve a reasonable balance between
meeting the seasonal workforce needs of growers and protecting
the rights of agricultural workers. The enforcement protects
the integrity of the program, protects workers from potential
abuse by employers who fail to meet the requirements of the
program, and, quite frankly, ensures that employers who play by
the rules have a level playing field with their peers.
Also important is the underlying statutory requirement
which governs the development and implementation of the
regulation that the employment of the temporary foreign worker
does not adversely affect the wages and working conditions of
workers who are similarly employed in the United States.
Finally, the Department takes very seriously its obligation
to ensure that U.S. workers have first access to these jobs.
Probably never before in my lifetime has this been more
important. So in addition to enhancing recruitment the 2010
final rule created an online job registry so that U.S. workers
could more easily access information about and apply for these
The Department planned and implemented extensive
stakeholder meetings and briefings to reacclimate users of the
program to many of the features that had been in place and were
now brought back. Activities included public hearings across
the country, national webinars, and a question and answer
process through a dedicated public e-mail at the Department of
Our outreach efforts continue today. We know employers with
legitimate needs are successfully using the H-2A program. So
far, in fiscal year 2011, the Department has certified 93
percent of the applications for 74,000 workers.
Despite the tight processing deadlines and large filing
volumes, 67 percent of all applications are processed timely.
That is a number we are working every day to improve.
The Department is continuing to provide employer assistance
and implement more program improvements, and that is an area we
hope to work continually with this committee to make sure we
know what your growers' questions are and needs are in terms of
those improvement strategies.
We continue to assist employers as they become more
familiar with the application process and the information
necessary for the Department to issue a final determination.
For example, employers are no longer denied because of an
In the beginning of the implementation of the rule we saw a
spike in denials and we did an internal process to look at why
that was happening. Clearly we saw that an employer--many of
them small growers--put in an application that was incomplete,
and we were denying that.
That is silly. We changed our process so that an incomplete
application goes back and we work with the employer to get the
information necessary for a complete application.
The most common reasons for denial or partial denials for
our process are, again, those improper applications, which we
are working to finish and fix, insufficient housing, and
failure to provide documentation that they have done the right
thing by American workers.
In conclusion, Mr. Chairman, I hope you hear the sincerity
from the Department of Labor. We want to work with you. We are
working every day to improve this process and we are committed
So I wait and appreciate any of your questions.
[The statement of Ms. Oates follows:]
Prepared Statement of Hon. Jane Oates, Assistant Secretary for the
Employment and Training Administration, U.S. Department of Labor
Chairman Walberg, Ranking Member Woolsey, and Members of the
Committee, thank you for the invitation to appear before the Education
and Workforce Committee's Subcommittee on Workforce Protections to
discuss workforce issues in the Agricultural industry. As you know I
will focus on the U.S. Department of Labor's role and administration of
the H-2A temporary agricultural guest worker program, a program
designed to serve a critical workforce need for agricultural employers.
I am Jane Oates, Assistant Secretary for the Employment and Training
Administration at the U.S. Department of Labor.
DOL's Role in the H-2A Program
The Immigration and Nationality Act assigns specific
responsibilities for the H-2A program to the Secretary of Labor. The
Department's primary concerns with regard to its statutory mandate are
maintaining a fair and reliable process for employers with a legitimate
need for temporary, foreign, agricultural workers and enforcing
necessary protections for U.S. and temporary foreign workers.\1\ The
non-enforcement duties are delegated to the Employment and Training
Administration, specifically the Office of Foreign Labor Certification.
The Department's Wage and Hour Division has been delegated
responsibility for enforcing the terms and conditions of the work
contract and worker protections.
Among the responsibilities delegated to the Office of Foreign Labor
Certification is the important responsibility of ensuring that U.S.
workers are provided first access to temporary agricultural jobs and
that U.S. and temporary foreign workers are provided with appropriate
worker protections. The U.S. Department of Homeland Security may not
approve an H-2A visa petition unless the Department of Labor has
certified that there are not sufficient U.S. workers qualified and
available to perform the labor requested in the visa petition and that
the employment of the temporary foreign worker(s) will not have an
adverse effect on the wages and working conditions of similarly
employed workers in the U.S. The Department of Labor ensures this
important statutory responsibility is met through applying the
applicable regulatory standards in the acceptance and processing of
employer-filed H-2A applications.
The Immigration Reform and Control Act of 1986 (IRCA) established a
separate H-2A program for temporary agricultural guest workers. The
first H-2A regulations were issued by the Department in 1987 in
accordance with IRCA.\2\ The Department's H-2A regulations remained
largely unchanged from the 1987 rule until 2008, when the Department
issued regulations that significantly revised the program.\3\ The 2008
Final Rule among other changes, substituted an attestation-based
application process, in which the applicants merely asserted that they
have met regulatory requirements, such as having obtained workers'
compensation insurance and requested a housing inspection, for the
long-standing evidence based program model, in which the applicant
actually produces documentation of having met such requirements prior
to the Department granting a labor certification. Numerous other
substantive changes to the program were made, including a significant
reduction in the role that State Workforce Agencies (SWAs) play in the
processing of job orders, the mechanism by which employers seek
domestic workers through our nation's labor exchange system.
In 2009, the Department undertook an exhaustive review of the
policy decisions underpinning the 2008 Final Rule as well as a review
of our actual program experience. During this review, the Department
focused on access to these jobs by U.S. workers, individual worker
protections, and program integrity measures. This review also examined
the process for obtaining labor certifications, the method for
determining the program's prevailing wage rate which, by statute, must
avoid an adverse effect on the wages of similarly employed U.S.
workers, and the level of protections afforded to both temporary
foreign workers and domestic agricultural workers.
The Department determined that the 2008 Final Rule did not
adequately satisfy its statutory mandate to protect U.S. workers and
the regulation failed to allow for sufficient, robust, and meaningful
enforcement of the terms of the approved labor certification and other
regulatory requirements. In September 2009, the Department published a
Notice of Proposed Rulemaking designed to address the findings from its
review.\4\ Nearly 7,000 interested parties submitted comments. The
Department's H-2A rulemaking process concluded with the publication of
a Final Rule on February 12, 2010, which had an effective date of March
2010 Final Rule
The 2010 Final Rule, in many ways, reflects a return to processes
and procedures that were in place between 1987 and 2008. Regulatory
improvements include enhanced mechanisms for enforcement of the worker
protection provisions that are required by the H-2A program to properly
carry out the Department's statutory obligation to protect U.S. workers
from any adverse effect due to the presence of temporary foreign
workers in U.S. labor markets. Among other provisions, the 2010 Final
Rule requires employers to document compliance with the program's
prerequisites for bringing H-2A workers into the country, rather than
merely attesting to compliance. This return to the requirement that was
in place before the 2008 Final Rule was necessary because, even with
employers making assurances on their applications that they would
comply with specific provisions, the Department continued to see high
rates of violations of fundamental requirements, such as meeting
housing safety and health standards. The 2010 Final Rule also returns
to the long-established use of the USDA Farm Labor Survey as the basis
for determining the program's Adverse Effect Wage Rate or AEWR. The
employer must pay H-2A workers and domestic workers performing the same
work the highest of the AEWR, the agreed-upon collective bargaining
wage, the Federal or State minimum wage or the prevailing hourly wage
or piece rate. In addition, the 2010 Final Rule reinstates the
requirement that the SWA inspect and approve employer-provided housing
before the Department issues an H-2A labor certification, extends the
H-2A program benefits to workers in corresponding employment to ensure
that all similarly employed workers are not paid a lower wage and fewer
benefits than a temporary foreign worker (thereby creating an adverse
effect that the statute prohibits), and strengthens the Department's
revocation and debarment authorities.
The Department believes that the enforcement provisions in the 2010
Final Rule achieve a reasonable balance between meeting the seasonal
workforce needs of growers while simultaneously protecting the rights
of agricultural workers, including U.S. workers hired as part of the H-
2A process, H-2A temporary foreign workers, and workers already
employed in corresponding employment with that employer. This level of
enforcement is necessary to protect workers from potential abuse by
employers who fail to meet the requirements of the H-2A program and to
ensure that law-abiding employers with a legitimate need for temporary
workers have a level playing field.\6\
The 2010 Final Rule's enhanced enforcement provisions allow the
Department to sanction those employers who fail to meet their legal
obligations to recruit and hire U.S. workers or fail to offer required
wages and benefits to workers. Enhanced civil money penalties do not
impact those employers who play by the rules. These penalties impact
violators who disregard their obligations, and they provide the
Department with an effective tool to discourage potential abuse of the
program and to deter violations, discrimination, and interference with
investigations. The increase in monetary penalties demonstrates the
Department's commitment to strengthening the necessary enforcement of a
law that protects workers who are unlikely to complain to government
agencies about violations of their rights under the program.\7\
In addition to stronger mechanisms for enforcement of the
requirements of the H-2A program, the 2010 Final Rule also strengthened
certain worker protections to ensure that the program's underlying
statutory requirement is being met--that the employment of the
temporary foreign worker in such labor or services does not adversely
affect the wages and working conditions of workers who are similarly
employed in the U.S. These protections include clarifying the rules to
ensure employers do not pass on fees associated with recruitment to the
workers being recruited, recovering back wages in the event a U.S.
worker is adversely affected by an improper layoff or displacement,
reinstating U.S. workers who are displaced by a temporary foreign
worker in violation of the program's requirements, and ensuring that
corresponding workers who are employed by an H-2A employer performing
the same work as the H-2A workers are paid at least the H-2A required
wage rate for that work.
The Department takes seriously the need to ensure that job duties
for agricultural occupations in H-2A are not presented in such a way as
to inhibit the recruitment of U.S. workers. The standard applicable to
the H-2A program since its inception in 1987 requires the Department to
compare the jobs in H-2A applications to those open with employers not
seeking H-2A workers. If the employers of non-H-2A workers do not
commonly seek those qualifications or require those special skills
sought by an H-2A applicant, the application will be questioned.
Employers seeking solely to eliminate potential U.S. workers will be
denied the opportunity to hire temporary foreign workers, in keeping
with the Department's statutory obligation to ensure that U.S. workers
receive preference for these jobs.
The 2010 Final Rule also created an online registry of H-2A jobs to
make it easier for U.S. workers to access information about and apply
for temporary agricultural jobs. This online registry became available
in July, 2010 and offers a range of customizable searches, giving users
the ability to view, print, or download information about agricultural
jobs easily and without the need to file a request under the Freedom of
Information Act. Since the online job registry became available in
July, 2010 over 5,300 job orders requesting approximately 90,500
agricultural workers have been posted, leading to substantially greater
access for U.S. workers to these available jobs.
Outreach and Education
Despite the similarity of the 2010 Final Rule to the 1987 rule, the
Department planned and implemented extensive stakeholder meetings and
briefings designed to familiarize program users and others with the
regulatory changes. For example, the Department undertook a number of
steps to educate the employer community about the H-2A application
process and program requirements. Well-publicized public briefings were
held in San Diego, California; Dallas, Texas; and Raleigh, North
Carolina between February 2010 and March 2010, during the period
between the Final Rule's publication date and its effective date.
Almost 200 parties representing large numbers of growers and
agricultural associations attended these briefings.
The Department also conducted a national webinar\8\ for program
participants that was publicized widely, including in the Federal
Register.\9\ Weekly consultations were held with the SWAs to provide
guidance on the implementation of their responsibilities in the
recruitment of U.S. workers and these consultations continue today. The
Department established a public e-mail box dedicated to receiving
questions related to the Final Rule. Responses to some of these
inquiries have been posted as Frequently Asked Questions (FAQs) to make
answers to commonly-asked questions and clarifications easily
accessible to all stakeholders via the OFLC website.\10\
Future plans include the publication of a user's manual aimed at
assisting smaller employers understand the legal obligations of the
program. The Department also continues to meet with different groups
and constituencies to explain the H-2A program's requirements and
The H-2A program continues to be the source of legal temporary
foreign workers for our nation's agricultural community. Thus far in FY
2011, more than 4,788 H-2A agricultural labor applications have been
processed with 4,443 (93 percent) of applications certified for
approximately 74,000 workers. Each year, more than 70 percent of all H-
2A applications are filed during the peak filing period from December
through April. Despite the tight processing deadline of 15 calendar
days and a large filing volume, 67 percent of all H-2A applications in
FY 2011 have been processed timely.
Since the implementation of the 2010 Final Rule, the Department has
been focused on ensuring that the program is meeting the needs of both
U.S. workers and employers. In order to ensure that the H-2A program is
efficient and effective for employers with a legitimate need for
temporary foreign workers, the Department continues to provide employer
assistance and to implement program improvements. For example, the
current regulations require the Department to evaluate each application
on a case-by-case basis to determine if the application meets
regulatory requirements. In the event that deficiencies are found, the
employer is provided with an opportunity to make the corrections
necessary to permit the application to be accepted for further
processing. Once an employer has corrected the deficiencies, the
application is accepted for processing and the employer is provided
instructions for completing the application process by undertaking the
required recruitment and providing required documents. Through this
process, the Department is guiding employers as they become familiar
with the application process and identifying for employers the
documents and information necessary to enable the Department to issue a
Recognizing that the program's appellate process could create
delays and uncertainty around processing timeframes, the Department
designed a more flexible process and determined that where employers
have not originally timely submitted the required documents, such as
recruitment reports and proof of workers' compensation insurance, we
have added some small amount of additional time for the receipt of
these documents. This allows employers seeking certification additional
time to comply with program requirements and receive a certification
rather than a denial and subsequent appeal and experience time delays
in getting their H-2A workers. The Department has already seen an
increase in the ability of employers to comply within the revised time
frame and this trend continues.
In certain instances, at the end of the case review, the Department
will issue partial, rather than full, labor certifications. Since the
implementation of the new Final Rule, the most common reasons for
partial certification include issues such as insufficient housing
capacity for the full number of workers requested, hiring commitments
made to U.S. workers, and the apparent unlawful rejection of U.S.
worker applicants. The most common reason for denials has been the
employer's failure to provide the documentation required to issue a
labor certification, even with the additional time permitted, such as
proof of workers' compensation, which is a mandatory statutory
requirement. Another common reason for denial is the employer's failure
to provide appropriate housing that meets the Department's standards.
Each employer must provide a recruitment report, evidence of workers'
compensation, and compliant housing in order to receive certification.
Recent Program Developments
The Department also notes that it has initiated a series of
administrative improvements to the H-2A program that it hopes will
improve the program's transparency and customer responsiveness. Some of
these improvements include a dedicated e-mail box at the Chicago
National Processing Center to receive questions from growers about the
H-2A program. A set of ``filing tips'' based upon our actual program
experience, which provides reminders of actions to help employers
comply with the program's requirements. These ``filing tips'' are
already available on the Office of Foreign Labor Certification's web
site. Additionally we intend to design and develop a new web-based
filing system for the H-2A program to improve access to our services
and allow growers to check an application's status electronically.
The Office of Foreign Labor Certification also intends to post
State Workforce Agency-conducted survey results on key issues, such as
the acceptability of experience requirements and other prevailing
practices, so growers and other individuals interested in the H-2A
program can review this information at any time. This is particularly
important since State Workforce Agency prevailing practice surveys and
determinations of normal and accepted job requirements are used to
determine the acceptability of wages, benefits and working conditions
on an employer's H-2A application. Unfortunately we have recently found
that many users of the H-2A program are not fully familiar with how we
make these determinations and that the source of data comes from the
workforce agencies in their own state.
The H-2A program serves the American people by helping those
employers who have a legitimate need for temporary, foreign workers.
The H-2A program as you know though is only one component of the
Department of Labor's efforts for rural America. I would like to
encourage the Agriculture industry as well as this Committee to discuss
with the Department how we can increase domestic worker participation
in agriculture industry to help reduce unemployment levels in rural
The Department will continue to focus on maintaining a fair and
reliable H-2A process while enforcing necessary protections for both
U.S. and nonimmigrant workers. To do so is good not only for workers
but also for law-abiding employers. The Department is confident that as
program users become more familiar with requirements, overall program
compliance will continue to increase and any delays attributed to
failure to follow the program's rules will continue to decrease.
Mr. Chairman and Members of the Committee, thank you again for the
opportunity to discuss the U.S. Department of Labor's role in
addressing workforce issues faced by the agricultural industry. I look
forward to answering your questions.
\1\ 75 Fed. Reg. 6884, 6903 (Feb. 12, 2010)
\2\ 52 Fed. Reg. 20496 (June 1, 1987)
\3\ 73 Fed. Reg. 77110 (Dec. 18, 2008)
\4\ 74 Fed. Reg. 45906 (Sept. 4, 2009)
\5\ 75 Fed. Reg. 6884 (Feb. 12, 2010)
\6\ 75 Fed. Reg. at 6940 (Feb. 12, 2010)
\7\ 74 Fed. Reg. at 45926 (Sept. 4, 2009)
\8\ Although the webinar is no longer available online, a
PowerPoint briefing for stakeholders is available on the Office of
Foreign Labor Certification's website at: http://
\9\ 75 Fed. Reg. 13784 (Mar. 23, 2010)
Chairman Walberg. I thank you for your testimony.
I recognize myself for a series of questions here.
You noted in your testimony that the Department's mandate
with regard to the H-2A program is to provide a, quote--``fair
and reliable process for employers with a legitimate need for
temporary foreign agricultural workers.'' I would ask before
going on with the question, have you had a chance to read the
testimonies of the second panel?
Ms. Oates. I have not, Mr. Chairman. I am sorry. I just
returned from a visit to the Southern states and I--my plane
was delayed, unfortunately, for mechanical reasons and I didn't
get back until this morning.
Chairman Walberg. Okay. Well, then let me move on to a
second question, then, because it would be--wouldn't be
valuable to ask you a question that you hadn't had any----
Ms. Oates. But I am happy to respond to your question in
writing, and I will certainly----
Chairman Walberg. Okay.
Ms. Oates [continuing]. Read the testimony of the second
Chairman Walberg. If you would, please, I would like you to
explain how the Employment and Training Administration
establishes goals and evaluates its performance. You have
indicated some change in how you approve or disapprove
applications already, but can you describe the goals that are
in place for the Office of Foreign Labor Certification and give
us some sense of how successful the office has been at meeting
Ms. Oates. Well, clearly we operate with a written
operating plan. We have goals for all of the offices within
ETA. I meet with my senior managers about their success in
meeting their quarterly goals on a biweekly basis; they meet
with my deputies on a weekly basis.
We have a very in-the-weeds discussion about what is going
on with the numbers that they are hitting. So for instance, we
do--we did know after one quarter that we were having a problem
with the certification of these applications and the OFLC team
had a plan in place by the second quarter to really improve
that. That is how we became aware of this denial based on an
So we are doing that at the very least quarterly, looking
at the numbers as they come in, and clearly looking at things
more often than that when letters come in or concerns come in.
We meet on a regular basis with folks who are really doing
And I just want to say for the record, Mr. Chairman, we
really learn the most when real people come in and talk to us
about things, when they bring their concerns to us, and we make
every effort to make that as pleasant as possible and would
really appreciate members of this committee encouraging their
folks to call us with their concerns, or if they are in
Washington to come in and talk to us. Or when any of us are out
in the field we do try to meet with stakeholder groups, both
workers and employers.
So those are the kinds of things that bubble up concerns in
between those quarterly assessments that we do with each of our
different parts of the agency.
Chairman Walberg. Well, I guess along that line, I
appreciate that willingness and offer. As I mentioned to you
earlier as we met, there is concern in the number of growers--
agricultural employers out there--when even asked to consider
giving testimony before this committee it ended up with them
saying, ``I will give you information, but I don't want you to
use my name.''
And there is a concern about that. I don't know why that is
the case, but I think it is worth addressing, especially as you
give testimony here that you are open to hearing from them and
meeting the stakeholders' needs. If there is a concern that
they will run amuck of some bureaucratic negatives that doesn't
help you or our efforts in the process. So we will plumb those
depths a little bit more and take your offer as sincere and see
if we can work that out together.
Ms. Oates. Absolutely. I will look forward to that.
Chairman Walberg. One of the witnesses on the second panel,
Mr. Bailey, is from a large wholesale nursery, and in fact, one
of the largest in the United States. His company participated
in the H-2A program but ultimately was forced out of the
program, allegedly, because of the repeated regulatory changes
that went on.
As Mr. Bailey noted in his written statement to the
subcommittee, and I quote--``If a company like ours, one of the
largest, most sophisticated in the industry, cannot make H-2A
work something is very wrong.'' And so if a large,
sophisticated company can't function with an H-2A regulatory
scheme how would a medium-sized or small business be able to
make it work?
Ms. Oates. I share Mr. Bailey's concern and would look
forward to working directly with him to find out how we could
make this work better for him and for other growers. I
absolutely agree, if a sophisticated stakeholder can't work
within the system we need to help him and provide whatever
technical assistance we can.
Chairman Walberg. Okay. Well, we will make sure that that--
any further statements to ask for assistance and offer
suggestions how to handle it gets toward you.
I see my time is expired, and so I recognize the ranking
member, gentlelady from California, Ms. Woolsey.
Ms. Woolsey. Thank you, Mr. Chairman.
So, as I have said, I don't believe that there aren't any
U.S. workers willing to do this work, but that is one of the
myths out there is that, you know, we can't find workers in the
United States--and I represent Marin and Sonoma County, just
north of the Golden Gate Bridge; we have got a really good
grape and dairy industry, and if we can hire American workers
in the high-cost area, I mean, I know anybody can.
But Bruce Goldstein's testimony after you, we are going to
learn that even though there are low--the low estimates of U.S.
workers are that at least 540,000 to 600,000 are in the ag
labor force right now. So another one of the complaints, then,
is with those American workers in the ag workforce that the
growers are saying that wages have gone up unreasonably in just
1 year with the new regulations.
Well, help me understand how that--the H-2A wage structure
would bring wages up and why that is not okay.
Ms. Oates. Well----
Ms. Woolsey. You are not going to tell me it is----
Ms. Oates [continuing]. I mean, I think that American
workers are much more likely to be attracted to jobs when the
wages are better and the protections are better, and clearly in
this recession and the subsequent recovery I have met workers
all over the country who are doing things they never dreamed
they would do--auto workers who are going into health care who
never saw themselves becoming a male nurse but want job
security and want jobs available. You know, I think that the
same is true of agricultural workers, that more Americans--
particularly young people who have the ability where we have
such incredibly high unemployment--they have the physical
ability to do these demanding jobs. I think we are much more
likely to see them going into them.
