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[Senate Hearing 106-1058]
[From the U.S. Government Publishing Office]

                                                       S. Hrg. 106-1058

   THE AGRICULTURAL JOB OPPORTUNITY BENEFITS AND SECURITY ACT OF 1999

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

                                HEARING

                               before the

                      SUBCOMMITTEE ON IMMIGRATION

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED SIXTH CONGRESS

                             SECOND SESSION

                               __________

                              MAY 4, 2000

                               __________

                          Serial No. J-106-81

                               __________

         Printed for the use of the Committee on the Judiciary

                    U.S. GOVERNMENT PRINTING OFFICE
74-730                      WASHINGTON : 2001

For Sale by the Superintendent of Documents, U.S. Government Printing Office
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                   SENATE COMMITTEE ON THE JUDICIARY

                     ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina       PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania          JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona                     HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio                    DIANNE FEINSTEIN, California
JOHN ASHCROFT, Missouri              RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan            ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama               CHARLES E. SCHUMER, New York
BOB SMITH, New Hampshire
             Manus Cooney, Chief Counsel and Staff Director
                 Bruce A. Cohen, Minority Chief Counsel
                                 ------                                

                      Subcommittee on Immigration

                  SPENCER ABRAHAM, Michigan, Chairman
ARLEN SPECTER, Pennsylvania          EDWARD M. KENNEDY, Massachusetts
CHARLES E. GRASSLEY, Iowa            DIANNE FEINSTEIN, California
JON KYL, Arizona                     CHARLES E. SCHUMER, New York
                   Lee Liberman Otis,  Chief Counsel
                 Melody Barnes, Minority Chief Counsel

                            C O N T E N T S

                              ----------                              

                     STATEMENT OF COMMITTEE MEMBER

                                                                   Page

Abraham, Hon. Spencer, a U.S. Senator from the State of Michigan.     1

                               WITNESSES

Berman, Hon. Howard L., a Representative in Congress from the 
  State of California............................................    15
Bishop, Hon. Sanford D., Jr., a Representative in Congress from 
  the State of Georgia...........................................    13
Camacho, Marcos, General Counsel, United Farmworkers of America, 
  AFL-CIO, Keene, CA.............................................    78
Craig, Hon. Larry E., a U.S. Senator from the State of Idaho.....     9
Garcia, Polo, Pastor, Casa de Zion, Lutheran Ministry to 
  Farmworkers, Woodburn, OR......................................    28
Graham, Hon. Bob, a U.S. Senator from the State of Florida.......    10
Holt, James S., Senior Economist, McGuiness & Williams, on behalf 
  of National Council of Agricultural Employers, Washington, DC..    69
Munoz, Cecilia, Vice President, Office of Research, Advocacy and 
  Legislation, National Council of La Raza.......................    30
Smith, Hon. Gordon, a U.S. Senator from the State of Oregon......     3
Wunsch, Joshua, Farmer and Board Member, Michigan Farm Bureau, on 
  behalf of American Farm Bureau, Traverse City, MI..............    23

 
   THE AGRICULTURAL JOB OPPORTUNITY BENEFITS AND SECURITY ACT OF 1999

                              ----------                              

                         THURSDAY, MAY 4, 2000

                               U.S. Senate,
                       Subcommittee on Immigration,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 2:18 p.m., in 
Room SD-226, Dirksen Senate Office Building, Hon. Spencer 
Abraham, (chairman of the committee) presiding.

OPENING STATEMENT OF HON. SPENCER ABRAHAM, A U.S. SENATOR FROM 
                     THE STATE OF MICHIGAN

    Senator Abraham. We call this hearing to order. And I want 
to welcome everybody to today's hearing on the Agricultural Job 
Opportunity Benefits and Security Act of 1999.
    I am going to make some brief opening comments, and I wish 
to apologize for being a few minutes late. Although I have not 
been officially asked to, I will also, on behalf of the Ranking 
Member, Senator Kennedy, express his concerns, too, about our 
day. Both of us have been on the floor in a pair of amendments. 
I have offered a first-degree amendment, Senator Kennedy has 
offered a second-degree amendment to my first-degree amendment. 
So we have spent much of the day together, just not here. And I 
am not sure where the current status of things is, but I 
apologize for my delay and hopefully he will be able to join 
us, as well as other members of the subcommittee.
    I actually am going to be fairly brief. We have had several 
hearings already over the last couple of years on these issues 
that pertain to the workforce situation with respect to 
American agriculture. In June 1998, we held a hearing entitled, 
``The H-2A Program: Is it working?'' The feeling that emerged, 
I felt, from that hearing is that the current system does not 
work very well, for a variety of reasons, for all of the 
different participants, whether it is the farmers or the 
potential workers or American agriculture in general.
    One of the goals of that hearing and the process that 
hearing helped us to move forward was to bring together 
individuals on a bipartisan basis to try to engage in a more 
serious discussion of these issues. And then last May we held a 
hearing on meeting the workforce needs of American agriculture, 
farmworkers and the U.S. Academy, and I think at that hearing 
we also made it very clear that some of the problems associated 
with the H-2A system had grown worse and that neither employers 
nor workers were being very well-served by the status quo.
    I also think last year's hearing was very helpful in the 
sense that we really had more of a dialogue than a hearing in 
the conventional sense, and I think people on both sides got a 
chance to hear some of the concerns expressed by people with 
rivaling views in a way that maybe doesn't happen typically in 
a hearing, and I appreciated that.
    At that time, or at least when we conducted that hearing, 
no legislation had actually been introduced on the subject at 
hand, and it was hoped that the hearing might be helpful in 
providing information on all sides of the issue in order to aid 
in the drafting of legislation. Since then, we have seen a 
bipartisan bill introduced by Senators Gordon Smith, Bob 
Graham, Larry Craig, Max Cleland, Mitch McConnell, Paul 
Coverdale, Jim Bunning and others. And it is that bill which is 
the focus of today's hearing.
    Now, I realize as I think everybody does that there is 
still not unanimity of opinion on the legislation which will be 
discussed here today. Although policy disagreements are often 
what receive the most attention, as I note in the previous 
hearing, there remains an agreement on a large number of facts 
regarding farmworkers and agriculture.
    First, we as Americans would like to see our farmers 
competitive in global markets and believe it is important to 
have agricultural products produced in this country.
    Second, migrant farmworkers have hard lives, and we can all 
admire them for the very difficult, but important jobs which 
they perform on a daily basis.
    Third, it is far safer for farmworkers born in other 
countries to enter America legally rather than to be faced with 
unscrupulous smugglers, who show little concern for their 
safety.
    And finally, a farmworker who enters the United States to 
work legally will have a greater legal recourse than an 
individual who is an illegal immigrant.
    I made these points last time, and I make them again in the 
spirit of hoping that we can forge more common ground. In my 
home State of Michigan, many farmers have related to me the 
difficulty of finding agricultural workers, particularly on a 
timely basis. Today, there are over 45,000 farms in Michigan. 
Each year, the food and agricultural industry contribute more 
than $40 billion to the Michigan economy. And today we will 
hear from a representative of Michigan's Farm Bureau, who will 
give us his views and the views of that organization with 
respect to the current conditions which confront farmers in my 
State.
    In Washington, reflecting the views of their constituents, 
Senators of both parties have been working together and have 
sought this hearing today as a venue to advance the issue. 
There are also efforts taking place on the other side of 
Capitol Hill in the House of Representatives. Our two previous 
hearings, I believe, were successful in helping to forge a good 
degree of bipartisanship, though not uniform consensus. So I 
hope that today's hearing can help us find additional common 
ground that can benefit the Nation, and hopefully ultimately 
allow us to pass legislation that is a positive piece of 
legislation for all concerned.
    So I just would say that I think the witnesses we have 
assembled today working with Senator Kennedy share that 
interest, and I look forward to hearing their testimony.
    We will begin with our panel of Senate witnesses. Senator 
Gordon Smith, who is the lead sponsor of the legislation we are 
going to be discussing today, Senator Bob Graham, Senator Larry 
Craig. I will call on you in that order, unless there is a time 
problem, which I would be happy to honor. But if not, we will 
proceed first with you, Senator Smith.

PANEL CONSISTING OF HON. GORDON SMITH, A U.S. SENATOR FROM THE 
STATE OF OREGON; HON. BOB GRAHAM, A U.S. SENATOR FROM THE STATE 
OF FLORIDA; AND HON. LARRY CRAIG, A U.S. SENATOR FROM THE STATE 
                            OF IDAHO

                 STATEMENT OF HON. GORDON SMITH

    Senator Smith. Thank you, Mr. Chairman, for your leadership 
and holding this hearing on S. 1814, the Agricultural Jobs 
Opportunity Benefits and Security Act. I would also like to 
thank you for holding hearings over the past years on the 
important issues surrounding the workforce needs of American 
agriculture, farmers, farmworkers and the U.S. economy. The 
outcome of those hearings, along with the years of 
negotiations, are reflected in this bipartisan bill that is 
brought to the committee today by Senator Graham, Senator Craig 
and myself.
    I would also like to take the liberty of introducing two 
Oregonians that are here: Pastor Police officer Garcia from the 
House of Zion Ministries in Woodburn, OR, who will be 
testifying in a later panel today and his wife Marta. They are 
right behind me here. They are representative of many people 
who really want to improve the current circumstance. It is a 
shameful situation that we are in today.
    And, Mr. Chairman, frankly, in all of my legislative 
career, I have never found an issue that quickly moves off its 
merits and onto name calling, as does the issue of immigration. 
And I suspect you understand what I am talking about. I have 
never had good-faith effort and people called into question so 
quickly in my life. And what I am doing here is a bipartisan 
effort, a good-faith effort to make a terrible situation to end 
and to make a better situation. Our country needs to get off 
this illegal system and onto a legal system so farmers are no 
longer fugitive or felons and farmworkers no longer need to 
conduct themselves as fugitives living in the shadows of our 
society.
    Frankly, what motivates me to do this are the weekly 
reports. We all see, but frankly, we do not see much any more, 
even though they happen. It is becoming very common place in 
our society, where migrant workers are dying regularly in the 
deserts of this country trying to make their way to jobs. These 
are people who are raped, they are robbed, they are bribed, 
they are pillaged in ways that are unthinkable and unimaginable 
or should be unimaginable in American society. They have no 
worker protections or minimum-wage guarantees. They live 
outside the law. Now, how many people are we talking about? 
There are estimates between 1 million illegal workers in 
agriculture, and perhaps as many as 6 million illegal workers 
throughout this country in various industries.
    Now, if I can direct your attention to what we are trying 
to fix, these charts right up here. On the left, you see the 
current H-2A process. The thing speaks for itself. It is so 
cumbersome, so expensive to pursue that frankly it is rarely 
used. What my colleagues and I are proposing is a process on 
the right, which brings workers and employers together in a 
registry. No one is brought in until all domestic workers have 
a shot at existing jobs, and only then does H-2A kick in.
    We need to get there, sooner than later. In addition to 
that, we found a way to give the workers who are already here 
working American crops legal status and worker protections. We 
want to give these agricultural workers who have tirelessly 
helped to put food on your table and mine the benefits of legal 
status. We do not want them to remain fugitives in our country 
any more.
    I suppose the most attractive feature of our new bill is 
this process to legality. It is not an outright amnesty, but 
frankly it is a way in which they can immediately be here 
legally. And I am open to suggestions on the part of some 
farmworkers that we expand this to be more family friendly, and 
I hope that we can work on that as well. But our three main 
components of the bill are to provide legal status to 
undocumented workers immediately. And all they have to do is 
work 150 days in agriculture prior to this bill's introduction, 
and they can earn the right to just permanent resident status 
by working then for 180 days in 5 of the next 7 years. But 
their legality is immediate.
    Second, we create this registry, as you see above.
    Third, we enhance worker protections, benefits and labor 
standards by providing a premium wage up to 5 percent of our 
prevailing wage. We provide housing or a housing allowance. We 
provide transportation reimbursement, better labor law 
protections. And I would just conclude, Mr. Chairman, by 
indicating this is long overdue, as evidenced by two townhalls 
I recently had: one in Woodburn, Oregon. It was an Army 
National Guard building. There was standing room only--2,000 
people at least there with overflow speakers to the outside. 
They were primarily illegals that were there, and they 
desperately would like us to do something. This is just some of 
the letters we have received from Hispanic workers who are 
asking us to do something differently to get some legal way for 
them to be here.
    And finally, I would conclude by reading two quotes; one 
from The Washington Post in a recent article: ``Congress has 
responded sympathetically to the pleas of the high-tech 
industry to hire more skilled workers from abroad, but it has 
yet to do anything for employers of those at the bottom end of 
the labor market, the end where U.S. citizens do not want to 
work. Now, with a record number of illegal immigrants living in 
the United States, an estimated 6 million, with most of them 
working, some even paying taxes and joining unions. It is time 
to bring our immigration policies in line with what is actually 
happening in the labor market. It is time to recognize that we 
need the immigrants as much as they need us.''
    Alan Greenspan has said a similar thing. I will include 
that in the record, Mr. Chairman. And, again, I thank you for 
holding this hearing. This bill, in an amended form, is long 
overdue, and the time has never been better for the 
administration and this Congress to strike a deal that really 
benefits the victims, farmers and farmworkers.
    [The prepared statement of Senator Smith follows:]

