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AMERICAN SPECIALTY AGRICULTURE ACT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

IMMIGRATION POLICY AND ENFORCEMENT 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

ON

H.R. 2847 

SEPTEMBER 8, 2011 

Serial No. 112–52 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

[Vacant] 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

SEAN MCLAUGHLIN, Majority Chief of Staff and General Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON IMMIGRATION POLICY AND ENFORCEMENT

ELTON GALLEGLY, California, Chairman 

STEVE KING, Iowa, Vice-Chairman 

DANIEL E. LUNGREN, California 

LOUIE GOHMERT, Texas 

TED POE, Texas 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

PEDRO R. PIERLUISI, Puerto Rico 

GEORGE FISHMAN, Chief Counsel 

DAVID SHAHOULIAN, Minority Counsel 

(III) 

C O N T E N T S 

SEPTEMBER 8, 2011 

Page 

THE BILL 

H.R. 2847, the ‘‘American Specialty Agriculture Act’’ .......................................... 3 

OPENING STATEMENTS 

The Honorable Elton Gallegly, a Representative in Congress from the State 

of California, and Chairman, Subcommittee on Immigration Policy and 

Enforcement .......................................................................................................... 1 

The Honorable Zoe Lofgren, a Representative in Congress from the State 

of California, and Ranking Member, Subcommittee on Immigration Policy 

and Enforcement .................................................................................................. 43 

The Honorable Lamar Smith, a Representative in Congress from the State 

of Texas, and Chairman, Committee on the Judiciary ..................................... 45 

WITNESSES 

H. Lee Wicker, Deputy Director, North Carolina Growers Association 

Oral Testimony ..................................................................................................... 47 

Prepared Statement ............................................................................................. 50 

Chalmers R. Carr, III, President and CEO, Titan Farms, South Carolina 

Oral Testimony ..................................................................................................... 53 

Prepared Statement ............................................................................................. 56 

Dan Fazio, Director, Washington Farm Labor Association 

Oral Testimony ..................................................................................................... 62 

Prepared Statement ............................................................................................. 64 

Robert A. Williams, Director of Migrant Farmworker Justice Project, Florida 

Legal Services 

Oral Testimony ..................................................................................................... 83 

Prepared Statement ............................................................................................. 86 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Material submitted by the Honorable Zoe Lofgren, a Representative in Congress from the State of California, and Ranking Member, Subcommittee 

on Immigration Policy and Enforcement ........................................................... 108 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Letter from Michele Besso, Attorney at Law, Northwest Justice Project ........... 128 

Letter from Robert A. Williams, Attorney at Law, Florida Legal Services, 

Inc. ......................................................................................................................... 129 

Prepared Statement of Tyler Moran, Policy Director, and Maura Ooi, Legal 

Intern, National Immigration Law Center ........................................................ 162 

(1) 

AMERICAN SPECIALTY AGRICULTURE ACT 

THURSDAY, SEPTEMBER 8, 2011 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON IMMIGRATION

POLICY AND ENFORCEMENT, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 2:15 p.m., in room 

2141, Rayburn Office Building, the Honorable Elton Gallegly 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Smith, Gallegly, King, Gowdy, Ross, 

Lofgren, and Jackson Lee. 

Staff present: (Majority) George Fishman, Subcommittee Chief 

Counsel; Marian White, Clerk; and (Minority) David Shahoulian, 

Subcommittee Chief Counsel. 

Mr. GALLEGLY. I will call the hearing to order. 

Today, the Subcommittee on Immigration Policy and Enforcement is holding a hearing on H.R. 2847, the ‘‘American Specialty 

Agriculture Act,’’ which was introduced yesterday by Chairman 

Lamar Smith. 

H.R. 2847 creates an entirely new agricultural worker visa program, referred to as the H-2C program, which is designed to provide a stable and secure labor force for American farmers. 

I would like to commend my colleague and friend Chairman 

Smith for his hard work on this issue and for introducing this legislation. I share Chairman Smith’s goal of creating a more userfriendly guestworker program that will help agriculture find qualified workers in a very timely manner. 

I will not describe in detail the elements of the American Specialty Agriculture Act. However, I did want to highlight two important provisions which are an improvement over the current H-2A 

program. 

First, the new H-2C program will be administered by the Department of Agriculture. This is the Federal department which is most 

familiar with the operations of the agricultural industry. From a 

California perspective, I believe the Department of Agriculture will 

better understand the labor needs of growers of specialty crops and 

the need to avoid long, bureaucratic delays. 

Second, H.R. 2847 makes the H-2C program attestation-based, 

much like the H-1B visa program. This is in contrast to the much 

more time-consuming labor application process that is part of the 

H-2A program. Again, this will reduce delays which have often 

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tural employers. In my congressional district, where specialty crops 

are predominant, growers have repeatedly told me the key factor 

in being able to utilize a guestworker program is the ability to hire 

workers without long lead times. 

Again, I thank the Chairman for bringing this work forward and 

dealing with this very complicated issue. And I look forward to the 

hearing of our witnesses. 

And at this time I would yield to the gentlelady from California, 

the Ranking Member, Ms. Lofgren. 

The bill, H.R. 2847, follows:] 

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Ms. LOFGREN. Thank you, Mr. Chairman. 

I think we need to be honest about why we are here today. The 

majority wants to make E-Verify mandatory for all employers nationwide. That is their real goal. 

But politically, they can’t do that without having an answer to 

the disastrous impact that mandatory E-Verify has already had on 

the economies of several States, particularly agriculture. The reports are everywhere. 

After making E-Verify mandatory, Georgia and Alabama lost 

many of the farmworkers they need to harvest their crops, not just 

the undocumented ones, but those with papers, too. As harvest 

time came, farmers tried everything to find workers. As a last-ditch 

effort, our former colleague, Governor Nathan Deal in Georgia, 

even resorted to busing ex-convicts to the fields, and nothing 

worked. 

One of those probationers was quoted by Politico as saying, 

‘‘Those guys out here weren’t out there 30 minutes and they got the 

bucket and just threw them in the air and say, ‘Bonk this. I ain’t 

with this. I can’t do this.’′′ 

Farmers were forced to abandon acres of fruits and vegetables, 

which literally rotted in the fields. Bo Herndon, a farmer in 

Toombs County, Georgia, lost $150,000 in Vidalia onions. Georgia 

farmer Gary Paulk lost $200,000 when piles of his blackberries rotted on the floor. 

It is estimated that Georgia alone will incur losses of $250 million to $300 million this year. That total could reach $1 billion next 

year, according to the Georgia Agribusiness Council. Families who 

have been working their land for generations are talking about 

having to give up their farms. 

The majority says this bill is the answer, but it is not a solution. 

Instead, it is an acknowledgment that the majority’s enforcementonly mantra is not the right approach, that mandatory E-Verify 

without other changes will hurt our country, and that America’s 

farms are at least partially dependent on immigrant workers. 

But rather than do something about immigrant workers who are 

already here, workers who, as this bill makes clear, we need and 

who have been providing critical services to the country for years, 

this bill’s answer is to bring in a half million new workers each and 

every year in some misguided effort to replace the old workers. 

How can anyone think the answer to our agriculture labor needs 

is to deport over a million ag workers already here, workers who 

have experience, who know where to go, what to do, when to do it, 

just to ship in a half million new workers every year, year after 

year after year? How does this make sense to anyone? 

If we can admit we need the workers, why on Earth spend an 

exorbitant amount of money deporting the millions we already 

have just to bring in new workers who will need to be recruited 

and retrained by America’s farmers, putting the financial burden 

on them? 

And how can anybody possibly think this will work? The majority’s own witness, Lee Wicker, testified in our last hearing on the 

H-2A program that a major problem with the program is how difficult it is to get consular interviews for prospective workers and 

44 

to have them be timely so that harvests aren’t missed. This bill 

doesn’t fix that problem. 

Recently, I got a letter from an ag group that surveyed—that 72 

percent of the growers they surveyed reported that workers in the 

H-2A program came after the date of need an average of 22 days 

after they were needed in the fields. 

So instead of fixing the problem, that problem, this bill explodes 

it. If we have trouble getting 50,000 H-2A workers in for interviews 

and into the U.S. on time every year, imagine how much trouble 

we will have with 10 times that many. 

But even if the government could magically make the program 

work, which I doubt, a big impact would be to increase unemployment for Americans. While undocumented workers make up the 

vast majority of fieldworkers, this is not true in other ag sectors, 

such as dairy, livestock, and animal husbandry. 

In these areas where work tends to be year-round rather than 

seasonal, U.S. citizens and permanent residents still make up the 

bulk of the workers. And this bill for the first time would open up 

those jobs to foreign workers. Unlike current H-2A workers who 

can only fill seasonal jobs, the bill’s workers could compete for permanent jobs as well. And because the bill slashes wages and worker protections, it actually would create an incentive for employers 

to replace their current American workers with cheaper H-2C 

workers. 