Now, the problem is how do we sell those jobs, and I think
that is something I would like to work with this committee
about: How do we tell somebody that there is dignity in picking
berries or dignity in picking beans? And as more and more
Americans exhaust their unemployment insurance benefits I think
they will be looking to these jobs. But we need to make sure
they are paying prevailing wage.
Ms. Woolsey. All right.
So for years--from Reagan until George W. Bush--we worked
under the same rules and regulations, and then George W. Bush
changed, and then we came back to the current administration
make--changing back. Were there no changes between George W.
Bush and the Obama administration that made things--were things
that need to be--needed to be fixed, that needed to be made
I mean, this is the 21st century; Reagan wasn't. So what
did you do that improved things?
Ms. Oates. Well, I think that the big question mark is the
removal and the ignoring of the public workforce system. I
mean, states have worked very hard to improve their level of
functioning, both technologically and with human resources with
the state workforce boards as well as the local workforce
boards, and I think taking them out of the advertising and
recruitment for these jobs was a huge mistake.
I think that also the self-attestation piece that employers
did look for American work--I don't think there was anything
bad about employers; I think they are limited to their own
work. I can't imagine how hard it is--I have never run my own
business, but I think any business owner would say that running
an agricultural business where you are not only fighting
economic situations but you are also fighting mother nature and
the clock in a much different way than you do in a non-
agricultural business--how do you have time to go out and
recruit workers, American or anything else?
So I think that the attestation was not something that they
were doing that they thought was illegal; it was just a time
pressure. They posted jobs somewhere but in the new regulation
we give them the added help of including the public workforce
For me--and I would be biased on that because ETA also is
the mother of the public workforce system--but I think the
removal of that assistance for particularly small growers to be
able to use that for recruitment was a real mistake.
Ms. Woolsey. So is there any effort between the feds and
the states and our Labor Department to post these jobs at the
state level when people go in and sign up--well, I don't know.
Does anybody walk in to the unemployment office anymore? But at
least online do they lay out these jobs that are available
Ms. Oates. Yes. We have a very close relationship with the
state workforce agencies for not only this program but for a
number of programs, and through the implementation of this
program we have been able to enlist the enormous support of the
state workforce agencies across all the states implicated.
There are electronic job banks that we have done as well as the
state job banks.
We have incorporated two new electronic tools across all
programs called My Skills My Future and My Next Move to really
show people where the jobs are by zip code. It is searchable so
that somebody can not only look for jobs in their own area but
can have a relative that lives in an area search by their zip
code. We think that has been very helpful.
And the states have been very--you know, as they always
are--terrific partners by telling us not only the positives
that they are going through, but they have also been part of
the system--the communication system--to tell us how we can
Ms. Woolsey. Thank you very much.
Ms. Oates. Thank you, Congresswoman.
Chairman Walberg. Gentlelady's time has expired, and it
appears that the lighting system isn't working. A yellow light
isn't coming on. So maybe we will get it fixed now, so----
It is a pleasure, as always, to recognize the chairman of
the full committee, the gentleman from Minnesota, Mr. Kline?
Mr. Kline. Thank you, Mr. Chairman.
Thank you, Secretary Oates, for being with us today. I
appreciate your testimony, and of course we are looking forward
to the second panel. I have some feeling that there is going to
be some disagreement between your assessment and theirs on the
availability of workers, but we will get at that.
I appreciate your testimony today. I know that you are not
the assistant secretary for the Wage and Hour division, but
there has been some discussion about H-2A workers not having
protections, and I would argue that under the DOL that it
appears they have quite a few.
And I am looking at a print from the DOL's Web site where
it says that, for example, no later than the time at which an
H-2A worker applies for a visa and no later than on the first
day of work for workers in corresponding employment the
employer must provide each worker a copy of the work contract,
and that must be available to them; and it talks about the
hours, and the start and end dates, and so forth. They have got
to guarantee to all workers employment for a total number of
hours equal to at least 75 percent of the workdays in the
They have got to provide housing; they have got to provide
transportation; they have to provide contract wages; they have
to provide inbound and outbound expenses. All these supervised
by Wage and Hour in the Department of Labor.
So to suggest that there are no protections is just
Let' s get to your--more to your area here. We are going to
hear--and again, in the second panel, and I know it is a little
bit of a disadvantage for you here because you are testifying
first and haven't had a chance to hear from them--some
testimony that says for the 15 years from 1995 to 2009 the
average number of employer appeals to administrative law judges
regarding the H-2A applications was about 18. This year there
have already been 442 appeals filed.
And testimony, again later, will reveal that the Department
is prevailing on only 10 percent of these appeals. How do you
explain the spike and essentially the Department losing 90
percent of the appeals? Is that right? Do you agree with those
Ms. Oates. I don't have the accurate numbers in front of
me, Mr. Chairman, but I will certainly get them to you. But, I
mean, I think--look, 18 to 442, I am not going to defend that.
That is difficult.
What I am going to say to you is that any time a new rule
is promulgated there are more appeals because people are
getting used to the change. But I think that that kind--if
those numbers are correct it is indefensible and we need to
work--continue to work, again, working with this committee to
get those down----
Mr. Kline. If I may--I am sorry to interrupt, but we are--
Ms. Oates. That is all right.
Mr. Kline [continuing]. We are short of time. Not only is
there the spike--a huge spike.
Ms. Oates. I agree.
Mr. Kline. Eighteen to 442. You are only winning 10 percent
of the time, so it is not like these are spurious or dilatory.
These are genuine appeals to administrative law judges that the
Department is losing.
And when you have that kind of a spike I would argue that
you are having a worse than chilling--a freezing effect across
the industry and across the country. And this is a time when we
are worried about jobs.
We will hear, again, in testimony about the effect of when
a company is put in this position and you have got crops that
fail in the field it is not just H-2A workers who suffer from
this; it is the American workers suffering as well. If a
company goes under because of this it does damage to American
workers, not just to H-2A visa workers.
Again, we are going to have testimony addressing some of
these issues, but it seems to me when we look at some of the
testimony we are going to hear that only 5 percent of U.S.
workers found through the workforce agencies actually work
through the entire contract period. In other words, they come,
they try it for a few days, they try it for a week, decide it
is too hard or something, and then they leave. And something
close to 70 percent of U.S. workers don't accept the
agricultural job offered to them.
So there is an enormous amount of pressure here--and again,
one of my friends and colleagues, the aforementioned Bailey
Nursery, Joe Bailey is here from Minnesota to testify to this,
and so I don't want to jump ahead to his testimony, but at a
time when the economy is struggling as bad as this one is--and
I don't think anybody denies that it is in trouble and that we
have high joblessness--when you have got a Department that is
causing this kind of disruption where you have 442 appeals
where you used to have 18, you are causing great distress in
And so I heard your offer to work and hear. I hope that we
can count on you to do that. I am certainly going to encourage
all of my constituents who are running into this problem to
start that dialogue. It is a big problem, and I think we can do
something about it if we will work together.
I am sorry I have exceeded my time, and I yield back.
Chairman Walberg. I thank the chairman for your questions.
I now recognize the gentleman from New York, Mr. Bishop?
Mr. Bishop. Thank you, Mr. Chairman. I appreciate very much
you having this hearing. I represent Suffolk County, New York,
which--little known fact about Suffolk County, New York is that
it is the largest agricultural producing county in the state of
Ms. Oates. And lovely ducks, as well. Big duck industry.
Mr. Bishop. Very few of them left, by the way.
Ms. Oates. Oh, I am sorry to hear that.
Mr. Bishop. We didn't like what they did to the waterways.
I really just have two questions. What do you think would
be the impact on the farm--on the entire farming industry if we
were to pass legislation that would require all employers,
including agricultural workers--or agricultural employers--to
participate in E-verify?
Ms. Oates. We could probably have a long discussion about
that. I think that I am not able to really tell you exactly
what the--what it would be, but clearly it would have an impact
on some of the people working on agricultural----
Mr. Bishop. My understanding is that the agricultural
workforce is--nationwide is projected to be approximately 70
Ms. Oates. I have seen those, yes. I have seen that data.
Mr. Bishop. And I suppose an argument could be made that
some proportion of that 70 percent would be filled with a
domestic workforce in the event that the undocumented workforce
were basically sent away. But it strikes me as unreasonable to
think that we would be able to fill all 70 percent of the
existing workforce with native-born workers. Am I right about
Ms. Oates. Well, I would agree with you, Congressman,
because if any of the anecdotes that we hear about American
workers showing up and not staying--not staying the whole
season--if any of them are true your supposition would be
Mr. Bishop. And then I guess the other question is, would
not the most comprehensive path here for a solution to H-2A, to
E-verify, and so on, would not the most comprehensive solution
be comprehensive immigration reform?
Ms. Oates. Without a question.
Mr. Bishop. Okay. Thank you.
I yield back, Mr. Chairman.
Chairman Walberg. I thank the gentleman.
Now I recognize the gentleman from Virginia, Mr. Goodlatte?
Mr. Goodlatte. Thank you, Mr. Chairman, and thank you for
holding this hearing on this very important issue. As you know,
I am also a member of the Agriculture Committee, which has a
deep concern on this issue, and I am a member of the Judiciary
Committee and have served on the Immigration Subcommittee,
although I do not serve on that subcommittee right now. And to
top it all off, I used to practice immigration law before I
came to Congress.
So I have a great interest in what we are talking about
here today, but I also have a great concern, having heard from
a number of my agricultural producers who have used the H-2A
program. And in fact, as you may be aware, some of the regions
of the country are higher users of H-2A than others.
Across the country as a whole only a small percentage of
farms that need seasonal workers utilize this program. And I
have for years sought to change the program because I felt that
it has discouraged farmers from utilizing it rather than
encourage it because it didn't meet their needs in a way that
they could remain competitive and remain in agriculture, which
is obviously an important goal of ours.
So I have been greatly disturbed by the regulations that
the Department has recently put in place that seem to be going
in the wrong direction. The chairman cited statistics that show
that both only a small percentage of U.S. workers are staying
on these jobs when they are hired for them.
Statistics, I think, will also show that a greater
percentage of farms are not utilizing H-2A. I would attribute
that to these new requirements.
And I would also express concern about some of the
particulars that are not new but are a problem. For example,
the adverse effect wage rate that is utilized in this designed
to encourage U.S. workers to take these jobs. It obviously
If only 5 percent of the people referred are actually
staying on the job in spite of the fact that these are not just
competitive wages, but they are super-competitive wages,
because instead of having the marketplace determine through a
prevailing wage what they should be compensated, instead it is
sort of a bureaucrat's dream of sitting down and trying to come
up with a formula that indicates what it is that the farmer
would have to pay in order to keep the workers on the job. And
the fact of the matter is, based upon the numbers cited by the
chairman, it simply isn't working.
Secondly, it creates havoc with these farmers who have a
product with a limited period of time in which they can harvest
their crops having to deal with an unreliable workforce because
of the new rules that have been put into effect.
And then finally, going from having H-2A employers able to
wait until the employee had been working for a period of time
before paying 50 percent--paying for transportation costs, now
they are required to reimburse the workers for the cost in the
first week. They come, sometimes from great distances--
sometimes the employer is required to hire from great distances
even though they know that the H-2A workers are reliable, they
go through a program, they come, they stay for a limited period
of time, they go back.
The U.S. workers are not a part of any such program but
they may be recruited from great distances at great expense to
the employer and then leave after they get reimbursed for that
cost, maybe simply transportation to get wherever they wanted
to get to and have very little desire to actually work for that
So these are really unworkable situations for farmers, and
given the fact that the frustration level has risen to the
point that now hundreds of appeals are being filed and they are
prevailing on most of them, don't you think that your
department is going about this the wrong way if you are getting
that kind of result?
Ms. Oates. Well, no, I don't think we are going about it
the wrong way, with great respect, Congressman. I think that
one of the conditions that these workers come in under is--one
of the protections they don't have is overtime. So they get a
flat wage, an hourly wage, and that is set by a survey done by
the Department of Agriculture state by state. I think that is
the right way to do it, and I respect your disagreement on
I do think, as I said earlier, that we are in a continuous
improvement mode. I don't see huge differences in the numbers
from--I am looking at numbers in front of me from 2007 until
today. I am seeing in 2007 we--there were 80,000 workers
requested under this program, and in 2010 there were 90,000.
So I don't see a huge running away from the program, but I
am not walking away from the fact that I can't defend over 400
appeals. What I can defend is that if you disaggregated that by
month we are getting better every month. I am not defending the
number, but I really look forward to working with the committee
and your employers to find out what is causing in your state as
well as the other member states and all the states across the
We think this is the right way--yes, sir?
Mr. Goodlatte. Let me interrupt, because my time is
expired, and I wanted to ask the chairman if I might ask one
Chairman Walberg. I am certain I will pay for that, but----
Mr. Goodlatte. All right, well, it may not even be a
question, or just a statement. This is a hearing on H-2A
workers. I note that the chairman has a witness coming from
Minnesota. Many nurserymen utilize the H-2B program, as do
people in the seafood industry, resort hotels that need
seasonal workers, and so on.
And that may be an even more urgent situation because you
have new rules that are being accelerated in when they are
going to be put into effect, and a number of us have written to
you and asked you to ask the Department to delay putting those
rules into effect because the dramatic change in wages that are
going to have to be paid are in those instances actually going
to put many, many, many small businesses out of business and a
lot of workers out of work, particularly U.S. citizen workers.
Because I applaud your objective to want to employ more
U.S. citizens. We have got to design programs that encourage
that rather than discourage the ability to conduct these
businesses, whether they are farms or whether they are other
seasonal work in the U.S.
So if you have a response to that, I would welcome it.
That is my question, Mr. Chairman. Thank you.
Ms. Oates. I would be happy to work with the committee out
of respect for people's time on the H-2B issue separately at
Chairman Walberg. We would appreciate that. That is a good
question. I am glad, I think, I let you ask that one, but I
think it is a good question because I know we wrestle with that
in Michigan with the Grand Hotel versus some of the growers.
The gentleman's time is expired.
I now recognize the gentleman from New Jersey, Mr. Payne?
Mr. Payne. Thank you very much.
Sorry that I missed your testimony, Assistant Secretary,
but coming from New Jersey, and I know of your extensive
background work in our state and the outstanding job you did,
and also commend you for the fine job you are doing here. So it
is good to see you again.
Ms. Oates. Thank you, Congressman.
Mr. Payne. I guess many people may not realize that, of
course, about 40 years ago--40 or 50 years ago--New Jersey was
a very, very big agricultural state, and much of the
progressive legislation that came to Congress--to the U.S.
Senate in particular--was, as you may know, from Senator
Harrison ``Pete'' Williams, of New Jersey, who was chair of the
Education and Labor Committee and really took on the whole
problem of migratory workers and the horrible conditions that
they were living under, actually even in New Jersey. And much
of the attention began at that time through him to start
focusing on the--on some of the adverse conditions that
migratory workers were experiencing, and child labor, and the
abuses, and the lack of educational opportunities for persons
who were working in our state. And I know that this was through
Under the H-2 program--I don't know if anyone asked you
this already, but--we know that workers cannot switch
employers; they must leave the U.S. when they end their program
that particular year, and if they want to return to participate
the following year they depend on that employer that they
worked for the previous year to apply for a visa for them. They
have no right to become permanent residents, as we know under
this particular program.
Given these facts, is the Department concerned that H-2A
workers are vulnerable to abuse and limited to their ability to
voice concern over working conditions if they know that they
have got to depend on the employer to fill--to make the
request, and employer is not going to request a worker who
seems to be speaking up for his or her rights, and therefore
that employer would be more inclined not to have an application
resubmitted by them? How do you deal with that, or is it a
problem, or is it just something that is potential but you have
no way of verifying whether it is happening or not?
Ms. Oates. Again, Congressman, this is one where we hear
anecdotes, but certainly our sister agency, Wage and Hour, when
they go out and investigate often find it difficult to get
people to testify because they are afraid of the next year. And
ABC News, when they did their expose on the blueberry world
with young children and child labor violations talked to us and
told us off the record the same thing: people were afraid to
And I don't know how we fix it. Workers are afraid to talk,
Chairman, employers are afraid to talk. How do we get the
message out to this industry that we need them to talk to us so
that we can make the improvements that we need?
But, Congressman, I definitely think that these workers are
very afraid to bring some of their concerns forward and do so
many times through their advocacy groups so that they can keep
their anonymity rather than putting their name on the line. But
even afraid to talk about regions, because if you talk about
blueberries in New Jersey you are talking about Hammonton, and
it is not hard to figure out who--you know, what farm you
worked on. So I think people are very nervous.
Mr. Payne. It seems like the employer ought to, since he
knows that he has to somewhat rely on the workers coming back,
it would seem that there would be a more positive attitude on
the part of the employer. I know that they are not all Simon
Legrees, but, you know, there are certainly a lot of them that
do not give the full rights. And of course, a person who is
here--you know, it is just like, you know, invite a cousin to
stay with you they are certainly going to act right in your
house or you are not going to invite them back again. So, I
mean, these guest workers know that they have to--and it seems
like the employer would try to have a better work relationship
so they can have a dependable workforce.
But this is something that concerns me and hopefully we can
quantify it at some point in time. But thank you very much for
all the great work that you are doing.
Ms. Oates. Thank you, Congressman, very much.
Chairman Walberg. I thank the gentleman.
And I thank the assistant secretary, as well, for the time
you have given. I believe there will be some written questions
coming to you based upon the following panel as well. I thank
you for your statement of openness to hear concerns of growers,
of employers as well as employees on this issue.
And I, for one, would certainly like to see that happen,
because if we are working in partnership I think the Department
of Labor is given the very important responsibility of
encouraging labor in this country, and whether it is in the
mining industry or whether it is in the agricultural industry,
more people that are working that are American citizens, but
then, ultimately, the more people that are doing the job that
provide the best quality in the most efficient fashion for the
work that needs to be accomplish is important, too. So we want
to work to that end.
Ms. Oates. You have my commitment, Mr. Chairman.
Chairman Walberg. I appreciate your time. Thank you so
Ms. Oates. Thank you very much.
Chairman Walberg. We will ask the second panel to join us
at the table at this time, and we want to continue right on.
The danger of giving a break is it is a danger, and that is why
we don't give a break, with the schedules that we are all
So as the panelists are coming to the table I would turn to
the chairman of the full committee, gentleman from Minnesota,
Mr. Kline, to introduce a--one of our panel members who has the
great pleasure and benefit of coming from the district he is
privileged to represent.
Mr. Kline. Thank you, Mr. Chairman.
I want to thank all of our panelists, as you are getting
your seats there.
I am really honored today to introduce a fellow Minnesotan,
Mr. Joe Bailey. Joe is the director of human resources for
Bailey Nurseries, Incorporated, an industry-leading company his
family founded in 1906. And I have known Joe, and his dad, and
his family for a number of years and watched the travails that
they have been going through for some time.
So I am very pleased, Joe, that you could make it out here
today. We are looking forward to your testimony.
Back to Bailey Nurseries, it is headquartered in Newport,
Minnesota, with growing fields throughout the state of
Minnesota and nationwide. Bailey Nurseries is one of the
country's largest wholesale nurseries, producing an immense
variety of landscape and greenhouse plants.
Mr. Chairman, I am thrilled Joe has joined us today and
agreed to share his experience with the H-2A visa program for
agricultural guest workers. I will look forward to hearing his
testimony and the testimony of all of our witnesses, and I
Chairman Walberg. Thank you, Mr. Chairman. And thank you
for providing us a resource for the committee today that has
those credentials, especially staying power with the family in
Joining Mr. Bailey will be Libby Whitley, president of
MASLabor; Bruce Goldstein--is that Goldstein or Goldstein?
Mr. Goldstein. Goldstein.
Chairman Walberg. I always wrestle with that, and generally
get it right on the second try--president of Farmworker
Justice; and Leon Sequeira, senior cousel with Seyfarth Shaw
and former assistant secretary of labor for policy at the
Department of Labor.
Appreciate you all being there.
All of these witnesses have extensive experience with the
issues before the subcommittee today and we look forward to
their expert testimony.
Again, before I recognize you for your testimony let me
quickly remind you of the lighting system. It is like the
traffic light. Use it as legally as possible; we would
appreciate that--give us more opportunity for question and
And again, after everyone has testified through the whole
process we will have 5 minutes for each of our panel members to
address questions from our committee.
And so, having said that, I will ask Mr. Bailey to begin
your questioning. Thank you for being with us.
Begin your testimony--not questioning.
STATEMENT OF JOE BAILEY, DIRECTOR OF HUMAN RESOURCES, BAILEY
Mr. Bailey. Okay. Thank you.
Chairman Walberg, Ranking Member Woolsey, distinguished
members and guests, thank you for this opportunity to testify
on the workforce situation and the dilemmas facing the
specialty crop agricultural industry.
As Congressman Kline said, Bailey Nurseries is a fourth-
generation, family-owned nursery started in 1905. We are one of
the United States' largest wholesale nurseries, with our main
offices and growing fields located just outside the Twin Cities
of Minneapolis and St. Paul, and we also grow in Oregon,
Washington, Illinois, and Iowa.
We employ over 500 year-round employees and another 900
seasonal employees during our peak spring shipping and planting
season. Our nursery has relied on seasonal workers since our
During the early years the seasonal workers were primarily
young men off of local farms. During World War II these young
men went overseas, and as was common, we relied on Mexican
immigrants to assist with the seasonal work. As my grandmother
put it many times, ``we would never have made it without the
men who came up from Mexico.'' The respect for these
hardworking people is shared by everyone I have ever met in the
nursery and landscape industry.
We struggle each year to fell our seasonal positions. Few
Americans apply for, accept, and stay in seasonal and
intermittent employment. Many who are hired to not last long as
they find the work too physically demanding, are not willing to
work in unfavorable weather conditions, or find the seasonal
work unacceptable in preference to year-round employment.
Over the years our company has seen and lived through it
all--audits, an INS raid in 1996, H-2A program utilization, and
E-verify. In 2008 we began using the H-2A, bringing in about
one third of our seasonal workers on the program.
We spent hundreds of thousands of dollars each year to use
H-2A but there were some advantages. The same workers returned
each year. They were trained and productive from day one, but
you never knew if the workers would arrive when needed. The
program has been a bureaucratic nightmare to work with.