             Prepared Statement of Senator Gordon H. Smith

    Thank you Mr. Chairman and fellow colleagues of the Immigration 
Committee for your leadership in holding a hearing on S. 1814, the 
Agricultural Jobs Opportunity Benefits and Security act, also known as 
AgJOBS.
    Mr. Chairman, I would also like to thank you for holding hearings 
over the past few years on the important issues surrounding the 
workforce needs of American agriculture, farmworkers, and the U.S. 
economy. The outcome of those hearings, along with the years of 
negotiations, are reflected in this bipartisan bill cosponsored by 
myself, Senators Graham, Craig, Cleland, McConnell, Coverdell, Mack, 
Cochran, Helms, Grams, Crapo, Bunning, Voinovich, Gregg, and Frist.
    I would also like to introduce Pastor Polo Garcia--from the House 
of Zion Ministries in Woodurn, Oregon--who will be testifying in a 
later panel today. I commend both Polo, and his wife Marta, for their 
service to the farmworkers. They are representative of many people who 
really want to improve the current shameful situation we are in today.
    Mr. Chairman, in all of my legislative career, I have never found 
an issue that as quickly moves off the merits and onto name-calling 
than the issue of immigration. I was amazed and astounded at the things 
that were said to me and my colleagues as we pursued this issue with 
the very best of motives last Congress. Those things are said still. 
But I challenge anyone who wants to see a better life, I challenge them 
to defend the current system we have in this country for agricultural 
workers and farmers. We take for granted when we to go the grocery 
store all the abundance there that greets us, but we seldom take the 
time to think of those who helped produce it and bring it to the 
market.
    There is a shameful story to be told in this country when it comes 
to agricultural workers. What I am offering with all of my colleagues--
a bipartisan group of my colleagues--is a good-faith effort to make a 
bad situation much better and to get this country off an illegal system 
and onto a legal system so farmers no longer need be felons and 
farmworkers no longer need to live in our shadows as fugitives.
    What motivates me to do this are the almost weekly reports of 
migrant workers dying in the American deserts of the Southwest, trying 
to make their way to jobs. These are people who are victimized by human 
coyotes. They are raped. They are robbed. They are bribed. They are 
pillaged in ways that are unthinkable, and ought to be unthinkable, in 
this country. It happens because they have no safe and legal way to 
come here and to go home, to work a job, to earn their way, and to 
share the American dream, which is really just a human dream. That was 
the motive upon which I tackled this issue.
    How many people are we talking about? By some estimates, there are 
over 1 million illegal workers in agriculture in this country. There 
are estimates of 6 million illegal aliens in the United States.
    Let me tell you why our current guest workers system doesn't work.
    First of all, it is economically beyond the pale of most of those 
in the farm communities who would like to hire them. To illustrate, 
this is the Department of Labor's 325-page handbook which attempts to 
guide employers through the H-2A program's confusing application 
process to hire one worker. The GAO itself found that this handbook is 
outdated, incomplete, and very confusing to the user. Conversely, when 
I applied for a job in the Senate, I had to fill out a two-page 
document.
    Even the December 1977 GAO report illustrated the burdensome H-2A 
process with which employers must comply in order to bring in legal, 
foreign workers. A grower must apply to multiple agencies to obtain 
just one H-2A worker. This process is further complicated by the 
multiple levels of government, redundant levels of oversight and 
conflicting administrative procedures and regulations. Also, as 
reported by the recent Department of Labor Inspector General, the H-2A 
program does not meet the interests of domestic workers because it does 
a poor job of placing domestic workers in agricultural jobs.
    In the meantime, I have gone forward with Senators Graham and Craig 
to fix our farm guest worker program in the hopes of getting something 
through in this Congress that could win the support of the 
administration and begin to relieve a problem we have now seen in a 
very human way.
    First, we provide an opportunity for workers already in the U.S. to 
earn legal status. To reduce the need for temporary guest workers and 
immediately address the illegal worker crisis, workers who meet 
specific employment requirements are eligible for immediate, legal 
``adjustment of status.'' The workers who qualify for ``adjustment of 
status'' can earn permanent residency status in the U.S. if they 
continue to meet specific employment requirements for five of the next 
seven years. Their change of status from illegal to legal actually 
occurs immediately.
    It was my experience as a person in business that those who got 
amnesty immediately got a voice. As soon as they had a legal right to 
be here, their conditions began to improve. The people who will argue 
against this bill somehow benefit--even profit--by keeping these people 
illegal and by being their voice. I don't think that serves their 
interests based on what I saw in the private sector in the middle 
1980s.
    What we are proposing is not amnesty. Some have said this is 
indentured servitude. The indentured servitude is the status quo. The 
indentured servitude are those who simply say keep them illegal, keep 
them down, make sure they don't have the benefits that other workers in 
America do, and we will somehow suggest we are on their side. The way 
out of indentured servitude is to give them a legal path to follow. 
That is what Senator Graham, Senator Craig and I are doing.
    The second part of our bill is to actually improve and streamline 
the current H-2A guest worker program by creating a national registry 
for matching workers with jobs. To make the H-2A program more efficient 
for workers and employers, the bill creates a computerized registry 
system that ensures legal, domestic workers will be hired first for all 
agricultural jobs. Only after the Department of Labor (DOL) determines 
that a shortage of domestic workers exists could adjusted workers be 
recruited. If the DOL further determines that a shortage of adjusted 
workers exists, H-2A workers could then be recruited. H-2A workers can 
only be admitted after it is determined that a shortage of US workers 
exists. This ensures that employers hire workers already in the US 
before recruiting temporary, foreign guest workers.
    What Senator Graham, Senator Craig and I are proposing to do is to 
create a national registry that does not even kick in until all 
domestic workers have right of first refusal. What it does is connect 
workplaces and employers with employees who want to work on farms. It 
will provide an opportunity even for organized labor to go to one 
place, find out who wants to be there, who wants the job, and even 
assist them in organizing if they choose to do so.
    I am not here to oppose organized labor. I am trying to help them, 
to say there is a legal way to do this that will better serve the 
interests of real people, and not the imaginary, hoped-for things that 
some are claiming are possible, which are not possible.
    Third, Senator Graham, Senator Craig and I are providing enhanced 
worker protections. This bill improves the inhumane working and 
recruiting practices that victimize current undocumented workers in the 
US. It gives all adjusted farmworkers the standard protections under US 
labor law that they lack as undocumented workers. The bill also 
provides H-2A workers with enhanced worker protections, including 
better wages, housing and transportation benefits, and coverage under 
the Migrant Seasonal Agricultural Worker Protection Act. Under the new 
legislation, all labor protections included in the current H-2A program 
are preserved.
    All of this is done because we are here to help. We reach out to 
all who are in this disadvantaged situation who want to be legal, who 
want a future, who want to pursue the American dream, and who want to 
do farm work.
    Some have suggested we are trying to flood this country with more 
illegal problems. I say to you today in this hearing, I'm not asking 
for additional workers; I want those who are already here to have a 
legal way to be here. This isn't as if they are coming; they are 
already here. It is a shameful situation when we can do nothing for 
them under law.
    I would like to briefly tell you about some meetings I had during 
the February recess this year. I had scheduled two meetings, one in 
Woodburn, Oregon, and the other in Gresham, Oregon. The subject was 
farm labor. I invited people to come and talk about my bill. I was 
overwhelmed by what occurred. We met first in an armory in Woodburn. 
When I arrived, it was already filled to capacity. There were 1,200 
people, most of them illegal, in the armory waiting for me to come. 
They had been there, I was told, for an hour or more ahead of time, 
hoping to get a seat to hear what was going to be shared. There were so 
many people in the armory, they had to put a speaker on the outside 
grounds so that those who could not get in could hear. Some in the 
media estimated there were 2,000 people in total.
    I looked into their faces and saw those who live in our society, 
those who live in the shadows of our society, those who fill jobs in 
our society, those who keep our shelves full at home and in our grocery 
stores, but those who are victimized in the most inhumane way because 
we have an unworkable law.
    Mr. Chairman, over the past few months, I have received hundreds of 
letters from famworkers working in Oregon and throughout the country 
who dislike the current farm labor system as much as their boss does. 
In their letters to me, most of which are written in Spanish, they say 
the program is ``unfair'' and ``does not allow enough people to qualify 
for employment.'' The letters go on to say, ``Please work for a new law 
that assists (farmworkers) who wish to work and come to this country to 
fill the shortage of farm laborers.'' I would guess that many of the 
workers in your state feel the same way these workers from Oregon feel.
    I heard all kinds of opinions about my bill. I granted to them that 
it probably wasn't a perfect bill, but at least I was trying--one of 
the few who are--to resolve this situation. I thank Senators Graham and 
Craig for their willingness to step into this issue. One gets lots of 
arrows in the back when they try to tackle an immigration issue.
    What made my meetings, frankly, more productive and very helpful 
was a press release from the AFL-CIO, in which they called not for help 
to farmers and farmworkers alone, they called for a general amnesty of 
all illegal aliens in this country. A general amnesty is something we 
have done in this country periodically; every few decades we seem to do 
this. The question now is whether it is appropriate to do that now.
    There have been lots of editorial comments about this recently in 
the Washington Post. There was a very interesting article on this whole 
issue of farm labor and illegality. The Post said:

        Congress has responded sympathetically to the pleas of the 
        high-tech industry to hire more skilled workers from abroad, 
        but it has yet to do anything for employers of those at the 
        bottom end of the labor market--the end where U.S. citizens 
        don't want to work. Now, with a record number of illegal 
        immigrants living in the United States, an estimated 6 million, 
        with most of them working, some even paying taxes and joining 
        unions, it is time to bring our immigration policies in line 
        with what is actually happening in the labor market. It is time 
        to recognize that we need the immigrants as much as they need 
        us.

    See, I know in Congress there are a lot of people who make an 
academic argument that we don't want to reward illegal behavior with a 
legal document. I understand that, but it doesn't fix the problem. It 
doesn't deal with reality. These people aren't coming; they are here 
and they live among us. They live in our shadows and they are 
victimized on a daily basis in a whole range of ways--bureaucratically, 
even criminally. It is a shame upon this country that we don't resolve 
this--short-term and long-term.
    I was pleased that in the recent testimony of Federal Reserve 
Chairman Alan Greenspan he gave support to what I am talking about. 
Said the Chairman:

        It's clear that under existing circumstances, not only in the 
        high-tech and in the farm area, but indeed throughout the 
        country, aggregate demand is putting very significant pressures 
        on an ever-decreasing available supply of unemployed labor. The 
        one obvious means that one can use to offset that is expanding 
        the number of people we allow in, either generally or in 
        specifically focused areas. And I do not think that an 
        appraisal of our immigration policies in this regard is really 
        clearly on the table.

    I think we need to put it clearly on the table as a priority of 
this Congress to do something about it. It need not be partisan. 
Regarding the position the AFL-CIO has just taken, I hope they will let 
me help them. I would like to help them to get a general amnesty. But I 
think that we also need to fix our broken farm labor system.
    For those who say we should not do anything, I don't know what 
their motive is. I fear too often, though, that it is just anti-
immigrant. We rightfully, criticize, for example, Joerg Haider, of 
Austria for his anti-immigrant statement, which recalls a bygone era 
and a great tragedy. But what is the difference when we have 
politicians among us who make comments not unlike that about even legal 
immigration? They don't want anymore of it.
    We have the Chairman of the Federal Reserve saying we need workers 
because we have good employment, but it is predicated on an illegal 
system. We need these jobs to be filled and we need crops harvested. 
Right now, we are victimizing farm workers and farmers because 
farmworkers have to live like fugitives among us, and farmers are made 
out to be felons. We owe the United States something better. But, more, 
we owe the people at the bottom rung something better. They contribute 
to our society and they are victimized too often by our society when 
they make a significant contribution to the abundance that we enjoy as 
Americans.
    So I call on our congressioinal leadership to bring us together to 
help us fix our farm labor problem. Together, we can find a solution 
and we can treat these people more fairly, like human beings, with the 
dignity of law and the protection of law and a process that is safe and 
humane.
    Thank you Mr. Chairman for allowing me to testify before the 
subcommittee today.

 S. 1814.--The Agricultural Job Opportunity Benefits and Security Act 
                                (AgJOBS)

           providing legal status to undocumented farmworkers
     To reduce the number of H-24 workers needed after 
enactment, utilize the skills of the existing agricultural workforce 
and maintain immigration control, farmworkers who can prove that they 
worked 150 days in agricultural work in the U.S. during the 12-month 
period prior to introduction of the bill may adjust their status to 
temporary nonimmigrants and eventually earn the right to become legal 
permanent residents.
     Eligible workers would have to meet standards of proof to 
qualify.
     Eligible workers who choose to participate could only work 
in agricultural employment during the qualifying period. They would be 
in nonimmigrant status during the qualifying period.
     Eligible workers could be present in the U.S. and work no 
more than 10 months annually in the U.S. during the qualifying period, 
with the exception of those with U.S. born children.
     Workers eligible for adjustment are free to select their 
employer and work anywhere in the U.S. in agricultural employment.
     Eligible workers could earn the right to adjust to 
permanent residency by working in agriculture a minimum of 180 days 
annually in 5 of 7 years following their initial adjustment of status.
        making the h-2a program work for farmers and farmworkers
Innovation and technology to the Agricultural Worker Registry
     The labor certification process that is used to ascertain 
whether domestic workers are available to work in agriculture prior to 
the admission of foreign workers is antiquated and inefficient. Its use 
in the H-2A Program is over 50 years old. The Department of Labor has 
existing computer technology as part of America's Talent and Job Banks 
that can simplify and substantially improve upon the existing process. 
Under the bill, this technology would be modified to replace the old 
system with an Agricultural Worker Registry.
     Any U.S. worker interested in agricultural employment 
would be able to call or walk into a local job service office and get 
listed on the registry by indicating the area, crop, and length of time 
they would like to work in agriculture.
     Any agricultural employer seeking workers could use the 
registry to list jobs available in specific crops, locations, and terms 
and conditions of employment. The registry would match workers and 
employers with comparable requirements.
     Employers seeking H-2A workers would have to use the 
registry and hire all qualified and available U.S. workers before they 
could get permission from the Department of Labor to bring in temporary 
alien H-2A workers. H-2A workers would only be admitted if there were a 
shortage of U.S. workers.
     Workers adjusted under the bill would have the choice of 
being listed on the registry. If they were listed on the registry, 
employers seeking H-2A workers would have to hire U.S. workers, and if 
an insufficient number of U.S. workers were available, then hire 
adjusted workers in the area, before any H-2A workers would be 
admitted.
     Workers hired off the registry by H-2A employers would 
receive the same premium wages and working conditions as H-2A workers.
     Employers and the government would have to advertise the 
availability of the registry.
     Employers would have to independently advertise for U.S. 
workers and recruit former U.S. workers regarding employment 
opportunities.
     Foreign farm workers could not be used if the job for 
which they were sought was involved in a labor dispute. Foreign farm 
workers could join unions.
Better wages
     Premium wage rate. U.S. and H-2A workers would have to 
paid the prevailing wage rate plus a premium of up to 5% on prevailing 
wages that are less than the prior year's average hourly earnings of 
field and livestock workers for the state. In no case could a worker 
receive less than the federal, state, or local minimum wage level.
Better housing and transportation
     Housing or limited housing allowance. U.S. and H-2A 
workers would have to be provided housing or a housing allowance. A 
housing allowance set by the U.S. Department of Housing and Urban 
Development could be provided in lieu of housing during the 3-year 
period after enactment, during which the regulations and adjustment 
procedures would be implemented. Thereafter, an allowance in lieu of 
housing would be permissible only if the Governor of a particular state 
indicated that sufficient housing were available in the area of 
employment.
     U.S. and Foreign farmworkers get transportation costs 
reimbursed. Inbound transportation is reimbursed if workers complete 
50% of the contract work period, and outbound transportation reimbursed 
if they complete the entire period of employment.
Better labor law protections
     Eligible workers would be covered by all U.S. labor law 
protections, such as child labor laws, occupational health and safety 
regulations, and wage and hour rules.
     For the first time, H-2A workers would be covered under 
the terms of the Migrant and Seasonal Workers Agricultural Protection 
Act.
     A commission would study the complicated problem of farm 
labor housing and make recommendations for long-term changes and 
improvements.
     Studies of existing agricultural labor standards and 
enforcement would be conducted, including:
           The relationship between childcare and child labor 
        violations.
           Field sanitation standards.
           Coordinated and targeted labor standard enforcement.

    Senator Abraham. Senator Smith, thank you, and we will 
include in the record those documents which you wish to add.
    [The information of Senator Smith was not available at 
presstime.]
    Senator Abraham. Senator Graham.
    Senator Graham. Mr. Chairman, my colleague, Senator Craig, 
is going to be chairing a committee meeting, which starts at 
2:30 p.m. Since we Democrats do not do that any more, I would 
defer to Senator Craig.
    Senator Abraham. Senator Craig, we appreciate the conflict 
of time. Please begin.

STATEMENT OF HON. LARRY E. CRAIG, A U.S. SENATOR FROM THE STATE 
                            OF IDAHO

    Senator Craig. Mr. Chairman, thank you. The Senator from 
Florida now knows that I owe him. [Laughter.]
    I apologize for my voice. It is an allergy situation, Mr. 
Chairman, but it will also make me brief, very brief.
    My colleague from Oregon has done an excellent job of 
defining the issue and describing a new product that is in 
front of you, Mr. Chairman. And I would hope that with your 
knowledge of this issue, you would examine 1814 as a new 
product. Following past hearings and past efforts, we tasked 
the communities involved in this issue to work with us to build 
a product that we could all agree on and that we hoped a 
Congress could collectively agree on. We believe we are much 
closer to the issue.
    Your leadership in H-1B is laudable, and we appreciate it. 
Now we seek your help in leading in the H-1A program. And let 
me put it this way, Mr. Chairman, and I think that my colleague 
from Oregon broached it slightly. We were quick to respond to 
H-1B because it was an economic issue in our country. I would 
hope that we would be quick to respond to this issue because it 
is not only economic, it is a humanitarian issue. H-1B was not. 
These folks were not being mistreated and many of them were 
white collar. That is not true here.
    While these people languish in the shadows and are 
mistreated, we sit here in Congress and argue. Your leadership, 
along with ours, is desperately needed to resolve this problem. 
We have an obligation to do it. My colleague from Oregon is 
right, it is not always popular, and it does create conflict, 
sometimes with our base, that is for sure. You know that as 
well as I.
    At the same time, the tragedies that occur in this 
situation deserve to be dealt with. And a Congress that 
continually turns its back on this issue, for whatever reason, 
is, in my opinion, an irresponsible Congress. Whether it is the 
Ag jobs registry, whether it is the reform concepts in this 
program or whether it is a one-time creation of an adjusted 
workers program that we believe offers the opportunity to earn, 
to earn, a status in this country. We do think we have a new 
work product in front of you that deserves your examination and 
the full committee's, and we thank you for this hearing.
    And I will ask unanimous consent that my whole statement be 
a part of the record.
    Senator Abraham. Without objection, it will be included.
    Senator Craig. Thank you.
    Senator Abraham. Thank you, Senator Craig.
    Senator Graham.