The majority is selling this bill as a way to replace undocumented farmworkers, but it actually is designed to replace Americans, and that is no answer either. 

But this is the choice the majority has left us. Why? Because the 

one answer that makes the most sense, finding a way to legalize 

and stabilize the current workforce for the good of both the farmer 

and farmworker, is off the table. And why is that? It is ideology, 

pure and simple. 

Let’s discuss the ideology. The only reason the majority will not 

even consider the most common-sense solution here is because of 

their supposed hatred of amnesty and devotion to the rule of law. 

But is that really the case? 

Our laws have been broken for decades, failing to meet the needs 

of entire industries, particularly agriculture, so people took matters 

into their own hands. Yes, the farmworkers came here to work in 

the fields without obeying immigration rules. But essentially, every 

farmer in the country did the same thing by hiring them. 

The majority says the farmworkers have to pay for their transgressions with deportation and family separation. But what about 

the farmers? Where is their penalty? Where is the bill to divest 

them of the money they made by relying on undocumented labor? 

Where is the majority’s hatred for amnesty with respect to them? 

And what about the government? What price should we pay for essentially ignoring the needs of American businesses and families 

for decades? 

We should all get real here and do what is right for the country. 

We simply can’t allow ideology to trump common sense. 

I yield back. 

Mr. GALLEGLY. The gentlelady’s time has expired. 

45 

The gentleman from Texas and the sponsor of the legislation, the 

Chairman of the full Judiciary Committee, Mr. Smith? 

Mr. SMITH. Thank you, Mr. Chairman. 

I also thank you, Mr. Chairman, for both your interest in this 

subject and your expertise in regard to this subject as well. 

The agriculture industry needs to hire hundreds of thousands of 

seasonal workers each year to put food on Americans’ tables. However, many workers with better options choose to work elsewhere. 

Even though Congress devised the H-2A program to meet the 

needs of our growers, half of farmworkers remain illegal immigrants. This is because, as the Department of Labor has admitted, 

most growers ‘‘find H-2A program so plagued with problems that 

they avoid using it altogether.’’ 

Our agriculture guestworker program needs to be fair to everyone it impacts—American growers, farmworkers, consumers and 

guestworkers. 

A program must provide growers who want to do the right thing 

with a reliable source of legal labor. It must protect the livelihoods 

of American workers and the rights of guestworkers. And it must 

keep in mind the pocketbooks of American families. 

H.R. 2847, the ‘‘American Specialty Agriculture Act,’’ accomplishes these goals. It establishes an H-2C guestworker program 

responsive to the needs of American growers while maintaining 

strong policies to protect citizens and legal workers. And it does so 

without the fraud-ridden mass amnesty for illegal immigrant farmworkers that failed 1986. 

The H-2C program makes commonsense changes to the current 

bureaucratic, unworkable H-2A program. Under the current H-2A 

program, users believe that they face a culture of hostility within 

the Department of Labor. That is why the bill puts the Agriculture 

Department in charge of the H-2C program. 

Growers have to contend with a steep mountain of red tape to 

secure H-2A workers. The Bush Administration tried to streamline 

the process by making it ‘‘attestation’’-based, just like the H-1B 

program for high-skilled workers. Unfortunately, the Obama Administration rescinded these changes. The bill makes H-2C program attestation-based as it once was. 

Growers have long complained about the tremendous expense of 

the H-2A program and the required ‘‘adverse effect’’ wage rate, 

which, in my judgment, is artificially high. After factoring in other 

program expenses, such as housing, processing fees, and transportation costs, H-2A users have to pay up to $15 an hour for H-2A 

workers. This puts them at a competitive disadvantage in the marketplace. 

The bill requires growers to pay H-2C workers and American 

workers the prevailing wage, which is lower than the ‘‘adverse effect’’ wage rate but is high enough to prevent the program from depressing the wages of American workers. 

The H-2A program requires that growers provide H-2A workers 

with free housing. This can be burdensome for those growers who 

may need foreign workers for only a few weeks a year. The bill allows growers to provide a housing voucher instead of actual housing. 

46 

Dairies and certain other agriculture producers cannot use the 

H-2A program because they employ workers year-round, and the 

H-2A program is only available for temporary or seasonal work. 

The bill opens up the H-2C program to these employers. 

Growers who use the H-2A program are constantly subject to 

abusive and frivolous litigation by H-2A workers. The bill allows 

growers to include binding arbitration in contracts with H-2C 

workers. 

It is crucial to ensure that H-2C workers remain guestworkers. 

The bill, therefore, requires workers to return home after 10 

months each year. 

Finally, the bill allows up to a half-million foreign workers a year 

to receive H-2C visas. This will be more than enough to make up 

for a loss of illegal immigrant workers. 

American specialty crop growers hire about 800,000 individual 

farmworkers each year on a seasonal basis. The U.S. Department 

of Labor reports that 48 percent of seasonal agriculture workers 

are illegal immigrants. Half a million H-2C workers more than 

meets the legitimate need. 

The American Specialty Agriculture Act finally puts in place a 

fair and workable guestworker program for American growers. It 

will help American growers hire a legal workforce and protect 

American workers. And it will help ensure that American growers 

continue growing our crops and helping our economy. 

I look forward to hearing from our witnesses today. 

I yield back, Mr. Chairman. 

Mr. GALLEGLY. I thank the gentleman. 

Mr. Conyers is not here. 

We have four very distinguished witnesses on our panel today. 

And I would ask that you all try to keep your initial testimony to 

5 minutes, in the interest of time, so we will have an opportunity 

to ask questions. And your entire testimony, without objection, will 

be made a part of the record of the hearing. 

Our first witness, Mr. Lee Wicker, is deputy director of the North 

Carolina Growers Association, the largest H-2A program user in 

the Nation. Prior to this position, he worked for the North Carolina 

Employment Security Commission as the technical supervisor for 

farm employment programs and the statewide administrator for 

the H-2A program. 

Mr. Wicker has been growing flue-cured tobacco with his family 

in Lee County, North Carolina, since 1978. He graduated from the 

University of North Carolina at Chapel Hill, and I am sure our colleague Mr. Coble would be very happy to know that you are here 

today. 

Our second witness is Mr. Chalmers Carr. He serves as president 

and CEO of the Titan Peach Farms Inc., which is South Carolina’s 

largest commercial peach operation. He also is treasurer of the 

South Carolina Peach Council and chairman of the South Carolina 

Farm Bureau Labor Committee. 

Mr. Carr began his farming career in 1990 and has been with 

Titan Farm since 1995. He has participated in the H-2A program 

now for 13 years. 

Mr. Carr received his bachelor’s degree from Clemson University. 

47 

Our third witness, Mr. Dan Fazio, is an attorney and the director 

of the Washington Farm Labor Association, a nonprofit trade association he founded in 2007 to serve labor-intensive agriculture employers and workers in the Pacific Northwest. Prior to working at 

the Labor Association, Mr. Fazio was the director of employer services at the Washington State Farm Bureau Federation. 

His formal comments to the H-2A regulation led to changes 

which made the program much easier to use for Washington employers. 

Mr. Fazio received his B.A. from the University of Rochester, his 

M.S. from the University of Southern California, and his J.D. from 

Seattle University. 

And our fourth witness, Mr. Robert Williams, is the director of 

the Migrant Farmworker Justice Project at Florida Legal Services, 

Inc. He provides representation to migrant farmworkers in Florida 

and offers legislative and administration advocacy on their behalf. 

Prior to this, he worked for the Florida Rural Legal Services, Inc. 

Mr. Williams also represents the United Farmworkers with respect 

to ongoing efforts to pass a farmworker immigration reform. 

He received his B.A. from the University of Michigan and his 

J.D. from Harvard Law School. 

So we have some very distinguished witnesses, and with that, we 

will start with Mr. Wicker. 

TESTIMONY OF H. LEE WICKER, DEPUTY DIRECTOR, 

NORTH CAROLINA GROWERS ASSOCIATION 

Mr. WICKER. Good afternoon, Mr. Chairman and Committee 

Members. I am Lee Wicker, deputy director of the North Carolina 

Growers Association. Thank you for holding this hearing on a critical issue for labor-intensive agriculture. 

As the largest H-2A program use in the Nation, NCGA currently 

has 600 grower members that will employ nearly 6,000 H-2A workers and many thousand more U.S. workers this season. 

In this Committee’s April 13 hearing on the H-2A program, I 

identified the chronic problems that undermine farmer confidence 

and make hiring illegal workers a more attractive option. While the 

American Specialty Agriculture Act is not perfect in all areas, from 

the perspective of this group of long-term H-2A program users, the 

proposed H-2C program is close enough. 