Between 2008 and 2010 the H-2A regulations changed three
times. These changes forced us out of the program at the end of
Essentially we went through the same exercise we did in the
1996 immigration raid. We had a trained and productive
workforce that we lost in 1 day due to the government, only
this time it was a regulation change instead of a publicized
raid. It is hard to imagine the entire seasonal agricultural
workforce coming in on the current H-2A program when less than
5 percent of the workforce does now.
In 2008 we began using the E-verify program at our
headquarters in Minnesota, which has screened out a substantial
portion of our applicant pool. As of today we continue to use
In 2011 we have truly struggled to attract and retain a
seasonal workforce. We have spent more time, effort, and money
than ever on recruitment.
We needed to fill 500 seasonal positions in Minnesota, yet
we are only able to hire 350 people that came through our front
doors. Of these 350 workers, as of September 1st over 50
percent have voluntarily quit. With the high turnover
throughout the season we are short over 100 people to do time-
In theory at least, E-verify would level the playing field
with all employers. But supporters of mandatory E-verify are
wrong when they say it will create U.S. jobs.
At least for agricultural and seasonal employers E-verify
would shrink the seasonal labor supply and threaten U.S. jobs.
In our own company 500 year-round American jobs on our farms
are at risk if we can't access enough seasonal workers.
Congress needs to set aside the politics and, in our view,
establish a new agricultural worker visa that allows
experienced current workers and future workers to participate,
scrap the broken H-2A model, allow workers to move among
registered employers. Bad employers will have to clean up their
act to be able to retain workers.
Limit the role of government. There is just too much
bureaucracy, and that is why H-2A is failing to do the job. If
a large company like ours cannot make H-2A work something is
Agriculture needs a legal labor safety net program that
actually works. We are open to E-verify, but only with a
workable program. Otherwise you will export American jobs and
businesses, export economic activity, and import more food and
The lack of a workable program jeopardizes the viability of
our 106-year-old family business, and most importantly, the
livelihood of hundreds of year-round American jobs. With all
the attention on creating jobs let us not forget to protect the
[The statement of Mr. Bailey follows:]
Prepared Statement of Joe Bailey, Bailey Nurseries, Inc.
Chairman Walberg, Ranking Member Woolsey, distinguished members of
the subcommittee, and guests, thank you for this opportunity to testify
on the H-2A temporary and seasonal agricultural worker program, and the
implications of mandatory E-Verify on the specialty crop agricultural
industry. Bailey Nurseries is a fourth-generation family-owned nursery
started in 1905. We are widely recognized as one of the United States'
largest wholesale nurseries, with products distributed by more than
4000 garden centers, landscapers, growers and re-wholesalers throughout
the U.S. and Canada. Our main offices and growing fields are located in
Newport, Minnesota, (just outside the Twin Cities of Minneapolis and
St. Paul) and we also operate nurseries in Yamhill and Sauvie Island,
Oregon; Sunnyside, Washington; Onarga, Illinois; and Charles City,
My testimony today is also offered on behalf of the American
Nursery & Landscape Association (ANLA). ANLA is the national trade
organization representing my industry. ANLA's 15,000 members and
grassroots participants are mostly small and family-based businesses
who grow, sell, and install landscape plants as well as much of the
planting stock for America's orchards, vineyards, Christmas tree and
berry farms, and even managed forests.
Bailey Nurseries employs over 500 year-round employees and another
900 seasonal employees during our peak spring shipping and planting
season. We grow and offer thousands of different nursery and greenhouse
products that include deciduous trees and shrubs, evergreens, fruits,
perennials, annuals and roses. Our plants are offered from seedlings
and rooted cuttings to finished bareroot and container-grown stock,
often taking 3 to 5 years to grow. The attention our plants receive
throughout their growth results in some of the finest plants available.
Bailey Nurseries, Inc. has relied on seasonal workers since our
humble beginnings. During the early years of the nursery the seasonal
workers were primarily young men off of local farms. During World War
II many of these young men went overseas to fight the war and, as was
the case with growers elsewhere, we relied on Mexican immigrants to
assist with the seasonal work. As grandma Bailey put it many times ``we
never would have made it without the men who came up from Mexico''. We
are proud of our long standing relationship with the people from Mexico
and immigrants from many other countries as well. The respect for the
hard working people that make up the majority of the seasonal
agricultural workers in this country is shared by everyone I have ever
met in the nursery and landscape industry.
During the 1990's our seasonal workforce became predominantly
Hispanic. We became reliant on this demographic as the local
unemployment rate dipped below 3% and the local applicant pool all but
In 1996 the INS audited our Form I-9's and discovered a number of
our employees lacked proper work authorization. We were shocked as the
applicants had presented us with documents that appeared genuine. The
INS raided our farms during the middle of our fall harvest and we lost
137 experienced workers. Many of the employees had been with us for
over 10 years and had close personal ties to their co-workers and the
We have struggled every year since to find enough people to help
fill our seasonal positions. As we have learned first-hand, few
Americans who are seriously seeking work will apply for, accept, and
remain in seasonal and intermittent employment, especially in the
Many who are hired do not last long as they find the work too
physically demanding or repetetive, are not willing to work in
unfavorable weather conditions, or find the work schedule too
In 2008 we began using the H-2A program, bringing in about one-
third of our seasonal workers on the program. We spent hundreds of
thousands of dollars in expense to utilize the H2A program each year,
but we believed it was worth it to have a somewhat stabilized and
trained seasonal work force. Between 2008 and 2010 the H2A program
regulations changed three times. Due to the finalized H2A regulation
changes and the size and sophistication of our business we were forced
out of the program at the end of the 2010. Essentially we went through
the same exercise as we did in the 1996 INS raid; we had a trained and
productive work force that we lost in one day due to the government
(this time a regulation change instead of a publicized raid).
By some measures, the H2A program worked very well for us. It
allowed us to bring back the same workers each year. As returning
workers they were already trained on skilled work (identification of
hundreds of plant varieties, order pulling, pruning, etc.) and
productive from day one. 100% of the H2A workers went back to their
homeland after our season was finished. Our experience was that all of
the H2A workers played by the rules, were happy for a seasonal job
opportunity with an employer who valued their skills and work ethic,
and were happy to go back to their homeland for the winter to be with
Our experience with the H2A program was that it was a gamble
whether you would get the workers that you needed on time for the
busiest time of the year, April and May. The program is a bureaucratic
nightmare with multiple hoops to jump through. Getting our seasonal
workers late does not offer a valid excuse to our customers who are
wondering why their shipment of plant material is late. The nursery
business is very seasonal and time sensitive for shipping, planting,
and tending the plants. It is impossible to imagine the entire
agricultural seasonal workforce coming in on the current H2A program
when less than 5% currently does. The size of government and its budget
would certainly need to grow in order to administer increased use of
In 2008 we began using the E-Verify program at our headquarters in
Minnesota which has screened out a substantial portion of our applicant
pool who were using fraudulent documents. As of today we continue to
use the E-Verify program. The upside is that we believe we know who we
have on our staff (even though E-Verify may be prone to failure in
detecting use of false documents that contain a legitimate name and
number combination). The downside is that we are drastically short on
help during the spring rush, even in the down economy.
In 2011 we have withstood tremendous difficulty with our seasonal
work force. We spent more time, effort, and money than we ever have on
recruitment. We advertised our positions in the newspaper and on the
radio, held job fairs, recruited from local unemployment offices,
recruited other ethnic groups through their social services networks
(Hmong, Burmese, and Vietnamese refugees), recruited at local seasonal
businesses that were laying off staff, started a referral program, and
sent letters to previous employees asking for them to return.
Unfortunately, we were not able to attract enough people to work in our
shipping facilities, greenhouses and fields. This led to being
understaffed and a lot of frustration by our supervisors and customers.
We had hundreds of applicants, but many were not willing to do the
work after hearing about it, did not show up to be hired after we made
the job offer, preferred to stay on unemployment, only wanted summer
work, lacked basic requirements, could not work the demanding schedule
which can be 6 or 7 days a week and 9-14 hour days during the spring
rush, or did not pass E-Verify or the criminal background screening we
run on all new hires.
We needed to fill 500 seasonal positions in Minnesota, yet were
only able to hire 350 people that came through our front doors. Of the
350 seasonal workers we hired this year, as of September 1, over 50%
have voluntarily quit and the balance are still with us. With the
increase in turnover throughout the season, we were short over 100
people to do our time sensitive work. Many of the local workers that we
hired this year have left us for companies that can offer year-round
work, i.e. meat packing, or gone back to school.
We continue to wonder what else we can do to attract seasonal
workers other than raise our wages. We operate in the real world: how
do we raise wages when we have had a wage freeze on our fulltime staff
for three years now due to the current economic conditions? How do we
raise wages when we are operating in an increasingly competitive global
economy? Nurseries in Canada, for instance, can grow the same crops we
grow. The difference is that Canada has a seasonal agricultural worker
program that actually works. The Canadian government facilitates use of
the program and the success of its growers. This is a vastly different
reality than that facing our company and our peers across the U.S.,
where government is a hostile impediment rather than a help.
Of all the problems our industry and our company face, seasonal
labor is the biggest. We do 60% of our business in 60 days in April and
May. If we do not have qualified seasonal staff on a timely basis at
our peak we are in a very, very difficult position. A shortage of
qualified workers leads frustrated supervisors, lost sales, and lost
We are trying to do everything the right way, but we remain very
cautious and uncertain about the future because we do not know what
kind of seasonal labor force we will have from one year to the next.
The 500 seasonal workers we employ in MN directly support over 500
year-round positions within our company. Without an adequate supply of
seasonal workers we will be forced to cut year round jobs, drastically
downsize our business, or worse, affecting our customers and suppliers
as well. Many Americans could lose their jobs in production, sales and
marketing, logistics and transportation, and management if we don't
have an adequate seasonal labor pool.
In many ways, we would support mandatory E-Verify to level the
playing field with all employers. But the proponents of mandatory E-
Verify are wrong when they say it will create U.S. jobs. At least in
the agricultural and seasonal settings, mandatory E-Verify constrains
the seasonal labor supply and in turn threatens U.S. jobs. With
mandatory E-Verify the agricultural economy in particular will suffer
without a safety valve to find enough seasonal workers on a timely
basis and without the Soviet-like bureaucracy which companies now face
when they try to use the H2A program. In our own company, 500 year-
round American jobs on our farms are at risk if we can't access enough
seasonal workers. But the impact is even broader, as we purchase goods
and services needed to farm. And, our payroll of $28 million each year
is largely spent in the local economies where we operate.
If we can't find enough local Americans to do seasonal work with
the current high unemployment rate, what will happen when the rate goes
down and everyone is using E-Verify? Even though we are next to a major
metropolitan area, our experience has shown that there simply is not an
adequate supply of seasonal workers. Our peers from California to
Connecticut to the Carolinas report the same experience.
I would like to make a few comments regarding solutions. Congress
needs to set the politics aside and roll up its sleeves and get to work
to solve the problem. Here is the outline of a balanced approach:
Establish a new agricultural worker visa. Allow
experienced workers who are here as well as future workers to
participate in such a visa program. Ideally, the visas should be valid
for at least a year or two, and be renewable so long as terms and
conditions are followed. A shorter visa term means more interactions
with government, which means the need to build up more capacity for the
program to work.
Scrap the H-2A model, where the contract tie limits
flexibility for both the employer and the worker and leads to calls for
layers of added worker protections. Instead, allow agricultural workers
to move among registered employers. Bad employers will have to clean up
their act to be able to retain their seasonal workforce.
Establish better incentives for workers to return home
when the work is done. Withholding the equivalent of the employee's
Social Security contribution in escrow, only to be accessed when one
returns home in compliance with their visa, would provide such an
The greatest need for such visas is for seasonal workers,
though we are sensitive to the fact that some year-round farm
production jobs are difficult to fill and should be eligible to
participate in a new program.
Limit the intrusive hand of government in the program. Too
much bureaucracy is why H2A is failing to do the job. Design a new
program with an eye toward how the market works, and how seasonal
workers move among employers and among crops.
In closing, I would like to make three points. First, if a company
like ours, one of the largest and most sophisticated in our industry,
cannot make H2A work, something is very wrong. Agriculture needs a
legal labor safety net that actually works. We need a new program
Secondly, we are open to E-Verify being applied uniformly across
the agricultural industry, but only after a workable program is
implemented. To put the cart before the horse will kill American jobs
and companies in industries like mine, export jobs and economic
activity to other countries, and import more food and agricultural
Thirdly, the lack of a workable program jeopardizes the viablility
of our 106 year old family business and the livlihood of hundreds of
year-round jobs. With all the attention on creating jobs let's not
forget to protect the existing jobs.
Chairman Walberg. Thank you, Mr. Bailey, for your time and
And now I recognize Ms. Whitley for your testimony. Thank
you for being here.
STATEMENT OF LIBBY WHITLEY, PRESIDENT, MASLABOR
Ms. Whitley. Thank you, Mr. Chairman.
Good morning, Chairman Walberg, Chairman Kline, Ranking
Member Woolsey, and other members of the committee. My name is
Libby Whitley and I am chair of the H-2A Committee of the
National Council of Agricultural Employers. NCAE represents
agricultural employers and their associations throughout the
U.S. on labor and immigration issues, and its H-2A program
users range from the West Coast to New England and include the
nation's oldest program users.
I am also president of Mid-Atlantic Solutions,
Incorporated, of Lovingston, Virginia, known as MASLabor, which
serves more than 600 diversified agricultural, green industry,
and other seasonal employers in more than 30 states.
NCAE and its members are grateful for the opportunity to
address the subcommittee today and share our views of the
dysfunctional H-2A program.
NCAE and its members, along with agricultural employers
throughout the U.S., have concluded that the H-2A program is
broken and cannot be fixed. Historically, it has been difficult
to use. In the past several years it has become impossible.
Users have faced three sets of conflicting regulations
based on the same statute in the past 3 years. Administration
and enforcement of the program by the U.S. Department of Labor
We are here to ask the subcommittee and Congress to provide
us a new program, structured in a manner that growers can use
and which ensures that workers arrive at the farm in a timely
manner. Right now less than 4 percent of the seasonal
agricultural workforce is comprised of H-2A workers because of
the problems I will describe.
With the anticipated reporting out of mandatory E-verify
legislation pending before the House Judiciary Committee in the
coming weeks it is imperative that a new and workable program
be enacted at the same time. Mandatory E-very legislation would
deprive seasonal agricultural employers of nearly 70 percent of
its workforce estimated to be employed through the use of
genuine-appearing but invalid work authorization documents
without any workable program to replace them.
How do we know the H-2A program is broken? We have heard
grower anecdotes--you have heard grower anecdotes for years.
But to objectively measure program performance among H-2A
users this year NCAE commissioned an expert to design a
nationwide statistically valid survey of employers using the H-
2A program in 2010. The survey was implemented by Washington
An explanation and preliminary summary of the survey
results is attached to my full testimony, my written testimony.
The survey and publicly available statistics show the
following: Growers are frustrated with the administrative
burdens and costs of the program. Some of the subcommittee
members have undoubtedly heard about these because 54 percent
of those surveyed had complained to their congressmen and
senators about the program.
The heavy administrative burdens and costs imposed by the
program do not result in U.S. workers taking farm jobs. Sixty-
eight percent of workers found by the state workforce agencies
did not accept the offered job, and only 5 percent who did
accept the job finished the entire contract period.
DOL historically and currently fails to meet its statutory
deadlines for acting upon H-2A applications. Typically it meets
them less than 60 percent of the time.
Seventy-two percent of the growers surveyed report that
they receive their H-2A workers on average 22 days after the
date they were needed. This is devastating for the production
and harvesting of perishable crops.
DOL now rejects the same applications it has accepted
routinely in the past, often with no legal basis and with no
advanced warning to the affected employers or the public.
Typical examples of the small employers or inconsistencies
cited include using an attachment to a DOL form to provide the
detailed information requested rather than putting all the of
the information on the form, using White-Out to correct an
error, and a transposed digit on a zip code.
DOL officials in Chicago are now dictating to farmers when
and how they should conduct their farming operation and if
farmers refuse to submit to this legally unjustified
intermeddling DOL issues a deficiency notice or denies the
application. DOL's arbitrary denials required farmers to hire
lawyers to make expedited appeals to an administrative law
judge to get their workers and save their crops. Appeals have
skyrocketed in the past from a national average of 18 annually
from 1995 through 2009 to, as we have discussed previously
today, 442 in 2011, and that is only partial-year data, by the
In most cases the farmer prevails those that actually
appeal. Our survey shows that many just abandoned the effort.
But the workers invariably arrive late, usually weeks or months
after the date of need.
Delays in admission of workers or application denials
resulted in $320 million in economic losses in 2010 to the
surveyed farmers. This is an astronomical number when you
consider this involves only less than 4 percent of the
agricultural workforce. If the entire workforce was forced into
the H-2A program the annual losses would be in the billions.
The Wage and Hour division of DOL, which enforces the H-2A
program requirements, singles out H-2A employers for
enforcement. It often ignores those who don't incur the cost
and burden of seeking to obtain a legal workforce through the
H-2A program, and our statistics in our survey bear this out
Under the current regulations DOL is seeking hundreds of
thousands, millions of dollars in back-pay and fines for
employers who failed to let the Department of Labor know that
some of their workers had terminated the contract early--
voluntarily quit their jobs. For this technical violation
growers are forced to pay three quarters of the wages for the
entire contract period even though there obviously was no
injury involved of people who voluntarily quit.
This has been financially devastating to employers and
hurts their year-round U.S. workers. By comparison, the
Department of Homeland Security only asks for a $10 fine for
this violation of failure to notify.
NCAE strongly urges this subcommittee and Congress to enact
a seasonal farmworker program that is not based on the H-2A
structure as part of the E-verify legislation. We cannot gamble
that Congress will address this important issue in the future.
It will be too late.
If we want to produce labor-intensive agricultural products
in this country, including fruits and vegetables, rather than
importing them from abroad, we have to address this program
now. And I thank the committee for its time.
[The statement of Ms. Whitley follows:]
Prepared Statement of Elizabeth (Libby) Whitley, on Behalf of the
National Council of Agricultural Employers
Good morning, Chairman Walberg, Ranking Member Woolsey, and Members
of the Committee. My name is Libby Whitley, and I am the Chair of the
H-2A Committee for the National Council of Agricultural Employers
(NCAE). NCAE represents agricultural employers and their associations
throughout the U.S. on labor and immigration issues, including many H-
2A program users. NCAE's H-2A users range from the West Coast to New
England and include the nation's oldest program users. I am also the
President of Mid-Atlantic Solutions, Inc. (MASLabor) of Lovingston,
Virginia, the leading for-profit service provider of H2 guestworkers in
the United States. MASLabor serves more than 600 diversified
agricultural, green industry, and other seasonal employers in more than
30 states. I am testifying today on behalf of NCAE and its members are
grateful for the opportunity to address the Subcommittee today and
share our views of the dysfunctional H-2A program.
The H-2A program is the only way for many farmers to hire enough
legal workers to grow and harvest their crops. Congress created the
program with two purposes: (1) to require the U.S. Department of Labor
(DOL) to admit in a timely manner temporary and seasonal alien
agricultural workers if there are insufficient able, willing, and
qualified U.S. workers to meet workforce needs and (2) to ensure that
the admission of alien workers does not adversely affect U.S. workers.
Unfortunately, DOL singularly focuses on administrative requirements
intended to ensure employment of U.S. workers. As a recent survey
conducted under NCAE's auspices shows, DOL delivers few U.S. workers
who want farm jobs, in spite of the extreme costs and burdens it
imposes on farmers for this purpose.
DOL does not attempt to meet its other statutory requirement--the
timely admission of legal workers. This results in serious delays in
the admission of needed H-2A workers without providing any benefit to
U.S. workers. To the contrary, DOL's program administration threatens
the jobs of year round U.S. workers and other businesses that rely upon
farmers producing labor intensive crops. As currently administered, the
H-2A program fails to meet its purposes and, as a result, the safety
net on which these farmers rely for a legal workforce is fundamentally
For many years farmers have expressed their frustration with the H-
2A program and this has increased dramatically in the past two years.
We hear egregious examples of administrative mistakes and arbitrary
action taken by DOL on the weekly calls of NCAE's H-2A users committee.
From all over the country, farmers tell the same story: regulatory
burdens and arbitrary treatment that make the system unworkable and
drive farmers out of the program, imposing hundreds of millions of
dollars of losses due to delays in DOL's processing of growers'
applications, and arbitrary and frivolous denials of applications that
result in unnecessary appeals to the Office of Administrative Law
Judges. Rather than rely upon anecdotal stories, NCAE decided this past
spring to commission a national statistical survey of employers using
the H-2A program in 2010 to demonstrate to Congress that the H-2A
program needs to be replaced with a new program that will ensure the
survival of labor intensive agriculture.
NCAE's National Survey of H-2A Program Users
I have referred in my testimony to information from a survey
conducted by Carol House, who designed a nationwide survey of all users
of the H-2A program in 2010 on behalf of NCAE. Ms. House is an
agricultural statistical expert, recently retired from the U.S.
Department of Agriculture, where she was responsible for 500 annual
statistical releases of the National Agricultural Statistics Service
(NASS) and the Census of Agriculture. The survey was implemented by
Washington State University. I will be making reference to the
preliminary findings of the survey throughout my testimony in order to
provide members of the Subcommittee some context for my statements. The
following comments are based on the survey, publicly accessible
statistics and examples of H-2A program problems provided by NCAE
members based on their experience that illustrate the conclusions drawn
from the statistics.
E-Verify & H-2A
The timing of this hearing is critical, as the House Judiciary
Committee is expected to report out in the coming weeks a mandatory E-
Verify program that would exclude an estimated 70 percent of the
seasonal agricultural workforce from employment. In June of this year,
Representative Lamar Smith, Chairman of the Judiciary Committee,
introduced H.R.2164, the ``Legal Workforce Act.'' This would make E-
Verify mandatory for all employers. Although the language of the bill
contains provisions that implicitly recognize the undocumented nature
of the agricultural workforce and would delay its mandatory application
to farmers for three years, it does not provide a long-term solution to
agriculture's need for a workable program. This creates the imminent
threat of losing the majority of America's seasonal agricultural
workforce, as well as year round dairy and livestock workers who do not
have access to any legal worker program.