STATEMENT OF HON. BOB GRAHAM, A U.S. SENATOR FROM THE STATE OF 
                            FLORIDA

    Senator Graham. Thank you, Mr. Chairman. I would also 
request that my full statement be part of the record. Much of 
what I have included has been spoken eloquently by Senator 
Smith and Senator Craig, and I do not wish to be redundant.
    Mr. Chairman, I want to join in thanking you for holding 
this latest hearing on this important subject, and I hope that 
we are at the point that not too many future hearings will be 
required because we actually will legislate on this subject. 
Doing so, legislating on this difficult subject of agricultural 
labor, would be a strong signal of a spirit of bipartisanship 
and a feeling of good will not only among the various interests 
who are affected by this legislation, but also here in 
Congress.
    The legislation which we have introduced, as my two 
colleagues have already said, focuses on three major concerns: 
The first is that the United States today is the home of a 
large number, a growing number, of undocumented agricultural 
workers. A recent survey by the National Agricultural Workers 
Survey, which is conducted by the United States Departments of 
Agriculture and Labor, indicated that in 1999 approximately 50 
percent, 50 percent, of the nearly 1.6 million agricultural 
workers in the UnitedStates were self-identified as being 
illegal. Two years earlier, 37 percent were self-identified as 
illegal--an indication of how rapidly this problem is festering.
    This large number of illegal workers in agriculture poses 
problems for both farmers and farmworkers. Farmers are placed 
in the position of having frequently to decide whether they are 
going to allow their crops to rot in the field or break the 
law. Farmers do not like to be placed in that kind of an 
economic and legal position. Farmworkers live in the darkest 
shadows of our society. If I could cite one personal 
illustration of this, in August 1992, a very serious hurricane, 
Hurricane Andrew, hit the Southern part of our State, an area 
in which there are a large number of farmworkers. Immediately 
after the hurricane, there was great concern about communicable 
diseases, and therefore the desire to get people, particularly 
children, immunized against very serious threats, such as 
cholera. What was found that it was extremely difficult to get 
farmworkers to allow their children to come forward and be 
vaccinated because of the fear that that would lead to the 
deportation of the parents.
    That is illustrative of the level of anxiety under which 
today some 800,000 souls live in the United States. They are 
afforded the fewest rights. And even those rights which are 
provided have no real protection. As a result, this large 
population is among the most vulnerable in our society.
    The second issue is that the current H-2A Program is 
administratively burdensome, as Senator Smith's charts 
indicate. It is subjective in its search requirements and 
unreliable in the time that is needed to process an 
application. If a farmer cannot find sufficient American 
workers and needs temporary or foreign help, he or she must 
navigate a maze of complex regulations so complex that there is 
a 300-page guidebook to explain the process. The process to 
apply for a single foreign worker can run 15 to 20 pages. The 
search requirements for U.S. workers is subjective. It varies 
from region to regions. Farmers have little assurance that even 
after they successfully complete the long forms and the complex 
bureaucracy, that the Department of Labor will approve their 
request. Indeed, in 1997, a General Accounting Office study of 
the H-2A Program indicated that the Department of Labor does 
not, in some cases, meet its own deadlines to process H-2A 
petitions for workers.
    Mr. Chairman, we clearly need a better way to connect 
farmworkers with farm jobs and growers with potential 
employees. We suggest that the registry that is included in S. 
1814 is an important step in that direction.
    I want to take this occasion to commend the United States 
Department of Labor for its efforts to develop such a registry 
and to try, on a pilot basis, what is referred to as Agnet, a 
new computerized database. This could be an important first 
step in utilizing modern technology to build bridges between 
farmworkers and farmers.
    The third issue is that it provides unprecedented 
enhancement in U.S. farmworker wages and benefits. The 800,000 
people who are here illegally, of course have no access to 
whatever the law might provide in terms of their wages and 
benefits. Current law mandates that growers provide housing to 
H-2A temporary farmworkers, no such requirement for the large 
undocumented workforce.
    Our legislation would require that all legal domestic 
workers, including those who would become legalized because 
they would receive a temporary work permit, who are hired from 
the registry by an employer seeking H-2A workers, would be 
provided with housing or a housing allowance. There also are 
increases in provisions for transportation and wages.
    Mr. Chairman, I do not believe Senators Smith, Craig or 
myself pretend that this legislation was given to us as Moses 
received the tablets on the top of the mountain. These are our 
best efforts to analyze the problem and suggest solutions. I 
will say this, as if it were imprinted on tablets of stone, 
these problems are not going to go away because we decline to 
face them and deal with them. I believe that now is the time to 
move forward; that people of good will on all sides of this 
issue are coming together trying to understand each other's 
positions and to arrive at a position that will best serve the 
interests of all of the groups involved and the national 
interests of the United States.
    So, Mr. Chairman, I again thank you for holding this 
hearing, and I hope that we can move forward in this Congress 
to face this difficult issue and give to America a resolution.
    Senator Abraham. Senator Graham, thank you. Thank you, 
Senator Smith. I will now call up the second panel, and if 
either of the Senators would like to join me for the balance of 
this hearing, we would be glad to have you hear with us.
    Our second panel is made up of representatives from the 
House. We have both Representative Howard Berman and 
Representative Sanford Bishop with us. We welcome you back.
    Congressman Berman, I am happy to have you here today. I 
was mentioning to you beforehand that, first of all, you win 
our subcommittee award for the most appearances by any member 
of the House of Representatives before the subcommittee. It 
also occurred to me that you also may have been more frequently 
than certain unnamed members of the subcommittee themselves 
have been here. [Laughter.]
    And so for both of those reasons, I am happy that you are 
with us again today and appreciate your participation here.
    And Representative Bishop, we welcome you back as well. 
Thank you both for being here. We will start with you, 
Congressman Berman.
    Mr. Berman. Thank you very much, Senator. You should know 
that I find myself in this subcommittee more than I find myself 
in my own Immigration Subcommittee on the Houseside. 
[Laughter.]
    Now, my sense is that the organization fair probably finds 
itself more on the House subcommittee side than they find on 
this side. But I just want to say that I have a tremendous 
respect for and a real feeling of affinity for your 
perspectives on the immigration issues. So it is an honor to be 
here.
    Congressman Bishop has an Intelligence Committee issue, and 
so I would like, if that is all right with you, I would like to 
defer to him.
    Senator Abraham. Fine. That is no problem at all.
    Congressman Bishop, we appreciate your being here. As I 
said, again, in deference to your other commitment, we will 
start with you.

STATEMENT OF HON. SANFORD BISHOP, A REPRESENTATIVE IN CONGRESS 
                   FROM THE STATE OF GEORGIA

    Representative Bishop. Thank you very much, Mr. Chairman. 
And certainly thank you, Mr. Berman, for your courtesy, and 
Senator Graham, Senator Smith, Senator Abraham. I appreciate 
the opportunity to come before the committee once again on this 
which I believe is a very, very important issue, particularly 
to the American farm community.
    I have been working on reforming the H-2A program almost 
from the day I came to Congress. I have pushed legislation, 
proposed rule changes, held countless meetings and negotiated 
with the Labor Department and others in Congress at great 
length. Just about everyone acknowledges that changes are 
justified in our H-2A guestworker program. In my district in 
Southwest Georgia, farmers and farmworkers have heard the roar 
of helicopters hovering over fields to enforce the current 
system. The threat of raids permeates the country air. 
America's fields should produce a bounteous wonder, not clouds 
of fear.
    That is why I have introduced in the House of 
Representatives H.R. 4056. which is a companion bill to S. 
1814, which is before this committee. H.R. 4056 would improve 
the U.S. Labor Department's rarely used guestworker program 
over the new system that is designed to achieve two goals: to 
make foreign farm labor temporarily more accessible to 
America's farmers when U.S. workers are not available, and to 
guarantee that domestic and foreign farmworkers receive 
prevailing wage rates, decent housing, transportation and 
working conditions.
    I have concluded that we can make the program available to 
farm employers, while making sure that U.S. workers are not 
displaced, that we can get control of illegal immigration by 
making sure that legal workers are available to take farm jobs 
instead of illegals and that it makes no sense whatsoever to 
allow crops to perish in the field or never get planted when 
there is a waiting labor supply that can do the job.
    The bill that we have introduced in the House of 
Representatives, the companion bill in the Senate, would modify 
the overly restrictive rules, including those modifications 
that must be made through legislation and those that can be 
done administratively. It would also establish a farmworker 
registry. From this registry, U.S. farm employers would hire 
workers based on three priorities: Agriculture jobs would be 
guaranteed first to U.S. workers; second, illegal foreign 
workers who could document that they have previously worked on 
U.S. farms would have the second choice of jobs, an opportunity 
that is aimed at bringing them off the black market and 
enabling them to earn legal working status after at least 5 
years of U.S. farm work experience over a 7-year period.
    Third, if no workers were available in these two 
categories, farmers could temporarily hire workers from outside 
the country under a simplified and streamlined guest worker 
program.
    The fact is, this would be a win-win situation for farmers, 
for farm workers, and for immigration control. Farmers would 
gain the stability of a legal workforce and the certainty that 
crops would be planted and harvested on time. U.S. workers 
would be protected by a system that can bring illegal 
immigration under control and make sure that they have the 
first choice of U.S. farm jobs. And foreign agricultural 
workers would benefit from a law that would ensure that they 
had safe working conditions, and equitable pay, and the chance 
to earn the right to legal status.
    The U.S. Labor Department's regulation-ridden guest worker 
program which is supposed to allow farmers to temporarily 
employ foreign farmworkers when there are shortages of U.S. 
workers is too cumbersome and costly for most farmers to use. 
Many farmers have no choice but to rely on foreign farmworkers 
who have illegally entered the country to get their crops 
planted or harvested. More than 600,000 illegal aliens are now 
in the country and illegal farm employment is so widespread 
that working standards and immigration laws cannot be 
effectively enforced.
    Extremely burdensome regulations imposed by Congress and 
the bureaucracy go beyond anything that's needed to protect 
U.S. workers, and have rendered the guest worker program 
useless for most producers, leaving many with the choice of 
going broke or turning to illegal farmworkers already in the 
United States. This is the catch-22 that creates instability 
and turmoil within the farm labor system.
    However, the proposal is drawing fire from forces opposing 
any measure that would enable illegal foreign workers to earn 
legal working status and from other forces who believe that the 
bill does not make it easy enough for illegal workers to gain 
legal status. I'm proposing a thorough overhaul of the badly 
broken farm labor system that would be good for producers, good 
for foreign and domestic workers, and good for immigration 
control; a win-win situation for everyone.
    The Agricultural Job Opportunity Benefits and Security Act 
of 2000 reforms the current program, provides farmers with a 
stable, legal workforce, and grants legal status to hundreds of 
thousands of farmworkers already working in the U.S. This 
legislation is realistic and sociallyresponsible. It is the 
product of farmers, workers, and immigration officials coming together 
to address one of the most important issues facing American agriculture 
in the 21st Century. Who will bring in the harvest?
    We thank the members of the committee and the chairman for 
allowing us to testify and to Mr. Berman for his courtesy, I 
urge you to please consider and help us reform this badly 
working system of guest worker regulations. It is broken. It 
needs fixing, and let us join together to do that.
    Thank you very kindly.
    Senator Abraham. Congressman, thank you very much. 
Appreciate your being with us.
    Congressman Berman.

    STATEMENT OF HON. HOWARD L. BERMAN, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Mr. Berman. Thank you very much, Senator Abraham, and 
Senators Graham and Smith as well for all your courtesies.
    The reason I am here is that since I have been in elected 
office, first in the State legislature and now here, an issue 
that has always been quite important to me is doing what I can 
to try to improve the circumstances of farmworkers. These are 
the most impoverished working people in the United States. I am 
convinced that proposals that make it easier for agricultural 
employers to bring in foreign guest workers have the impact of 
accomplishing the opposite, which is depriving farmworkers in 
America of job opportunities that they badly want, and 
exacerbating the oversupply of farm labor. The result of that, 
I feel, is to inevitably drive down further farmworker wages 
and working conditions.
    I want to make it very clear though that I agree with what 
has been said by the previous panel, that there is an 
unacceptable and growing percentage of agricultural labor 
workforce which is undocumented. Having lamented that fact, the 
question is now, what do we do about it? I do not think that 
guest workers are the answer, whether our concern is the well-
being of farmworkers or combatting illegal immigration. I 
remind you again, the U.S. Commission on Immigration Reform 
concluded that creating a new agricultural guest worker program 
would be a grievous mistake and that it would only serve to 
increase illegal migration instead of replacing an illegal 
workforce.
    There were references, and they are absolutely accurate, to 
the fact that S. 1814 is a bipartisan bill. I also think, and I 
guess this could be used as an admission or an acknowledgement 
that could be used against me if we are not able to make 
further changes, that S. 1814 is at least conceptually an 
effort to try and deal with some of the issues that have been 
raised at previous hearings here, and in that sense is a 
meaningful step forward.
    But while it is a bipartisan bill, it still is not a bill 
that reflects the active participation of farmworkers, their 
representatives, and their advocates, and I would like to make 
some suggestions for things that I think could move that 
forward.
    I also have to say that while I have strong feelings on 
issues, I know that the final resolution of this--if there is 
to be one this year--it is not going to be in a bill that is 
exactly what I would want. There would have to be substantial 
compromises on both sides. But in our earlier hearings here we 
talked about alternatives to guest worker programs, of dealing 
with the presence of the undocumented and finding a way to 
adjust their status.
    The previous bill, I do not know if that was ever 
introduced. I am trying to remember. Yes, it was. It was passed 
onto the Senate appropriations bill and passed the Senate, that 
Senator Smith and Senator Wyden were involved with, and had a 
slight, bare hint of a potential for an adjustment program. S. 
1814 goes significantly further in that regard.
    But what I proposed at our last hearing was a program not 
exactly like the SAW program of the 1986 bill, which legalized 
workers based on their past work history, but a program more 
like the replenishment agricultural workers, RAW program, which 
passed in the same legislation but which was never implemented 
because there was never a finding of a farmworker shortage.
    We put that program on the books in the event that after 
SAW occurred there would still be a shortage of workers. What 
the RAW program offered prospectively to farmworkers was 
permanent resident status upon completion of 90 days of work in 
perishable agriculture for three successive years.
    I can support the implementation of a RAW-like program with 
labor protections necessitated by the tie of workers to 
agriculture. I do not like the notion of tying workers to any 
particular industry, but I recognize that there is a belief and 
probably a reality behind the assertion of agricultural 
employers that many of the seasonal agricultural workers, the 
SAW workers that were legalized under the 1986 law have left 
agriculture.
    We can debate whether that happened substantially because 
agricultural employers declined to respond to the free market 
imperative of improving wages and working conditions in order 
to retain the workers or whether it occurred for other reasons. 
But let us put that debate aside because that does not move us 
forward I do not think.
    The point remains that while I do not like the concept in 
principle of tying people to a particular industry, I can 
support a reasonable tie.
    What I cannot support is the adjustment program in its 
present form in Title I of S. 1814 because in my view it is a 
very far cry from a real legalization program, and because it 
would have some harsh and unfair consequences for farmworkers, 
in many cases the same kinds of negative consequences I think 
some of the H-2A reform proposals in Title III of the bill 
have. Let me be real specific on a few of them. I know some of 
the witnesses will be talking about this as well in the next 
panel.
    Title I is not really a legalization program at this point. 
The sponsors claim to be adjusting farmworker status but to 
leave them consigned to a second class, continually exploitable 
status of non-immigrants is not a boon to farmworkers. A 
serious legalization program I believe wouldconvey immigrant 
status immediately. That is why I view the proposal in S. 1814 and S. 
1815 as an alternative kind of guest worker program which allows the 
farmworker in the vulnerable status of undocumented worker nothing more 
than the possibility of adjusting some time in the future to the still 
vulnerable status of guest worker.
    I object and do not like the limitation on the type of 
labor the adjusted worker could perform in the United States. 
Granted that the worker will be permitted to perform 
agricultural employment anywhere in the United States and is 
not tied to a particular employer, and that is a significant 
improvement. But the worker is not allowed to perform any other 
kinds of work during this period.
    About one-quarter of all farmworkers in the United States 
now survive by combining farm work with non-farm work. Anyone 
in a seasonal area understands that there are seasons where far 
fewer farmworkers are employed than other seasons. Almost by 
definition large numbers of farmworkers have to work in other 
areas in order to survive. The prohibition against performing 
other work consigns many of these workers to abject poverty.
    Adding to that concern is the requirement that in order to 
maintain the adjusted status and not be terminated or removed 
from the country the farmworker must demonstrate to the INS 
that he or she worked in agriculture 180 days per calendar year 
in each of 5 years. But this could very well be impossible to 
achieve for the majority of farmworkers. The average farmworker 
now works in agriculture about 29 weeks per year, probably 
fewer than 145 days, since the work is not necessarily 
available every day of a week. This means that most farmworkers 
will be terminated from the program prior to eligibility for 
applying for a green card because they simply cannot get the 
number of days of work, assuming they are ready, willing and 
able, that are required by the program in its current form.
    This, in turn, underscores my concern about why I still 
call this program exploitative, the suggested status that we 
have created. Workers trying to put together a series of jobs 
to secure 180 days year worth of agricultural employment will 
be forced into dependence on employers to cooperate with one 
another to arrange several jobs amounting to 180 days. Fear of 
imperiling the cooperation of employers in order to maintain 
their eligibility will mean that these nonimmigrants will 
predictably be too fearful to enforce what labor rights they 
might have or any ability or inclination to press for higher 
wages. That is why I believe this bill still leaves these 
workers who are in this status very exploitable because the 
last thing they can do is jeopardize anything which enables 
them to try to meet the 180-day qualification.
    The provision barring the adjusted farmworker from spending 
more than 300 days inside the United States in any 1 year, 
there is no sound public policy basis behind that. I think I 
understand a little bit the reasoning of the authors in putting 
that in, in the hopes of a little bit trying to call a tail a 
leg as we package this thing and try to sell a program to our 
colleagues. But it flies in the face of the family values to 
which we all subscribe. Many of these undocumented workers are 
here. Arbitrarily forcing them to leave and then using the 
failure to have left for 60 days a year as a basis for 
disqualifying them, I do not know what we are accomplishing. I 
think it is just another potential pitfall in the way the 
program is designed. The only way a farmworker can exceed this 
limit is if he or she has and lives with a minor child born in 
the U.S., but then only if he or she can secure at least 240 
days, rather than the already too high 180 days of agricultural 
employment for that year.
    The adjusted nonimmigrants under this program are 
restricted in their mobility and in their access to job 
referrals from the bill's job registry. And because the bill 
would allow employers to deny jobs to anyone not referred by 
the job registry, their restricted access to the job registry 
will deny to these farmworkers the very jobs they need to 
maintain their status. More specifically, a worker of any type 
may only apply to be included in the registry for the State in 
which the individual resides and the registry may not refer an 
adjustment worker to an employer that is not within the 
registry's State or a contiguous State.
    There are other things I could say, but I really have gone 
on a long time here. It is all in my prepared testimony. I 
think these are things we could deal with, but I guess what I 
am saying is S. 1814 is not, in this particular form, a 
proposal that I think reflects farmworker interest. I listened 
to Senator Graham and all of you in talking about this. And I 
believe and I accept that you understand the plight of 
farmworkers and want this to be a vehicle that not only helps 
make agricultural exports a continued valuable commodity for 
trade and for the growers' their own economic situation, but 
you also want it to be a way to improve the status of 
farmworkers. I just think we have got some substantial work to 
do to actually put this bill into that position.
    I think I will stop at this particular point and indicate 
my interest in working this out. I do not think we solve any of 
the problems by not doing anything this year. I would like to 
see something accomplished. I am willing to put my time into 
trying to make that happen. But I do think we have to go 
through--I mean, part of the problem is, since it has not been 
a collaborative process yet between farmworkers and growers, 
some of these points people reasonably do not hear the other 
side of as they are putting together the legislation, and it is 
very understandable that the bill contains some provisions 
which, in reality, will work against the interests of 
farmworkers. I would like to see if we can cure some of those 
problems.
    [The prepared statement of Mr. Berman follows:]