The measured reforms go a long way toward solving the most onerous flaws in H-2A. This proposal is evidence the U.S. can have 

a workable farmworker program that treats workers well and carefully balances all the critical elements, worker protections, and economic viability for farmers. 

Significant reforms are made to the prohibitive program costs, 

and H-2C makes improvements in other important areas. The bill 

provides a realistic market-based prevailing wage as a floor that 

surpasses the Federal minimum by more than 10 percent in North 

Carolina, on average, and even higher wages in specific areas. 

It also authorizes piece-rate pay systems on top of the super-minimum wage to promote higher earnings as a financial reward for 

increased worker productivity. 

It allows farmers and farmworkers who benefit from working together in the program to share the program costs, offers structured 

48 

portability, encourages a streamlined legal dispute resolution system to solve farmworker complaints quickly and efficiently, provides authority to the USDA for streamlined administration of the 

program, and makes farmer obligations clear and understandable. 

These improvements will provide a viable alternative to employing illegal aliens and will give farmers confidence that they can 

participate in the H-2C program successfully. 

This legislation continues the long-standing principle of giving 

American workers preferential consideration in obtaining these 

jobs by requiring farmers to solicit U.S. workers through the local 

employment service and prescriptive newspaper advertisements before foreign workers may be employed. 

The bill maintains valuable employee benefits and critical worker 

protections for domestic and foreign workers, like extension of the 

minimum-hours guarantee, mandatory worker’s compensation insurance coverage for workplace illnesses and injuries, and conditional perspective in- and outbound transportation, and subsistence 

reimbursement. 

The bill continues the requirement to provide free, inspected onfarm housing and offers a housing voucher provision that will allow 

farmers without on-farm housing to participate. It requires comprehensive recordkeeping and reporting obligations. 

The wage and benefit package will cost North Carolina farmers on average $10 to $12 per hour. The proposal imposes a robust enforcement regime and maintains a strong penalty structure for violations and severe penalties for gross material violations. 

All the economic benefits and worker protections in this bill will 

provide workers who accept these jobs assurance they will enjoy a 

high-wage benefit package, a safer work environment, and quick 

resolution of their grievances. 

When the public policy debate heats up about farm labor, we frequently hear worker representatives scream about the past and 

cite what the 60-year-old Bracero program was like and insist that 

all guestworker programs are the same. There is no legitimate 

comparison to H.R. 2847. 

The NCGA board of directors voted unanimously to endorse and 

support this proposal. It offers great employment opportunities and 

provides growers with a program that is substantially more predictable and user-friendly. The delicate balance in this bill between 

administrative improvements for farmers, worker benefits and protections, represents a win for farmers, a win for farmworkers, and 

it secures a safe food supply for Americans into the future. 

Passage of H.R. 2847 will save and help create more jobs for 

Americans on and off the farm. I applaud Chairman Smith’s leadership on this issue. 

There is no time to waste. The House should pass this legislation 

as quickly as possible. 

The NCGA board also voted unanimously to join the U.S. Chamber of Commerce and others in support of H.R. 2164, the Legal 

Workforce Act, because it is time to level the playing field for all 

employers. More than 20 States have already enacted some version 

of E-Verify in the vacuum of Federal inaction. Recent decisions 

from the Supreme Court are signals that it is time for Congress to 

lead and pass a national standard so that employers, including 

49 

farmers, operating in multiple States can comply with the law 

more easily. 

Some in agriculture are ringing the alarm bell in an effort to 

scare farmers to opposing H.R. 2164, because the bill mandates EVerify only for new hires, proposes a special 3-year implementation 

provision, and offers an exemption for returning workers. We believe farmers and farmworkers have been given special consideration to preclude and avoid disruptive worker movements and 

extra time to transition into compliance. 

Passage of H.R. 2847, the ‘‘American Specialty Agriculture Act,’’ 

will help make this transition easier. The H-2C program will provide a predictable, efficient, and affordable process for hiring workers in temporary seasonal jobs. 

Farmers and farmworkers want to comply with labor and immigration laws. Congress should pass the American Specialty Agriculture Act so they can. 

Thank you, and I look forward to your questions. 

[The prepared statement of Mr. Wicker follows:] 

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Mr. GALLEGLY. Thank you, Mr. Wicker. 

Our next witness, a constituent of one of our Committee Members, Mr. Gowdy, Mr. Chalmers Carr. Welcome. 

TESTIMONY OF CHALMERS R. CARR, III, PRESIDENT AND CEO, 

TITAN FARMS, SOUTH CAROLINA 

Mr. CARR. Thank you, Chairman. 


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Good afternoon. My name is Chalmers Carr, and I am the owner 

and operator of Titan Peach Farms in Ridge Springs, South Carolina. 

Growing 5,000 acres of peaches and 700 acres of vegetable, my 

company has been legally employing H-2A guestworkers for the 

last 13 years. 

I want to thank you for inviting me here today to share my 

thoughts with you on the American Specialty Agriculture Act and 

why I believe this bill will give lasting positive effects to agriculture as we know it today. 

I am also president of USA Farmers, a national organization representing agriculture employers throughout the country, and our 

organization unanimously supports the Chairman’s bill. 

Presently, many States have passed their own immigration laws 

and employment verification bills. And without question, the greatest negative impact of these laws will be felt by the agriculture industry. These actions prove that now is time for Congress to reform 

the agriculture guestworker program, ensuring that farmers have 

access to a sufficient pool of legal labor. 

If a bill creating a viable guestworker program, like the one offered by the Chairman today, is not passed, the agriculture industry as we know it in this country today will no longer exist, and 

we will become dependent on foreign countries to feed and clothe 

Americans. 

Only a small portion of American agriculture employers participate in the H-2A program currently. It is not widely used because 

of its lack of accessibility, bureaucratic nature, high cost of participation, and the readily available supply of other labor sources. It 

is my opinion, though, that farmers would participate in a 

guestworker program, provided it is accessible to all sectors of agriculture, did not place a growers at a disadvantage in the marketplace, was simple to administer, and was free from frivolous lawsuits. 

As proposed, the Chairman’s bill positively addresses most of agriculture’s major concerns that have been raised about guestworker 

programs. It expands the use of the program across the entire industry by dropping the illogical requirement for seasonal employment, but yet focuses on the guestworker being temporary other 

than the job. 

In addition, I would also like to see that this bill clearly addresses agriculture processors—are able to participate. 

Transferring the program from the Department of Labor to the 

Department of Agriculture is another very positive step. It is logical that the Federal agency most accustomed to servicing the agriculture industry should be the one to administer a guestworker 

program for that same industry. 

The Chairman’s bill calls for the use of a prevailing wage for 

similar employment in a regional area. This approach is much preferred to the current adverse wage effect rate, which has often been 

criticized for years for its artificially high wage rates that fail to 

reflect actual market wages in particular localities. 

I support the Chairman’s provision but would also suggest that 

consideration be given to a wage rate that is tied to the Federal 

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parency to the process and would help guard against manipulation 

of wages by administrative agencies. 

The Chairman’s bill also removes the requirement of hiring U.S. 

workers beyond the start date of employment period. Considering 

the high unemployment rates, there should be enough U.S. workers 

available for agriculture jobs. However, the reality of the situation 

is the vast majority of Americans choose not to work in production 

agriculture. 

Last year alone, my company experienced a significant increase 

in the number of U.S. workers applying for jobs. However, of the 

285 U.S. referrals applying for jobs and were offered employment, 

60 never reported to work; 190 quit, most of them by the end of 

the second day; another 20 were terminated for cause; and only 15 

workers actually made it to the end of the contract. 

This bill makes much-needed improvements to the problem of 

predatory lawsuits by allowing the inclusion of mediation and arbitration language in job contracts to resolve employment disputes, 

as opposed to costly lawsuits. 

It also allows employer-provided housing vouchers. 

Reforms of this nature will increase grower participation in 

guestworker programs. 

In closing, I would like to commend Chairman Smith for his vision in recognizing the dilemma that is facing specialty crop agriculture today, and for his leadership in offering a solution to this 

problem. 

In America, we have the safest and cheapest food supply available in the world. Without a viable worker guest program in this 

country for agriculture, that will no longer be the case, and our domestic food production will be moved abroad. 

And so I leave you with this question: Would you choose to have 

the food you feed your family grown on the fertile soils in America 

under the governance of USDA and harvested by lawfully admitted 

foreign workers, or would you accept having the food put on your 

dinner table tonight grown in a foreign country with unknown production practices and no food safety protocols? Understand either 

way the food will still be harvested by a foreign worker. 

I sincerely hope Congress chooses to ensure that American farmers will continue to be able to feed Americans at home with plenty 

left over to feed the rest of the world. 

Thank you for your time and consideration today. 

[The prepared statement of Mr. Carr follows:] 

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Mr. GALLEGLY. Thank you, Mr. Carr. 

Mr. Fazio? 