We have seen the dramatic effect of the passage of a mandatory E-
Verify law in Georgia this summer as farm workers have not sought jobs
in that state, leaving farmers to watch their crops rot in the field
for lack of workers to harvest them-causing millions of dollars in
damage. This demonstrates why there is such a critical need for a
workable program that will meets the needs of labor intensive
agriculture. Whether Congress passes mandatory E-Verify or not, the
states are passing E-Verify laws at a rapid rate and the U.S. Supreme
Court this year upheld such laws. The current dysfunctional program
leaves growers without a safety net and without access to a legal
The H-2A Program: The Growers' Perspective
Why are farmers who utilize the H-2A program frustrated? They are
frustrated by regulations that changed twice between 2008 and 2010,
after having previously been without change for the prior 21 years;
they are frustrated by being second-guessed by officials at DOL with no
agricultural background telling them how to operate their farms; they
are frustrated by being disproportionately targeted for Wage and Hour
Division audits; and they are frustrated by a Department of Labor that
seems more interested in creating paperwork and looking for mistakes
than in administering a program that ensures the employers have access
to a legal workforce sufficient to sustain the labor-intensive
agriculture industry in the U.S.
Highlights of Survey Findings
Nearly 50% of Those Who Quit Using the H-2A Program Do So Because
of Administrative Burdens and Costs. Of those choosing not to
participate in the program in 2012, 42% give the reason that it is
``too administratively burdensome or costly,'' as supported by their
accounts of delayed or denied applications and huge economic losses.
Administrative and litigation expenses continue to pile up. Nearly half
of the employers surveyed state that they are ``not at all satisfied''
or only ``slightly satisfied'' with the H-2A program; only 14% were
``very satisfied'' or ``completely satisfied.'' More than half of the
employers say that they became so frustrated that they complained about
the program to their Senator or Representative. Of those choosing to
remain in the program, nearly 40% cite as reasons for their continued
participation that they are ``dissatisfied with the program, but have
no legal alternative'' or ``anticipate that an electronic employment
authorization verification program will become mandatory.''
The Imposition of Large Regulatory Burdens and Costs Does Not
Result in U.S. Workers Taking Farm Jobs. Employers reported that of the
qualified domestic workers found through state work force agencies, 68%
did not accept the offered job, 7% accepted the job but did not start
and 20% started work but did not work through the entire job contract
period. Only 5% actually worked through the entire contract period.
DOL Statistics, Consistent with the Survey, Show that It
Historically and Currently Fails to Meet Statutory Deadlines for Acting
Upon H-2A Applications. Applications Denials Have Increased
Significantly. Historically, DOL missed its statutory deadlines and
workers arrived late; however, nearly all employers eventually received
approval of their applications. Under the new rules, the application
approval rate has dropped dramatically. The GAO issued a report to
Congress in December 1997, H-2A Agricultural Guestworker Program:
Changes Could Improve Services to Employers and Better Protect Workers,
noting that during FY 1996 and the first 9 months of FY 1997, DOL
approved 99% of all H-2A applications.\1\ The approval rate remained
near that level until FY 2010, when it fell to 89%, and has since
fallen again to less than 78% of the applications processed in the
first three quarters of FY 2011.\2\
While growers using H-2A and DOL may disagree over the specific
decisions by CNPC for these applications, they would both agree that
the decisions are not being made in a timely manner in many cases. By
law, DOL must make a certification on an H-2A application within 15
days of receipt and at least 30 days prior to the employer's stated
date of need. From 1997 to the present, DOL met its statutory deadlines
for handling H-2A applications only 40 to 60 percent of the time.
Moreover, DOL does not appear concerned with this consistent failure to
meet its legal obligations.
In annual documents submitted to Congress in support of its budget
requests, DOL sets forth targets for compliance with these H-2A
deadlines. The first year that DOL set compliance targets in its CBJ
was FY 2006.\3\ For both FY 2006 and FY 2007, the target was set at
95%--that is, the Department would try to issue timely decisions on 95%
of the H-2A applications received during those years; the actual
compliance rates for those years were 57% and 55%.\4\ The Department's
solution to this problem was to lower expectations. The compliance
targets for FY 2008, 2009, and 2010 were lowered to 60%, 61% and 62%,
respectively.\5\ Even these modest goals proved to be overly ambitious,
as the actual compliance rates for handling H-2A applications in a
timely manner were 56%, 46% and 58%.\6\ The targets set forth in the
2012 CBJ have been lowered again, to 57% for 2011 and 2012.\7\
DOL Now Rejects Applications that It Accepted in the Past.
Employers are reporting that applications for temporary labor
certifications filed with DOL's Chicago National Processing Center
(CNPC) that had been routinely granted in years past are now being
denied without explanation. Many growers had used the same workers year
after year, doing the same specific work on their farms with the
experience developed over that period. Now, DOL tells them that
everything must change. In the NCAE survey, 68.7% of growers said that
it is ``substantially harder to get certified'' or ``somewhat harder to
get certified'' under the latest regulations, compared to 2.4% who
believed that it was ``somewhat easier to get certified.'' Even more
than other industries, agriculture depends on consistent practices and
predictability. The current regulatory culture deprives growers of that
Examples of typical arbitrary and unreasonable deficiencies and
Application Denials and Deficiency Notices Based on Small Errors or
Inconsistencies in Paperwork--``White Out'' and Zip Codes. Even where
growers adjust to the new requirements of the most recent set of
regulations, they see their applications denied for small errors or
inconsistencies in submitting the paperwork. As shown in the nationwide
survey, where growers receive a ?deficiency notice? from DOL on their
application, a handful of these notices actually relate to the wage
rate or other substantive conditions of the proposed work, but 58%, by
far the greatest portion, arise from small errors and inconsistencies
in the application.\8\
Applications have been held up because the grower could not fit the
detailed information requested into the small boxes on Form ETA 790,
even though the employers wrote ``see Attachment 1'' and provided the
required information on separate sheets of paper. In the past, CNPC had
consistently accepted such applications for certification, including
applications earlier in the very same growing season, but suddenly
began issuing Notices of Deficiency based on this, stating that the
employer should instead answer within the limited space. If an employer
uses too few words in that space, he or she risks having the
application denied for not providing enough information for DOL to
consider the application.
Applications were rejected by DOL because the employer needed to
correct the form and used correction fluid or ``white-out'' when
completing the form. Employers have had applications denied for
transposing digits in a zip code on Form ETA 790. These application
forms are not easy to complete, 89% of H-2A users reported using an
agent to help them complete the forms, and they still spent more than
185,000 hours on this paperwork in 2010.
Rejection of Applications for Word Choice. Growers have had their
applications turned away by DOL for hyper-technical issues of word
choice. For example, as set forth in the H-2A regulations, employers
must pay the wage rate required at the time the contract begins. If
that rate increases during the contract period, the employer must pay a
higher wage, but if the wage decreases, may pay the lowered wage. In
past years, applications were approved where the advertising for the
job set forth the wage to be paid but indicated that it may change.
Recently, DOL has rejected language that stated ``the required wage may
be higher or lower than it is at the time of filing this job offer,''
and required that the order state ``the required wage may be different
than it is at the time of filing this job offer.'' DOL never explained
how these two wordings are actually different or would provide any
extra information to applicants, but the delay cost the grower weeks of
work while the wording was changed to meet DOL's new preference.
Denials or Deficiency Notices Because DOL Officials Dictate When
and How Farmers Should Conduct Their Farming Operations. Beyond the
challenges of simply completing the forms required by DOL, DOL
officials at CNPC have been denying applications from growers based on
second-guessing matters of farm operations. For example, CNPC denied
several applications from growers for including an earlier or later
starting or ending date in their application than in the prior year's
application. The CNPC denied an application from an employer in
Massachusetts because the season shown on the application began in
February and the Certifying Officer processing the form in Chicago
decided that nothing could be grown there in February. When the
employer explained that it was using greenhouses and needed workers to
begin planting in the greenhouses so that the crops would be ready by
summer, DOL eventually granted the certification, but only after weeks
of work had been lost.
In another case, DOL denied the application of a Connecticut apple
orchard, telling them that the orchard had the incorrect season for
growing apples. The employer's 2009 application was approved for April
through December 2009. In 2010, facing financial limitations, the
employer could only afford to use workers for June through October, and
his application for that period was also approved. When filing the
paperwork for the 2011 season, the employer was again able to apply for
workers from April to November. DOL denied the application, telling the
employer, a family-owned orchard, that the correct season for doing
this work was June through November and not April through December,
even challenging whether the work was ``seasonal or temporary'' at all.
The orchard owner had to explain that workers prune the trees and
maintain farm equipment in the spring, and that the growing cycle may
vary with the weather in a given year. After weeks of unnecessary
delay, the application was approved.
In the past, DOL had regional offices and personnel with
agricultural expertise who could address what the ``normal and accepted
experience qualifications,'' e.g. ``experience''--should be for a given
candidate for an agricultural job. Today, those decisions are made in
Chicago, with CNPC personnel dictating what experience or other
qualifications are appropriate for particular agricultural work.
Although ``prevailing practices'' surveys used sometimes used to shed
light on this issue, these are often unreliable and often not
statistically defensible. CNPC now routinely challenges experience
requirements, issuing deficiency notices until the grower accepts DOL's
requirement or appeals. Several examples illustrate the arbitrary
decisions DOL has made this past year that has resulted in an
unprecedented number of appeals.
DOL refused to accept a Georgia farmer's 30 day experience
requirement for pruning a fruit orchard, notwithstanding the fact that
it was supported by an agricultural extension agent from the University
of Georgia who indicated that an inexperienced worker could cause the
loss of a crop and damage trees. The grower had to appeal. A Texas
farmer who required a commercial driver's license (CDL) to operate
trucks to haul farm products and livestock had its application
rejected. When it changed its application to eliminate the CDL
requirement it again had its application rejected because DOL changed
its mind and wanted a CDL requirement.
Arbitrary DOL Deficiency Notices and Application Denials Require
Farmers to Take Costly Legal Appeals. While the CNPC will sometimes
relent when the grower responds and explains the issues in the
application, more often, these denials result in fully-litigated
appeals to the DOL Office of Administrative Law Judges (OALJ). The
recent flood of denial letters has led to a corresponding spike in the
number of OALJ cases filed. For the 15 years from 1995 through 2009,
the average number of OALJ appeals filed each fiscal year was 18.4.\9\
To date in FY 2011, there have been 442 OALJ appeals filed, a total
that before now took decades to reach. 37% of employers forced to file
appeals had to retain lawyers. In the vast majority of these cases, an
initial denial by the CNPC resulted in an appeal to the OALJ, at which
time the DOL Solicitor's Office concluded that CNPC's position is
indefensible and agrees to remand the application to the CNPC for
approval, weeks after the original determination, and often after the
date on which the workers were needed.
All of this unnecessary delay and administrative proceedings costs
taxpayer dollars and imposes significant burdens on growers, even if
the OALJ agrees with the employer and directs the CNPC to approve the
application. In some cases, there appears to be no justification but
delay. In one case, an Arizona grower applied in August 2010 for 500 H-
2A workers to pick cantaloupes during a very brief harvest season of
October 5 to November 19, 2010. CNPC denied the application, the grower
had to appeal to the OALJ, and DOL finally agreed to certify the
application for 499 workers instead of 500 on October 25, 2010--after a
third of harvest season had passed. A California lettuce grower had to
appeal from a CNPC denial, only to have DOL approve the application for
138 instead of 140 workers, but 5 days after the date that the workers
were needed to begin work. DOL finally conceded that it should have
granted a Montana cattle rancher's application after an ALJ appeal, but
did so in March 2011 for workers needed from December 1, 2010 to April
Even the Administrative Law Judges hearing these appeals have grown
frustrated with the Department's handling of H-2A applications. In a
recent case, CNPC denied the grower's application because the employer
did not file a recruitment report on the Sunday prior to the Monday on
which the employer was notified that the recruitment report was due,
forcing the grower to file and litigate an appeal to the OALJ. The
Judge chastised the Certifying Officer, stating that, ``it is a
patently inefficient and unnecessarily expensive way to proceed. I
implore the Office of Foreign Labor Certification to review this policy
of the CNPC and consider the costs it imposes on employers, the
administrative review process, and the public coffers.'' \10\ In the
end, the Judge attributed the CO's decision to force the employer to
file an appeal to ``a breakdown in common sense.''
DOL's Delays and Arbitrary Denials of Applications Results in $320
Million Dollars in Economic Loss to Farmers. 72% of Growers Report
Workers Arrived on Average 22 Days Late. These processing delays result
in delays in recruiting workers and bringing them to the farm (all at
grower expense) for crops that are inherently time-sensitive. The NCAE
survey showed that 72% of growers reported that workers arrived on
average 22 days after the ``date of need'' for them to begin work.
These delays resulted in more than $320 million in economic losses for
these farmers. The harm that results from an arbitrary denial is
illustrated by a New York farmer who had to take 1,000 acres of onions
out of production and plant mechanically harvested corn instead, as a
result of an unjustified denial of an application. This resulted in the
farmer's payroll going from $2.5 million to $70,000. Local businesses
suffered from the decline in spending from the seasonal workforce that
otherwise would have benefitted them.
It is estimated that 70% of the seasonal agricultural workforce is
comprised of workers providing documents that appear legitimate but are
not. Less than 4% of the seasonal agricultural workforce is represented
by H-2A workers. If E-Verify is mandated and works as intended, 66% of
the workforce would have to be replaced with H-2A workers. Given the H-
2A program's current inability to provide a timely legal workforce at
current levels, enactment of mandatory E-Verify legislation without
congressional enactment of an alternative workable program, the $320
million in current losses could easily rise into the billions of
dollars every year.
Wage and Hour Enforcement. Growers able to get applications
accepted by CNPC face further challenges from DOL. Only 8% of H-2A
employers report being audited by DOL's Wage and Hour Division before
participating in the program, compared to 35% once they started
participating. This incredibly high level of auditing would perhaps be
justified if Wage and Hour investigators were finding frequent or large
violations among H-2A employers, but they simply are not. Of the 64,
978 compliance actions by WHD from 2008 to 2010 in WHD's ``Wage and
Hour Investigative Support and Report Database'' (WHISARD), only 301
involved H-2A violations.\11\ Even for those cases, where actual
violations were found, the average amount of back wages and civil money
penalties per employee were $1,323 for H-2A cases.\12\ By contrast,
cases involving H-1B violations involved $13,818 per employee and
Davis-Bacon Act cases involved $3,244 per employee.\13\ From 1998 to
2008, 2.6% of all WHD cases involved agricultural employers, even
though only 1.4% of American workers were employed in that sector.\14\
The DOL's disproportionate focus on agriculture, in general, and H-2A
users, in particular, speaks to DOL's hostility to the program rather
than to any actual measure of compliance.
The Wage and Hour Division under the new H-2A regulations is
seeking severe penalties and back pay for minor technical violations
that do not harm workers or deprive them of their legal rights. DOL has
been seeking astronomical fines in the hundreds of thousands and
millions of dollars from growers who gave late notice to DOL that
workers had voluntarily quit their jobs or were fired for just cause.
In addition to seeking up to $1,000 in civil money penalties for each
worker for whom notice was untimely, DOL is demanding that the growers
pay the workers three quarters of the wages they would have been paid
for the entire contract period had they not quit, even though the
workers voluntarily quit and did not complain about any mistreatment.
By contrast, the Department of Homeland Security has an identical
notice requirement with regard to H-2A workers who quit their jobs. DHS
imposes a $10 fine for failure to provide timely notice. That's it.
DOL's punitive regulatory approach is counterproductive to its
mission to protect jobs for U.S. workers. To the contrary, it is
crippling businesses and their year round U.S. workers. It is also
forcing employers to suffer the expense and disruption of litigation in
defending themselves from overreaching charges.
The threat of enactment of mandatory E-Verify this Congress looms
over any discussion of H-2A. Agriculture is an extremely labor-
intensive business. American growers need to have access to workers to
plant, tend, and harvest their crops. Enacting E-Verify will take away
hundreds of thousands of these workers, forcing growers to turn to H-2A
for legal workers. The current dysfunctional system has proven to be
dramatically insufficient to meet even the current needs of these
growers. Legislation that would drastically increase the demand on an
already broken system would prove disastrous.
NCAE strongly urges this Subcommittee and the Congress to enact a
seasonal farm worker program that is not based on the H-2A structure.
History has shown that it simply does not work. The current statute has
been interpreted in completely opposite ways by the last two
Administrations, demonstrating that a new statute is required. NCAE
strongly believes that a new farm worker program must be enacted as
part of the E-Verify legislation. We cannot gamble that Congress will
address this important issue at a later time--when it is too late.
Thank you for the opportunity to testify on behalf of NCAE.
\3\See FY 2010 Congressional Budget Justification--Employment and
Training Administration, State Unemployment Insurance and Employment
Service Operations, at 58.
\6\ Id. as to 2008 compliance rate; 2009 and 2010 rates are from
the FY 2011 and FY 2012 Congressional Budget Justification documents,
at pages 12 and 65, respectively.
\7\ FY 2012 CBJ at 65.
\8\ See attached survey results, at p.3.
\9\ All docket information for OALJ appeals is from
\10\ Virginia Agricultural Growers Association, 2011-TLC-00273.
\14\ http://www.dol.gov/whd/resources/strategicEnforcement.pdf at
pp. 8, 20 (WHD study of enforcement efforts).
Chairman Walberg. Thank you, Ms. Whitley.
I recognize you now, Mr. Goldstein, for your testimony.
STATEMENT OF BRUCE GOLDSTEIN, PRESIDENT,
Mr. Goldstein. Mr. Chairman and members, thank you for the
opportunity to testify about workforce challenges facing our
nation's agricultural industry. Our nation's broken immigration
system, labor laws that discriminate against farmworkers, and
the labor practices of many agricultural employers have
combined to create an agricultural labor system that is
unsustainable and fundamentally unfair to our farmworkers. The
resulting turnover in the farm labor force means that now more
than one half of the approximately 2 million seasonal
farmworkers lack authorized immigration status.
The presence of undocumented workers depresses wages for
all farmworkers, including the roughly 700,000 U.S. citizens
and lawful immigrants in agriculture. But undocumented
farmworkers are not leaving and they are needed.
To help U.S. workers and agricultural employers Congress
should establish a program to allow undocumented farmworkers to
earn legal immigration status. Some members of Congress have
proposed new guest worker program, but it makes no sense to
bring in hundreds of thousands of new guest workers when there
are over 1 million undocumented farmworkers besides U.S.
citizens and documented immigrants working our farms.
In addition, the H-2A program is available and has no limit
on the number of guest workers that may be brought in annually.
Our new report, ``No Way to Treat a Guest,'' shows the H-2A
program contains modest labor protections but is fundamentally
flawed and ripe with abuses of both U.S. and foreign workers.
Many employers prefer guest workers over U.S. workers
because they are more vulnerable and are less likely to
challenge illegal conduct. H-2A workers may only work for the
employer that obtained their visa, must leave the country when
their job ends, and must hope that the employer will request a
visa for them in the following year. They never earn the
opportunity to become a permanent legal immigrant no matter how
many seasons they work here.
H-2A workers typically arrive heavily indebted due to
travel costs and recruitment fees and must pay that debt even
if their job ends prematurely. Guest workers will work at the
limits of human endurance at low wages when U.S. workers seek
more sustainable productivity expectations.
Also, H-2A employers do not pay Social Security or
unemployment taxes on guest worker wages but must do so on U.S.
workers' wages. H-2A workers also are excluded from the
principal federal employment law for farmworkers.
These factors have led to tremendous obstacles for U.S.
workers who seek jobs at H-2A employers. As our report shows,
H-2A employers discourage U.S. workers from applying for H-2A
jobs or subject them to such unfair working conditions that
workers either vote with their feet or are fired.
We commend Secretary Solis for restoring H-2A protections
that the Bush administration unconscionably removed. The
restored protections evolved over several decades and were
issued by conservative President Reagan. For example, the
principal wage protection requires H-2A employers to recruit
U.S. workers using at least the average hourly wage paid to
farmworkers in their region as determined by the U.S.
Department of Agriculture; the Bush formula set most H-2A wages
at the average of the lowest paid one third of farmworkers in a
local area, resulting in pay cuts of $1 to $2 per hour for
thousands of U.S. and H-2A workers.
We also commend DOL's increasing oversight of H-2A
applications, as required by statute, which has led to the
rejection of unlawful job terms that discourage U.S. workers
from applying for H-2A jobs. One example is a contract clause
that waives farmworkers' right to bring lawsuits for illegal
employment actions and requires them to accept arbitration
instead. Nonetheless, as detailed in our report, violations of
basic program requirements are rampant, harming both U.S. and
Our report recommends strengthening protections and
Some growers complained about DOL's delays processing their
H-2A applications even though often they caused the delay by
submitting illegal job terms. If necessary to accommodate
increased numbers of applications we can agree that government
could expand its staff.
Some agricultural groups support guest worker proposals by
Representatives Lungren and Smith, which would slash wage
rates, remove longstanding labor protections such as U.S.
worker recruitment protection, and minimize government
oversight. Their proposals would enable employers to bring in
hundreds of thousands of vulnerable foreign workers despite an
adequate supply of farm labor among U.S. workers and
experienced undocumented farmworkers already here. We strongly
oppose these bills.
Large-scale guest worker programs are also anathema to
American values because they take advantage of foreign workers
by depriving them of economic freedom and denying them the
opportunity to become permanent members of our society who
participate in our democracy.
In conclusion, there are sensible policy solutions to
provide the nation's agricultural sector with a stable, legal,
farm labor force, ensure that U.S. farmworkers are treated
fairly, and assures our nation of a safe, secure food supply.
[The statement of Mr. Goldstein follows:]
Prepared Statement of Bruce Goldstein, President, Farmworker Justice
Mr. Chairman and Members: Thank you for the opportunity to testify
about workforce challenges facing our nation's agricultural industry.
My organization, Farmworker Justice, for thirty years has engaged in
policy analysis, education and training, advocacy and litigation to
empower farmworkers to improve their wages and working conditions,
immigration status, health, occupational safety and access to justice.