       Prepared Statement of U.S. Representative Howard L. Berman

    Thank you for the opportunity to testify today. For as long as I 
have served as an elected official, I have made it my business to try 
to improve the circumstances of farmworkers, the most impoverished 
working people in the United States. I am convinced that proposals to 
make it easier for agricultural employers to bring in foreign 
guestworkers would accomplish exactly the opposite, depriving 
farmworkers in America of job opportunities they badly want, and 
exacerbating the problem of an oversupply of farm labor. The result can 
only be to further drive down farmworker wages and working conditions.
    I do want to make one point very clear, however. I do not deny the 
fact that an unacceptable and growing percentage of the agricultural 
labor workforce is undocumented nor do I condone it. But having 
lamented that fact, the question is what to do about it. Guestworkers 
are not the answer, whether our concern is the well-being of 
farmworkers or combatting illegal immigration. The U.S. Commission on 
Immigration Reform (or Jordan Commission) in 1997 concluded that 
creating a new agricultural guestworker program would be a ``grievous 
mistake'', and that it would only serve to increase illegal migration 
instead of replacing an illegal workforce.
    I believe that we are on the right track when we talk instead about 
creating a program to legalize, within certain well-defined parameters, 
the present undocumented workforce. I suggested just that in my last 
appearance before this subcommittee, almost exactly one year ago. I 
proposed then a program not like the SAW program of the Immigration 
Reform and Control Act of 1986, which legalized workers based on their 
past work history, but rather like the ``replenishment agricultural 
workers'' or RAW program which we legislated in IRCA but never 
implemented. We put that program on the books should a shortage of 
workers ensue subsequent to the SAW legalization program. What the RAW 
program offered prospectively to farmworkers was permanent resident 
status upon the completion of 90 days of work in perishable 
agricultural for three successive years.
    I can support the implementation of a RAW-like program with labor 
protections necessitated by the ``tie'' of workers to agriculture. I 
don't like the notion of tying a worker to any particular industry, but 
I recognize that there is a perception among agricultural employers 
that many of the Special Agricultural Workers (SAWs) legalized under 
IRCA left agriculture. We can debate whether that happened 
substantially because agricultural employers declined to respond to the 
free market imperative of improving wages and working conditions in 
order to retain workers. But the point remains that while I don't like 
it in principle, I can support a reasonable tie. What I cannot support 
is the adjustment program in Title I of S. 1814 because in my view it 
is a very far cry from a real legalization program, and because it 
would be as harsh and unfair in its consequences for farmworkers as the 
H-2A reform provisions of Title II of the bill.
    Let me lay out some of my main objections to Title I. First and 
foremost, Title I is NOT a legalization program. To claim to be 
adjusting farmworkers' status, but to leave them consigned to the 
second class, infinitely exploitable status of non-immigrants is no 
boon whatsoever to farmworkers. A serious legalization proposal would 
convey immigrant status. That is why I view the proposal in S. 1814 and 
S. 1815 as an alternative guestworker program, allowing a farmworker in 
the vulnerable status of undocumented worker nothing more than the 
possibility of adjusting to the still vulnerable status of guestworker.
    I also object to the limitation on the type of labor the adjusted 
worker could perform in the U.S. Granted that the worker will be 
permitted to perform ``agricultural employment anywhere in the United 
States'' and is not tied to a particular employer, but the worker will 
not be allowed to perform other kinds of work. About one-quarter of all 
farmworkers in the U.S. survive by combining farm work with non-farm 
work. The prohibition against performing other work will consign many 
of these workers to abject poverty.
    Dovetailing with this concern is the requirement that in order to 
maintain the adjusted status and not be terminated or removed, the 
farmworker must demonstrate to the INS that he or she worked 
agriculture 180 days per calendar year in each of 5 years. But this may 
be impossible to achieve for the majority of farmworkers. The average 
farmworker now works in agriculture about 29 weeks per year, probably 
fewer than 145days since work is not necessarily available every day of 
a week. This means that most farmworkers will be terminated from the 
program prior to eligibility for applying for a green card.
    This in turn underscores my concern about the exploitable nature of 
this so-called adjusted status. Workers trying to put together a series 
of jobs to secure 180 days per year worth of agricultural employment 
will be forced into dependence on employers to cooperate with one 
another to arrange several jobs amounting to 180 days. Fear of 
imperiling the cooperation of employers in order to maintain their 
eligibility will mean that these non-immigrants will predictably be too 
fearful to enforce what labor rights they may have or to press for 
higher wages. This is why I believe that the bill indentures the 
workers to agricultural employers.
    The provision barring the adjusted farmworker from spending more 
than 300 days inside the U.S. in any one year has no sound public 
policy basis and in fact flies in the face of the family values to 
which we all subscribe. I say this because the only way the farmworker 
can exceed this limit is if he or she has and lives with a minor child 
born in the U.S., but then only if he or she can secure at least 240 
days, rather than the already excessive 180 days, of agricultural 
employment for that year.
    The adjusted non-immigrants under this program are restricted in 
their mobility and in their access to job referrals from the bill's job 
registry, and because the bill would allow employers to deny jobs to 
anyone not referred by the job registry, their restricted access to the 
job registry will deny to these farmworkers the very jobs they need to 
maintain their status. More specifically, a worker of any type may only 
apply to be included in the registry for the state in which the 
individual resides, and the registry may not refer an adjustment worker 
to an employer that is not within the registry's state or in a 
contiguous state.
    I am also concerned about the unreasonableness of the standards for 
acquiring this adjusted non-immigrant status in the first place, 
namely, proof of having performed agricultural work in the U.S. for 150 
work days during the 12 month period ending in late October, 1999. Many 
farmworkers do not work 150 days per year and even fewer can provide 
proof of even that amount of work because they worked ``off the book'' 
due to their undocumented status. These circumstances simply must be 
taken into account in drafting any program that is intended to provide 
any meaningful opportunity to these workers.
    One more criticism I must make about Title I is the complete 
absence of labor protections for these workers, despite the fact that 
the requirement that they work in agriculture to maintain their status 
means that they will have no real ability to say ``no'' to unreasonable 
or illegal wages and working conditions. Proponents of the bill have 
claimed that it improves upon the status quo for farmworkers because it 
would extend H-2A labor protections to these now undocumented 
farmworkers. That is simply not correct. The only way an adjustment 
nonimmigrant would be eligible for such protection would be if he or 
she happened to be hired by an H-2A grower, a highly unlikely outcome 
because the bill allows agricultural employers to refuse to accept 
referrals of farmworkers from registries that are not in or contiguous 
to the H-2A grower's state; employers can refuse to hire someone who 
has not been cleared through the registry, and not least of all, H-2A 
employers will doubtless prefer H-2A guestworkers because they will be 
even more tied to the individual employer than adjustment workers would 
be.
    I have dwelled upon what's wrong with Title I because, having 
suggested a legalization program, I am compelled to say that this is a 
far cry from what I had in mind.
    But I want to conclude by coming back to a central point that I 
have found myself having to make time and again for as long as I have 
worked on this issue. We have to ask ourselves whether the perceived 
potential for expanded opportunities to bring in foreign guestworkers, 
and the widespread availability of undocumented workers, have kept 
agricultural employers from engaging in increased and more effective 
recruitment efforts, from modernizing their labor-management practices, 
and from improving wages and working conditions as employers in other 
industries must do in order to attract and retain an adequate supply of 
work-authorized labor. And let us not forget that this is an industry 
whose workers do not enjoy most of the minimum labor standards enacted 
over the course of the past century because time and again agricultural 
employers have succeeded in winning exemptions for farmworkers from 
federal and state labor protection laws.
    There are reforms I can accept in order to eliminate red tape and 
take into account the circumstances faced by agricultural employers. 
But I cannot and will not accept anything that worsens wages and 
working conditions for farmworkers in this country. They have suffered 
enough. Let's not make it worse.

    Senator Abraham. Congressman, thank you. I would add also 
that one maybe perspective that we have not included today on 
this panel, either of the panels so far, is the perspective 
that would argue that we should not allow anybody to come in to 
the country for any purposes or on very limited terms for 
employment-related stays. And so I know that part of the 
struggle that is also going on in the drafting here, and I am 
not one of the drafters, but I know in talking to them has been 
to try to find legislation that would at least prevent attacks 
on the bill from that perspective either.
    And so I do not know if either Senator Smith or Senator 
Graham would want to comment about the experiences that they 
have undertaken so far. But I would just say that I appreciate, 
as was the case last time, your expression of interest in 
trying to work on this. And I think your comment about trying 
to do something sooner rather than later is a very important 
signal, which I hope everybody appreciates and will follow up 
on.
    Mr. Berman. Can I just move on to one thing you said there? 
And that is you are going to hear in a little while from the 
general counsel of the United Farmworkers Union, an affiliated 
union of the AFL-CIO. The AFL-CIO was an organization that 14 
years ago, for its reasons, and they truly were sincere about 
that expression, believed anybody coming into this country, 
that that was a threat. They have had a significant change in 
their perspective in those periods of time. I think other 
people have, too. I am seeing it in the atmosphere and the 
climate of the way people are looking at this. I just saw a 
criticism of the H-1B legislation on the ground that we should 
not be letting H-1B immigrants in. We should be allowing them 
to come in as full-fledged legal immigrants and that that's the 
best way to do it. When the debate starts moving in that 
direction, I think we can take advantage of it. I think if we 
could have a coalition of people concerned, of agriculture, 
farmworkers, labor, management working together, we can 
accomplish a lot in this Congress.
    Senator Abraham. I think that it has certainly been the 
position of this chairman and I think most of the members that 
employment related immigration is not meant to be a zero sum 
game. Obviously we strive in the context of this legislation, 
but also in the H-1B legislation to try to find ways to make 
sure that we protect workers already in this country from 
having in any way their position exploited by changes in the 
law. I do believe it is feasible and I think there is ample 
evidence available that in fact done the right way employment 
related immigration creates more job opportunities, and 
improves America's economy, rather than hurting it.
    But, again, I appreciate your comments. I do not know if 
either Senators would like to comment themselves, but I will 
open it up to either of you for comments.
    Senator Smith.
    Mr. Smith. Thank you, Mr. Chairman.
    Congressman, I appreciate your being here very much. I 
would like to say on the record how grateful I am to the AFL-
CIO that they have, frankly, changed their position a lot with 
respect to immigration. It is very helpful, I believe, to a 
constructive dialogue that they have come out in favor of a 
general amnesty. And so I salute them for that. I thank them 
for that. It has changed the environment in which we are 
working here today.
    I would say that nothing you said in your testimony causes 
me any difficulty. The difficulty we have in drafting something 
is you have to make decisions and draw lines. And if we have 
drawn them imperfectly, I think I acknowledged that in my 
testimony. They are not done with malice, they are done as a 
starting point. And so the notion of working so many days in 
agriculture and other employment, I have no problem with that. 
But I need you to tell us what number of days is fair, what 
number of days does work because I, for one, am open to that.
    And I particularly like what you said with respect to 
families. I think the proposal we have made can be made better 
with better accommodation for dependent children and spouses of 
these workers. I think we ought to change that.
    Where I find myself caught is, on the one hand, between 
those who just want nothing because they like the status quo, 
maybe even benefit from the status quo. I don't think they can 
defend that publicly, but there are some that, frankly, want 
nothing done. On the other side, there are those who just are 
against immigration. And Senator Wyden and I last year, Senator 
Graham and I this year, find ourselves whipsawed between these 
two groups, which do have spokespeople in Congress and on the 
political scene. And they seem to be the ones winning, and the 
people trying to work it out seem to be the ones with bullseyes 
on their backs.
    And so I thank you for being here. I do not think we are 
that far apart.
    Representative Berman. I say let us make a coalition of 
growers and farmworkers and advocates of farmworkers and 
advocates of growers and all of the folks that they are 
affiliated with, that could be a strong coalition. Where you 
are in your most difficult position is where you are trying to 
move a little bit--I mean, when you get it from both sides, 
that may be the worst political position to be in.
    And I suggest anybody who says here that the present 
situation is okay, and we should let that continue, and who 
claims to be caring about farmworkers does not.
    Mr. Smith. They do not.
    Representative Berman. Because we know what being an 
undocumented worker in this country means. Forget every other 
aspect of it. Just think of for the benefits of that worker and 
his family, and we know how much of the agricultural workforce 
is undocumented. Now the question is how can we accomplish what 
the growers need to accomplish for their interests and in a way 
that is good for farmworkers.
    Senator Abraham. Senator Graham.
    Senator Graham. Mr. Chairman, I share the position that you 
and Senator Smith just expressed. I believe that what 
Congressman Berman has shared with us is very constructive and 
helps advance our appreciation of the complexity of this issue. 
As Senator Smith said, when you are in the position of trying 
to draft the first edition of anything, you have to make a 
series of decisions, often with less background, less 
experience, less insight than you wish you had. But you do it 
with the understanding that the very legislative process 
through which it is about to be subjected is going to cause 
people who are experienced and insightful to come forward and 
suggest the kind of modification that you have just done.
    So I think the spirit here is one of let us getsomething 
done in 2000. Let us do it in a collaborative way because all of the 
interests here are being ill-served by the status quo. There are some 
interests who I do not think chose to come into this room today who may 
be benefitting by the way things are, but not the responsible 
representatives of either the farmworkers or the farmers or those that 
they represent.
    So I look forward to continuing this process just as long 
as we all are committed to let us get something done in 2000. 
To use the expression that President Reagan used to use, ``If 
not now, when? And if not us, who is going to do this job?''
    Senator Abraham. Congressman, thank you very much for being 
with us again. And we will let you know the rest of our hearing 
schedule for the balance of the year any time you want to come 
by. [Laughter.]
    Appreciate your insights. Thank you.
    I will now ask our third panel to please join us, and we 
will introduce them in the order in which we will ask them to 
speak.
    We have Mr. Joshua Wunsch, who is representing the Michigan 
Farm Bureau and the American Farm Bureau, from Traverse City, 
MI; we have the Reverend Polo Garcia, who is pastor for the 
Casa de Zion, a Lutheran ministry for farmworkers in Woodburn, 
OR, who was mentioned earlier by Senator Smith; we have Ms. 
Cecilia Munoz of the National Council of La Raza here in 
Washington, DC; Dr. James Holt, a senior economist representing 
the National Council of Agricultural Employers also here in 
Washington; and finally, Mr. Marcos Camacho with the United 
Farmworkers of America in Keene, California, who I believe 
Congressman Berman referenced earlier.
    Several of the panelists have been with us for previous 
hearings, for at least one of the previous hearings, and so we 
welcome you back. And to our new panelists, we appreciate your 
being here as well. It is my understanding that Reverend Garcia 
is going to have his wife be with him to help interpret, 
perhaps, some of his comments here today, and we welcome you as 
well. Thank you for participating.
    We will begin with you, Mr. Wunsch. Thank you for being 
back again. We appreciate your participation and welcome you to 
the hearing.