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TESTIMONY OF DAN FAZIO, DIRECTOR, 

WASHINGTON FARM LABOR ASSOCIATION 

Mr. FAZIO. Good afternoon, Chair Smith, Chair Gallegly, and 

Ranking Member Lofgren, and Members of the Committee. 

Thank you for allowing me the privilege of testifying before you 

today. My name is Dan Fazio, and I am the director of the Washington Farm Labor Association. 

In my remarks today, I am speaking for my association and its 

members, representing many labor-intensive agriculture sectors 

across our State. Our association is responsible for about threequarters of H-2A applications submitted in our State. As we all 

know, the H-2A program does not work for farmers or farmworkers. 

I am here to testify in support of H.R. 2847, the ‘‘American Specialty Agriculture Act,’’ and to urge that your Committee work to 

perfect it in a bipartisan manner. 

I am here to testify on behalf of Steve Sakuma, a third-generation berry grower from Burlington, Washington, about an hour 

north of Seattle, who hires about 3,000 workers each year and who 

recently made headlines by admitting in an AP story that the majority of his employees are probably not work-authorized. 

Mr. Sakuma is a retired Army colonel. His dad and uncles proudly fought in World War II, even though the Sakumas temporarily 

lost their farm to the internment of Japanese-Americans serving 

during the war. 

We recently held a workforce summit, and I asked Mr. Sakuma 

why he spoke out on this issue when he surely risks a raid by ICE 

and unhappy corporate customers. He told me that he did it because it was the right thing to do. He told me that no one loves 

this country more than his family and it is our duty to work together to fix this problem. 

So on behalf of Steve Sakuma and Sakuma Brothers Farms, 

please pass this bill. 

This bill addresses immigration reform, but it is really a jobs bill. 

It will increase employment, and I will tell you how. Right now in 

Washington State, it is harvest time. The big crop is apples. We 

grow more apples than all States put together, and it takes a lot 

of workers, more than 30,000 of them, to pick those apples. 

The workers earn about $13 an hour, and in the course of our 

70-day apple harvest, the average worker will pick over 100 tons 

of apples. According to economists, each one of those workers will 

create 2.5 jobs in trucking, processing, and exporting. About 75 percent of those harvest workers or more are undocumented. 

What happens when we don’t have enough workers for the apples or the dozens of other commodities that are currently in harvest? It happens every year, and it almost always hits the small 

growers. 

Let me tell you about one of the small growers, Julie Michener 

from Grandview, Washington. Julie had 28 acres of apples that 

didn’t get picked in 2009 because there were no workers. She lost 

hundreds of thousands of dollars, and the world lost over 100 tons 

of apples. Next year, Julie pushed over most of the trees and created a pumpkin patch and a corn maze. 

63 

When small growers abandon their orchard, it robs workers of 

good-paying jobs, it robs our Nation of export revenue, and it robs 

a hungry world of nature’s most healthy bounty. 

So on behalf of Julie Michener, please pass this bill. 

If there is one change I could suggest, it would be to allow employers and workers to extend the visas so that it makes it easier 

for full-time employers, like dairy farms, the shellfish industries, 

and dozens of other full-time agriculture employers to use the program. 

Right now, I am working with Ian Jefferds, a shellfish producer 

from Oak Harbor on the Whidbey Island, who was notified by ICE 

last week that 34 of his 62 workers are not work-authorized, and 

so he needs to let them go. These are full-time, highly trained 

workers. Most of them make more than $50,000 a year in a rural 

town with limited job opportunities. And these workers are all 

going to be let go from jobs that they love. 

So on behalf of Mr. Jefferds and his workers, please pass this 

bill. 

I could go on and on, but I will leave you with this: Our immigration policy should serve our national interests. In this case, our economic interest is served when we allow people to come to do the 

jobs that Americans don’t want to do and then return home. 

The reason that seasonal agricultural doesn’t attract Americans 

has nothing to do with Americans being lazy and everything to do 

with the job. This is hard, seasonal work that typically lasts for 6 

months per year. In addition, it is sporadic. One week you work 20 

hours; the next week you work 60 hours. There is little upward mobility, and the wages that are offered, generally $9 to $14 per hour, 

are not likely to increase, because it is a high limit in order to be 

internationally competitive. 

If farmers are forced to pay more, they made to it, but they may 

also lose important export markets, just as we lost a large portion 

of our manufacturing sector when it was no longer internationally 

competitive. 

By allowing people to do these jobs, we create more jobs that 

Americans do want, again benefiting our economy. 

Finally, anyone who has been to Ellis Island knows that our immigration policy must serve a higher moral purpose. Right now, 

families in Mexico and Central America are starving because they 

can’t find work. The typical agriculture job in southern Mexico, 

when you can find work, pays under $10 per day, while the standard in the U.S. is $100 a day. If you provide us a workable 

guestworker program, we can harvest our fruit and lift these 

human beings out of poverty. 

I urge you to send this bill out with a bipartisan vote, and thank 

you very much. 

[The prepared statement of Mr. Fazio follows:] 

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Mr. GALLEGLY. Thank you, Mr. Fazio. 

Mr. Williams? 

TESTIMONY OF ROBERT A. WILLIAMS, DIRECTOR OF MIGRANT 

FARMWORKER JUSTICE PROJECT, FLORIDA LEGAL SERVICES 

Mr. WILLIAMS. Thank you, Chairman Gallegly, and Ranking 

Member Lofgren, and Members of the Subcommittee, for the opportunity to testify today—— 


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Ms. LOFGREN. Would you bring your mic a little bit closer? 

Mr. Williams—on the American Specialty Agriculture Act. 

We are told that a new guestworker program is needed because 

mandatory E-Verify will make it more difficult for American agriculture to go on employing 1 million unauthorized farmworkers, 

and there are no Americans available to take these jobs. I am very 

skeptical that agriculture will stop using unauthorized workers 

even if the E-Verify bill becomes law. Allowing former employees 

to avoid verification on the fiction that they are returning from a 

seasonal layoff ensures that a large pool of unauthorized workers 

will be available to the agriculture industry for the foreseeable future. 

I do agree that the million unauthorized workers cannot be easily 

replaced with Americans. However, it is all too easy to replace hundreds of thousands of American farmworkers with guestworkers, 

and that is what I believe will be the unintended consequence of 

this legislation. 

Instead of moving us in the direction of a stable domestic workforce of better-paid and more productive U.S. workers, it will leave 

us more dependent than ever on foreign agricultural workers. 

Bringing in an additional 500,000 guestworkers or roughly onefourth of the entire current workforce with minimal labor protections at a wage rate considerably lower than what farmworkers are 

being paid today will dramatically lower the wages and working 

conditions for America’s poorest workers, with the probable result 

that hundreds of thousands of U.S. workers will exit agriculture. 

I want to focus my remarks on the wage issue, because at the 

end of the day, I think that is what this debate is really all about. 

The immediate effect of this bill is to transfer $150 million per year 

from the pockets of H-2A workers and maybe a few U.S. workers 

to the current H-2A employers. Many of these workers earn less 

than $10,000 per year, so they are going to miss the money. But 

if fully implemented, this bill could cost farmworkers in the United 

States $1 billion a year in lower wages. 

Two weeks ago, the Department of Agriculture released its farm 

labor report for July, a report which is based on a survey of 12,000 

ag employers that shows that in July field and livestock workers 

in the United States were paid an average of $10.25 per hour. That 

is certainly less than what non-ag workers make, but it is not the 

minimum wage, either. That is the real market wage. It is not an 

artificial wage. It is what growers actually report paying their 

workers. 

We need to protect that wage. But if you bring in a half-million 

workers at a substantially lower wage, you will create a powerful 

economic incentive to replace U.S. workers with guestworkers, and 

that is exactly what this legislation does. 

It allows an employer with guestworkers to offer a wage which 

is the median of the lowest one-third of the wage distribution. This 

is the so-called level one wage. In practice, this wage is generally 

in the 15th to 20th percentile range. In other words, 80 percent to 

85 percent of the workers surveyed are paid more than this wage 

level. By definition, it is a substandard wage. 

And perhaps a real-life example will make it clear, how large the 

incentive is to prefer a guestworker over U.S. workers. Currently, 

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according to DOL’s online wage library, livestock workers in Ventura County, California, are being paid $12 per hour. For a yearround employee, this amounts to about $25,000 per year. But the 

level one wage is only $8.93 per hour. 

My guess is that an employer advertising for American workers 

will get very few takers at a wage rate that is $3 less than the 

going rate. But under Chairman Smith’s bill, he can get an H-2C 

worker. 

The saving in employing a guestworker over a U.S. worker is 

more than $6,000 per year. But that is not the only saving. The 

employer does not have to pay FICA and FUTA taxes on the H2C worker. This results in an additional savings of $2,500. When 

the cost differential between a U.S. worker and a guestworker is 

nearly $9,000 a year, we have set the stage for a massive displacement of U.S. workers. 