Our nation's broken immigration system, labor laws that
discriminate against farmworkers, and the labor practices of many
agricultural employers have combined to create an agricultural labor
system that is unsustainable and fundamentally unfair to the
farmworkers who harvest our food. More than one-half of the
approximately 2 million\1\ seasonal workers on our farms and ranches
lack authorized immigration status.\2\ Undocumented workers' fear of
deportation deprives them of bargaining power with their employers and
inhibits them from challenging illegal employment practices. The
presence of so many vulnerable farmworkers depresses wages and working
conditions for all farmworkers, including U.S. citizens and lawful
immigrants. In the face of increased deportations and other immigration
enforcement, harsh anti-immigrant state laws, and ill-advised proposals
to mandate employers' use of the E-Verify system, there is an urgent
need for Congressional action. The sensible, rational and moral
solutions include ending discrimination in labor laws, improving wages
and working conditions for farmworkers, and establishing a program to
allow undocumented farmworkers to earn legal immigration status. Some
Members of Congress who oppose earned legalization are proposing new
agricultural guestworker programs. But we already have an agricultural
guestworker program available to employers, the H-2A program, and its
provisions do not need to be expanded because--unlike most other visa
programs--it has no limit on the number of guestworkers that may be
brought in annually. As detailed in our report, No Way to Treat a
Guest: Why the H-2A Agricultural Visa Program Fails U.S. and Foreign
Workers, the H-2A program, despite its labor protections, is
fundamentally flawed and rife with abuses that harm U.S. and foreign
workers.\3\ Certainly it should not be made any worse by reducing
government oversight, lowering wage rates and removing labor
protections, as these new legislative proposals would do. Moreover, it
makes no sense to bring in hundreds of thousands of new guestworkers--
under either the H-2A program or a new guestworker program--when there
are already hundreds of thousands of undocumented farmworkers, in
addition to citizens and documented immigrants, performing agricultural
work productively. More importantly, large-scale guestworker programs
are anathema to American values of freedom and democracy. A practical,
meaningful, fair solution has to include an opportunity for our current
workforce to earn immigration status.
The treatment of U.S. farmworkers (U.S. citizens and lawful
resident immigrants) in this country is unreasonable and unsustainable.
As in generations past, today's farmworkers experience high rates of
unemployment and low wages. Poverty among farmworkers is more than
double that experienced by other wage and salary workers.\4\ Farm work
is one of the most hazardous occupations in the country, with routine
exposure to dangerous pesticides, arduous labor and extreme heat.
Despite these working conditions, farmworkers are excluded from many
labor protections other workers enjoy, such as many of the OSHA labor
standards, the National Labor Relations Act, overtime pay, and even the
minimum wage and unemployment insurance at certain small employers.
Such poor conditions and discriminatory laws have resulted in
substantial employee turnover. In the absence of an immigration system
that functions sensibly to control our borders and to provide
immigration visas when workers are needed, most of the newly hired
farmworkers have been undocumented. Still, even the lowest estimates
indicate that there are at least 540,000-600,000 legally authorized
U.S. workers in the agricultural labor force.\5\ Improving wages and
working conditions, increasing farmworkers' legal protections, and
implementing the other recommendations made by the Commission on
Agricultural Workers and other observers over many years would help
attract and retain US workers in the farm labor force.\6\ H-2A workers
constitute another three to five percent of our agricultural workforce.
Employers complain that the program is too bureaucratic, burdensome and
expensive. The reality is that the H-2A program has not been needed
because employers have had adequate supplies of labor, including the
million or more undocumented workers currently in the farm labor force.
The H-2A program is very similar to the old Bracero program, which at
its peak allowed as many as 400,000 workers per year in to the United
States. If employers substantially increased their demand for
guestworkers, the government could expand its staff to accommodate the
increased volume of applications.
In the context of mandatory E-Verify legislation, agribusiness has
been lobbying for changes to the H-2A program, but their demands go far
beyond a request for increased government resources to accommodate
greater numbers of guestworkers. Rather, these grower groups have
demanded that the wage rates be lowered, labor protections be removed
and government oversight minimized so that they may offer job terms
that U.S. workers would not accept and have unfettered access to the
millions of foreign citizens who would accept the opportunity to work
in American agriculture at extremely low wage rates and under poor
Rep. Lamar Smith's and Rep. Dan Lungren's guestworker proposals
seek to respond to growers' demands and apparently seek to persuade
them to support mandatory use of the E-Verify system. Their proposals
create labor attestation guestworker programs instead of using the
current labor certification system, meaning employers simply promise to
comply with required job terms and other requirements, with limited
government oversight. Both guestworker proposals also would move the
application process and enforcement of the worker protections from DOL
to USDA, despite its lack of experience enforcing labor protections and
despite the fact that other guestworker programs are run by the DOL. In
addition, both programs would slash wages for U.S. workers and foreign
workers; eliminate or greatly reduce worker protections, including
recruitment protections for US worker, minimum work guarantees and
housing requirements; and make other changes to ensure farmers have a
steady stream of cheap replaceable workers. Both proposals also limit
worker access to attorneys and courts to enforce their few remaining
rights. Contrary to Rep. Smith's professed dedication to protecting
American workers, these proposals would lead to massive job loss for
U.S. workers as they encourage growers to hire cheap exploitable
guestworkers. For those American workers lucky enough to keep their
jobs, they would experience wage cuts and diminished working conditions
and protections. And these bills do nothing to address the status of
the many undocumented workers already here productively harvesting our
crops. While supporters of this approach may believe undocumented
workers will return to their home countries, the reality is that these
workers will be pushed further underground where they are likely to be
exploited by the worst employers. Chairman Smith's mandatory e-verify
legislation, the Legal Workforce Act, encourages this hidden world of
exploitation through various loopholes for agricultural employers.
These guestworker proposals bring to mind the words of a farmer from
Edward Murrow's famous documentary Harvest of Shame, who said, ``[w]e
used to own our slaves; now we just rent them.''
The Bush Administration, in its last few days, sought to appease
growers by making drastic anti-worker changes to the H-2A program
regulations, slashing wage rates and job protections for U.S. and
foreign workers. Even these anti-worker changes, which resulted in wage
cuts of $1.00 to $2.00 per hour, did not approach in scope the
proposals put forth by Lungren and Smith. Fortunately, Secretary Solis
reversed these changes, largely restoring the Reagan regulations and
their modest wages and labor protections, most of which had evolved
over decades of experience with agricultural guestworker programs. The
Department also instituted additional common-sense protections, such as
a requirement to disclose job terms to workers.
As detailed in our report, No Way to Treat a Guest, even with its
modest protections, the H-2A program is plagued with pervasive
abuses.\7\ The abuses are inextricably part of the H-2A program due to
its inherently flawed nature: (1) H-2A workers are tied to their
employer and dependent on them for present and future employment, as
well as their ability to remain in the country; (2) H-2A workers are
temporary non-immigrants who can never become permanent members of our
society no matter how long they work here; and (3) H-2A workers are
desperate to earn income as they typically arrive heavily indebted due
to travel costs and recruitment fees with the frequent fear that their
families at home may suffer repercussions if they are unable to repay
their debt quickly. For all these reasons, H-2A workers are extremely
reluctant to challenge unfair or illegal treatment. While a small
percentage of H-2A workers have rights and remedies under collective
bargaining agreements, the vast majority have no union to represent
them. Moreover, H-2A growers frequently exercise their right to contact
their elected representatives to complain about the H-2A program's
requirements, but guestworkers have no political representation in the
United States and therefore have no meaningful voice in policy debates
that directly affect them. This political power imbalance is another
reason guestworker programs are inappropriate solutions in the United
Once employers decide to apply for H-2A guestworkers, many
employers prefer them over U.S. workers because guestworkers are
cheaper than U.S. workers for several reasons. First, the H-2A employer
does not pay Social Security or Unemployment Tax on the guestworkers'
wages, but must do so on the U.S. workers' wages. Second, guestworkers'
vulnerability also means that they work to the limits of human
endurance for the modest wages offered in the H-2A program, while most
U.S. farmworkers would expect higher wages for such onerous, often
dangerous productivity demands. The H-2A workers are highly prized for
their productivity. These financial incentives lead to discrimination
against U.S. workers. Unfortunately, the main job preference for U.S.
workers, known as the ``50% rule,'' is not adequately enforced and has
been eliminated in the Smith and Lungren proposals. A third incentive
to hire H-2A workers is that while recruiting in foreign countries,
employers can and do select workers based on ethnicity, age, gender,
and race, which is far more difficult to do inside the United States.
``[D]iscrimination based on national origin, race, age, disability and
gender is deeply entrenched in the H-2 guestworker system.'' \8\ Almost
uniformly, H-2A workers are single relatively young men who are not
accompanied by their families.
These and other incentives to use H-2A workers have led to
tremendous obstacles for U.S. workers who seek jobs at H-2A employers.
While the majority of the agricultural workforce is undocumented and in
need of an earned legalization program, there are still roughly
600,000-800,000 legal immigrants and citizens who seek employment in
agriculture. Unfortunately, H-2A program employers routinely turn away
U.S. workers, discourage them from applying for H-2A jobs, or subject
them to such unfair and illegal working conditions and production
standards that workers either vote with their feet or are fired. For
example, two American women in Georgia were fired by an H-2A employer
after just a few days in the fields for allegedly failing to meet a
production standard which had not been approved by the government and
about which the workers had not been told until arriving at the
farm.\9\ The H-2A application's job offer stated the workers would be
paid $9.11 an hour and would be provided with 40 hours of work a week.
During the few days they worked, these women were not allowed to begin
working until after many H-2A workers had started picking; they were
only allowed to work for a few hours in the morning even while H-2A
workers continued to work; and they were forced to spend time bringing
their buckets of zucchini a great distance to tractors. One of these
women had actually grown up on the farm in question and picked
vegetables as a child.\10\ Their discharges illustrate the challenges
willing U.S. workers face at many H-2A employers. There are many
similar cases around the country. The regulations governing
recruitment, including the 50% rule, which is the principal job
preference for U.S. workers in the H-2A program, are key measures
designed to protect the ability of U.S. workers to obtain employment
with H-2A employers.
Despite restored protections in the H-2A program and unionization
of some H-2A employers, systemic problems persist that the Department
of Labor should stop. We commend DOL for increasing its overview of H-
2A applications, as required by the statute, which has led to the
rejection of unlawful job terms, such as clauses that waive
farmworkers' right to bring lawsuits and require them to accept
arbitration instead, and other requirements designed to discourage US
workers from applying for H-2A jobs. Despite employer pushback and
complaints, DOL must continue to increase its oversight and enforcement
of the H-2A program. As detailed in our report, No Way to Treat a
Guest, violations of basic program requirements are rampant: employers
frequently fail to pay transportation costs and wages owed; workers
live in abysmal housing and work under hazardous conditions; and
workers even suffer trafficking violations, including confiscations of
their passports and verbal and physical abuse.\11\ Government also must
do more to overcome the systemic problem of growers using farm labor
contractors as a shield against responsibility and liability for
violations of labor and immigration laws--the growers and their labor
contractors must be held jointly responsible.
In conclusion, there are sensible policy solutions to provide the
nation's agricultural sector with a stable, legal farm labor force that
is treated fairly. Discriminatory labor laws should be reformed,
enforcement of labor laws should be enhanced and employers should be
encouraged to offer job terms that attract and retain productive
farmworkers. Congress should not get mired in guestworker program
proposals that have been tried and rejected in the past. The proposed
new guestworker programs would only worsen the situation, and
contravene our traditions of freedom, opportunity and democratic
principles. Congress and the Administration should strengthen the
current H-2A labor protections, including by ending employers'
incentives to hire vulnerable guestworkers rather than US workers. Most
importantly, Congress should provide current undocumented agricultural
workers with an opportunity to earn permanent immigration status. These
recommendations will help ensure a productive, law-abiding, fair farm
labor system and maintain our nation's commitment to economic and
democratic freedom. Thank you for this opportunity.
\1\ There are at least 1.8 million agricultural workers in the
United States. Martin, P. Conference Report, Immigration Reform:
Implications for Farmers, Farm Workers, and Communities, University of
California D.C. Campus, May 12-13, 2011. Available at http://
estimates range from 2.0 to 2.5 million individuals working as hired
farmworkers over the course of the year. See Kandel, W. Profile of
Hired Farmworkers, A 2008 Update, U.S. Department of Agriculture,
Economic Research Report, No. 60, July, 2008. Available at http://
\2\ Findings from the National Agricultural Workers Survey (NAWS)
2001--2002: A Demographic and Employment Profile of United States Farm
Workers, available at http://www.doleta.gov/agworker/report9/
\3\ Farmworker Justice, No Way to Treat a Guest: Why the H-2A
Agricultural Visa Program Fails U.S. and Foreign Workers, September
2011. Available at http://farmworkerjustice.org/images/stories/eBook/
pages/fwj.pdf. We ask that this report be included in the record of
\4\ See Kandel, W. Profile of Hired Farmworkers, A 2008 Update,
United States Department of Agriculture, Economic Research Report, No.
60, July 2008. Available at http://www.ers.usda.gov/Publications/
\5\ Estimations based on assuming 30% undocumented workers of a
total labor force of 1.8-2 million farmworkers (this is highest number
of undocumented workers in most estimates. Official government
statistics indicate a rate closer to 50%).
\6\ Report of the Commission on Agricultural Workers, Washington
D.C. November, 1992. See also the testimony of Robert A. Williams,
Director of Florida Legal Services' Migrant Farmworker Justice Project,
before the House Judiciary Committee, subcommittee of Immigration
Policy and Enforcement, Hearing on H.R. 2847, the ``American Specialty
Agriculture Act,'' September 8, 2011 (incorporated herein by
reference). Available at http://judiciary.house.gov/hearings/pdf/
\7\ See also Cindy Hahamovitch. No Man's Land. Princeton: Princeton
University Press, 2011.
\8\ Southern Poverty Law Center, ``Close to Slavery,'' (2007) p.
\9\ See OSC Charge Form, EEOC Atlanta Office, Kathern Bentley v. J
&R Baker Farms, LLC, March 25, 2011; OSC Charge Form, EEOC Atlanta
Office, Mary Jo Fuller v. J &R Baker Farms, LLC, March 25, 2011.
\10\ See No Way to Treat a Guest: Why the H-2A Agricultural Visa
Program Fails U.S. and Foreign Workers, September 2011.
\11\ See also Southern Poverty Law Center, ``Close to Slavery,''
Chairman Walberg. Thank you for your testimony.
Now I turn to Mr. Sequeira for your 5 minutes of testimony.
STATEMENT OF HON. LEON SEQUEIRA, SENIOR COUNSEL,
SEYFARTH SHAW LLP
Mr. Sequeira. Thank you, Chairman Walberg, Ranking Member
Woolsey, and members of the subcommittee. I appreciate the
opportunity to testify at today's hearing.
My name is Leon Sequeira. I am a labor and employment
attorney in the Washington, D.C. office of Seyfarth Shaw. My
practice includes counseling employers on a variety of labor
and employment issues, including the H-2A program.
A little more than 3 years ago I appeared before the
subcommittee as an assistant secretary of labor to discuss the
temporary worker programs overseen by the Department. Today I
appear before the subcommittee in my personal capacity to
discuss whether the H-2A program is meeting the workforce
challenges facing America's agriculture industry.
Since the Department of Labor issued new H-2A regulations
last year American farmers with a need for seasonal labor to
help plant, tend, and harvest their crops all too often find
themselves trapped in a dysfunctional Department of Labor
bureaucracy that is either unable or unwilling to make coherent
decisions in a timely manner. But this is not what Congress had
in mind when it created the H-2A program 25 years ago.
When establishing the program Congress understood that the
timing of a farmer's labor needs is dictated by the weather,
not by the arbitrary whims of some government bureaucracy in a
far away city. That is why Congress established strict
deadlines by which the Department of Labor has to act on H-2A
But on a near daily basis the Department now ignores this
clear congressional intent and the explicit statutory language
governing the program. Indeed, today the assistant secretary
admitted that the Department of Labor only processes 67 percent
of applications on time.
But, Mr. Chairman, the statute requires that all
applications be processed on time.
The Department's mission in administering the H-2A program
is to provide farmers with timely access to labor and to review
their applications to ensure that agricultural workers are
being properly recruited and paid so that the employment of
foreign temporary workers does not result in an adverse effect
on U.S. workers. That mission, however, is consistently
perverted by arbitrary administrative practices that routinely
impose substantial delays and added costs to employers while
delivering few, if any, measurable benefits.
Rather than helping facilitate timely access to seasonal
labor, the Department instead subjects farmers' applications to
round after round of nitpicking over minor, non-substantive
paperwork issues and typographical errors that have absolutely
nothing to do with ensuring that U.S. or even foreign workers
are properly recruited and paid for these jobs.
The Department also frequently imposes on farmers
requirements that appear nowhere in the statute or in the
regulations, and numerous farmers find their applications
delayed or denied as a result of state and federal bureaucratic
infighting over the meaning of certain program requirements.
This questionable administration of the H-2A program has
led to a dramatic increase in litigation, both before
administrative law judges and in federal court, as we have
heard here this morning.
More stunning than the number of appeals is the fact that
the Department's position in these appeals is nearly always
wrong. At last count a few months ago the Department was on
track for the rather dubious distinction of getting it right
just 10 percent of the time. This is a horrendous waste of
time, money, and effort for America's farmers, not to mention
for America's taxpayers.
The Department's hostile approach towards farmers who want
to participate in the H-2A program and legally hire foreign
farmworkers is simply inexplicable. There is, after all, year
in and year out, a persistent shortage of U.S. workers to fill
this nation's seasonal foreign labor needs. No one can
reasonably dispute this fact.
We need a functional agricultural guest worker program even
in times of relatively high unemployment. But curiously,
despite all the evidence to the contrary, the Department
maintains that there are plenty of U.S. farmworkers ready to
perform these jobs. And at the same time, the Department is
discouraging farmworkers from participating in the H-2A program
but is spending hundreds of millions of dollars providing the
already limited supply of U.S. farmworkers with skills training
to take other jobs outside of agriculture.
Indeed, for fiscal year 2012 the Department has already
requested more than $80 million to retrain farmworkers for
other jobs. Now, few would argue with reasonable efforts to
assist U.S. farmworkers in moving up the economic ladder to
higher-paying work, but when the Department spends hundreds of
millions of dollars actively trying to reduce the supply of
domestic farmworkers while simultaneously frustrating farmers'
efforts to hire legal foreign temporary farmworkers it raises
the question of whether the Department's diametrically opposed
policies are effectively serving the nation's interest.
Based on the current Department's track record it is no
wonder that there has been a flurry of legislation introduced
in Congress this year to overhaul the agricultural guest worker
program. I suppose it is also not surprising that many of these
reform proposals have at least one major element in common:
They vest the U.S. Department of Agriculture with the authority
to operate the agricultural guest worker program in the future.
Mr. Chairman, it is time for the federal government to stop
compounding the many difficulties that U.S. farmers already
face in a highly competitive global marketplace. Instead, the
federal government should pursue policies that assist farmers
in meeting their seasonal labor needs so that they can continue
to provide us with a safe, healthy, and domestically produced
Thank you again for the opportunity to be here, and I look
forward to answering your questions.
[The statement of Mr. Sequeira follows:]
Prepared Statement of Hon. Leon R. Sequeira, Senior Counsel,
Seyfarth Shaw LLP
Chairman Walberg, Ranking Member Woolsey, and members of the
Subcommittee, thank you for the opportunity to testify at today's
hearing on the H-2A temporary worker program.
It has been a little more than three years since I last testified
before the Education and the Workforce Committee. Three years ago, I
was here as an Assistant Secretary of Labor to testify about the
temporary worker programs overseen by the Department of Labor. Today, I
appear before the subcommittee as an attorney in private practice to
discuss whether the H-2A temporary worker program is working as
intended by Congress.
In the intervening years since I last appeared before the
Committee, farmers have been subject to three different H-2A regulatory
regimes. The Department even attempted a fourth regulatory regime in
2009, but that effort was enjoined by a federal judge because the
Department promulgated the regulations in violation of the
Administrative Procedure Act. Throughout all of this change and turmoil
in the H-2A program, American farmers have maintained a fairly steady
need for seasonal labor to help plant, tend, and harvest crops. Even
though technology has increasingly become more and more important in
our everyday lives, there remain scores of agricultural products that
cannot be planted, tended, and harvested by machines. Thus, labor
intensive agriculture remains an important and necessary part of the
production of our domestic food supply.
In addition to the burdensome regulatory changes to the H-2A
program that have been implemented in the past two years, the
Department has also undertaken what most would say is an aggressive--
and perhaps even hostile--approach towards farmers who participate in
the H-2A program. And the Department's approach is routinely carried
out by ignoring the clear congressional intent and statutory language
describing how the H-2A program is supposed to operate. Unfortunately,
rather than helping facilitate timely access to seasonal labor while
ensuring appropriate worker protections, the Department instead
regularly subjects farmers to a bureaucratic and regulatory morass that
has left the program in near total disarray.
For more than a century, the U.S. has utilized guestworkers to come
temporarily to this country to help plant and harvest our crops. Today,
just as in years past, farmworkers come to work for just a few months
and then to return home to their families. In those few months, these
farmworkers typically earn ten or twenty times the amount of money they
can earn in their home countries. In recognition of America's
persistent need for agricultural labor, the H-2A program was created by
Congress to provide farmers with a reliable means to hire legal
temporary workers on an expedited basis when there are insufficient
numbers of U.S. workers willing or able to accept the jobs. But this
simple concept--and the congressional intent in creating the program--
has been consistently hindered by bureaucratic inefficiencies since the
Department of Labor first issued H-2A regulations in 1987.
Indeed, as a result of the Department ignoring congressional intent
and subjecting farmers to interminable application processing delays,
Congress amended the H-2A governing statute in 1999, a little more than
a decade after it was passed, to require the Department to issue
decisions on farmers' applications even more quickly: by no fewer than
30 days before the employer needs the workers. But within just a few
years, it was again abundantly clear that the Department regularly
failed to meet its statutory obligation to administer the program in a
As a result, rather than waiting for Congress to mandate changes to
the program, in 2008, the Department itself proposed a series of
regulatory reforms to modernize the H-2A program to ensure it operated
consistent with congressional intent. The Department's reforms, which
became effective in January of 2009, addressed many of the longstanding
problems with the program that had been repeatedly discussed over the
years by farmers and farmworker advocates alike, including the
unnecessarily duplicative and bureaucratic application process and the
artificially-high mandated wage rates.