 STATEMENT OF JOSHUA WUNSCH, FARMER AND BOARD MEMBER, MICHIGAN 
FARM BUREAU, ON BEHALF OF AMERICAN FARM BUREAU, TRAVERSE CITY, 
  MI; POLO GARCIA, PASTOR, CASA DE ZION, LUTHERAN MINISTRY TO 
   FARMWORKERS, WOODBURN, OR; CECILIA MUNOZ, VICE PRESIDENT, 
OFFICE OF RESEARCH, ADVOCACY AND LEGISLATION, NATIONAL COUNCIL 
   OF LA RAZA, WASHINGTON, DC; JAMES S. HOLT, PH.D., SENIOR 
 ECONOMIST, McGUINESS & WILLIAMS ON BEHALF OF NATIONAL COUNCIL 
OF AGRICULTURAL EMPLOYERS, WASHINGTON, DC; AND MARCOS CAMACHO, 
GENERAL COUNSEL, UNITED FARMWORKERS OF AMERICA, AFL-CIO, KEENE, 
                               CA

                   STATEMENT OF JOSHUA WUNSCH

    Mr. Wunsch. Thank you for having me back, Senator. I am 
Joshua Wunsch, member of the Board of Directors of the Michigan 
Farm Bureau and a farmer and partner in Wunsch Farms located on 
the Old Mission Peninsula in the Grand Traverse area of 
Michigan.
    For the last 5 years, Farm Bureau has worked to demonstrate 
to Congress and the administration the critical need for reform 
of the H-2A Program. These reforms are contained in S. 1814, 
the Agricultural Jobs Opportunity Benefits and Security Act, 
also known as AgJOBS, introduced last year by Senators Gordon 
Smith, Bob Graham and Larry Craig. And I am here today to 
explain to you how S. 1814 will help resolve some of the 
difficult problems faced by farmers and workers.
    Farm Bureau and the coalition we have worked with on H-2A 
reform has proposed several key reforms to the H-2A Program 
that we believe will alleviate a number of the program's 
problems. We proposed to replace the current unproductive and 
expensive recruitment requirements with an entirely new method 
of testing the local labor market to ensure that U.S. workers 
are not displaced.
    Rather than using the combination of job orders and 
interstate clearance orders, we propose that the Department of 
Labor and the State job service agencies create agricultural 
worker registries in States or regions that correspond to 
natural farm labor markets. These registries would be 
repositories of employment information provided by farmers and 
farmworkers seeking to find one another. Only legally 
documented workers could be placed on the registry. Any willing 
and eligible U.S. workers will have first access to available 
U.S. farm jobs, and farmers are not left in the position of 
being unable to fill critical seasonal jobs.
    Mr. Chairman, the Michigan Department of Career Development 
operates a website designed expressly for farmworkers and 
employers. This website offers information on job openings, 
specific information on farm employers, as well as information 
on services available to farmworkers like migrant Head Start, 
migrant health Care and other services. I suggest that if 
Michigan can do this and make such a service available to 
people who want to work, we can do as well or better at the 
national level.
    Agjobs recognizes that a very large portion of the present 
agricultural workforce present fraudulent documents when they 
seek employment. In a recent U.S. Government survey, 52 percent 
of workers surveyed admitted they were not legally documented 
to work in the United States. About 1.8 million people work in 
U.S. agriculture every year. That means the industry has a 
potential need for as many as 800,000 legally documented 
workers. Compare that to the 34,000 workers legally admitted 
under the H-2A Program annually. Obviously, the program is not 
up to the job.
    Senate bill 1814 will offer the current fraudulently 
documented workforce an opportunity to gain legal status to 
allow them to work in agriculture immediately if they can 
demonstrate a history of working in the industry. After that, 
if these workers continue to work in agriculture, Agjobs will 
provide them an opportunity to eventually apply for resident 
alien status. We hope that AgJOBS provisions in this regard 
will serve as a starting point for an honest and forthright 
discussion with all affected parties on how to deal with the 
illegal status of the current workforce.
    We have worked with the administration and opponents of H-
2A reform to see if we can reach a mutually agreeable solution 
to this problem. The Farm Bureau looks forward to working with 
interested members of Congress to ensure that 2000 is the year 
when meaningful H-2A reform takes place. I thank you for the 
opportunity to appear here today, and I will be happy to answer 
any questions that you may have.
    [The prepared statement of Mr. Wunsch follows:]

Prepared Statement of Josh Wunsch on Behalf of The Michigan Farm Bureau 
                and the American Farm Bureau Federation

    Members of the Subcommittee, thank you for the opportunity to 
appear today on behalf of the Michigan Farm Bureau and the American 
Farm Bureau to discuss the need for reform of the H-2a temporary 
foreign agricultural worker program.
    I am Josh Wunsch, a member of the Board of Directors of the 
Michigan Farm Bureau. I am a farmer and partner in Wunsch Farms, 
located on the Old Mission Peninsula in the Grand Traverse area of 
Michigan. We grow red tart cherries, sweet cherries and apples on our 
farm. I employ 50 workers and have been a user of migrant and seasonal 
labor for three generations. I currently serve on the American Farm 
Bureau Horticulture Advisory Committee.
    For the last six years, Farm Bureau has worked to demonstrate to 
Congress and the Administration the critical need for reform of the H-
2a program. Farm Bureau is Michigan's largest and the nation's largest 
membership organization for farmers and ranchers. Many of these farmers 
grow fruits, vegetables, and livestock that require or depend on the 
efforts of hired labor for their successful cultivation and harvest. 
Agriculture today is far more capital-intensive than it has been in the 
past, but for some crops the trends that have brought us fewer farmers, 
farming more acres, have created the need to employ more people than 
just a farmer, his family members and neighbors and friends.
    Farmers in Michigan and across the United States have experienced 
similar problems with tight labor supplies and lost crops in recent 
years. At Farm Bureau we believe this labor supply problem stems from 
two distinct developments that have worked together to reduce the 
available supply of labor for farmers. First, there has been a 
developing consensus among public policy makers that the federal 
government, working with state and local governments, should work more 
effectively than in the past to enforce U.S. laws to discourage illegal 
immigration. Though it has been illegal for non-authorized persons to 
seek employment in the United States, and for U.S. employers to employ 
non-authorized persons since 1986, relatively few resources were 
devoted to enforcement of this prohibition. The Immigration and 
Naturalization Service (INS) and the Border Patrol have in the last few 
years employed greater resources for border interdiction, interior 
enforcement, and workplace enforcement.
    More recently, the Social Security Administration (SSA) has begun 
to more vigorously implement its Enumeration Verification System, which 
is designed to weed name-and-number mismatches out of the SSA database. 
It is our understanding that as much as $34 billion dollars in the 
Social Security Trust Fund may be credited to names and Social Security 
numbers that may be false. When SSA detects a name and number mismatch, 
the agency sends a letter to the farm employer advising of the mismatch 
and telling the employer that correct information must be furnished, 
while threatening fines and Internal Revenue Service action if correct 
information is not forthcoming. Of course, when filing to pay the 
employer's share of Social Security taxes, the employer furnishes the 
information provided to him by the employee in question. In the case of 
farmers, when they ask farmworkers to furnish correct information for 
SSA, those employees often do not return to work the following day.
    All of these stepped-up enforcement activities have diminished the 
labor supply for farm employers. It is important to emphasize that this 
is not because farm employers seek to employ undocumented workers. 
Rather, we believe farm employers probably have a greater propensity to 
be in compliance with pre-employment verification requirements than 
some other types of employers. However, it is very easy for persons in 
the United States to illegally obtain fraudulent identification 
documents that appear to be genuine. And when these documents are 
presented to an employer, they must be accepted as genuine unless they 
are clearly fraudulent. Farm employers are obligated to accept 
documents that appear on their face to be genuine because, under 
federal law, failure to do so could result in document discrimination 
charges. Farmers are in a Catch-22 situation. As citizens they wish to 
uphold the law and would thus prefer to avoid hiring illegal aliens. As 
business people, they realize they must hire an adequate workforce to 
plant, cultivate, and harvest the crops they depend on for their 
livelihood. And, if they are too quick to decline to hire someone they 
suspect is fraudulently documented, they may run afoul of the law.
    Additionally, the thriving U.S. economy has put farm employers in 
competition for a limited pool of labor with employers in other 
industries who can offer longer-term, often year-round employment and 
better compensation and benefits. In Utah, tree fruit farmers in the 
Front Range of the Wasatch Mountains are finding themselves bidding 
against food processing companies in and around Salt Lake City for 
workers. In Mississippi and Tennessee, cantaloupe and tobacco producers 
must compete with casino operators along the Mississippi River at 
Natchez for the same workforce. In Florida, citrus and winter vegetable 
producers often find that construction contractors and the resort 
industry can offer higher pay and year-round work.
    But even where changing public policy and economic conditions have 
not contributed to new shortages of workers, chronic shortages prevail 
and are unlikely to dissipate. In the Lake Champlain valley in upstate 
New York, it continues to be difficult to find enough people to harvest 
hundreds or thousands of acres of apple orchards in counties that have 
only a few thousand residents. Where irrigation is available, onion 
production in the Nevada desert can be a viable agricultural 
enterprise, but there is very little labor available in the area.
    Many of the prime apple growing counties in Washington state are 
very rural and sparsely populated, as are many of the prime Christmas 
tree growing counties in the mountains of western North Carolina. 
Growers in these areas have found that the H-2a program, with its many 
flaws, is the only workable source of an adequate labor supply to 
harvest their crops.
    Michigan is very dependent on a steady supply of labor to hand 
harvest a number of specialty crops. Workers pick specialty crops 
including apples, peaches, pears, strawberries, blueberries, 
cantaloupes and sweet cherries, as well as vegetables including 
pickles, cucumbers, tomatoes, peppers, asparagus and onions. Often 
these workers are lost to other states in the migration stream from 
Texas to Michigan.
    The situation is real and growing worse in Michigan. In recent 
years, the labor shortage has led to the following problems in my 
state:
     A Monroe County apple grower and packer operation was 
unsuccessful in getting enough labor. He lost his juice apple harvest 
altogether; the quality of his fresh harvested apples also suffered.
     A large greenhouse in eastern Michigan has provided 
employee benefit packages including 401(k) and medical coverage. Four 
years ago they began recruiting migrant workers because of a shortage 
of local workers. As a result, the producer was unable to ship and 
deliver products that had already been purchased, because there was not 
enough labor to load the trucks. The greenhouse owner has received 
notices from the Social Security Administration notifying him that a 
number of his workers have presented names and taxpayer identification 
which do not match correctly in the SSA database. These mismatches are 
causing him to question if he can rehire these workers.
     A raspberry grower in Ingham County needed 12 workers but 
could find only three workers; this caused him to lose 75 percent of 
his raspberry crop. He closed his second business location in 1998 due 
to a complete lack of labor.
     The owner of a cider and retail farm market in Clinton 
County had to take harvest workers out of the field to staff his retail 
market. This caused the loss of the crops those workers had been 
harvesting, requiring him to purchase commodities from other farms. In 
1998, he did not have enough workers to plant, stake, and hoe more than 
50 percent of the crop he would normally plant, causing him to cut 
production.
     A Kent County fruit grower was informed in 1998 by the 
Social Security Administration that 78 of the names and taxpayer 
identification numbers provided by workers applying to work that spring 
matched and 115 did not. The majority of these workers had been 
recruited through the Michigan Employment Security Agency. In effect 
the government referred workers to this grower who were ineligible to 
work.
    Michigan is known to have some of the best farm labor housing in 
the country. There is, however, a fundamental problem with Section 514 
of the USDA Rural Development Housing program. In the eligibility of 
occupants, H-2A workers are precluded from using the housing. So we 
have an additional example of a government program prohibiting the 
effectiveness of another.
    For the last two years, the industry has felt the effects of the 
efforts of Congress to control persons who work illegally in the United 
States. We cannot provide you with enforcement statistics--perhaps INS 
can give you that data. We cannot quantify exactly how many workers 
have been apprehended, nor can we tell you the total dollar value of 
crops lost as a result of this enforcement activity. We measure the 
seriousness of a problem just like members of Congress do--by the 
number of phone calls and letters we receive. I can tell you the level 
of concern and interest in H-2a reform has been very high for the past 
two years.
    For the last five years, Farm Bureau has been engaged in an effort 
with state Farm Bureaus and other state and regional farmers' 
associations to develop reforms of the H-2a program and work to secure 
legislation to accomplish those reforms. Our goal has been to unify 
agriculture from the East, the West, and all points in between, and to 
unify H-2a program users and non-users to support a reform package that 
will help everyone. At the outset, it was clear to us that the cost of 
a lack of unity would be high. In the 1980s, agriculture fragmented 
into factions seeking different reforms. The resulting Seasonal 
Agricultural Worker program legalized a great many ``farm workers'' who 
ultimately sought employment in other industries. Concurrent reforms of 
the H-2a program proved ineffective. And, the unintended consequence of 
the 1986 requirement to obtain documentation from workers encouraged a 
market in fraudulent employment documents that still thrives today. By 
our disunity, we allowed Congress to pass a ``solution'' to our labor 
supply problem that didn't really solve the problem.
    For years now, farmers have been struggling with a simple fact of 
life: agriculture is hard work, the seasons are short, and people who 
work in the industry are sometimes forced to move from place to place 
to find work. Farmers are price-takers, taking what the marketplace 
offers for what we grow, and it is difficult for us to pass increased 
costs along to our customers, who can buy from producers overseas who 
have much lower business costs than U.S. growers. These two facts taken 
together have made it extremely difficult for farmers to recruit an 
adequate, legal workforce. When we can find enough workers, very often 
many or most of them are not legally documented to work in the U.S., as 
I have discussed before. The 1997-1998 National Agricultural Workers 
Survey, conducted by the U.S. Department of Labor, indicated that 52 
percent of farm workers surveyed told an identified representative of 
the U.S. government they did not have legal status to work in the U.S. 
Based on anecdotal evidence, it seems likely that if that high a 
percentage self-identified as working illegally, in fact a higher 
percentage of the farm workforce is in fact illegal.
    We have struggled with a way of resolving this immediate problem, 
that a large percentage of our workforce is illegal. It is our belief 
that the best way to minimize disruption in our current workforce, 
disruption in the lives of our workers, and to illegally documented 
workers are not exploited by anyone is to confer on them a legal status 
that will allow them to continue to work in agriculture. To add value 
to this benefit from a worker's standpoint, we've proposed to allow 
these workers to earn the right to apply for a green card it they 
continue to work in agriculture for five years after they gain the 
right to work legally. We think this is a reasonable compromise between 
those with concerns about immigration control, and those who believe 
current workers should be offered a blanket amnesty. I urge all of you 
to give this issue serious thought and give us the benefit of your 
wisdom as to how we can resolve this difficult issue.
    It is worthwhile to consider just how useful the H-2a program is to 
farm employers now, and how we might go about reforming it. Both 
farmers who have successfully used the program, as well as farmers who 
have considered and rejected the idea of using the program have told us 
that a number of reforms could be made that would make the program less 
burdensome and less expensive for growers to use. Farmers have, in 
particular, complained about the labor certification procedure they are 
required to complete to demonstrate that no domestic workerswill be 
displaced by the admission of foreign workers, as well as the 
excessively high Adverse Effect Wage Rate standard.
    In terms of program usage, the H-2a program today is not a major 
source of workers for farm employers. USDA surveys indicate that about 
1.6 million people work seasonally in agriculture, excluding raising 
livestock, every year. Only about 30,000 workers were admitted under 
the H-2a program in 1998. Compare that to the total potential need of 
820,000 workers. Only one farm in Michigan has been able to effectively 
use the program. While program usage has been growing in recent years, 
only a few years ago the H-2a program admitted only about 15,000 
workers annually. We think program usage is this low because the vast 
majority of growers feel they cannot navigate the bureaucratic process 
associated with labor certification, and even if they could, they could 
not afford to meet the adverse effect wage standards mandated by the 
program.
    The market test requirements of the labor certification process has 
been particularly burdensome to growers because of their 
ineffectiveness. Farmers are required to file job orders with the Job 
Service agency in their state, which in turn files interstate clearance 
orders with the Job Services in other states where workers might be 
available to fill farm jobs. Often, workers referred to farmers by 
these activities are in fact illegally documented ``domestic'' workers 
to whom a farmer must offer work before being allowed to bring in legal 
foreign labor. This places a farmer in the absurd position of being 
forced by the United States government to employ a worker who is 
illegal in favor of a worker legally admitted under the H-2a program.
    In other instances, farm employers have been forced to advertise in 
metro-area newspapers for farmworkers, or to advertise on Spanish-
language radio stations in areas where migrant farmworkers have 
traditionally resided during the winter months. These efforts have 
usually proven to be futile and expensive.
    H-2a program wage standards have also been problematic. Under the 
current H-2a program, a participating grower must pay all H-2a workers 
(and any domestic workers they employ in the same occupation) the 
greater of the Adverse Effect Wage Rate (AEWR), the prevailing wage in 
the area of intended employment (as determined by Department of Labor 
farm employer surveys), or the statutory minimum wage. Under current 
regulations, the AEWR is set at the average wage paid to field and 
livestock workers in a given state. Obviously, application of the AEWR 
will have an undesirable inflationary impact for about half of all farm 
employers in a given state, causing unnecessary inflation of the wages 
they must pay simply to ensure an adequate labor supply. For almost all 
farm employment, the AEWR set wage standard is uneconomic in a globally 
competitive labor market. In all cases we are aware of, both the 
prevailing wage and the AEWR exceed the statutory minimum wage in every 
state. For Michigan, the Adverse Effect Wage Rate in 1999 is $7.34 per 
hour. This is the fourth-highest AEWR in the nation, after Hawaii 
($8.97 per hour) and Indiana, Illinois and Ohio ($7.53 per hour). It is 
important for you to remember that the H-2a minimum wage standard is 
paid to workers over and above other expenses not incurred by non-H-2a 
employers, like inbound and outbound transportation, housing and 
program administration expenses.
    Farm Bureau, and the coalition we have worked with on H-2a reform, 
has proposed several key reforms to the H-2a program that we believe 
will alleviate a number of the program's problems. First, we have 
proposed to replace the current unproductive and expensive positive 
recruitment requirements with an entirely new method of testing the 
local labor market to ensure that U.S. workers are not displaced. 
Rather than using the combination of job orders and interstate 
clearance orders and ineffective employer recruitment required by the 
current program, we have proposed to use information technology to 
create a more effective conduit of labor market information for farmers 
and farmworkers. We have proposed that the Department of Labor and the 
state Job Service agencies should create Agricultural Worker Registries 
in states or regions that correspond to natural farm labor markets. 
These registries would be repositories of employment information 
provided by farmers and farmworkers seeking to find one another. In 
order to participate in the registry, a worker would have to 
demonstrate that he or she is legally eligible to work in the United 
States. The Job Service could not place a worker in the registry who 
has not provided documentation that can be verified by the INS or 
Social Security Administration.
    Farm workers wishing to seek work on farms in a given state would 
provide necessary information, like name and current address to the 
registry. When a farmer is seeking workers, either domestic workers or 
seeking to access the H-2a program, that farmer's first step is to 
query the Agricultural Worker Registry. If the farmer needs 20 workers 
on August 1, and the registry indicates there are 10 workers who might 
be available on that date and might be willing to perform the needed 
work, the U.S. Department of Labor contacts these workers and secures a 
commitment to work; the farmer then files for 10 H-2a visas. If seven 
of the 10 workers available on the registry accept the offer to work 
for the farmer in question, the farmer then files for three additional 
H-2a visas. Thus, any willing and eligible U.S. workers have first 
access to available U.S. farm jobs, but farmers are not left in the 
position of being unable to fill critical seasonal jobs.
    Another key reform needed is with the operation of the AEWR. We 
propose that the national standard minimum wage for H-2a program 
participants, (both H-2a visa workers and domestic workers who work 
alongside them), should be the prevailing wage for workers in a 
particular area, in a particular occupation. This eliminates the major 
flaw of the AEWR now, the grouping together of unlike occupations in 
dissimilar labor markets to create an AEWR that doesn't reflect the 
local labor market.
    In 1998, we came very close to success in our efforts to reform the 
H-2a program. The Senate passed a proposal to accomplish the reforms I 
have discussed in a bipartisan 68-31 vote in July of last year. That 
legislation was later combined with a number of other measures to 
create the omnibus appropriations bill that funded the operations of 
the federal government for fiscal year 1999. In that process. our H-2a 
reform was dropped in favor of other provisions. The Farm Bureau looks 
forward to working with interested members of Congress to ensure that 
2000 is the year when meaningful H-2a reform takes place.
    Thank you for the opportunity to appear today. I'd be happy to 
answer any questions you may have.