For months, we have heard that E-Verify is a jobs bill for American workers. But for the poorest workers in America, it turns out 

to be just another jobs giveaway. 

Thank you. 

[The prepared statement of Mr. Williams follows:] 

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Mr. GALLEGLY. Thank you very much, Mr. Williams. 

Quickly, if I might go back to Mr. Fazio, just as a point of interest, you mentioned an employer that recently was contacted by 

ICE. And I don’t remember exactly what the numbers were, but he 

was told that he had to get rid of 50 or 60 employees out of how 

many? 

Mr. FAZIO. Yes, he had 62 full-time workers, and his ICE Notice 

of Suspect Documents had 34 names on it. Some of those workers 


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may appeal, one or two, but it is over 50 percent, and this is fulltime. 

Mr. GALLEGLY. Okay, just as a point interest, this is a Federal 

enforcement agency that came out and said that you are going to 

have to let these folks go, because they are illegally in the country? 

Mr. FAZIO. What they said was that the documents that they presented when they were hired in the attestation that the workers 

gave was incorrect, and the documents were, in their opinion, 

fraudulent documents. And so unless they could provide a different 

document, that the employer had to let them go. That is correct. 

Mr. GALLEGLY. Does that mean letting them go down the street 

and go to work somewhere else? 

Mr. FAZIO. That is exactly what happens. Yes. 

Mr. GALLEGLY. And did that mean that you were going to be 

fined for having these folks? Or is it just like our job is to stick our 

head in the sand, and when we have something laid in front of us 

that is blatantly against the law, we have to do something about 

it, and that is to shift it from point A to point B without any real 

enforcement; is that a fair assessment? 

Mr. FAZIO. What will happen is if the farmer made some paperwork violations in their I-9, if they didn’t cross the t’s or dot the 

i’s correctly, they will receive a fine for incorrectly filling out the 

I-9. But in the case of the employees, the employees are going to 

go down the street. 

As a matter fact, they will go to other shellfish farms—— 

Mr. GALLEGLY. But this enforcement agency, when they have are 

convinced that these people have no legal right to be in the United 

States, instead of dealing with them, they tell the employer to get 

them out of here, until it comes up again. That is a rhetorical question. 

Mr. Williams, isn’t it true that the general rule for temporary 

worker programs is that guestworkers are paid prevailing wage for 

their occupation, just like the H-2C program? 

Mr. WILLIAMS. Yes, the prevailing wage, historically, in our 

guestworker programs has been an average wage. That was the 

concept of the prevailing wage all along. And it makes sense, because if you want to protect the wages of U.S. workers, obviously, 

admitting a bunch of people at a wage under the average is going 

to pull down the average and depress the wage. So the wage is an 

average wage. 

And the current wage, the dreaded adverse effect wage rate, is 

simply an average wage paid field and livestock workers. And it is 

a much more accurate wage level than the one that they want to 

use, because it is based on a very sound survey by the Department 

of Agriculture that is methodologically sound. 

And the accuracy rate, the national figure that I just quoted, the 

sampling error there is only .7 percent. It is a very accurate statistic. It is not an artificial statistic or a made-up number. It is 

what workers are being paid on average. 

Mr. GALLEGLY. Which is obviously, at least minimally, and in all 

cases, more than what minimum wage would be? 

Mr. WILLIAMS. Yes, and I think it is also really important to note 

about those statistics, they include the wages of hundreds of thousands of unauthorized workers. If somehow we could pull out the 

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wages of unauthorized workers who are being paid on the bottom 

of the wage scale, you would see that the wages paid American 

farmworkers are considerably higher than the wages that we are 

asking to pay—growers are asking to pay now under the—— 

Mr. GALLEGLY. I think that that is one of the objectives of having 

a guestworker program, that you would have people legally here. 

And I don’t mean to be combative, but it appears to me that you 

are arguing against your case. 

Mr. WILLIAMS. No, I am arguing for protecting the wages of the 

600,000 to 800,000 American farmworkers. 

Mr. GALLEGLY. You appear to believe that the guestworker program represents indentured servitude. Is that correct? 

Mr. WILLIAMS. The guestworker program is not indentured servitude quite. But on the other hand, it is also not free labor. It is 

a situation where you can only work for one employer. You don’t 

have the freedom to walk across the street and work for someone 

else who pays you better or treats you better. And so in that sense, 

it is a captive program. It is not a free labor market. 

Mr. GALLEGLY. One final question before my red light comes on, 

you have been on record as a supporter of AgJOBS Amnesty; is 

that not correct? 

Mr. WILLIAMS. That is certainly accurate. 

Mr. GALLEGLY. Doesn’t AgJOBS also include a guestworker program? 

Mr. WILLIAMS. It does. And AgJOBS is a compromise. 

Mr. GALLEGLY. And isn’t that basically what we are dealing with 

here? You oppose it if it comes under AgJOBS, but you oppose it 

if it comes under this category? 

Mr. WILLIAMS. No, because AgJOBS, the H2 program, the reform 

contained in AgJOBS, is providing some significant protections for 

workers that aren’t in the current H-2A program and certainly 

aren’t in this bill. 

This bill goes the other way. Rather than strengthening the H2A program’s protections for workers, this bill greatly lowers them. 

Mr. GALLEGLY. Well, I think we disagree on that a little bit, because one of the benefits of this program is that it takes folks out 

of the shadows, gives them legal authority, and protects them openly by all the labor laws in the country. And I would certainly think 

that is better than the status quo. 

Mr. WILLIAMS. Well, this doesn’t take anybody out of the shadows. The current million people who are unauthorized are ineligible 

for this new H-2C program. They remain in the shadows. They are 

not going anywhere. They are staying here. They are going to be 

in the shadows. That is one of the biggest problems. 

Any attempted solution to the problem that neglects the million 

workers that are here, and their 500,000 children, is not a solution. 

Mr. GALLEGLY. I would love to have a little more time on this, 

but out of respect for my colleagues, I would yield to the gentlelady 

from California, the Ranking Member of the Subcommittee, Ms. 

Lofgren. 

Ms. LOFGREN. Thank you, Mr. Chairman. 

I would just note, Mr. Fazio, your comment about the 34 farmworkers who are going to be fired, under this bill they would also 

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be fired, because they would not be eligible to get the temporary 

visa. 

Just as an aside, Mr. Williams, I think it is important to understand how this bill undercuts wages, because of the tier one issue. 

We took a look at some of the data. And just for example in North 

Carolina, the adverse wage rate is $9.30 an hour. Taking Sampson 

County, the Bureau of Labor Statistics average wage for crop workers was $9.59 an hour. But level one wage for that same country 

was $7.61 an hour. And the way, as I understand it, you advertise 

as if it is a level one status, because nobody is exploring that, and 

you lower the wage by a couple bucks an hour, which is significant, 

I would think, especially given farmers are working on very low 

margins. I mean, it is a hard business to be in. 

In addition to that, you don’t have to pay unemployment insurance or Social Security for the H program. I mean, in the ag sector 

you do, and some other temporary programs. 

So what amount—that is about 10 percent, isn’t it? 

Mr. WILLIAMS. That is correct. 

Ms. LOFGREN. So really, it is a substantial incentive to replace 

American workers with temporary workers on a wage basis, isn’t 

it? 

Mr. WILLIAMS. And that is the entire problem. If we want to 

solve—— 

Ms. LOFGREN. Pull the microphone, so I can hear, a little bit closer. 

Mr. WILLIAMS. That is the entire problem. If we want to solve 

this problem, we have to get the incentives right. 

Right now, yes, we use a lot more undocumented workers than 

we do H-2C workers—H-2A workers, and that is because it is 

cheaper to employ undocumented workers. We can say, well, we 

can replace them. We can replace the undocumented workers with 

H-2C workers, if we made it as cheap to employ them as it is to 

employ illegal aliens, maybe. 

I think, though, the more likely consequence is you would replace 

American workers, because by replacing an American worker, you 

save even more money, because the American workers are paid 

more. 

If we really want to solve the problem, we have to turn it around 

to a point where it is cheapest to employ an American worker. 

Ms. LOFGREN. Let me ask you this, in terms of farmworkers who 

are here in violation of the immigration laws, they are here working without their papers, there has been speculation, I think it is 

correct, I mean these are people in many cases who have been here 

many years, they have family, kids, the like, they are not going 

anywhere voluntarily, because they live here. 

How are they going to, if we do this E-Verify bill, how are they 

going to ever get employed again? I mean, in your testimony, you 

talked about the role of labor contractors and how that folds in. 

Can you explain that? 

Mr. WILLIAMS. Right. Whenever we talk about doing anything 

regulatory with agriculture, the one gigantic loophole that exists in 

all our labor laws and frustrates all our efforts to improve things 

are the farm labor contractors. 