The Department's 2008 reforms also included important worker
protections, including new audit authority and increased penalties for
substantial and repeat violations of program requirements. In addition,
in recognition of legislation circulating at the time, the Department
even adopted in the regulations some elements of those legislative
proposals, such as the attestation-based application process that was
included in the so-called AgJobs bill. Many other reforms were
incorporated at the suggestion of groups such as the National Council
of Agriculture Employers, the American Farm Bureau Federation,
Farmworker Justice, as well as numerous other associations and
To be sure, the regulatory reforms did not deliver everything that
every stakeholder wished to see from the H-2A program. After all, some
complaints about the program arise from the statutory language, which
the Department cannot change. But overall, the 2008 regulatory reforms
provided important and balanced improvements to program.
Those reforms, however, were in effect for only a few weeks before
the current Administration embarked on a concerted and sustained effort
to reverse them. The Department's first effort to rescind the 2008
reforms was enjoined by a federal judge in the summer of 2009. Then,
later in 2009, the Department proposed drastic changes in yet another
complete rewrite of the H-2A program regulations. Despite protests from
farmers that the Department's changes would re-impose the outdated
bureaucratic processes that had long plagued the program, and would
lead to increased costs, delays and uncertainty for farmers, the
Department nonetheless finalized those changes in March of 2010.
To fulfill its mission in administering the H-2A program, the
Department is to provide farmers with timely access to labor and to
review the farmer's applications to ensure that agricultural workers
are being properly recruited and paid, so that the employment of
foreign temporary workers does not result in an adverse effect on the
wages and working conditions of similarly employed U.S. workers. Today,
more than a year after the current Administration's H-2A rules went
into effect, it is clear that mission is being perverted by
questionable administrative practices that routinely impose substantial
delays and added costs to employers, while delivering few, if any,
measurable benefits. The program is so riddled with inconsistent and
arbitrary decisions by state and federal agencies, and is so prone to
delays that many farmers claim the program is worse now than it was
before the 2008 reforms. As a result, many employers simply turn to
other sources of labor to plant, tend, and harvest their crops.
The fact that the Department's administration of the program has
employers turning to other sources of labor to meet their needs is an
unfortunate, and some may say ironic, outcome of the Department's
current misguided approach. While the Department no doubt would claim
that its tactics, which frequently include unreasonable application
processing delays, are all part of an effort to ensure U.S. workers are
not adversely affected, the Department's efforts are, in fact, more
likely contributing to the very adverse effect they claim to be
attempting to prevent.
As the Department noted in its 2008 H-2A rulemaking, it is the
workers who are illegally present in the U.S. that pose the greatest
threat to the wages and working conditions of U.S. farmworkers. The
Department of Agriculture estimates that there are more than 1.1
million hired farm workers in the U.S. each year. The Department of
Labor's own National Agricultural Workers Surveys reveals that more
than 50 percent of farm workers admit to being in the country
illegally. Although, as the Department noted in the 2008 rulemaking,
advocates for farm workers have estimated that the number who are
illegally present in the U.S. is actually 70 percent or even more. In
fiscal year 2010, the State Department reports that fewer than 56,000
H-2A visas were issued, which means that there are well in excess of
ten times more illegal workers performing agricultural labor in the
U.S. than there are legal H-2A workers.
Given this stark contrast and the potential adverse effect on U.S.
workers, one wonders why the Department is not doing more to encourage
farmers to utilize the legal H-2A program when they cannot meet their
labor needs with sufficient numbers of U.S. workers. There is after
all, year in and year out, a persistent shortage of U.S. workers to
fill this nation's seasonal farm labor jobs. No one can reasonably
dispute that fact.
This shortage has existed for decades and the demographic changes
in rural America, as well as in the overall American workforce, show no
signs of abating. American workers are not lining up to take farm jobs
even in times of relatively high unemployment. Yet, despite the
scarcity of U.S. farm workers, there are more mouths to feed in this
country than ever before. If our nation's farmers do not have reliable
and timely access to seasonal labor to plant and harvest crops, then
our competitors abroad will increasingly meet the food demands of the
Curiously, the Department maintains the position that there are
plenty of U.S. farmworkers ready to perform this work when the facts
clearly demonstrate the opposite is true. At the same time, the
Department is actively spending hundreds of millions of dollars
providing the already limited supply of U.S. farmworkers with training
to take other jobs in the economy. In the Department's Fiscal Year 2012
budget request, the Department proposes to spend more than $80 million
on its Farmworker Jobs Training Program.
Given how large and complex the federal government has become, it
might not be too surprising to discover that the federal government
would spend hundreds of millions of dollars in the simultaneous pursuit
of directly contradictory goals. But in this case, it is the very same
office within the Department of Labor--the Employment and Training
Administration--that is simultaneously pursuing these contradictory
goals. Although recently, it would be difficult to argue that the
Department is actively pursuing the goal of helping farmers meet their
labor needs. Most would not argue with reasonable efforts to assist
U.S. farmworkers in moving up the economic ladder. But when the
Department spends hundreds of millions of dollars actively trying to
reduce the supply of domestic farmworkers while simultaneously
frustrating farmers' efforts to hire legal foreign temporary
farmworkers, it would be appropriate to consider whether a more
rational and balanced approach would better serve the nation's
When creating the H-2A program, Congress understood that the timing
of a farmer's labor need is dictated by the weather and not by the
arbitrary whims of a government bureaucracy in some far away city. For
that reason, Congress established precise deadlines for the Department
to act on H-2A applications. On a near daily basis, however, the
Department regularly disregards the clear intent of Congress that the
H-2A program operate in an expedited manner.
The Department routinely employs dilatory tactics in processing H-
2A applications. Many of the Department's actions are perhaps best
described as nitpicking over minor and nonsubstantive paperwork issues
and typographical errors that have absolutely nothing to do with
ensuring U.S. workers are properly recruited and paid for these jobs.
To add insult to injury, the Department often engages in this lengthy
and wasteful exercise in multiple rounds over several weeks, rather
than just notifying an employer of all the alleged deficiencies in his
application at one time. The Department also exacerbates the delays in
this process by communicating with employers through the exchange of
paper correspondence by mail--or expensive overnight delivery--rather
than just simply sending the employer an email or placing a phone call.
The Department requires employers to provide email addresses and phone
numbers, so one wonders about the purpose of such requirements given
that the Department routinely ignores these efficient and fast means of
There are countless examples of the Department's recent troubled
administration of the H-2A program. To cite just a few--the Department
routinely imposes on farmers requirements that do not exist in statute
or regulation. They also reject applications for unsupported or
outright illegitimate reasons. They adopt positions about the program
that are directly contrary to the plain language of the statute. They
issue contradictory decisions when presented with identical facts. And
particularly troubling is their refusal to respond to even basic
inquiries from farmers requesting clarification or guidance about the
program's complex requirements. The Department even disabled an email
account previously established for the specific purpose of collecting
questions from employers seeking guidance about how to comply with
various program requirements.
Some of the most egregious examples of needless delay and
questionable decisions by the Department involve instances in which
State Workforce Agencies and the Department disagree about the
requirements of the program. It is not uncommon for the State to
approve an employer's H-2A Job Order as being in compliance with the
program requirements, but then days or weeks later the Department of
Labor rejects the application claiming the Job Order is not in
compliance. Of course, in the midst of all the duplicative
contradictory reviews and bureaucratic infighting that often takes
weeks to resolve, an employer's application is delayed even more, and
the timely planting or harvesting of crops is jeopardized.
As I previously noted, the Department frequently delays H-2A
applications by requiring nonsubstantive modifications to the
application paperwork. Once the employer agrees to make the changes,
the application is typically approved as meeting all program
requirements. But all too often that is not the end of the delays. Many
of these farmers find that weeks later the Department has decided that
the application does not meet the program requirements after all, and
demands even further changes to the application. This costly and time
consuming process plainly conflicts with the statutory requirements
governing the program, yet the Department persists. The Department also
routinely fails to advise employers of their due process rights to
appeal these decisions, as required by the statute.
Unfortunately, this Kafkaesque application and review process is
all too real for nearly every farmer that participates in the H-2A
program. Faced with this mind-numbing process, farmers, who by
definition have a pressing need for workers to perform time-sensitive
agricultural tasks, are left with few options but to submit to the
Department's arbitrary demands if they are to have any hope of securing
workers in a timely fashion. But over the past year farmers have
increasingly begun to exercise their rights and have begun to resist
these bureaucratic abuses.
Over the past year, the Department's questionable approach to the
H-2A program has led to an unprecedented level of litigation--both
before administrative law judges and in federal court. One association
of growers was actually forced to file a federal lawsuit just to get
the Department to respond to their repeated requests for an explanation
of specific regulatory provisions, and to resolve the Department's
inconsistent application of the program requirements to farmers.
This year has also seen a record number of appeals filed by farmers
with the Department of Labor's Office of Administrative Law Judges
challenging the Department's decisions in the H-2A program. So far in
FY 2011, more than 440 temporary labor certification cases have been
heard by the Department's ALJs. That is more than twice the number of
appeals filed during the same period the year before. In FY 2010 there
were just under 160 appeals; in FY 2009 there were about 65; and in FY
2008 there just under 50. Amazingly, in just the last two years,
administrative appeals of Department's decisions have increased by some
Even more stunning than the number of appeals, however, is the fact
that the Department's position in these appeals overwhelmingly fails to
withstand scrutiny. By last count, the Department had prevailed in
fewer than 10 percent of these cases. In the others, the judge found in
favor of the employer and/or the case was remanded back to the
Department for approval or certification. Notably, the Department often
asks the judge to remand a case as a way of avoiding an adverse
decision when it is clear that there was no legitimate basis for the
Department to reject the employer's application in the first place.
Although this means that the employer prevails, it requires the
employer to endure additional delays, as well as expend additional time
and money to file an appeal that would not have been necessary if the
Department had simply complied with the statutory standards established
by Congress. Unfortunately, this appeals process is becoming a regular
step in the application process because of the Department's arbitrary
decision-making and general lack of common sense, as the judges
themselves have noted.
In an opinion* earlier this year, an Administrative Law Judge noted
that the Department's refusal to reconsider a decision that was
obviously erroneous, and that necessitated the employer filing an
appeal, was ``a patently inefficient and unnecessarily expensive way to
proceed'' and that requiring the employer ``to file a request for
administrative review * * * seems to reflect a breakdown in common
sense.'' In addition, the judge admonished the Department, stating ``I
implore the Office of Foreign Labor Certification (``OFLC'') to review
this policy * * * and consider the costs it imposes on employers, the
administrative review process, and the public coffers.'' Since that
opinion was issued seven months ago, however, more than 150 additional
appeals have been filed challenging the Department's decisions.
*Virginia Agricultural Growers Association, Inc., 2011-TLC-00273
(Feb. 11, 2011)
It is clear that there are substantial problems with the
Department's administration of the H-2A program. Fortunately, Congress
has taken notice of the Department's inability to rationally manage the
program. Remarkably, this is the third congressional hearing this year
to focus on the agricultural guestworker program. In addition, in just
the past few months, several agricultural guestworker reform bills have
been introduced and others are reportedly in development. Some are
narrow bills that would correct specific problems, while others would
completely overhaul the current program. In the latter category are the
American Agricultural Specialty Act (H.R.2847) introduced by
Representative Lamar Smith in the House, and the HARVEST Act (S.1384)
introduced by Senator Saxby Chambliss in the Senate. Significantly,
each of these bills has at least one major element in common: they vest
the U.S. Department of Agriculture with the authority to operate the
nation's agricultural guestworker program.
Given that the Department of Labor routinely disregards the clear
intent of Congress about how the program is supposed to operate and
given that the Department's inefficient administration unnecessarily
drives up costs for farmers and taxpayers while providing virtually no
demonstrable benefits, vesting the program operations in another
federal agency seems like a reasonable proposal. If the Department of
Labor is permitted to persist on its current course, it appears likely
that its actions will continue to have substantial adverse effects both
on U.S. workers and on the future of American agriculture.
The federal government should be pursuing policies that assist
farmers in efforts to secure workers and to provide U.S. consumers with
a healthy and domestically-produced food supply, rather than
compounding the difficulties our farmers already face in a highly
competitive global marketplace.
Chairman Walberg. Thank you.
Mr. Sequeira, let me just follow up on a statement that you
just made a short few seconds ago where you indicated that the
Department is spending significant dollars--millions of
dollars--to train these farmworkers in other fields of
endeavor, in other job opportunities. In your opinion, why is
the Department pursuing these opposing courses of action which
seem destined to ruin the U.S. agricultural economy?
Mr. Sequeira. Mr. Chairman, the short answer is I have no
idea. I think----
Chairman Walberg. Well, that makes it short, but----
Mr. Sequeira. I think certainly the Department could pursue
the goal of helping U.S. farmworkers move up the economic
ladder and gain higher-paying jobs with better skills. As I
said, few would argue with that goal.
Simultaneously, the Department could operate the H-2A
program in such a manner as it encouraged and helped U.S.
farmers find adequate sources of foreign labor if there aren't
sufficient U.S. farmworkers. The two goals could be pursued, I
think, simultaneously and not be diametrically opposed.
Unfortunately, the current administration, in the case of
the H-2A program, seems intent on driving farmers from the
program rather than to the program.
Chairman Walberg. Thank you.
Mr. Bailey, you were here for the testimony of the
assistant secretary. A good journalist ending question is, are
there any more thoughts that you would like to get across or
points you would like to make? I guess I would alter that in
saying, are there any responses that you would give further to
what you heard Ms. Oates present this morning in relationship
to your personal experience in the H-2A program and now that
you are out of it?
Mr. Bailey. Yes. Thank you, Mr. Chairman.
You know, our business has tried to do everything the right
way. We have been on H-2A; we have been on E-verify. It just
simply does not work for us.
My feeling is the only way we can solve this problem is by
giving a worker visa to the experienced workers that are
working in agriculture right now. The current system is broken
with the H-2A program.
It is a bureaucratic mess and it is untimely. As the
research has shown, when 72 percent of the H-2A users are
getting their workers late in a very time-sensitive business it
is simply not acceptable.
Chairman Walberg. Thank you.
Ms. Whitley, I guess I would start by asking that same
question: Any response, follow up, any additional comments you
would make, concerns of what you heard from the assistant
secretary, having asked the question or offered the opportunity
to hear from those in the ag industry about the H-2A program?
What would you add to it?
Ms. Whitley. Well, Mr. Chairman, Ms. Oates prefaced her
statement by saying that it was DOL's objective to achieve a
fair and reliable program for employers, and I would say that
they are failing both tests. And I don't know whether it is out
of--whether that is their objective or whether they just don't
understand how their actions impact farmers, but I can tell you
that it is an absolute disaster.
I have been either directly or tangentially involved with
the H-2A program for over 30 years, and I used to say, as Mr.
Goldstein pointed out, the Reagan administration promulgated
regulations in 1987 after the passage of IRCA on the H-2A
program. I used to think that that program had significant
issues. It is nothing compared to the current problem.
There was a quote made in the survey that we conducted and
I thought it summed it up perfectly. This survey respondent
described the H-2A program as a bureaucracy gone mad, and I
would say that I would echo that opinion.
Chairman Walberg. Well going beyond that, additionally, in
your expert opinion what are the top issues confronting
employers and their ability to access these crucial guest
workers through the H-2A program--maybe the top three?
Ms. Whitley. I had seven outlined, actually, Mr. Chairman,
but I will try to winnow the numbers down.
I would say the corresponding--under the current
interpretation of the H-2A program promulgated by this
administration the definition of ``corresponding employment,''
which I think is what affected Mr. Bailey's decision to get out
of the H-2A program. Basically that means if you are a
nurseryman or you are an agricultural farmer growing apples,
for instance, anyone who has anything to do with your operation
automatically becomes a corresponding worker under the H-2A
program and is subject to all the terms and conditions of
employment. That drives the cost of your participation and your
agricultural operation exponentially high.
The wage rate issue we have discussed. I would say that
another recent change by this administration forcing an
employer to reimburse the entirety of participating workers,
both foreign and domestic workers from outside the local area--
requiring that they be reimbursed their expenses for
participating in the program at the first pay period, which
means that any domestic worker who arrives to take a job and
decides within a day or 2 this isn't for him receives a check
for the entirety of the cost that he incurred in making a
decision to even try the employment.
Those are all issues, Mr. Chairman----
Chairman Walberg. Well, thank you for your--yes, thank you
for reinforcing those. Appreciate that.
And my time is expired. I recognize the ranking member, Ms.
Ms. Woolsey. Thank you, Mr. Chairman.
Mr. Goldstein, let us turn this around just a little bit.
What goes around comes around. We know if employers take care
of their employees they are much more apt to have a good
Mr. Bailey, I am sure you know that, and I feel absolutely
confident that that is where your heart is and that is what you
And we have a country that needs to have jobs for American
workers. We can't forget this. So will you talk about, from
your perspective, what do we need to appeal to out-of-work
United States workers that can do these jobs and how do we get
What opportunities do we need to ensure--I mean, I don't
blame an employer for not wanting to move somebody across the
country and then have them there for 2 days. I mean, what can
we do to make this competitive like other industries?
Mr. Goldstein. We can read the reports of numerous U.S.
commissions for the last 107 years and follow their
recommendations. In 1992 the Commission on Agricultural
Workers, which was established by the Immigration Reform and
Control Act of 1986, sought to answer that exact question, and
the Commission on Agricultural Workers, when it was constituted
we were very unhappy because it was dominated by agro-business
representatives and we were just sure it was going to be really
unfair. And it turned out to be a very objective analysis and
set of recommendations that refer to previous commissions going
back to 1904 Commission on Country Life that made
recommendations to Teddy Roosevelt.
You have to stabilize the agricultural workforce, stop
relying on new waves of desperate foreign workers from poor
countries, improve wages and working conditions so workers are
attracted to the job and stay there, and the discrimination in
labor laws that cause people not to want to work in
agriculture. And in the context of immigration the H-2A program
or guest worker program has to offer wages and working
conditions that attract and retain U.S. workers. And because of
the restrictive non-immigrant status of the guest workers that
is so favorable to employers and unfavorable to workers, you
have to create protections for U.S. workers so that employers
will actually want to and be required to hire U.S. workers
rather than vulnerable guest workers.
Ms. Woolsey. So do you see that--I mean, do U.S. workers,
if they are hired by an ag industry or a big farm or something,
do they have to be connected at the hip? Do they have to be
handcuffed with the employer in order to keep that person there
and pay back what they have invested in them in training, and
moving, and all that?
Mr. Goldstein. We don't think that the guest worker model
should be the model of labor relations in the United States. We
really think the H-2A program is fundamentally flawed.
And we also believe that there are something like a million
undocumented farmworkers employed in the United States working
hard, producing, and all they want is a chance for legal
status, and we should give it to them, and we should improve
the conditions so that we keep them and the U.S. workers who
are already here working.
Ms. Woolsey. And would that include--from your opinion
would that include housing, and benefits, and making it a real
not quite career, but a real job with----
Mr. Goldstein. Well, of course I think they should be----
Ms. Woolsey. Besides work?
Mr. Goldstein [continuing]. You know, lots of things should
happen. The H-2A program really requires a lot of--should
require a lot of protections because the workers are so
vulnerable to their--from where they are coming, and their
temporary status, and their non-immigrant status.
You know, how are they going to find a place to live if
they are coming from a foreign country? You know, they can't
arrange for housing. How can they afford to make sure to save
enough money to come into the country without being indebted to
some recruiter in a foreign country? You know, they need to be
able to afford to get home.
But if we have a workforce that is here that are U.S.
workers--legal immigrants and citizens--then we can recognize
that while, you know, employers don't have to guarantee housing
because Congress doesn't guarantee housing to its members
Ms. Woolsey. No. But I have just a minute.
Tell us what are the labor laws that ag workers aren't
Mr. Goldstein. They are not covered by? Farmworkers are
excluded from the National Labor Relations Act, which means
that they can be fired for joining a labor union. They are not
covered by overtime pay, so they routinely work 10, 12 hours a
day and they just make straight time.
They are not covered by the same child labor rules as other
workers, and so in most jobs a task that is deemed hazardous
can only be performed by somebody who is 18 years old or older;
in agriculture it is 16 years or older.
There is a longer list. I mean, farmworkers are not--
smaller farms, 10 and under, are not even guaranteed a toilet
to go to the bathroom during work.
Ms. Woolsey. Thank you so much.
Chairman Walberg. Thank the gentlelady.
And I now recognize the chairman of the full committee, Mr.
Mr. Kline. Thank you, Mr. Chairman.
Thanks again to all our witnesses for your testimony and
engaging in the discussion today.
Mr. Bailey, I have the advantage of having had discussions
with you before that some of my colleagues here haven't had the
benefit of, so I am going to ask you some things that we have
already talked about but I want to kind of get them on the
record and have--give you a chance to talk about the challenges
that you face and some of the things that you have--some of the
actions you have taken.
For example, talk to us about the adjustments that you have
made--your company has made--to confront the shortage of
workers. For example, let me get it specific here, has Bailey
Nurseries had to curtail operations or forego expansion because
there simply weren't enough available workers to keep up with
the needs of the business?
Mr. Bailey. The answer to that is yes, we have. We have had
to curtail our business and curtail expansion, and in fact,
actually reduce some portions of our business because there is
not an adequate supply of seasonal labor.
Mr. Kline. So it seems to me that would be probably pretty
difficult--in fact, I know that it is--when you have to do
that, determining how to curtail it, and that is driven simply
because you don't have the workers who show up.
Mr. Bailey. That is right.
Mr. Kline. Right. We know--those of us in Minnesota--that
we are a border state, sometimes forgotten by some of my
colleagues. But Canada has a seasonal agricultural worker
program that seems to work pretty well, I think, in our
Given your company's proximity to Canada--at least part of
it; I know you grow in other states--and the similarities in
growing conditions, this becomes a real problem, this
competition. How would a functioning agricultural guest worker
program most benefit your company, keeping in mind the
proximity to Canada?
Mr. Bailey. Could you restate that question, Chairman?
Mr. Kline. Yes. I mean, you have got--Canada is in
competition. It is a neighboring country; it is a bordering
state, if you will. They have a seasonal guest worker program
that seems to work. We don't.
What sort of problems is that causing you?
Mr. Bailey. Well, if we are not able to get the seasonal
workers to help ship and grow our product that business could
go across the border and go into Canada where they do have an
effective and working seasonal agricultural worker program.