    Senator Abraham. Thank you very much.
    Reverend Garcia.

                    STATEMENT OF POLO GARCIA

    Reverend Garcia. Before anything I would like to just 
excuse myself if there is any mistakes that I make in reading 
my prepared document.
    Mr. Chairman, thank you for allowing me to be present with 
you. S. 1814 will benefit farmers and also farmworkers by this 
bill. Also I thank Senator Gordon Smith of Oregon for inviting 
me to testify and for his hard work to try to solve the 
problems faced by farmers and farmworkers in Oregon.
    I am a Lutheran minister in Woodburn, Oregon, House of Zion 
Ministries, Incorporated, including a church, and a shelter, 
and a learning center. Case de Zion is a Lutheran church of 
approximately 140 Hispanic farmworkers. Our shelter provide 
places to stay and cooked meals to migrants traveling in the 
area during the season, and provide beds and meals for about 20 
farmworkers and families a night. Our learning center provides 
an opportunity to farmworkers to learn skills such as auto 
mechanics, plumbing, and carpentry. Right now we have 12 to 14 
farmworkers learning computer skills.
    I was born in Mexico. My mother was a migrant farmworker 
who bring me to the United States when I was little. I traveled 
with her and worked in Texas and Idaho, and Oregon, Washington, 
and California. When I met my wife Marta, both were 
farmworkers, married and decided to live in Idaho. We continued 
working as migrant farmworkers. Around 1975 I decided to get 
into ministry and we moved to Oregon. After I become a pastor I 
dedicated my life to helping the other farmworkers, and Marta 
and I started the House of Zion.
    Over the years more and more people work in the fields and 
not have legal papers. It is hard to get across the border. 
Most of the farmworkers who come to the United States without 
papers use the coyotes. They pay the coyotes $1,000, $1,500, or 
even more to get across. The trip is very dangerous. People are 
robbed and raped and all. People try to walk across the border 
in remote areas to save money, and get lost and freeze to death 
or even die of thirst.
    Usually farmworkers first come without families. It is 
expensive and dangerous to go back and forth. They stay longer 
and try to bring in the family later. It is especially true in 
Oregon where agricultural work is available most of the year. 
It costs about $2,000, $3,000 to get a family across.
    Farmworkers without legal papers have a very difficult 
time. Farm work is difficult but the situation is more 
difficult if they always have to hide or to feel someone is 
hunting for them. They never know how long they can work before 
immigration finds them or finds their employer and their 
employer confronts them. Workers often move from job to job, 
change their IDs to avoid being caught.
    Senator Smith held some public meetings for farmworkers in 
Oregon to explain his bill and hear their comments. Farmworkers 
are real interested in Senator Smith's bill, and hope the 
Congress will finally do something about this problem. They 
want to work in the United States and come and go legally.
    Naturally, we want as liberal a program as possible, but 
they are willing to accept the conditions in the Smith bill. 
Many farmworkers in the Willamette Valley work nearly year-
round, all year, and could qualify for the program under the 
150-day criteria and meet the 180-day agricultural work 
requirement. Even those who will not benefit directly are glad 
to see that something is being done.
    Many farmworkers work illegally in Oregon and have their 
families with them, but they also have families in Mexico. They 
have someplace to go during the two months they are required to 
be outside the U.S. However, I believe it is important to let 
those who have children here in school to stay year round.
    On behalf of the farmworkers in Oregon and all farmworkers 
illegally working in the United States, I hope Congress acts 
soon to help them. These are decent, hardworking people. They 
are the only people willing to work in the fields. The farmers 
need them. It is not right that they are constantly afraid of 
being found, or constantly looking over their shoulders, 
constantly moving, afraid to return to visit the family in 
Mexico.
    Thank you for having me here today.
    Senator Abraham. Reverend Garcia, thank you very much. We 
appreciate your being with us.
    Ms. Munoz, welcome back. We appreciate your participation 
again here with us, and we will turn it over to you. Thanks.

                   STATEMENT OF CECILIA MUNOZ

    Ms. Munoz. Thank you very much. I also have a written 
statement that I would ask to submit for the record.
    Senator Abraham. Without objection, it will be entered in 
its entirety.
    Ms. Munoz. Thank you. Senator Smith, I am glad you are 
here. I have been asked to present to you some petitions that 
were signed by farmworkers in the State of Oregon expressing 
their concerns about the legislation. And I want to start with 
the statement that you made earlier in your conversation with 
Congressman Berman that there are some groups who would prefer 
that nothing happened with respect to farmworkers, and I would 
like to start by making it clear that my organization is not 
one of those.
    We have, for many, many years, been concerned particularly 
about the conditions in which farmworkers live and work. And I 
would hope that as this committee considers legislation related 
to farmworkers, that it would start with legislation that would 
aim to bring their working conditions and living conditions out 
of the 19th Century, where they have been stuck for far too 
long.
    We are also very concerned and have been again for decades 
with the situation of undocumented immigrants in this country. 
And undocumented immigrants working in agriculture are 
obviously a very big part of that set of concerns. So I am glad 
to hear those concerns being raised so eloquently today.
    I am sorry to say that the legislation that the committee 
is considering today goes in the wrong direction in terms of 
the goal of improving the working conditions and living 
conditions of farmworkers. And we greatly fear that this 
situation, which is already abysmal, would get worse if this 
legislation were enacted, and I would like to explain a little 
bit why.
    First, though, I would like to challenge one of the 
principal rationales for the legislation that the committee is 
considering today, and that is this notion that there is a 
labor shortage in agriculture. My organization tends to take 
the position supported by research coming out of the Government 
and private sector that suggests that there is not a shortage 
of work-authorized farmworkers. And the evidence that is cited 
is the sort of standard economic evidence. In a situation where 
there is a labor shortage, you would expect wages and working 
conditions to improve and demand for workers' time to increase. 
And the data that we cite in our testimony demonstrates that 
farmworkers' wages are stagnant, that their annual earnings 
continue to hover well below the poverty line. But the average, 
the median income of an individual farmworker in this country 
is about $7,500 per year, and the income of a farmworker family 
is about $10,000 per year.
    Unemployment and underemployment is rampant in farmworker 
communities. Even during hiring peaks only about just over half 
of the Nation's total farm labor workforce holds agricultural 
jobs, and the number of days in which agricultural workers 
actually work in the course of a given year has been decreasing 
steadily over the last decade.
    In California, in particular, the unemployment rates in 18 
agricultural counties continue to be nearly double the 
statewide average, and that includes even during the peak 
harvest months. So for these reasons, we question the principal 
rationale for this legislation. In addition to that, our 
assessment of the impact of these bills makes it clear that 
both of them, unfortunately, would make conditions for 
farmworkers worse.
    My written statement outlines a variety of concerns with 
the way the current H-2A program is structured. We are 
concerned about it as well, and I know that is part of the 
motivation behind the legislation. Studies by the General 
Accounting Office and the Department of Labor indicate that the 
protections for workers, which are built into the program, are 
not successfully protecting either the domestic farm labor 
workforce or the guestworkers themselves. And those are well-
documented in my written statement.
    S. 1815 would revise the H-2A Program in a way which would 
lower wage rates, eliminate housing opportunities, reduce 
recruitment inside the United States, decrease Government 
oversight, and in other ways lower the labor standards of U.S. 
farmworkers and allow exploitation of vulnerable foreign 
workers. That is a step very, very much in the wrong direction.
    The bill would also authorize wage systems like group piece 
rates and other practices that have been used to circumvent the 
law and prevent farmworkers from improving their circumstances.
    My organization also has serious concerns about the 
adjustment proposal that we have already talked about today in 
the hearing. But I want to be clear that we very much support 
the notion of legalizing farmworkers. In fact, we are very glad 
that it has been introduced into this debate. But the way this 
particular proposal is structured is extremely harmful, and we 
cannot support it. And I would add that the network of 
farmworker organizations that we work with also opposed this, 
though it very much supports the notion of legalizing workers, 
and we have attached to our testimony a letter with more than 
180 organizations on it who share our views.
    Among our principal concerns with the way the adjustment 
program is structured is that it ties workers who wish to 
legalize to farm labor for at least 5 years, and during that 
period they would be at the mercy of their employers, who would 
have extraordinary control over the workers' economic status 
and immigration status. Workers would need their employers to 
verify that they worked the 180 days that they would be 
required to work each year, and many of them will be too afraid 
of being fired or other employer reprisals to demand higher 
wages or better conditions or to seek to otherwise enforce the 
law if there are abuses. And we know that abuses occur in this 
industry.
    The adjustment proposal contains none of the wage housing 
or other minimum labor standards that have been part of the H-
2A Program and the old Bracero programs in the last 55 years. 
We are not convinced that the protections against undercutting 
current wage rates or against exploitation are sufficient. And 
the program, we think, is going to make it very difficult for 
farmworkers to actually legalize. The pool of workers who would 
have the hope of legalizing and would attempt, we believe, 
would have a very difficult time in fulfilling those 
requirements and that data that we have been studying 
demonstrate that already the average number of days worked by 
farmworkers in this country is less than 180. So we think that 
the pool of workers who would ultimately benefit would be very 
small.
    And even for those few who make it through the process, the 
way the adjustment proposal works is not as generous asit 
sounds. There would be waiting lists of up to 5 years to receive 
immigration status. Therefore, some eligible workers would not receive 
their green cards for as many as 10 to 12 years, and they could not 
begin to petition for their spouses or their children until after that 
process had finished. So we are talking about extraordinary long 
periods of time before family members ultimately would be able to 
reunite.
    While we welcome the fact that the agricultural industry 
has introduced the notion of adjusting the status of the 
workforce into this debate, even if the adjustment proposal 
were structured differently, even if this were an immediate 
legalization program, I have to say that for us it is not 
enough simply to legalize workers in this industry if we do not 
make an effort to change the working conditions that 
farmworkers have lived and worked under for so long. 
Legalization, even a perfect program by our standards, would 
not be sufficient. Ultimately, this debate has to include the 
equalization of labor standards. We are not talking about 
adding labor rights to farmworkers that other American workers 
do not have, but we are talking about leveling the playing 
field so that they are ultimately working under the same set of 
labor protections as everybody else.
    Ultimately, if the real concern here is a steady permanent 
source of farm labor, we believe this industry must begin to 
make the changes that many other industries began making almost 
a century ago. We believe, ultimately, that the way this is 
structured, the way that adjustment is structured, is designed 
to keep workers in agriculture longer than they would otherwise 
want to. And ultimately, we think the best solution to keeping 
a steady, permanent workforce is both legalizing workers and 
creating the kinds of working conditions that will inspire 
people to stay, rather than forcing them to stay.
    The history of these issues, Mr. Chairman, is really very 
shameful, and it is time to begin to take major steps to change 
them. And unfortunately, this legislation does not do that.
    [The prepared statement of Ms. Munoz follows:]