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And what will happen, I am quite confident, as a result of the 

passage of the E-Verify law, will be a further progression toward 

growers turning over the total hiring function to labor contractors 

to insulate themselves from liability. 

That started, roughly, with the passage of IRCA. After IRCA 

passed, with its modest employer sanctions, one of the first things 

that happened was the percentage of workers that were hired 

through farm labor contractors started growing. It has been growing ever since. And this E-Verify thing will be the last straw, because they will all be hired in the future through labor contractors. 

And labor contractors are very difficult to regulate. There are 

only about 12,000 of them, but entry and exit is easy. They are 

undercapitalized. They are really not responsible players. You can 

do things to them, you can penalize them, you take their license 

away, another one will spring up the next day. 

Ms. LOFGREN. Well, if I may on that point, one of the concepts 

that we have explored—and California actually regulates the farm 

labor contractors, is that if you were to use a contractor who wasn’t 

subject to regulation, that you would also be in violation. Isn’t that 

something we ought to look at? 

Mr. WILLIAMS. Well, I think, and I suggested in my testimony, 

that one very effective way to get at the problem of unauthorized 

employment in agriculture is to go after the farm labor contractors 

and require them to E-Verify. 

Why wait 3 years? Why give the worst violators in the United 

States a 3-year pass? 

I mean, when you think about it, the 12,000 farm labor contractors in the United States have a huge role in bringing in the entire 

unauthorized population, because agriculture is often the gateway 

job. It is the contractors who deal directly with the traffickers, the 

coyotes, the smugglers. They are the first job for so many people 

coming to the United States. If we were serious about doing something about the problem, I would say that they would be very good 

people to go after. 

They are also people with an unparalleled record of labor abuse. 

They are exploitative employers. Why not look at them first? 

And I think it would be much better to focus and really enforce 

the law against a small group of employers and actually follow 

through with it for once then to cast a wide net—for example, all 

of agriculture, a 100,000 employers, many of whom only employ a 

few workers. And all those guys in the Midwest, they don’t employ 

any undocumented workers. Why not focus on the heart of the 

problem? 

And that is why I have also recommended that we go back and 

make it a violation of the Migrant and Seasonal Agricultural Worker Protection Act for contractors to employ unauthorized workers 

and, thereby, give workers the right to sue. 

We run across cases all the time where U.S. workers complain 

that they have been discriminated against. Give them the right to 

enforce the law, too. And I think we would go a long way toward 

getting at the problem. 

Ms. LOFGREN. Mr. Chairman, I know that my time has expired, 

but I would like to ask unanimous consent to place in the record 

a statement from Richard Trumka, the president of the AFL-CIO; 

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testimony from Eliseo Medina, the secretary-treasurer of SEIU; a 

statement of Mark Ayers, the president of the Building and Construction Trades; and a letter from Bruce Goldstein, the president 

of Farmworker Justice—all in opposition to the bill—as well as a 

letter to Chairman Smith from 68 organizations in opposition. 

Mr. GALLEGLY. Without objection. 

[The information referred to follows:] 

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Mr. GALLEGLY. Now the Chair recognizes the Chair of the full 

Committee and the sponsor of this legislation, the gentleman from 

Texas, Mr. Smith. 

Mr. SMITH. Thank you, Mr. Chairman. 

Mr. Wicker, thank you for your statement today. In your written 

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Mr. WICKER. Well, first of all, the current H-2A program wage 

source comes from the United States Department of Agriculture 

National Ag Statistics Service Farm Labor Survey, and they do it 

quarterly. And they average together wages. And they don’t tell 

farmers what this survey is about. 

And to the extent that farmers fill out these wage surveys, I 

think that they want to look good to the government. And so they 

send in these surveys and they pick out the wages that they are 

paying their workers, probably on piece rate, on their best day at 

the peak of harvest when they have the most workers. And so it 

seems to me that that is inflating the wages under this survey system. Growers don’t know what the survey data represents. 

And so the H-2C proposal, if the more growers would use a legal 

program, that means less workers will be working for farm labor 

contractors that Mr. Williams talks about, and we don’t know what 

those workers are earning. The illegal workers that work under the 

auspices of farm labor contractors, registered or not, most of the 

time on most of these farms, the grower writes one check to the 

crew leader. It might be eight bucks an hour for all of the workers 

they provide. But we don’t know what they pay the workers. It is 

not eight bucks an hour. 

So it is our view that when workers come in under a structured 

program like H-2C, with oversight and transparency, and the grower is the employer and they are writing a check to the worker, everybody knows what the deal is upfront. Workers have assurances 

that they are not going to be cheated. 

This is going to raise wage rates for all of these workers who are 

on these farms illegally that come in under the H-2C program. 

Mr. SMITH. Thank you, Mr. Wicker. 

Mr. Carr, by the way, you are—if he is still here—represented 

by a particularly able Member of Congress, Mr. Gowdy, who is an 

outstanding Member of this Committee. 

Mr. Carr, my question to you is, you say in your testimony that 

under the current H-2A program, the ag industry who is trying to 

do the right thing is at a competitive disadvantage with those who 

hire illegal immigrants. Why is that? Can you explain that? 

Mr. CARR. Yes, I can. It goes to wages. It goes to the bureaucracy 

of the program and the cost of participating in the program. 

As I stated, I have worked in this program for 13 years, and I 

have seen wage fluctuations from one Administration to the next. 

Currently, this year, my company received a 28 percent wage increase mandated by the current Administration. Those changes are 

very hard to absorb. 

Congresswoman Lofgren talked about wages and having predictability in wages and how they need to be streamlined. But what 

we saw this year is an agency put a 28 percent increase on us, and 

we have to absorb that. 

Last year, we paid the OES wage that was talked about earlier, the prevailing wage, and it was $7.25 an hour, and that was the 

prevailing wage of all fruit harvesters in my geographic area. This 

year, I had to go to $9.11. 

I am competing against the California peach industry as my 

number one competitor. They pay $8.25 an hour. Now, I pay $9.11 

an hour plus free housing, free transportation to and from, and all 

119 

the fees associated with it, just to be legal. We need to level the 

playing field. 

Mr. SMITH. Thank you, Mr. Carr. 

Mr. Fazio, I was going to ask you what you thought about the 

H-2A program, the current program, but used every word but dysfunctional. If you want to use that, you are welcome to use that, 

too. 

But let me ask you this, as far as the proposed H-2C program, 

what do you think is its main advantage over the H-2A current 

program? 

Mr. FAZIO. Well, first of all, I will tell you, Chairman Smith, on 

the West Coast, there is very little use of the H-2A program. In 

Washington State, it is about 5 percent of the seasonal workers. In 

California and Oregon, it is less than 1 percent. It is like a half 

of a percent. And we have got—I can’t come here—we produce 

more peaches in Washington and California than they do in South 

Carolina and Georgia. And I can’t legitimately come here and tell 

this person we are going to out-produce you because we can hire 

workers and pay less, because we are hiring illegal workers. We 

have got to, as leaders in our industry, we have got to do something about this issue. 

It is the number one issue in Washington State, the workforce. 

We need a legal and stable workforce. How the H-2C program 

works is it makes the program able to be used, I think, the housing 

program is a very, very big—the housing issue is a very, very big 

problem. 

Let me give you an example. Under the H-2A program, the current H-2A program, you have to provide housing for all the workers 

that you bring up here, but you also have to provide extra housing. 

And we are talking about—in California and Washington, housing 

is extremely scarce. You have to provide extra housing because at 

any time a person—or, excuse me, in the first 50 percent of the 

contract, a person can come and say, ‘‘I want that bed.’’ And it has 

happened to us. 

I can tell you the stories of people who say that—that come and 

said: I want that bed, and you have 24 hours to get that H-2A 

worker out of there and make the bed available for the domestic 

worker. 

So housing is a huge area of concern for us. 

And I’ll stop there, because there are many, many other areas of 

concern. But we have got to make the program work on the West 

Coast, where there is about 35 percent of the seasonal—— 

Mr. SMITH. Okay, thank you, Mr. Fazio. 

Thank you, Mr. Chairman. 

Mr. GALLEGLY. The gentleman from South Carolina would like to 

speak about how sweet the peaches from California are, right? 

Mr. GOWDY. I don’t think I have enough time to get to that, Mr. 

Chairman. If I had more than 5 minutes, I would, probably. 

I want to thank you for holding this hearing and thank Mr. 

Smith for his leadership on this. 

Mr. CARR, MR. Williams testified about the animus he believes 

that you hold toward American workers, so I want to give him the 

benefit of going back through the numbers that you testified to. If 

I wrote this down correctly, there were 285 domestic applicants? 

120 

Mr. CARR. That is correct. 

Mr. GOWDY. Sixty never showed up for work? 

Mr. CARR. Correct. 

Mr. GOWDY. One-hundred-ninety were gone before the second 

day? 