Mr. Kline. We are not going to have enough time to do this,
because as I recall, when we were having a meeting it took us
about 30 minutes to walk through the process that you have gone
through as you tried to get people to show up for work.
Secretary Oates said if American workers had better information
they would just show up and go to work. If they had access to
information they would apply for these temporary jobs.
But you worked really hard to make that happen, so we have
got about 2 or 3 minutes left in my time. Can you talk about
how you went--tell us--walk us through that process of trying
to get the American workers to come, and what happened, and how
many left, and that sort of thing? Just take a couple minutes
and walk us through that.
Mr. Bailey. Sure. Yes, this year we made the most effort
that we ever have on recruitment. We advertised our positions
in the newspaper, on the radio, we held job fairs. We recruited
from several local unemployment offices; we recruited with
other ethnic groups within the Twin Cities and their social
services networks. We even recruited at a local business that
was laying staff off to get their workers, or hire their
workers and keep them off the unemployment payroll.
We had a referral program within our own workforce. We sent
letters to previous employees asking for them to return to
work, much as we had done--or in the same way that we had done
with the H-2A program.
In short, we felt like we made every effort possible to
attract workers, and we were not--we did get a lot of people to
apply but a lot of them did not show up once we had made an
offer to hire them.
Mr. Kline. So they came and they applied----
Mr. Bailey. That is right.
Mr. Kline [continuing]. And you said, ``You got a job,''
and then they just didn't show up?
Mr. Bailey. That is right. When they had to come back to do
the hiring paperwork they would not show up.
Mr. Kline. Well, I, with all respect to Secretary Oates, I
mean, it seems to me your testimony is pretty much in conflict
with what she was saying about the availability of workers
there to come take these jobs, because you are a very big
company; you are sophisticated, as we talked about earlier. You
reached out through a broad range of outlets to try to get
people and you simply couldn't get the workers.
And then again, just to reiterate, if you fail to get
enough seasonal workers, H-2A or others, the impact is not just
to them but to your overall business and to the 500 full-time
Mr. Bailey. That is right. And that is who I am here to
speak for today, and that is who we are most concerned about
are our 500 year-round U.S. workers.
Mr. Kline. Because without the seasonal workers the full-
time workers lose their jobs as well?
Mr. Bailey. That is right. That is right.
And I will just add one more thing to further compound the
difficulty with attracting seasonal workers: We have got a
relatively high unemployment rate now and our business is
currently down due to the economic conditions, so what we are
really concerned about is in the future--a year, 2, 3 years
down the road when the economy picks back up, unemployment rate
drops again, our business goes up, we need even more seasonal
workers. If things are tough now we are very concerned about
Mr. Kline. Thank you.
I am sorry I exceeded my time. I yield back.
Chairman Walberg. Thank you.
I now recognize the gentleman from New York, Mr. Bishop?
Mr. Bishop. Thank you, Mr. Chairman.
Thank you all very much.
I want to just make sure I heard some things correctly. As
I asked Secretary Oates, my understanding is that there is
legislation pending in the Judiciary Committee that would bring
about mandatory E-verify for all sectors of our economy,
including the agricultural sector.
Mr. Bailey, if I heard you correctly you would characterize
the passing of that legislation as a mistake. Is that correct?
Mr. Bailey. Yes.
Mr. Bishop. Okay.
And, Ms. Whitley, I believe I heard you say that even
though that legislation is basically being presented as a means
of protecting American jobs that it would, in fact, have the
opposite effect. Is that what I heard you say?
Ms. Whitley. Yes, Mr. Bishop.
Mr. Bishop. And could you expand on why you think it would
have the opposite--why you think legislation that I would
presume in good faith is being presented as a means of
protecting American jobs would, in fact, be injurious to the
Ms. Whitley. Well, I think both the bills pending in the
Judiciary Committee have many good aspects to them. National
Council of Agricultural Employers has not taken a position on
either piece of legislation right now.
If mandatory E-verify was enacted it would put seven out of
10 guest worker--agricultural workers rather than--sorry, I
misspoke; not guest workers, but agricultural workers--out of a
job. And it would affect, as Mr. Bailey----
Mr. Bishop. Presumably it would make it awful difficult for
the agricultural employers to get their work done, right?
Ms. Whitley. Precisely. It would have a devastating effect
on the U.S. workers that are employed by American farmer right
Mr. Bishop. Okay. Thank you.
Now, I also asked Secretary Oates if she thought that a
better solution to this larger problem was comprehensive
immigration reform, and her response to that was yes, that
would be a better solution.
I will put this to the panel. Is that an assessment that
you share as well?
Mr. Bailey, can we start with you?
Mr. Bailey. Yes, yes. I believe that comprehensive
immigration reform would be a solution.
Mr. Bishop. Okay.
Ms. Whitley, do you agree?
Ms. Whitley. I certainly think it is an issue Congress
needs to grapple with, but the National Council of Ag Employers
does not have a position on CIR.
Mr. Bishop. I want to press you a bit. You indicated that
we needed some other program, which you did not define,
beside--beyond H-2A. Would the ag jobs component of
comprehensive immigration reform constitute that ``some other
program'' that you would find helpful?
Ms. Whitley. In past years the National Council of
Agricultural Employers has endorsed an ag jobs approach, but I
understand, of course, this year ag jobs has not been
reintroduced and so we are waiting to see what proposal
Congress comes up with.
Mr. Bishop. I guess, if I may, what I am finding
frustrating--and again, I represent a lot of agricultural
employers and I am trying to find a way to help them--is I know
that it is a lot of fun to bash the Obama administration and
the Department of Labor, but it seems to me as if we are
ignoring the 800-pound gorilla in the middle of the room, and
the 800-pound gorilla in the middle of the room is that our
entire immigration system is broken, and that there is a
proposal to at least make a good faith effort to fix it called
comprehensive immigration reform, which at least used to enjoy
bipartisan support. I suspect that that bipartisan support
would be hard to find right now.
But it seems to me that we are spending a lot of time
addressing a problem that even if we solve it we would still
have a larger problem. And wouldn't our time be better spent
focusing on comprehensive immigration reform and finding ways
that we could sort of bridge the partisan gap that we have
right now and help the agricultural industry, help the
landscaping industry, help the service industry, help the
resort industry--all of the industries that right now are
struggling to maintain a workforce.
And as you say, Mr. Goldstein, that workforce is right
here. We have already trained them; we have already embraced
them; we already know they work hard. And yet, we are telling
them that they are subject to deportation if they get stopped
for running a red light.
I mean, shouldn't we have some form of--I mean, shouldn't
we take the same amount of effort--Mr. Chairman, shouldn't we
have a hearing in this committee on the impact of comprehensive
immigration reform on maintaining an adequate workforce?
And, Mr. Bailey, to your point, we have 9.1 percent
unemployment in this country. I don't know what it is in your
area of Minnesota, but is it north of 7, north of 8 percent?
Mr. Bailey. It is around 7 percent, a little bit north.
Mr. Bishop. Okay. But even with that you are operating with
a workforce that is 150 people below what would be your optimum
workforce. Is that right?
Mr. Bailey. That is correct.
Mr. Bishop. So even though 7 percent of our workforce--and
we have 16 percent of our workforce is either unemployed or
underemployed--you have been unable to find an adequate
workforce yet we have them right here in this country, but we
are forcing them underground. Is that not the case?
Mr. Bailey. I would agree with that.
Mr. Bishop. Thank you.
So, Mr. Chairman, I would say--I know you can't respond,
but I would ask that we have some effort in this committee to
address the larger issue. And, I mean, I am not going to
suggest that this is unimportant or a sideshow, but if we were
to address the larger issue the solution to this more specific
issue would be folded in.
And my time is expired. I yield back. Thank you.
Mr. Goldstein. Could I just say that if I was asked the
question, yes, we agree.
Mr. Bishop. Oh, I am sorry. I am sorry. Thank you.
Chairman Walberg. We will accept that, and probably assumed
it as well, from your testimony.
And, Mr. Bishop, you make a strong point. I wish the
chairman were here at this point in time. He would have greater
jurisdiction in expanding the responsibility of this----
Mr. Bishop. He also would have argued with me, so----
Chairman Walberg. I now recognize the gentleman from
Indiana, Mr. Bucshon?
Mr. Bucshon. Thank you, Mr. Chairman. I also, in my
district, have a large number of immigrant workers. We have,
surprisingly, in southwestern Indiana, significant melon farms
and other things around in my district, and this is a very
I would agree, also, that immigration reform is in order
and that it would help us some.
Mr. Sequeira, your testimony says that the Obama
administration has made drastic changes in the H-2A rules with
a complete rewrite--what are really, I mean, what are the nuts
and bolts, the practical aspects of the changes that have been
made on farmers and farm workers?
Mr. Sequeira. Congressman, I am not sure we have enough
time to get into all of those changes. I think the testimony
you have heard here today has pretty well described
thematically what those changes are.
Overall, the regulatory changes have resulted in simply a
more bureaucratic process that consumes more time, more money,
and more effort on behalf of farmers and increases their
uncertainty about whether or not and when they are going to
receive an adequate labor supply. I mean, there are endless
number of details and particular regulatory provisions that
have changed, interpretations of longstanding requirements that
have suddenly changed, been proffered by the Department, that
they are not tethered to the statute, they are not tethered to
any reasonable interpretation of the regulation, and in fact,
the Department loses before administrative law judges in those
positions, yet the Department persists.
So I think overall it is just best to describe it as--it is
really hostility by the current administration towards the
program and towards farmers.
Mr. Bucshon. Would you think that some of these are--these
new changes were put in place with a larger big-picture goal
towards some of our immigration challenges that we have, trying
to, I would say, push us more towards allowing amnesty to some
of these folks? Do you think it is a bigger picture plan?
Mr. Sequeira. Well, Congressman, I think that it is
indisputable that across the government all of the agencies
that are involved in immigration have increasingly, for lack of
a better term, put the screws to employers through the process,
whether that is in low-skilled or high-skilled, virtually any
immigration program. And there is no shortage of immigration
practitioners and employers who have come to the conclusion
that the current administration's goal is to make the current
programs as difficult as possible to use in hopes that those
employers will, in turn, put pressure on their elected
representatives to do something about comprehensive immigration
Mr. Bucshon. Ms. Whitley, would you like to comment on that
Ms. Whitley. I agree completely with what Mr. Sequeira
said. I hesitate to characterize it this way, but I think there
is an animus from the Department of Labor of I haven't seen
before in the administration of these programs, both H-2A and,
as Mr. Goodlatte mentioned earlier, H-2B.
Mr. Bucshon. Yes. I am a health care practitioner on the
health care side, just as a sideline, I think it is a similar
approach being taken towards our health care system to make
things so difficult that finally we all and the American
citizens demand that the federal government take over the
So with that, I yield back.
Chairman Walberg. I thank the gentleman.
And now I recognize the gentleman from new Jersey, Mr.
Mr. Payne. Thank you very much.
I just have questions regarding--you mentioned, Mr.
Sequeira, that these new regulations have become very
difficult. The regulation that evidently you supported or
approved of when the 2008 rule changed, I think they--well,
before that, but with the Bush administration's regulations
that you supported wanted reduced or eliminated worker's
protection, like 50 percent recruitment protection, the
transportation reimbursement requirement, and several wage
protections specifically eliminating the 50 percent rule
required H-2 employers to hire any qualified worker who applied
for a position until 50 percent of the work contract under
which H-2A workers are employed as run eliminates an important
protection that ensure that U.S. workers have a meaningful shot
at agricultural jobs.
Now, one of the things--I am not sure that--you know, there
has been a lot of tough industries in this country, and
listening to you all I guess government is probably the worst
thing that could ever happen to the United States of America.
The fact that everything seems to be what they have messed up.
However, a H-2 guest worker--many employers--not saying Mr.
Bailey, but many--prefer them over U.S. workers because guest
workers are cheaper than U.S. workers for several reasons.
First, the H-2A employer does not pay Social Security or
unemployment tax on guest workers' wages but must do so on U.S.
workers. Second, guest workers want a building means that they
work to the limits of human endurance for modest wages offered
in the H-2A program while most U.S. farmworkers would expect
higher wages and such, and we can go on and on.
You know, it makes it seem that the only tough job in
America have been farmworkers. I worked in a place at Curtiss-
Wright, when they were in operation--but fortunately I didn't
work in that department--the average temperature was about 130
degrees, 140 degrees. They were pouring molten steel because
they were making engines. They have always had workers. I have
seen people work on steel beams that were tipping and they were
up 20, 30 stories.
I can't understand why only agriculture seems to be the
place that nobody wants to work. Maybe the industry needs to
take a look at itself and see what--I can't see why every other
industry in America can flourish, however nobody wants to plant
a potato. Poor Johnny Appleseed would be rolling over in his
You know, there is something radically wrong. I have no
idea what it is, but I have done all kinds of jobs. I have
worked on the docks; I have driven cranes; I have walked on
beams. You can't tell me that there is something not radically
wrong--either your wages are so low that any decent American
has a very difficult time, but I see everybody has drawn it up,
especially, I mean, I guess you haven't seen a government
agency that you like, and that is your right.
But all of the problems happen to be regulations and so
forth, that the industry is doing everything right, and
evidently Mr. Bailey is maybe the exception to the rule, it
seems to me. It is a family business going on for 100-plus
years, seem to be moving forward, and so I am not--you know, I
am excluding you, Mr. Bailey; I don't even know you that well.
But I am just talking about the industry in general, there
is something that is radically wrong. I really can't put my
finger on it, but I have been hearing this since Pete Williams
talked about the industry back in the 1960s with farmworkers,
the lettuce problem with--it is just something that we need to,
I think, as we look into how bad these government agencies are
we ought to take a look at the industry itself. It is so vital
to the United States of America and something, I think, is
And I don't have a question. I just wanted to make a
statement, and I yield back the balance of my time.
Chairman Walberg. I thank the gentleman.
And, having worked in those same places, pouring hot molten
steel myself at U.S. Steel South Works, south side of Chicago,
they are challenging jobs. But I also know in agriculture we
don't want to pay $20 for a head of lettuce and we have
stipulations in place that we, the government, have put in.
I also hesitate, but I know my ranking member would
encourage me to show the sensitive side of me, being a former
minister before going to the dark side, I don't think that we
would say that government is the worst institution ever
created. In fact, as I understand, from my theological
perspective, God created government even before the Church,
coming right after the family institution. So I think we want
to make it work well, and make it work well for agriculture,
make it work well for the employers as well as the employees.
So let me end that diatribe and ask the ranking member if
she has closing comments that we will entertain those at this
Ms. Woolsey. Thank you, Mr. Chairman.
I know Secretary Solis and I am absolutely certain that she
and her department support agriculture--agricultural business
and agricultural workers--and if there is an animus it would be
that she wants--they want to level the playing field, and that
is our challenge, and make it possible for Americans to be part
of the ag worker industry, and that when we have an H-2A visa
program that the workers are taken care of fairly so that the
industry in and of itself does not become something that nobody
wants to work in unless they are so poor or so bad off that
they will have to work at anything. This is the United States,
and we are not going to go there.
So, Mr. Chairman, I would like to ask unanimous consent to
submit the Farmworker Justice report, ``No Way to Treat a
Guest,'' into the record?
[The report may be accessed at the following Internet
Chairman Walberg. Without objection, we will----
Ms. Woolsey. Okay.
We have learned today, we have known all along the H-2A is
a very important program. It provides farmers with access to
foreign workers as they are needed.
However, with 25 million Americans unemployed or
underemployed it is absolutely essential that U.S. workers come
first. There is no question that there is a U.S. workforce
willing to do some of these jobs and they must have access to
At the same time, we need to ensure that farmers are
following the rules, are treating their foreign workers fairly
and humanely. And the last thing we should do is press for
changes to the program that would loosen requirements on
employers or start a race to the bottom in which foreign
workers are asked to do more for less and U.S. workers are shut
out of the workforce.
So, Mr. Chairman, let us strive to make improvements to
this program. It is obvious there are things that need to be
done and we can do it to help employers and workers alike.
And with that, I thank you, witnesses. You were great.
Chairman Walberg. I thank the gentlelady.
And I would make that commitment, that there are things
that need to be done to make our system related to guest
workers work. And I think today has been an excellent hearing
to hear some statements that make it, I think, clear that it is
not a myth that workers can't be found. There is great
difficulty that we see here for workers that will come the
second, third, fourth day, do the job that is intended, to be
found, and that the program that is to administer the guest
worker program is--has become a significant hurdle in the way.
And yet, on the other side of the ledger, as we look at the
problem with low application on-time percentage that certainly
wouldn't be accepted in the private sector, high appeal loss
rate for decisions that are made. That evidences that there
are, indeed, problems that must be addressed in order to make
sure that we have the workers.
I think on top of it all, following what our president said
last week in his speech, that we need to move forward in
creating, expanding jobs in this country, I think all on this
committee would concur with that. I think the fact of what he
stated in reducing unnecessary regulation that stands in the
way and the commission that he has put together to ascertain
what regulatory relief there should be and what needs to be
addressed, we would applaud those efforts and would roll up our
sleeves and say we would be glad to assist in putting together
that list and then addressing them in a concrete fashion.
Because until we actually are about the business of
increasing the economy--the job economy--increasing the
opportunity for people to be employed to a greater degree at
their own desire in jobs that they would ascertain would be
best and most encouraging for themselves, and ultimately, then,
producing competition for jobs, as opposed--competition for
jobs that comes from having plenty of jobs that are out there,
whether they be agriculture, or manufacturing, or service
industry, whatever they are. Until we are capable and able to
do that by ratcheting unnecessary hurdles out of the way,
including government hurdles that are put in the way, I don't
think we will be successful in addressing this problem.
On the issue of immigration and the issue of guest workers,
certainly there appears to be a serious need for immigration
reform--comprehensive immigration reform. But until we ensure
the people--the people that we are privileged to represent--the
taxpayer, citizen, consumer--in this country that we have
secured the borders and we are, indeed, dealing with equal
opportunity, consistency for all that are in this great God-
blessed land, we will not have the support or the necessary
encouragement to deal with the fuller issue of immigration, and
I think ultimately with the farmworker program in the detail.
So this committee--this subcommittee--has held this meeting
today to start the process in this specific instance, but also
would indicate that the broader issue of increasing economy,
growing jobs, making the impact upon our economy so that people
do have choices and businesses like Mr. Bailey's and others
across our districts will have the employees to do the job,
that they will pay, that they will provide with working
conditions that they, I am sure, desire in a humane, solid,
positive way, will be there as well.
To that end, I certainly make my commitment to my ranking
member and the minority members of this committee as well as
the majority members of the committee.
I thank you, each of the witnesses, for being here today
and the committee members for the attention to the details
heard this morning.
There being no further business at this time, the committee
[Additional submissions of Ms. Woolsey follow:]
Internal Deliberative Document
Department of Labor's Follow-up Response to
Questions Regarding H-2A Appeals
Why have there been so many appeals of H-2A cases? Why has the
Department of Labor (Department) lost so many appeal cases?
There have been approximately 440 appeals of H-2A applications in
FY 2011 to date. This represents approximately 9 percent of the total
final determinations issued in FY 2011 (4,867 including certifications,
denials and withdraws). About 78 percent of the appeals were filed in
the first half of FY 2011. It represented a significant increase in the
number of appeals in the H-2A program over the previous year. The
initially high number of appeals (60%) was the direct result of
employers/growers not providing required documentation with their H-2A
application. Our program experience tells us that with any new
regulation there is a period of adjustment during which program
compliance is not going to be as high as it would be a year or so
Specifically, the Department has determined that one of the most
common reasons for denial was the employer's failure to provide the
documentation required to issue the labor certification within 30 days
of the employer's need for workers: the statutory time period within
which the Department must issue the determination. The vast majority of
these cases became approvable within a few days of the appeal because
the required documentation was provided as part of the employer's
appeal. The appellate process allowed the Chicago National Processing
Center (NPC) to accept additional documentation from the employers, as
required by regulations, and render a positive decision. Therefore, the
appeal in essence was resolved informally and was not ``lost'' by the
Department as some are claiming.
The Department was made aware that the increased rate of denials
forced growers into the program's appellate process which created
additional burden and delays. To ameliorate this problem, the
Department implemented, within the limits of its statutory
requirements, a more flexible process in late January 2011 to provide
employers with additional time to submit documents necessary to meet
program requirements and receive a certification rather than a denial.
These revised procedures have already significantly reduced the number
of appeals filed. For example in the last quarter of FY 2011, only
seven appeals have been filed.
OFFICE OF FOREIGN LABOR CERTIFICATION H-2A APPEALS INFORMATION
10/01/2010- 02/01/2011- 07/01/2011-
01/31/2011 06/30/2011 09/29/2011 Total
Total number of cases appealed.............................. 190 235 9 *434
Total number of appeals on denial decisions................. 156 **205 5 366
Total number of appeals on denials for employer's failure to 133 80 4 217
provide document required..................................
*The difference between the 440 cases and 434 is the OALJ case docketing system had duplicate entries.
**It is important to note that a large portion of the appeals were carried over from cases that were decided in
the prior period, before the strict interpretation of the regulations ceased. Employers were afforded the
opportunity to provide their documents to the CNPC after the 30th day without facing a denial. As a result,
the number of appeals dropped considerably during the last quarter.
Over 90% of the appeals which were filed from October 1,
2010--June 30, 2011 were a result of the strict application of
the regulatory required 30--day determination due-date
(employers failed to provide the required documentation and the
vast majority of cases were denied). The vast majority of the
cases became approvable upon receipt of the required
documentation--the cases which had been appealed were remanded
back to the Chicago National Processing Center (NPC) for
further processing where majority were certified.
[Additional submission of Ms. Whitley follows:]
[Questions submitted for the record and their responses
Washington, DC, October 17, 2011.
Hon. Jane Oates, Assistant Secretary,
Employment and Training Administration, U.S. Department of Labor, 200
Constitution Avenue, NW, Washington, DC 20210.
Dear Assistant Secretary Oates: Thank you for testifying at the
Committee on Education and the Workforce's Subcommittee on Workforce
Protections September 13 hearing on ``Workforce Challenges Facing the
Agriculture Industry.'' I appreciate your participation.
Enclosed are additional questions for the record submitted
following the hearing. Please provide written responses no later than
October 31 for inclusion in the official hearing record. Responses
should be sent to Ryan Kearney of the Committee staff who may be
contacted at (202) 225-4527.
Thank you again for your contribution to the work of the Committee.