                  Prepared Statement of Cecilia Munoz

                            i. introduction
    My name is Cecilia Munoz. I am the vice-president for the Office of 
Research, Advocacy and Legislation of the National Council of La Raza 
(NCLR). NCLR is a private, nonprofit, nonpartisan organization 
established in 1968 to reduce poverty and discrimination and improve 
life opportunities for Hispanic Americans. NCLR is the largest 
constituency-based national Hispanic organization, serving all Hispanic 
nationality groups in all regions of the country through our network of 
230 affiliate community-based groups and regional offices. NCLR has 
supported fair and effective immigration and farmworkers policies for 
over two decades, and has ensured a fact-based Latino perspective on 
the issue of immigration. NCLR approaches this issue as a civil rights 
organization, with an interest in protecting the rights of our 
constituency and promoting the values and principles of the nation as a 
whole.
    I appreciate the opportunity to submit this statement before the 
Subcommittee today, especially when it concerns an issue that 
ultimately will affect the lives of perhaps the single most 
disadvantaged of all groups in the United States: the nation's 
farmworkers. These hard-working Americans toil in the fields for meager 
earnings and few benefits; they sustain multi-billion dollar 
industries, and literally put food on our tables. Yet, they remain 
largely invisible to the rest of the country. Under a century-old 
system of labor, farmworkers continue to be inadequately protected by 
federal laws and regulations, including worker protection standards 
that all other workers take for granted.
    We have heard today from representatives of the agricultural 
industry which is again attempting to orchestrate the establishment of 
additional special privileges for itself, proclaiming the same 
unsubstantiated argument employed continuously since the mid-1800s: 
that there are labor shortages.
    NCLR continues to side with the experts in government and in the 
private sector who have studied and found that there is still no 
shortage of work-authorized farmworkers, but a shortage of decent jobs 
and decent pay. Second, the status quo is indeed untenable, not because 
of over-regulation of labor standards in agriculture but because of a 
complete lack of enforcement of the few labor standards that actually 
apply to farm work.
    Therefore, NCLR strongly opposes S. 1814 the Agricultural Jobs, 
Opportunities and Benefits Act, and S. 1815, the Farmworker Adjustment 
Act, primarily because they would not improve conditions for America's 
farm workers. In fact, we believe that this legislation would give 
unscrupulous employers an unreasonable level of control over 
farmworkers' lives. Such comprehensive control could only lead to 
further exploitation of the nation's most vulnerable workers.
               ii. the face of america's farm labor force
    The history of farm labor in the United States coincides with the 
political awakening of the American Latino community. Since the 
beginning of the last century, Mexicans and other Latinos have been an 
integral part of the nation's farm labor force, and farmworkers have 
been integral to the growth of Hispanic Americans' political 
consciousness.
    For this reason, NCLR, like most Latino advocacy organizations, is 
concerned about current proposals to ``reform'' or expand current 
guestworker programs. In fact, the majority of farmworkers in the 
United States are Latino. In 1997 and 1998, 81 percent of farmworkers 
are foreign-born; 95 percent of these are from Mexico. As many as 52 
percent of farmworkers are undocumented; 58 percent of farm workers, 
however, consider the United States their permanent home.\1\
---------------------------------------------------------------------------
    \1\ U.S. Department of Labor, Findings from the National 
Agricultural Workers Survey: 1997-1998.
---------------------------------------------------------------------------
    Further, the plight of farmworkers in the United States has gotten 
worse over the last decade. Government studies \2\ show that:
---------------------------------------------------------------------------
    \2\ Ibid. See also Linda Levine, ``Farm Labor Shortages and 
Immigration Policy,'' a Congressional Research Service Report for 
Congress. December 20, 1999.
---------------------------------------------------------------------------
     Farmworker wages are stagnant: since 1989, the average 
hourly wage has risen only 18 percent, compared to 32 percent for non-
agricultural workers.
     Annual earnings remain below the poverty line: for the 
past decade, the median income of individual farmworkers has been 
$7,500 while for farmworker families it has remained less than $10,000.
     Despite their poverty, farmworker use of public benefits 
remains low and has declined.
     Farmworker assets are decreasing: in 1994-5, one-third of 
all farmworkers were homeowners, by 1997-8 only 14 percent were 
homeowners.
     More workers now rely on their employers, contractors and 
co-workers for transportation to work: in 1994-5 49 percent of workers 
owned a vehicle; in 1997-8, the figure dropped to only 44 percent.
     Unemployment and underemployment is rampant: even during 
the hiring peak, just over half of the nation's total farm labor 
workforce held agricultural jobs.
     The number of days crop workers actually were employed on 
farms has diminished over time: from 1989-91, the typical foreign-born 
worker was employed in farming for 213 days; this figure fell to 193 in 
1992-1994, and to 176 in 1995-1997. U.S. born workers are also seeing 
less time in the fields, from 183, to 155, to 129 over the same period. 
This indicates that the number of jobs available to all farm workers is 
shrinking.
    In California, the unemployment rates in eighteen agricultural 
counties continue to be nearly double the statewide average even during 
peak harvest months.\3\ The California Rural Legal Assistance 
Foundation (CRLAF) has conducted surveys in the last three years of 
farm workers in certain raisin and grape producing counties during 
harvest. These surveys have consistently found that there are available 
farmworkers who are not being recruited by employers. In fact, 
employers are doing a poor job of making their work opportunities 
known. CRLAF's most recent report is attached to this testimony as 
Appendix A.
---------------------------------------------------------------------------
    \3\ State of California, Employment Development Department, Report 
400C, 1989-1999.
---------------------------------------------------------------------------
    These findings are very disturbing to us. More importantly, they 
indicate that there is truly no shortage of farm labor in the United 
States. Were there actually a shortage, wages would be going up, just 
as they have in other sectors experiencing difficulty in recruiting and 
retaining workers. In fact, these figures indicate a national 
oversupply of labor. For this reason, NCLR opposes employer efforts to 
enact policy that would guarantee for themselves a continued oversupply 
of workers.
    Whether it was Chinese immigrants in the nineteenth century, the 
4.5 million braceros brought in to toil in the fields between 1942 and 
1964, or ``guestworkers'' under the current H-2A program, the 
agricultural industry has been dependent on foreign-labor and has been 
relentless in maintaining this dependency. They have spent the last 
decade soliciting Congressional support for a massive expansion of the 
H-2A program.
      iii. problems with the h-2a agricultural guestworker program
    NCLR believes that the existing temporary foreign worker program, 
known as ``H-2A'', is overly generous to the agricultural industry and 
insufficiently protective of the rights of both U.S. and foreign 
workers. Industry proposals to further ``deregulate'' the H-2A program 
will inevitably and inexorably undermine wages and working conditions 
for all of America's farmworkers. There is considerable evidence that 
the H-2A program--which brings in early 30,000 mostly Mexican and 
Jamaican temporary workers each year--has been fraught with abuses.
    In its December 1997 study, the GAO found that workers who enter 
under the H-2A program are not receiving all of the protections 
required by the H-2A law. The ``special requirements'' of the H-2A 
program, which the growers decry, are there for a reason. These 
protections are intended to ensure that nonimmigrant guestworkers are 
hired only to fill actual labor shortages, that U.S. farmworkers' wages 
and working conditions are not affected adversely, and that foreign 
workers are not mistreated.
    In 1998, the Department of Labor's Office of Inspector General 
reported that the program fails to protect U.S. farmworkers. it found 
that employers and the StateEmployment Service Agencies were doing a 
poor job of advertising available jobs to U.S. farmworkers, and that 
the Department of Labor's Employment Training Administration was 
approving H-2A certifications without sufficient scrutiny.
    Nevertheless, the Department of Labor is acceding to growers' 
demands by offering, for instance, administrative reform and quicker 
processing that further undermine the program's protections. The 
current program has resulted in lower wages for farmworkers in America. 
That is why the USDA's National Commission on Small Farms urged the 
repeal of the H-2A program after hearing testimony that ``large farm 
operators and agribusiness have unfair advantages `because employer 
costs have been reduced by partial or total exclusion of agricultural 
workers from coverage under key labor laws.' In addition, `the 
authorized importation of foreign workers for agricultural work (H-2A 
program), by adding workers to the pool of available labor, has helped 
keep wages for agricultural workers * * * below what they would have 
been without such interventions.' '' \4\
---------------------------------------------------------------------------
    \4\ U.S. Department of Agriculture, A Time to Act, National 
Commission on Small Farms, Washington, D.C.: January 1998.
---------------------------------------------------------------------------
    The current H-2A program approves 99 percent of the applications 
filed by agricultural employers despite the labor surplus. The H-2A 
program was streamlined for employers in 1986 and has operated to their 
advantage. The program is growing rapidly and spreading to new crops 
and new states. In Georgia, for example, the Department of Labor 
approved applications for more than 2,200 jobs in 1999, even in cases 
where the grower failed to file the application on time.\5\ During the 
previous year, Georgia received fewer than 200 H-2A workers.
---------------------------------------------------------------------------
    \5\ Letter from Secretary Alexis Herman, U.S. Department of Labor, 
to Senator Paul Coverdell, April 16, 1999.
---------------------------------------------------------------------------
    Still not satisfied, growers are demanding that Congress ``reform'' 
the guestworker program to lower wages, reduce recruitment of U.S. 
workers, eliminate the current program's housing obligations, authorize 
wage and other employment practices that are currently illegal, and 
reduce enforcement of labor standards. Guestworkers are desirable 
because they lack the right to switch jobs or to remain in the country 
once their job ends. Guestworkers also lack economic or political power 
to improve their conditions.
    The vulnerability of H-2A workers forces them to live with 
unbearable working conditions that no other American would ever 
tolerate. In a series of articles, the Charlotte Observer recently shed 
light on the H-2A program in North Carolina, where employers import as 
many as 10,000 H-2A workers every year. These articles are also 
attached to this testimony as Appendix B. I'd like to highlight one 
particularly poignant story in the first of these articles. It is the 
story of Carmelo Fuentes, an H-2A worker who suffered heat stroke while 
picking tomatoes in 105-degree heat.
    According to his employer, Mr. Fuentes, who was 36 years old, said 
he just wanted a short break after showing signs of heat stress, which 
state investigators said were ``dangerously ignored'' by his 
supervisor. His employer said ``that boy said he was fine, and just 
needed to rest.'' As he rested, heat stroke shut down his internal 
organs and led to Mr. Fuentes to suffer from severe brain damage. 
According to the Charlotte Observer story,

        Nobody can know exactly what Carmelo Fuentes said about how he 
        felt that July day in 1998. But as a veteran working his third 
        N.C. harvest, he likely understood what some say are the 
        unwritten rules of the government program that brought him to 
        an N.C. farm 2,000 miles from home.
        Work fast, or lose your job to somebody who is faster. Complain 
        about your living or working conditions, and you're sent back 
        to Mexico. Get sick or injured, and you're off the list of 
        workers invited back next season.

These are the rules that many guestworkers have come to understand as 
determining whether they will continue to be able to work in the United 
States. That is why the H-2A program reminds so many Mexican Americans 
of the universally denounced Bracero program that existed between 1942 
and 1964. As in the H-2A program, Bracero workers were so controlled by 
their employers that, according to Ernesto Galarza, one of NCLR's 
founders, undocumented workers actually used to consider themselves 
``libre'' or ``free workers'' since they could leave an employer if 
conditions were intolerable.\6\ The same can still be said about the 
current program.
---------------------------------------------------------------------------
    \6\ Galarza, Ernesto. Merchants of Labor: The Mexican Bracero 
Story. McNally & Loftin (Charlotte, 1964).
---------------------------------------------------------------------------
    NCLR opposes the current H-2A program, and calls for its repeal. 
Any attempts to reduce the protections it provides for farmworkers, 
both those already in the U.S. and those entering through the program, 
should be rejected.
                 iv. problems with s. 1814 and s. 1815
    The Agricultural Jobs, Benefits and Opportunities Act and the 
Farmworker Adjustment Act fall far short of what is needed to improve 
the H-2A program and to make better the lives of America's farmworkers. 
These bills would subject farmworkers to even poorer wages and working 
conditions and inequitable economic and political status for many years 
to come.
    This legislation would create two new temporary foreign 
agricultural worker programs by modifying the current H-2A program and 
by establishing an ``adjustment''program for currently undocumented 
farmworkers. Neither proposal is satisfactory, and should be rejected.
    As mentioned above, the current H-2A program inadequately ensures 
that U.S. farmworkers have access to available farm jobs, and that 
individuals entering as H-2A workers are not exploited. S. 1814 would 
revise H-2A program to lower wage rates, eliminate housing 
opportunities, reduce recruitment inside the United States, decrease 
government oversight, and in other ways lower labor standards of U.S. 
farmworkers and allow exploitation of vulnerable foreign workers. No 
valid reason justifies it. The bill would also authorize wage systems 
(``group piece rates'') and other practices that have been used to 
circumvent the law and prevent farmworkers from improving their 
circumstances.
    The ``adjustment'' guestworker proposal in S. 1814 and S. 1815 
would guarantee employers a pliable workforce of individuals who are 
too desperate to meet its requirements to help realize the few labor 
rights they have as farmworkers. The bills' proponents contend that 
this new ``adjustment'' guestworker program would benefit currently 
undocumented farmworkers because (1) those who qualified could work 
legally on a temporary non-immigrant visas as seasonal agricultural 
workers and (2) upon satisfying a 5-year agricultural work requirement, 
later they would be permitted to apply for immigration status. These 
workers (upon showing 150 days of agricultural work for 1998-1999) 
would be obligated to find and prove 180 days of agricultural work each 
year for five more years. They could perform only agricultural work, 
and would be required to leave the country for at least 65 days per 
year.
    The lack of available work shown by recent survey means that many 
``adjustment'' guestworkers would never acquire enough work in each of 
5 years to qualify to apply for immigration status. The proposal would 
give employers extraordinary control over workers' economic status and 
immigration status. Workers would be desperate to comply with the 
difficult tasks of securing and proving 180 days of farmwork each year 
to remain in the program. Consequently, many will be too afraid of 
being fired and other employer reprisals to demand higher wages or 
better working conditions, or seek to enforce the law.
    The ``adjustment'' guestworker proposal contains none of the wage, 
housing or other minimum labor standards that have been part of the H-
2A and the old bracero programs in the last 55 years. There are no 
protections against undercutting current wage rates or against 
exploitation of the vulnerable guestworkers. As ``non-immigrants,'' 
guestworkers will be ineligible for federally funded legal services and 
for public benefits.
    Due to certain immigration-law restrictions, many guestworkers who 
complete the 5-year requirement may still not qualify for immigration 
status. Because the bills would create a waiting list of up to 5 years 
for receiving immigration status, some eligible workers would not 
receive a green card for 10 to 12 years. During that time, spouses and 
children would not be entitled to enter the US or gain immigration 
status.
    The ``adjustment'' program does represent a fair compromise between 
workers' needs and employers' wants. It further shifts the balance of 
power into the hands of the unscrupulous employers, contractors and 
crewleaders.
                           v. recommendations
    NCLR believes there should be a change in farm labor policy, but S. 
1814 and S. 1815 is not the right policy prescription. Instead, 
Congress should seek to improve opportunities for farmworkers, both 
foreign-born and U.S. born, by enacting the following recommendations:
     Effectively Enforce Existing Protections and Labor Laws: 
The Department of Labor (DOL) must prevent persisting employer abuses 
of the H-2A program, by enforcing existing protections in the program, 
including the ``fifty percent rule,'' which gives U.S. farmworkers 
preference over an H-2A workers. Growers must also not be allowed to 
exploit foreign workers by underpaying them or denying them crucial 
benefits. DOL also must increase its vigilance over the H-2A program 
and resist attempts to reduce alleged administrative burdens.
     Provide Adequate Resources for Enforcement of Labor Laws: 
The Administration should request, and Congress should provide, 
sufficient funding to DOL's Wage and Hour Division and OSHA, among 
others, to assure effective monitoring and enforcement of labor 
standards for U.S. farmworkers and H-2A workers. Congress should also 
revisit the budget restrictions and limitations on the Legal Services 
Corporation grantees that have traditionally served farmworkers.
     Improve Existing Recruitment Methods: The agricultural 
industry must improve its current recruitment methods to attract 
available, work-authorized U.S. workers. Surveys along the East Coast, 
where more growers are using the H-2A program, have shown that U.S. 
farmworkers are indeed available for work but need advanced assistance 
with transportation; which is rarely provided to U.S. farmworkers. 
Growers also must assure that their written job advertisements are 
placed in locations where U.S. farmworkers will hear or see them. In 
addition, the Department of Labor's U.S. Employment Service must 
improve its outreach efforts to match U.S. farmworkers with available 
agricultural jobs, primarily since less than five percent of all U.S. 
farmworkers use this system to secure work. Employers and DOL should 
improve coordination with labor unions and community-based 
organizations that are ready and willing to promote recruitment of U.S. 
farmworkers to meet the employers' needs.
     Make Growers Who Use Farm Labor Contractors (FLCs) 
Responsible for Treatment of Their Workers: Congress and enforcement 
agencies must assure that growers do not circumvent existing labor laws 
by increasingly relying on FLCs for workers. Since the enactment of the 
Immigration Reform and Control Act of 1986 (IRCA), growers have come to 
depend more heavily upon FLCs to produce a workforce. Essentially, 
contractors have become the ``risk buffers'' between growers and their 
immigrant workers, and now perform the regulatory duty imposed by IRCA 
on all employers. Furthermore, evidence has shown that workers hired by 
FLCs are more susceptible to exploitation in the form of lower wages, 
reduced benefits, lower retention rates, and inferior working 
conditions.
     Enact a New Legalization Program: While we believe there 
is an oversupply of available work-authorized farm workers, the 
currently high proportion of undocumented workers in the arm labor 
force is troubling. NCLR believes that the use of farm labor 
contractors competing to provide growers with the cheapest available 
workers has led to an overrepresentation of undocumented workers. These 
workers are not as able to defend themselves from exploitative 
practices as are legal workers. Congress should allow workers who have 
already contributed to the U.S. economy through their sweat and labor 
an opportunity to become legal residents, without any conditions that 
would further subject workers to more exploitation.
     Enact Pro-Immigrant Legislation This Year: Many 
farmworkers would benefit from passage of pro-immigrant legislation 
that has already been introduced. Namely, NCLR strongly supports and 
calls on Congress to enact:
           S. 2407, the Date of Registry Act, which would 
        update a long-standing provision of the Immigration Act called 
        ``registry'' and allow long-time residents, deeply-rooted 
        immigrants who are contributing to our economy to remain here 
        lawfully. This bill would change the registry cutoff date from 
        1972 to 1986. NCLR would prefer a change in the date to 1994.
           S. 1592. the Central American and Haitian Adjustment 
        Act, which would correct for past unequal treatment among 
        different groups of similarly-situated Central American and 
        Caribbean Refugees.
           H.R. 1841, to restore Section 245(i) of the 
        Immigration and Nationality Act, which would allow immigrants 
        who are eligible to adjust their status to lawful permanent 
        residency to do so while remaining in the country instead of 
        traveling to their home country to complete the process. By 
        passing this provision, Congress could ensure that immigrants 
        are not separated from their families and employers for as many 
        as ten years.
           Legislation, not yet proposed, to decrease the 
        immigration backlogs by increasing the number of available 
        visas so that immediate relatives of U.S. citizens and 
        permanent residents may join their families and cease having to 
        wait in interminable backlogs for lawful admission to the 
        United States. All of these proposals will help reduce the 
        number of undocumented workers in the labor force, not just in 
        agriculture, but in other sectors that are genuinely 
        experiencing trouble finding work-authorized workers.
                             vi. conclusion
    I respectfully urge you to consider these recommendations, as they 
represent a consenus among many different immigrant and farmworkers 
advocates about immigration policies that Congress should enact in the 
short-term. Immigration is but one of the many complicated issues 
concerning farm labor that need to be addressed, and I appreciate the 
attention the Subcommittee is paying to the issue today. However, 
before the Subcommittee considers acting on this legislation, I ask 
that you take a closer look at the need for comprehensive reform of our 
farm labor system.
    Finally, I would like to call your attention to a letter that was 
sent to the entire Senate and its leadership last February. It is also 
attached as Appendix C. It calls on the Senate to reject S. 1814 and S. 
1815, and is signed by 185 organizations made up of farmworkers, and 
individuals that work day-to-day with farmworkers. Please take their 
voices into account as you consider this legislation.
    Once again, I thank the committee for allowing NCLR to present this 
testimony.
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    Senator Abraham. Ms. Munoz, thank you for your views.
    We will turn to Mr. Holt for his. Thank you for being here 
today.