Mr. CARR. Just about second day, yes, sir. 

Mr. GOWDY. Twenty were dismissed for cause? 

Mr. CARR. Correct. 

Mr. GOWDY. And 15 made it? 

Mr. CARR. That is correct. 

Mr. GOWDY. So I want you to forgive my former high school 

math, but an attrition from 285 to 15 means you would have to go 

through that process almost 20 times to get the workforce that you 

were looking for? 

Mr. CARR. That is correct. 

Mr. GOWDY. Is your crop likely to survive that process? 

Mr. CARR. No, sir, it could not. 

Mr. GOWDY. He was very thinly veiled with his belief that you 

hold an animus toward American workers, and I am struggling to 

figure out what that could be, because you don’t have to pay transportation costs for American workers, do you? 

Mr. CARR. That is correct. 

Mr. GOWDY. But you do for visa workers? 

Mr. CARR. Yes. 

Mr. GOWDY. Do you have to provide American workers with 

housing vouchers? 

Mr. CARR. No, we do not. 

Mr. GOWDY. So why would you not be better off hiring American 

workers? 

Mr. CARR. I would be better off hiring American workers, if there 

were—— 

Mr. GOWDY. So what is the source of his belief that you hold 

some animus toward American workers? 

Mr. CARR. I cannot answer that question, sir. 

Mr. GOWDY. Well, let me see if I can ask one that you can answer. 

Litigation abuses. Have you experienced any of those? Have you 

experienced any overzealous taxpayer-funded investigators that 

come and look for split screens that may have been split 30 seconds 

before the investigator got there? Do you have any horror stories 

with respect to that? 

Mr. CARR. I don’t have particular horror stories like the rest of 

the industry that I have heard from my neighbors and colleagues. 

But, yes, just last year, we were written a letter on behalf of the 

worker who was claiming wrongful dismissal even though he was 

caught on surveillance tape fraudulently documenting his entry 

and exit time for work. And we ended up having to settle that case 

to get that worker money to return back home to Mexico. And we 

settled that case out of the benefit of the fact that it was going to 

be a whole lot cheaper to do that than it was to go through the 

court system. 

But that is the only case that has ever been brought against my 

company in terms of workers. But frivolous lawsuits in the Southeast have decimated the H-2A program over the last 7 to 10 years. 

121 

Growers get in for 1 or 2 years and have been litigated right out 

of the program. 

Mr. GOWDY. All right, I want to ask you about two specific provisions, one with respect to our friends in the dairy business. Is 10 

months adequate? And if you were to suggest a tweak to this Committee, what would that tweak or fix be? 

Mr. CARR. We have to understand in a lot of things that we talk 

about today, there are regional differences within this country, and 

it is hard to talk about a program and even differences among ourselves based on Western philosophies and Eastern philosophies. 

But when it comes to year-round employment such as the dairy 

industry, I can understand that if I was a dairy producer that it 

would be difficult for me to know that every 9 months or 10 

months, I would have to change the workforce. 

But I think having the opportunity to participate in a program 

where they would have access to legal workers, they could make 

those adjustments. 

A tweak to that would be for year-round operations, especially 

operations such as livestock, to make it on an annual or 12-month 

process, where they would have to re-advertise that job every 12 

months instead of every 10 months. 

But the bottom line to the Chairman’s bill is, by including all of 

agricultural into this program, you are going to help transition agriculture into a guestworker program, which they currently can’t 

use right now. 

Mr. GOWDY. You wrote in your testimony that on-farm processors 

should be allowed to use the guestworker program. Can you expand 

on that? 

Mr. CARR. It is not clear in the Chairman’s bill whether processors that further processor their products—and let’s understand 

that the growing trend, especially crop agriculture right now today, 

is to further process your products anyway you can by adding value 

to them. So we want to be sure that any guestworker bill clarifies 

that a producer that processes 50 percent or more of his own product could use the H2 or H-2C program. 

Mr. GOWDY. Mr. Carr, I want to thank you for coming. I want 

to thank you for your advocacy on behalf of farming. We have met 

several times. We have scores and scores of mutual friends in 

South Carolina. And I think the American farmer is a patriot. And 

I thank you for your willingness to put up with a labyrinthal Federal system, to try to preserve that American journey. 

Mr. CARR. Congressman, I want to thank you for your leadership 

within our State for holding some of the hearings that you have 

held and the conversations you have held on the subject, because 

it is near and dear to our State, as well as it is to all of agriculture. 

Mr. GOWDY. Thank you. 

Mr. GALLEGLY. I thank the gentleman from South Carolina. 

The gentleman from Florida, Mr. Ross? 

Mr. ROSS. Thank you, Mr. Chairman. 

Mr. Carr, I have to comment as well on your testimony, just because I come from a strong agricultural district I think Mr. Williams may be familiar with. It is in between Tampa and Orlando. 

We consider ourselves the citrus capital of the world. Of course, my 

Chairman might disagree with that. 

122 

But last year we had acres of citrus, strawberries, blueberries, 

and tomatoes die on the vine for lack of labor. And I have a good 

friend of mine, Bo Bentley of Bentley Brothers Harvesting, who, 

like you, employs through the H-2A program. But unfortunately, by 

playing by the rules, they have an unfair—or competitive advantage that some of their competitors have because they don’t. 

And unfortunately, the H-2A program has led to a black market 

of illegal workers who have come over here and has been the morass that we now have today. 

And I have to give Chairman Smith a great deal of credit for 

bringing this forward. I think it is a step in the right direction. 

Mr. Fazio, I want to ask you a question really quickly about the 

50 rule. Why is it important that this be eliminated in this bill? 

Mr. FAZIO. Well, the 50 percent rule says that you are forced to 

hire all domestic workers that show up for the first 50 percent of 

the contract period. And the current interpretation by the Department of Labor is that if you have one guestworker on your property, you are liable to hire an infinite number of domestic workers. 

We have small farmers who have maybe 20 workers on there 

that they are going to use in the H-2A program, and they are hiring the domestic workers as they come on board, but they are 

scared to use the program because they said, you know, someone 

could put me out of business who doesn’t like this program by just 

sending 100 domestic workers. 

Mr. ROSS. And they have to keep the job open for them, don’t 

they? 

Mr. FAZIO. Yes. 

Mr. ROSS. And they could be sued if they don’t, can’t they? 

Mr. FAZIO. That is correct, sir. 

Mr. ROSS. And they have been, in fact, which leads me to my 

next question now. 

In this particular bill, there is binding arbitration. What has 

been your experience in terms of lawsuits and the effect that binding arbitration would have? 

Mr. FAZIO. We clearly need something. I think that the legal 

services community are zealous advocates and they are excellent 

lawyers. And we try to work as hard as we can with them. I have 

talked—there are two legal services in just about every State now. 

The State and Federal grantee, and then another legal services 

component that is privately funded or funded by the IOLTA, the 

Interest on Lawyers Trust Account, which I won’t get into. 

But I am working right now on a system where the legal services 

opposes the regulation, and they are going to sue the farmer. 

What happened was, I got a demand letter from legal services, 

and I called her right up. And I said, what is the nature of the demand? And she said, we want $500 per worker for extra expenses 

that the worker made in the regulation. I said, well, what were 

they? And she gave them to me. I said, none of those regulations— 

none of those expenses are required under the regulation. And she 

said, well, we don’t agree with the regulation, and we don’t believe 

that the regulation complies with the Fair Labor Standards Act, so 

we are going to sue you unless you pay us $500 per worker. 

Mr. ROSS. And that problem is transcontinental, because it is 

happening in Florida as well. 

123 

Mr. FAZIO. And I said, you know, with all due respect, why don’t 

you sue the Department of Labor or the government that put this 

regulation in place, because we are just following the regulation? 

And of course, it is a problem in the legal system. I am an attorney, and I know it is a problem in the legal system, when one person has their legal fees paid for by someone else, and another person has not got—— 

Mr. ROSS. There are incentives there. 

Mr. FAZIO [continuing]. Their legal fees paid. 

And I am not suggesting any great change, but I am saying that 

is the reality. We wrote a check—we are going to write a check for 

what they ask, because we can’t take that to litigation. It will cost 

us $100,000. 

Mr. ROSS. Exactly. The cost of defense. 

Mr. Williams, well, let me do this. 

In the interest of time, I would like to yield the remaining of my 

time to Chairman Smith. 

Mr. SMITH. Thank you, Mr. Ross. 

Mr. Williams, I wanted to address a couple questions to you, and 

this is based upon your written testimony where you say, ‘‘It is not 

a bad thing if the recipients of the bill called AgJOBS eventually 

move on to better paying jobs.’’ 

I assume those better paying jobs are not in the ag field; is that 

correct? Or in the ag industry? 

Mr. WILLIAMS. Not necessarily. 