Tim Walberg, Chairman,
Subcommittee on Workforce Protections.
questions from representative walberg:
1. You stated in your written testimony that the Department has
``planned and implemented stakeholder meetings and briefings designed
to familiarize program users and others with the regulatory changes''
in the 2010 Final H-2A Rule. With respect to said stakeholder meetings
and briefings, and any other stakeholder outreach or education efforts
relating to the 2010 Final Rule, please provide responses to the
a. Since implementation of the 2010 Final Rule, please provide a
list of all such stakeholder meetings and briefings requested of or
conducted by the Department, including any webinars or other web- or
teleconference-based discussions. As part of said list, please identify
all stakeholders who requested a meeting or briefing and whether a
meeting or briefing was conducted. Please also identify all upcoming
stakeholder meetings and briefings you have planned. Finally, please
provide the committee with copies of any materials (e.g., handouts,
memos) prepared for and provided to participants in stakeholder
meetings and briefings.
b. What is the Department's process for planning and implementing
these stakeholder meetings and briefings? For example, how do you
determine the location, timing, and frequency of meetings and
briefings; the materials, if any, provided to meeting and briefing
participants; and who participates on behalf of the Department?
c. How are stakeholders notified in advance of meetings and
2. Your testimony mentioned a ``dedicated public e-mail at the
Chicago National Processing Center'' through which H-2A program users
may participate in a ``question and answer process'' with the
Department. With respect to said ``dedicated public e-mail,'' please
provide responses to the following:
a. What is the address of the e-mail account?
b. When did the Department begin using the e-mail account?
c. How are H-2A users notified that they may communicate with the
Department via the e-mail account?
d. What is the Department's process, whether formal or informal,
for responding to these e-mail inquiries? For example, who monitors the
e-mail account, and who responds to inquiries submitted to the account?
e. How many total e-mail messages has the account received since
its creation, and how many e-mail messages has the account received
each month since its creation? How many of the e-mails received has the
Department responded to?
f. How often is the account checked for new e-mail messages, and
what is the average response time to inquiries submitted to the
3. In your written testimony you stated, ``we intend to design and
develop a new web-based filing system for the H-2A program to improve
access to our services and allow growers to check an application's
status electronically.'' With respect to this web-based filing system,
please provide responses to the following:
a. What steps has the Department taken, and what steps does the
Department plan or intend to take, to implement online access for
program users to monitor the status of their applications?
b. Will the aforementioned ``dedicated public e-mail'' be
integrated into or otherwise become a part of a web-based filing
system? If not, how would program users communicate with the Department
under a web-based filing system?
c. Has the Department held meetings with stakeholders or any other
outside groups relating to the development, makeup, or any other aspect
of a web-based filing system? If so, please provide an account of any
such meetings. If the Department has not held any such meetings, does
it intend to?
d. When does the Department expect a web-based filing system to be
available to program users?
4. How many H-2A applications were received, and how many
applications were ultimately processed and approved, in fiscal years
2009 and 2010? How many H-2A applications have been received, and how
many applications have been processed and approved, to date in fiscal
5. You testified at the hearing that with respect to the
Department's H-2A program goals and evaluation of its performance,
``[w]e have a very in-the-weeds discussion about what is going on with
the numbers that they are hitting.'' Please provide the committee with
an account of when each of these discussions occurred, the subject and
general substance of these discussions, and who participated in these
6. During the hearing's second panel of witnesses, a witness
outlined results of a 2010 H-2A employer user survey which found that,
on average, H-2A guest workers arrive 22 days after the date they were
needed to start work. Is the Department aware of this problem? If so,
please explain what the Department is doing to ensure that guest
workers arrive on time, including a full description of any steps the
Department has taken to remedy the problem. Further, please provide any
data or other information the Department has collected or received
relating to its role in the timely or untimely arrival of H-2A guest
7. You stated at the hearing that ``67 percent of all applications
are processed timely. That is a number we are working every day to
improve.'' Please describe for the committee how the Department is
working to improve that number, including, but not limited to, a full
description of the following:
a. the process by which the Department identified and continues to
identify issues with its ability to process applications timely;
b. problems the Department has identified that hinder its ability
to process applications timely; and
c. steps the Department has taken or plans to take to remedy
problems with its ability to process applications timely.
8. Your written testimony states that the 2010 Final Rule
``reflect[ed] a return to processes and procedures that were in place
between 1987 and 2008.'' If that is true, why were 95-99 percent of H-
2A applications certified in full during that time while, according to
witness testimony provided at the hearing, less than 80 percent are
being certified in full this year?
9. You stated at the hearing, ``we saw that an employer--many of
them small growers--put in an application that was incomplete, and we
were denying that.'' With respect to these denials, you stated further
that ``[w]e changed our process so that an incomplete application goes
back and we work with the employer to get the information necessary for
a complete application.'' Please describe how that process has changed,
including a full description of the relevant process previously in
place, the new process in place, and how specifically the Department
identified the need for a change in process and implemented the new
process. Please also provide all documents and communications relating
to the Department's change in process.
10. Witness testimony at the hearing cited data from the
Department's Office of Administrative Law Judges showing that the
number of user appeals of the Department's denial of H-2A applications
or issuance of deficiency notices averaged 19 annually from 1995-2009.
Witness testimony also revealed that, in contrast, in fiscal year 2011
to date, 442 such appeals have been filed. Please explain why there has
been such an increase in appeals this fiscal year. Also, if the
Department has differing data or information with respect to said
increase in appeals, please provide same.
11. Witness testimony at the hearing revealed that not only have a
record number of appeals been filed this year, but also the
Department's position is being overturned on appeal approximately 90
percent of the time. Please explain why the Department's position is
being overturned on appeal at such a high rate. Also, if you have
differing data or information with respect to the Department's appeal
record, please provide same.
12. During the hearing's second panel, a witness noted that the
Department has started to deny or otherwise delay H-2A applications
because, for example, applicants used ``white out,'' transposed a digit
in a mailing zip code, or used an attachment to provide the Department
with additional information. Are you aware that applications are being
denied and employers are forced to file appeals because of these
practices? Is it the Department's position that these denials are
proper and supported by statutory, regulatory, or other legal precedent
or Department policy? Why or why not? As part of your response, please
identify and provide the committee with any such
13. During the hearing's second panel of witnesses, a witness
provided results of the 2010 H-2A employer user survey which found that
the Department's increased denials of applications and delays in timely
approvals of applications resulted in approximately $320 million in
economic losses to H-2A program users. Is the Department aware of the
economic costs associated with its increased denials of applications
and delays in timely approvals of applications? Further, is the
Department aware that when growers do not get the guest workers they
need on time, U.S. growers and U.S. agricultural workers also suffer?
If the Department is aware of these concerns, please provide a
description of your understanding of how denials of H-2A applications
and delays in the approval of applications economically affect U.S.
growers and U.S. agricultural workers.
14. You stated at the hearing that ``the role of the state
workforce agency in inspection and approval of employer-provided
housing'' was a ``key feature of the 2010 rule.'' Please state for
the record how the role of state workforce agencies has changed in the
wake of the 2010 Final Rule and what the Department's role has been in
instituting and implementing those changes.
15. One of the concerns raised by users of the H-2A program is that
the Department and the Department of Homeland Security need to improve
their inter-agency communications. With respect to said concern, please
provide responses to the following:
a. What is communicated between the Department and the Department
of Homeland Security regarding the H-2A program? How often do any such
communications occur between the departments? What, if any, inter-
agency communications between the departments are required, whether
formally or informally, e.g., pursuant to any Memos of Understanding or
other inter-agency agreements? Please provide the committee with copies
of any such communications between the departments.
b. Has the Department identified a lack of communication between
the departments as a concern or an area requiring improvement? If so,
what steps have been undertaken to improve communications between the
departments? Has the Department heard from outside stakeholders or
program participants, or from the Department of Homeland Security, that
a lack of communication between the departments is a concern?
Ms. Oates' Response to Questions Submitted for the Record
response to question 1
a) The Department of Labor announced three stakeholder briefings in
the Federal Register on February 19, 2010 (75 FR 7367) (http://
edocket.access.gpo.gov/2010/pdf/2010-3282.pdf) to familiarize
stakeholders with the 2010 Final H-2A Rule. The dates and time of the
February 23, 2010, San Diego, CA
February 25, 2010, Dallas, TX
March 2, 2010, Raleigh. NC
The briefings were scheduled for the time period between the
publication of the 2010 Final H-2A Rule (February 12, 2010) and the
rule's implementation date (March 15, 2010) so that attendees could
review the Rule and be prepared by its effective date. Approximately
200 individuals who represented thousands of H-2A users across the
country attended the sessions. Some stakeholders attended more than one
In addition, a public webinar was held on March 25, 2010. The
webinar was publicized on the Office of Foreign Labor Certification
(OFLC) web site as of March 19, 2010 and details for attending the
webinar were published in a notice in the Federal Register (75 FR
13784, Mar. 23, 2010) (http://edocket.access.gpo.gov/2010/pdf/2010-
The Department of Labor regularly holds briefings to meet
identified needs of the stakeholder community. The Office of Foreign
Labor Certification (OFLC) holds quarterly stakeholder meetings on what
are primarily H-1B labor condition application and permanent labor
certification program-related issues. While H-2A issues have
occasionally arisen in the context of these meetings, in October 2011
OFLC began to invite members of the H-2A stakeholder community to these
meetings and provide an opportunity to raise H-2A-related issues. The
date for the next meeting is January 6, 2012. Representatives from both
the worker and employer communities are expected to be invited.
b) Upon promulgation of a final regulation, the Department
determines whether a stakeholder briefing(s) is needed or would be
beneficial. OFLC has conducted briefings after issuing H-2A and H-2B
final rules in December 2008 and those were held in 2009. The timing of
such briefings depends upon the implementation and/or effective date of
each rule. For example, the H-2A rule was to take effect in January
2009, so OFLC held briefings in December 2008. Full implementation of
the 2008 H-2B rule began in October 2009, and OFLC held stakeholder
briefings in September 2009. Locations are selected to maximize
accessibility to the regulated community. For example, sites on the
West Coast and in the nation's mid-section were selected to enable
attendees to choose a site that generally was a regional flight away.
Raleigh, NC was selected because employers in NC are the largest users
of H-2A employees, and the North Carolina Growers' Association's
headquarters are located near the state capital.
Because both the H-2A and H-2B regulations were joint rules between
the Employment and Training Administration (ETA) and the Wage and Hour
Division (WHD), both agencies participated in the stakeholder
briefings. The materials provided in the 2010 H-2A Final Rule briefings
consisted of copies of each agency's presentation and the rule itself
(these materials are available at http://
www.foreignlaborcert.doleta.gov/h2a--briefing--materials.cfm). We would
invite representatives of other agencies (such as the Department of
Homeland Security and Department of Justice) to participate in the
briefings if they have issued guidance or a companion rulemaking on the
topic. However, there were no companion rules or guidance to that
effect in 2010.
c) Please see our response to a). For the briefings on the 2010 H-
2A Final Rule, the Department issued a Federal Register announcement.
In addition, the briefing schedule and locations were posted on the
OFLC web site in advance of the Federal Register announcement to
provide as much notice as possible to stakeholders.
The Department has recently scheduled and held two of the three
planned ``seasonal'' H-2A webinars described below. The purpose of
these sessions was to invite questions from the filing community prior
to the actual filing of applications for the coming spring season. The
Department scheduled the sessions based upon traditional spring filing
patterns, and there has been a large turnout for each of the sessions
held as of December 19, 2011.
December 8, 2011--New England region
December 14, 2011--Southeast and mid U.S.
January 5, 2012--Midwest and West Coast
response to question 2
a) The dedicated public e-mail account for the Chicago National
Processing Center (NPC) is [email protected]
b) The Department started using this public account in June 2007.
c) H-2A users are notified that they may communicate with the NPC
through routine correspondence (Notices of Acceptance, Notices of
Modification, certifications) issued to participating employers by the
NPC, and by the Frequently Asked Questions (FAQs) posted on the Office
of Foreign Labor Certification's Website: http://
d) Upon receipt of an inquiry, the Chicago NPC Helpdesk team sends
a short, initial acknowledgement notification, informing stakeholders
their inquiries have been received.
Depending on the nature of an inquiry, some inquires may be
assigned to and further researched by an H-2A staff person. All
inquiries receive a response that is sent from the Chicago NPC Helpdesk
via [email protected]
e) As of September 30, 2011, the estimated number of H-2A inquiries
received through the public e-mail account is outlined below. All of
the inquiries received into the Chicago NPC Helpdesk have received
Months FY 2007 FY 2008 FY 2009 FY 2010 FY 2011
January........................................ ........... 142 174 535 875
February....................................... ........... 95 6 551 934
March.......................................... ........... 51 506 671 1,290
April.......................................... ........... 65 545 563 651
May............................................ ........... 69 231 393 462
June........................................... 27 55 279 397 477
July........................................... 12 74 193 492 261
August......................................... 33 45 206 371 248
September...................................... 19 80 190 354 213
October........................................ 30 225 345 277 ...........
November....................................... 34 179 277 310 ...........
December....................................... 77 307 361 369 ...........
Totals................................... 232 1,387 3,313 5,283 5,411
f) Chicago NPC Helpdesk staff monitors the public e-mail account on
a daily basis with the goal of responding to any inquiry within 48
response to question 3
a) The Department of Labor has heard from employers about their
interest in the OFLC using more technology to simplify and expedite
filing and tracking the status of H-2A applications. Pending
finalization of the FY 2012 budget process, the Department plans to
award a contract to initiate the design and development of a new web-
based filing system for the H-2A program to improve employer access to
OFLC services and allow growers to check an application's status
b) Yes. The dedicated public e-mail will be integrated into the
c) No, the Department has not held any meetings with stakeholders
or outside groups to solicit input in terms of system design; however,
the Department plans to solicit ideas from interested stakeholders.
d) Pending the availability of FY 2012 funds and the timing of
contract awards, the Department hopes to have a new web-based filing
system ready for use by growers in the last quarter of FY 2012 or the
first quarter of FY 2013.
response to question 4
The number of H-2A applications received at the Chicago NPC for
FY's 2009, 2010, and 2011 is displayed below:
FY 2009 FY 2010 FY 2011*
H-2A Applications Received....... 5,267 4,439 4,938
H-2A Applications Approved....... 4,863 4,092 4,583
*FY 2011 data is still being reviewed by the Department and has not been
finalized. The information provided reflects current estimates.
response to question 5
The OFLC develops internal program goals, which include measures
for the H-2A program. OFLC senior management staff review progress
against program goals on a weekly basis and, where actual results are
not being met, work to determine the reason(s) and develop internal
management plans to ensure performance goals are met. Progress in
meeting program goals is reported to the ETA Assistant Secretary on a
response to question 6
The Department is aware of anecdotal reports about H-2A workers
arriving after the employer's expected start date of work. However, the
Department of Labor's role in the initial adjudicatory process is
limited to the review and processing of employer-filed H-2A labor
certification applications in accordance with statutory processing
times, and is only the first of several non-DOL application procedures
for entry. The timing of the actual entry of an H-2A worker is
dependent upon the actual application processing of three agencies of
which the Department of Labor is only the first, with the Department of
Homeland Security's United States Citizenship and Immigration Services
(USCIS) and the Department of State following. Based on the Department
of Labor's FY 2011 H-2A program data, 82 percent of employer-filed H-2A
applications received a final determination from OFLC in a timely
manner in order to complete the remaining two steps in the employment-
based immigration process. We routinely monitor the Chicago NPC's
timeliness of processing H-2A applications. If we find processing
delays that are not a result of an employer deficiency in the
application, we take prompt management action(s) to remedy the
issue(s). Upon receipt of a labor certification from the Department of
Labor, an employer must still seek approval of the Departments of
Homeland Security and State while also allowing time for transportation
to the actual worksite.
If the Committee wishes to forward a specific case which resulted
in a 22 day delay, the Department will be happy to assist the Committee
in determining what occurred.
response to question 7
a) While the initial rates of timeliness were at 67 percent, the
Department subsequently implemented a process, consistent with
statutory provisions, that has raised the timely processing of
applications to 82 percent. OFLC produces weekly internal program
reports for its senior managers that track the timeliness of employer-
filed H-2A applications. This information is reviewed and discussed
and, where necessary, corrective actions and plans are developed.
b) The following are representative of the types of problems
experienced by OFLC that hindered timely processing during the first
year of implementing the 2010 H-2A Final Rule; employers:
Submitting H-2A applications using the wrong forms,
inconsistent or conflicting information entered on the forms, or other
obvious errors or inaccuracies;
Failing to include the correct Adverse Effect Wage Rate
and/or daily food allowance for workers while on travel;
Including terms and conditions of employment, such as
excessive experience requirements;
Failing to provide proof of compliant housing; and
Failing to provide required documentation, such as a
recruitment report or proof of workers' compensation coverage, to grant
the labor certification 30 days before the start date of need.
c) Over the past year, OFLC has issued numerous Frequently Asked
Questions (FAQs) and filing tips on its website to clarify program
requirements. In addition, to help employers comply within the tight
statutorily required processing time, OFLC implemented, within the
limits of its statutory requirements, a more flexible process beginning
in January 2011 to provide employers with additional time (up to five
days) to submit documents necessary to meet program requirements and
receive certification as appropriate, rather than a denial. This
revised procedure has significantly reduced the number of appeals filed
by employers. In the last quarter of FY 2011, only seven appeals were
response to question 8
Annual reports published by the OFLC covering each year between FY
2006-2010 confirm that the certification rate for employer-filed H-2A
applications did not fall below 95 percent. OFLC's most recent
estimates suggest that the certification rate for FY 2011 also will not
fall below 95 percent.
response to question 9
The Department has determined that one of the most common reasons
for denial is the employer's failure to provide the documentation
required to issue the labor certification within 30 days of the
employer's need--the statutory time period within which the Department
must issue a final determination. Denials often force growers into the
H-2A program's appellate process, which creates additional delays. To
ameliorate this problem, the Department implemented, within the limits
of its authority, a more flexible process in January 2011, which
provides employers with additional time to submit documents necessary
to meet program requirements and receive certification rather than a
denial. Revised procedures have already resulted in a significant
reduction in the number of appeals employers filed. In the last quarter
of FY 2011, employers only filed seven appeals.
response to question 10
The Department's data confirm that employers with legitimate needs
successfully use the H-2A program. Preliminary estimates indicate the
Department has certified 95 percent of applications it received
requesting more than 74,000 workers in Fiscal Year 2011. We know,
however, from experience that any new final regulation requires a
period of adjustment for both the regulated community and OFLC staff.
Please see the response to Question #7 for a listing of the reasons
for employer non-compliance with the 2010 H-2A Final Rule during the
first year of implementation. These non-compliance issues resulted in
the issuance of deficiency notices to employers, and many employers
chose to exert their right to administrative review by the Department's
Office of Administrative Law Judges.
The combination of additional technical assistance materials--for
example, filing tips and FAQs, growing familiarity with the
requirements, and implementation of a new procedure to provide
employers additional time to submit documentation required to grant a
labor certification--led to a dramatic decline in the number of appeal
cases since February 2011. Only seven employer appeals were filed in
the last quarter of FY 2011.
response to question 11
The Department believes significant confusion exists around the
issue of H-2A appeals being ``overturned'' by the Office of the
Administrative Law Judges. The Department of Labor routinely requests
the remand of appeals when employers submit the required documentation
for the first time after the Department has issued a denial according
to the statutory timeframe. While such remands permit the Department to
reconsider its decisions, they should not be counted--as they appear to
have been--as decisions ``overturned on appeal.'' Rather, the
Department views this step as facilitating, not hindering, the process
of getting H-2A workers into the country in a timely fashion.
response to question 12
The Department is required to protect the H-2A program against
fraud, and historically we have not accepted for processing
applications containing substantive corrections impacting the issuance
of a labor certification decision. This includes, for example, the wage
offered, the job description, or priority dates. Pen-and-ink changes
that are initialed and dated by the employer are acceptable.
Where we have inconsistent or conflicting information on H-2A
applications that impact our ability to properly communicate with the
employer (e.g., incorrect mailing address information), we have issued
notices and more recently, electronic mail notifications requesting
clarification and/or correction on both substantive and non-substantive
deficiencies so that these deficiencies can be corrected by the NPC.
OFLC continues to routinely apprise the filing community across all
visa programs of the need to proofread information for accuracy to
avoid unnecessary delays in processing.
response to question 13
The Department is aware of the importance of acting on H-2A
applications in a timely and accurate manner, and in the vast majority
of cases, the Department is doing just that, even though the process is
largely dependent on employers submitting fully responsive and complete
H-2A applications. In fact, based on OFLC's estimates for FY 2011
program data, 82 percent of employer-filed H-2A applications received a
final determination in a timely manner from the Department, in order to
complete the remaining two steps in the employment-based immigration
process with the Department of Homeland Security's United States
Citizenship and Immigration Services and the Department of State,
response to question 14
From the 2008 regulation to the 2010 regulation, the role played by
State Workforce Agencies (SWAs) has been strengthened. For example,
under the 2008 Rule an employer could make a timely request for a
housing inspection and that request was sufficient for a labor
certification. However, under the 2010 H-2A Final Rule, the SWA must
conduct the housing inspection before the Department may issue a labor
certification. In addition, under the 2008 Rule, SWAs were responsible
only for placing a job order, whereas they are responsible for more
recruitment activities under the 2010 H-2A Final Rule, such as placing
the job order into interstate clearance with all States listed in the
job order as anticipated worksites, and placing it in all required
locations for a longer period of time.
response to question 15
a) The Department of Labor communicates with the Department of
Homeland Security (DHS) as necessary in order inform them of final
program debarments or revocations, and provide program integrity
referrals. In addition, the Department informed DHS when it released
new Training and Employment Guidance Letters (TEGLs) for special
procedures in the H-2A program to notify that agency of the new
procedures. Although we are not aware of any MOUs or other formal
inter-agency agreements between the ETA/OFLC and DHS specific to the H-
2A program, DHS and DOL recently signed an MOU, the purpose of which is
to ensure that their respective worksite enforcement activities do not
conflict and to advance the mission of each Department.
b) We believe that the Departments communicate as necessary to
carry out their respective responsibilities under the H-2A program. We
have not identified a lack of communication between the Departments as
[Whereupon, at 11:59 a.m., the subcommittee was adjourned.]