Mr. SMITH. Okay, this is my question. If that is the case, and 

that is what you believe, why wouldn’t that leave ag employers 

empty-handed, if you are allowing their workers to go leave where 

they are currently working and seek jobs elsewhere, particularly 

jobs that aren’t in the ag industry? 

Mr. WILLIAMS. Because I believe the best reform, we could make 

in the agricultural area is to have a free labor market where ag 

has to compete with non-ag employers, and it has to raise its wages 

and benefits—— 

Mr. SMITH. Right. But now you are allowing foreign workers to 

compete with American workers, which, I think, puts our American 

workers at a disadvantage. 

Mr. WILLIAMS. I am talking about—— 

Mr. SMITH. Let me just finish real quick. 

If you do that, and allow these ag workers to seek jobs other 

than in the ag industry, number one, you are making them compete with American workers for their jobs. But second of all, you 

are inevitably leading to sort of this endless flood of immigrant 

labor coming into the country, are you not? 

Mr. WILLIAMS. I think I was referring to after the period of 

which under, say, in the AgJOB situation, workers became permanent residents. Then obviously, they no longer have to do the perspective work requirements, and they are free as any other person. 

Mr. SMITH. But my point is still valid, I think, where now you 

are saying they can compete with American workers for other jobs, 

even jobs not in the ag industry; is that correct? 

Mr. WILLIAMS. I am saying that initially workers would be tied 

to the ag industry—— 

Mr. SMITH. But then they could leave and compete—— 

124 

Mr. WILLIAMS. But eventually, they would have the same freedom, the same right to choose their—— 

Mr. SMITH. I understand that, but the result is the same. They 

are competing with American workers for jobs. 

Mr. WILLIAMS. And American employers, agricultural employers, 

would be competing with other employers, nonagricultural employers, to hire those workers. 

That is the competition I would like to see. 

Mr. SMITH. Well, I am more concerned about American workers 

than I am foreign workers, and that is a big difference we have, 

I think. 

Thank you, Mr. Chairman. I yield back. 

Mr. GALLEGLY. Thank you, Mr. Smith. 

The Chair will yield to the gentlelady from Texas. 

Ms. JACKSON LEE. I thank the gentleman and the Ranking Member, and I am hoping the Ranking Member is going to get her time. 

Let me thank you. I recall, I think the Ranking Member and myself have been on the Committee for such a long period of time, I 

remember correcting the issue of housing and transportation and 

providing a better quality of housing for migrant workers. It seems 

like we did this through this Committee. And to my recollection, 

we might have even had something passed on that order. 

When I look at this, which I think is H-2C, it is almost as if I 

am leaning, I am going backwards. 

And I am very empathetic to my growers. I am from Texas, and 

we are all for talking about jobs, we are all for protecting American 

product and industry, and we want you to have as many workers 

as possible. 

In fact, I guess she can speak for herself, but a lot of Members 

on this side of the aisle have been supporting comprehensive immigration reform. And in agricultural, I think many of you know the 

Senator Feinstein was working on the ag. We were supporting that. 

Mr. Berman was working on it. We were supporting that. 

We really want to be supportive. But this is a little shocking. 

And I want to pose a question to Mr. Williams, I think it is, who 

is representing farmworkers. And 500,000 sounds like a great number. This reminds me of the Chinese workers on the railroad. I am 

not even sure whether they had housing or anything, but I know 

the conditions under which they were working were dire. Certainly, 

those who were slaves, meaning African-Americans, were not in the 

same category, who were slaves and indentured servants. 

But this looks along that line. And the reason why I say that, 

and maybe they were in better condition. I am not sure of the conditions for indentured servants; let me qualify that. 

Somebody had to put a roof over their head, and I don’t know 

what kind a roof, can’t document the devastating roofs that slaves 

had, but there was some kind a roof. I know it was devastating. 

It seems that H-2C deletes the requirements for housing, transportation, and some other benefits. If we had U.S. workers that are 

getting these benefits now, it seems that they would be the first in 

line to be fired, because you are pitting these workers coming 

against maybe workers that are already there. 

So, Mr. Williams, help me understand, is there an advantage to 

H-2C? Does it make sense not to provide basic benefits? And as 

125 

well, not to allow some of these individuals that come with their 

families? Do you get a better work output from individuals that you 

don’t provide housing to or transportation? 

Mr. WILLIAMS. I think, Congresswoman, the reason the protections are in the current law is that—— 

Ms. JACKSON LEE. Not this bill. Please be clear. You are talking 

about the current law. 

Mr. WILLIAMS. The H-2A. When they are in the current law—— 

Ms. JACKSON LEE. Yes, and this changes the current law. 

Mr. WILLIAMS. Yes, it does. It doesn’t eliminate all of those protections, but it weakens and modifies them. It reduces the transportation expense. 

For example, right now, a worker who comes from Mexico, he 

may come all the way from southern Mexico as an H-2A worker. 

Right now, his transportation is paid from his home to the place 

of employment, and return. 

Under the H-2C bill, his transportation would only be paid probably from the consulate, probably a consulate on the border. So the 

employer would no longer be paying for what might be a 500-mile 

trip within Mexico. So that is one of the changes. 

The housing provision still requires that the employer pay for it, 

but it allows the employer to pay for it through a voucher, and 

probably changes the regs for the housing a little bit. I mean, I 

guess the intent—— 

Ms. JACKSON LEE. And the quality of the housing that they 

might be—— 

Mr. WILLIAMS. The Department of Agriculture would write 

new—— 

Ms. JACKSON LEE. Let me interrupt you, because I need you to 

quickly respond. 

This also puts this scheme, if you will, under the Ag Department. 

It doesn’t have the infrastructure for this, versus the Department 

of Justice. Comment very quickly on that. 

And comment on the fact that in many States, the new immigration rules—no driver’s license, you can’t rent here. These bills are 

now in place in several States. What does this kind of new structure do to heap on top of those individuals that you want to have 

come work here? 

Mr. WILLIAMS. Well, clearly, these programs belong under the 

Department of Labor. The Department of Labor has years of enforcement expertise in this area. It has wage and hour investigators. The Department of Agriculture has none of that. 

And we have heard about how the Department of Agriculture is 

more knowledgeable, or whatever. Well, I think what is meant, 

maybe that is just code for saying the Department of Agriculture 

is grower-friendly, and the Department of Labor is worker-friendly. 

If you want to protect the worker’s rights, you will have this program under the direction of the Department of Labor, not the Department of Agriculture. 

Mr. GALLEGLY. The time of the gentlelady has expired. And I 

would—— 

Ms. JACKSON LEE. Mr. Chairman, I would close by saying, I 

would like to be grower-friendly and worker-friendly. And I do beVerDate Aug 31 2005 15:40 Oct 31, 2011 Jkt 000000 PO 00000 Frm 00129 Fmt 6633 Sfmt 6601 H:\WORK\IMMIG\090811\68186.000 HJUD1 PsN: DOUGA
126 

lieve we need comprehensive immigration reform to make all of 

this work. 

I yield back. 

Mr. GALLEGLY. The gentlelady’s time has expired. 

Would the Ranking Member like that additional 1 minute? 

Ms. LOFGREN. Thank you, Mr. Chairman. I appreciate that. 

I just wanted to make a couple of closing comments. 

First, the arbitration provision in this bill is, I think, particularly 

objectionable, because to say that the farmworker who is going to 

be paid under the bill $7.60 an hour is going to pay half the cost 

of the arbiter’s salary, which is usually hundreds of dollars an 

hour, means that basically there is going to be no recourse. 

And I am not saying that any one of you as employers would do 

something wrong, but there are instances, unfortunately more than 

we would like, where people are cheated, not paid. And there has 

to be some recourse to justice. 

So I just think that is a very serious problem. 

And I object to the bill overall, but surely, we would not expect 

somebody who is so poor and works so hard to be unpaid and have 

no recourse to justice. That just cannot be the America that we believe in. 

I would just like to note that our former colleague, Adam Putnam, was certainly very instrumental in putting together the ag 

labor bill that had broad consensus across the aisle when it was 

introduced. I really think we would be much better off enacting 

that bill as it was written by Republicans and Democrats to serve 

both the ag industry but also the people who work so hard to pick 

our crops. 

And with that, Mr. Chairman, I appreciate the additional 

minute. And I yield back the balance. 

Mr. GALLEGLY. I thank the gentlelady. 

And I would also like to thank our witnesses for being here 

today. 

Without objection, all Members will have 5 legislative days to 

submit to the Chair additional written questions for the witnesses, 

which will be forwarded, and ask the witnesses to make an attempt 

to respond as promptly as possible, so their answers can be made 

a part of the record of this hearing. 

Without objection, all Members will have 5 legislative days to 

submit any additional materials for inclusion into the record. 

And with that, thank you very much, gentlemen, and the Subcommittee stands adjourned. 

[Whereupon, at 3:35 p.m., the Subcommittee was adjourned.] 

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