                   STATEMENT OF JAMES S. HOLT

    Mr. Holt. Thank you, Mr. Chairman. I, too, have a lengthy 
statement which I am submitting for the record.
    Senator Abraham. We will include it in the record. Thank 
you.
    Mr. Holt. I appreciate the opportunity to testify on S. 
1814, the AgJOBS bill on behalf of the National Council of 
Agricultural Employers or NCAE. NCAE represents growers and 
agricultural organizations on agricultural labor and employment 
issues at the Federal level. NCAE's membership includes 
agricultural employers in all 50 States who employ 
approximately 75 percent of the Nation's hired farm labor.
    I, myself, am an agricultural labor economist and a 
technical consultant on labor and immigration matters to NCAE. 
The NCAE strongly supports S. 1814. Senators Gordon Smith and 
Bob Graham, with the assistance of Larry Craig and others, have 
crafted a carefully balanced bill that provides what the NCAE 
believes will be a workable, temporary alien worker program 
that will provide labor to responsible law-abiding agricultural 
employers under terms and conditions that will permit U.S. 
agriculture to be competitive in the global marketplace. It 
will protect access to agricultural jobs under fair terms and 
conditions of employment for all legal U.S. workers who want to 
work in agriculture and for the alien workers who are needed to 
supplement the U.S. workforce.
    The creation of a balanced workable legislation has been no 
mean fete. And NCAE congratulates the bill's authors and 
cosponsors for accomplishing a very difficult task. I can 
assure you this bill is not the agricultural employers' dream 
bill. And as we have already heard and knew I guess before we 
came into the room, it is not the farmworkers' dream bill 
either. What it is is a set of carefully crafted compromises 
that has resulted from literally thousands of hours of 
meetings, consultations, hearings, congressional debates over a 
period of more than 5 years. The bill has been changed 
substantially from that bill which passed the Senate by an 
overwhelming bipartisan vote in 1998, and these changes have 
been a further attempt I think to address legitimate issues and 
problems raised by critics of the bill.
    S. 1814 addresses both the short-term and the long-term 
agricultural labor problem in the United States by, number one, 
providing adjustment of status to those workers who have a 
significant commitment to the U.S. agricultural workforce and 
are currently working in U.S. agriculture illegally; and, two, 
by reforming the H-2 Temporary Alien Worker Program so that 
agricultural employers have a practical and workable way to 
secure sufficient legal labor in the future.
    We cannot emphasize too strongly that both of these 
components are necessary to a program that will address the 
problem now and in the future. NCAE believes the provision for 
adjustment of status for fraudulently documented aliens with a 
substantial commitment to the U.S. agricultural industry and a 
one-time waiver of the bar on immigration benefits for persons 
who have been illegally present in the United States are 
absolutely essential elements of a workable and humane solution 
to the current agricultural labor problem.
    Without these provisions, a substantial portion of the 
current workforce would be unable to continue working in 
agriculture. Employers would be forced to seek a new and 
inexperienced alien workforce, while their experienced former 
workers would be unemployable. Such an outcome would make no 
sense at all either for workers or employers. Adjustment of 
status is also necessary because some key workers in jobs are 
not eligible for the H-2A Program either in its current form or 
as reformed by S. 1814.
    This bill has its critics. As was alluded to in the 
dialogue of the last panel, there are people who believe that 
no foreign workers should be permitted in the United States and 
who would oppose any legislation that provides for that 
objective. Some espouse this view directly and some espouse it 
by advocating conditions for admission of foreign workers that 
assure that they could never be used.
    We believe that any objective look at the history of the 
U.S. economy and labor force renders the closed-border view 
absurd. Every major U.S. industry was built on foreign labor, 
and most, spanning the gamut from agriculture to high tech, 
still sustain themselves on foreign workers. On the other hand, 
some people argue for what, as a practical matter, would be 
uncontrolled admission of foreign workers with no effective 
labor standards. The NCAE believes this, too, would be wrong. 
It would, in effect, make U.S. farmworkers compete directly 
with foreign labor standards. We acknowledge that any program 
for the admission and employment of foreign workers must 
include procedures that assure that U.S. workers who want 
agricultural work have meaningful access to such employment and 
preference to foreign workers, and that wages and other 
conditions of employment are protected from unfair competition.
    While the NCAE believes the authors have done a yeoman's 
job of achieving a workable yet balanced bill, we do not 
believe anyone has yet claimed perfection. As the legislative 
process proceeds, additional, reasonable and useful 
modifications may be suggested. But we do strongly believe that 
the time has come to finalize the debate and to enact 
legislation that ends a status quo that no one can or is 
defending and which has gone on far too long.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Holt follows:]

   Prepared Statement of Dr. James S. Holt on Behalf of the National 
                   Council of Agricultural Employers

    I appreciate the opportunity to present this testimony on S. 1814, 
the ``Agricultural Job Opportunity Benefits and Security Act of 1999'' 
on behalf of the National Council of Agricultural Employers.
    The National Council of Agricultural Employers (NCAE) is a 
Washington, D.C. based national association representing growers and 
agricultural organizations on agricultural labor and employment issues. 
NCAE's membership includes agricultural employers in all fifty states 
who employ approximately 75 percent of the nation's hired farm labor. 
Its members are growers, farm cooperatives, packers, processors and 
agricultural associations. NCAE was actively involved in the 
legislative process that resulted in the enactment of the Immigration 
Reform and Control Act (IRCA) of 1986, and for the past five years has 
been actively advocating for legislation to address the current 
shortage of qualified legal labor for U.S. agriculture and the problems 
faced by the illegal alien workers upon whom the U.S. agricultural 
industry now heavily depends. NCAE's representation of agricultural 
employers and its long history of involvement with national immigration 
policy for farmworkers and legal alien worker programs gives it the 
background and experience to provide meaningful comments and insights 
into the current U.S. farm labor system, the problems with the current 
H-2A program, and how S. 1814 will affect agricultural employers and 
farm workers.
    My name is James S. Holt. I am Senior Economist with the management 
labor law firm of McGuiness, Norris & Williams and the Employment 
Policy Foundation in Washington D.C. I serve as a consultant on labor 
and immigration matters to the NCAE. I am an agricultural economist, 
and have spent my entire professional career of more than 35 years 
dealing with labor, human resource and immigration issues, primarily 
with respect to agriculture. I served 16 years on the agricultural 
economics faculty of The Pennsylvania State University, and for the 
past 20 years have been a consultant in Washington D.C. I serve as the 
technical consultant to most of the current users of the H-2A program, 
and to employers and associations who are attempting to access the 
program. I was the principal H-2 technical consultant to the H-2A 
employer community during congressional consideration of the 
Immigration Reform and Control Act of 1986, and I have played a similar 
role for the NCAE for the nearly 5 years that Congress has again been 
considering legislation to deal with the shortage of legal farm labor.
    The NCAE supports S. 1814 and urgently requests that the Congress 
pass this legislation this year. Senators Gordon Smith and Bob Graham, 
with the assistance of Senators Larry Craig, Max Cleland and others 
have crafted a carefully balanced bill that provides what the NCAE 
believes will be a workable temporary alien worker program that will 
provide labor to responsible, law abiding agricultural employers under 
terms and conditions that will permit U.S. agriculture to be 
competitive in the global market place, while protecting access to U.S. 
agricultural jobs under fair terms and conditions of employment for all 
legal U.S. workers who want to work in agriculture and for the alien 
workers who are needed to supplement the domestic work force.
    The creation of balanced, workable legislation has been no mean 
feat, and the NCAE congratulates the bill's authors and sponsors for 
accomplishing a difficult task. This bill is certainly not the 
agricultural employers' dream bill. It is certainly not the farm 
workers' dream bill. It is a carefully crafted set of compromises that 
has resulted from literally thousands of hours of meetings, 
consultations, legislative hearings and congressional debates over a 
period of more than 5 years. It has gone through myriad redrafts. The 
bill has even changed substantially from that which was passed by an 
overwhelming bipartisan vote by the Senate in 1998. The changes made 
since then have been a further attempt to address legitimate issues and 
problems raised by critics of the bill. In few, if any, pieces of 
legislation presented to this body have the authors made the extensive 
and time consuming efforts made by the authors of S. 1814 to reach out 
to all affected constituencies and to create a balanced bill that 
nevertheless effectively addresses the problem at hand.
    This bill, still has its critics, and I am sure you will hear some 
of them here today. Some people believe that no foreign workers should 
be permitted to work in the United States, and oppose any legislation 
that provides for that objective. Some espouse this view directly, and 
some do so indirectly by advocating for conditions on the admission of 
foreign workers that assure that they can never be used. We believe 
that any objective look at the history of the U.S. economy and labor 
force renders the closed-border view absurd. It is frequently noted 
that the United States is a nation of immigrants, and remains so to 
this day. The United States has had provision for the admission of 
foreign workers, including farm workers, as long as it has had an 
immigration law. Every major U.S. industry was built on foreign labor, 
and most, spanning the gamut from agriculture to high tech, still 
sustain themselves on foreign workers.
    On the other hand, some people, including some agricultural 
employers, argue for what, as a practical matter, would be uncontrolled 
admission of foreign workers with no labor standards. The NCAE believes 
this would be wrong too. It would, in effect, make the U.S. 
farmworkers, who, while declining in numbers, are still with us, 
competedirectly with foreign labor standards. We acknowledge that any 
program for the admission and employment of foreign workers must 
include procedures that assure that U.S. workers who want agricultural 
work have meaningful access to such employment in preference to foreign 
workers, and that wages and other conditions of employment must be 
protected from unfair competition. The five year struggle to achieve 
this objective, while still having a program that meets the 
practicalities of farming and that provide workers on a timely basis, 
is the story of S. 1814. While the NCAE believes the authors have done 
a yeoman job of achieving a workable yet balanced bill, we don't 
believe anyone is yet claiming perfection. As the legislative process 
proceeds, additional reasonable and useful modifications may be 
suggested, even by agricultural employers. But we strongly believe that 
the time has come to finalize the debate and to enact legislation that 
ends a status quo that no one can defend or is defending, and which has 
gone on far too long.
     the current status of agricultural labor in the united states
    While the United States agricultural industry is overwhelmingly an 
industry of family farms and small businesses, it is also heavily 
dependent on hired labor. Labor is an essential input in farming, and 
essentially all commercial farms rely to a greater or lesser degree on 
hiring labor to perform certain essential tasks. The 1997 Census of 
Agriculture reported more than 650 thousand farms hiring labor 
directly, and reported 3.4 million hires by farmers. More than 225 
thousand farms also hired contract labor. Total expenditures for hired 
and contract labor in 1997 were $17.8 billion. This was 12 percent of 
total farm production expenses, or $1 of every $8 spent by farmers. 
Farmers spent more for hired labor in 1997 than they spent for seed, 
fertilizer, agricultural chemicals, petroleum products, interest or 
property taxes. In fact, after purchases for livestock and feed, hired 
labor accounted for greater farm production expenses than any other 
category of expenses reported in the Census of Agriculture. In the 
labor intensive fruit, vegetable and horticultural sectors, hired labor 
costs average 25 to 35 percent of total production costs, and in some 
individual commodities the percentage is much higher.
    Aliens have always been a significant source of agricultural labor 
in the United States. In particular, labor from Mexico has supported 
the development of irrigated agriculture in the western states from the 
inception of the industry. As the U.S. economy has expanded, generating 
millions of new job opportunities, and as domestic farm workers have 
been freed from the necessity to migrate by the extension of 
unemployment insurance to agricultural workers in 1976, and the federal 
government has spent billions of dollars to settle domestic migratory 
farm workers out of the migrant stream and train them for permanent 
jobs in their home communities, domestic farm workers have moved out of 
the hired agricultural work force, especially the migrant work force. 
These domestic workers have been replaced by alien workers, largely 
from Mexico, Central America and the Caribbean.
    As a result, the U.S. agricultural work force has become 
increasingly alien and increasingly undocumented. The U.S. Department 
of Labor's National Agricultural Worker Survey (NAWS) reported in its 
1998-99 survey that 52 percent of seasonal agricultural workers working 
in the United States self-identified as not authorized to work in the 
United States. This was an increase from 37 percent in the previous 
survey only 3 years earlier, and from only about 12 percent a decade 
earlier. More than 70 percent of the new seasonal agricultural labor 
force entrants in the NAWS survey self identified as not authorized to 
work. Most experts agree that the statistics based on self 
identification in the NAWS survey are likely very conservative. 
Evidence based on INS enforcement actions and verification of Social 
Security cards by the Social Security Administration often results in 
60 to 80 percent or more of workers' documents being determined to be 
invalid or not pertaining to the person who presented them.
    In testimony presented to this Subcommittee May 12, 1999, I 
detailed the effect that increased INS enforcement activity and the 
verification programs of the Social Security Administration are having 
on the agricultural industry and work force. Increased border 
enforcement, increased interior enforcement and increased SSA 
verification activity have led to reductions in labor availability and 
destabilization of the agricultural work force. These trends will 
continue. The increase in border enforcement personnel authorized by 
IRRIRA will not be complete until FY 2002. The SSA plans to continue 
lowering its threshold for rejection of employer tax returns due to 
name/number mismatches. These factors, coupled with the extraordinarily 
high levels of nonagricultural employment, have resulted in increasing 
frequency of farm labor shortages and crop losses. The problem is 
rapidly reaching crisis proportions, and could easily do so during the 
coming growing season.
      the need for congressional action to address these problems
    Some opponents of an alien agricultural worker program argue that a 
program is not needed because employer sanctions cannot be effectively 
enforced no matter what the government tries to do. The implication of 
this argument is that employers should endure the uncertainties and 
potential economic catastrophe of losing a workforce, and workers 
should continue to endure the uncertainties of being chased from job to 
job on a moment's notice. We find such reasoning unacceptable. It is an 
argument for the status quo, which all agree is unacceptable. 
Furthermore, it is unacceptable to refuse to address one public policy 
problem on the grounds that another accepted and enacted public policy 
will be ineffective. We must honestly face the issues that our policy 
of immigration control and employer sanctions confronts us with. We 
believe that calls for a workable alien agricultural worker program.
                 a summary of the provisions of s. 1814
    We believe S. 1814 offers such a program. S. 1814 addresses both 
the short term and long term agricultural labor problem in the United 
States. The bill provides (1) for adjustment of status for those 
workers who have a significant commitment to the U.S. agricultural 
workforce and are currently working in U.S. agriculture illegally, and 
(2) for reform of the H-2A temporary alien worker program so that 
agricultural employers have a practical and workable way to secure 
sufficient legal labor in the future. We cannot emphasize too strongly 
that both of these components are absolutely necessary to a program 
that will address this problem now and to the future.
                     adjustment of status--title i
    Title I provides a process whereby persons currently working in 
agriculture in the United States who have made a significant commitment 
to the U.S. agricultural work force are provided the opportunity to 
undertake a process that will enable them to continue to work legally 
in agriculture in the United States, and, if they meet certain 
conditions, become legal permanent residents. This ``Adjustment of 
Status'' provision is essential to deal with the current reality that a 
very substantial portion of the United States hired farm work force 
consists of persons who are not legally entitled to work in the United 
States and who are working with fraudulent documents. The U.S. 
Department of Labor's recently published survey of the 1997-98 seasonal 
agricultural work force reports that 52 percent of seasonal 
agricultural workers in the United States self-identified in this 
government-sponsored survey that they were not legally entitled to work 
in the United States. Anecdotal evidence based on INS audits of I-9 
forms and Social Security Administration (SSA) comparison of employers' 
payroll reports and SSA records suggest that the actual percentage of 
seasonal agricultral workers who are working with fraudulent identities 
may be closer to 70 percent or higher in many cases.
    S. 1814 provides that farm workers who can demonstrate with 
employment records that they have worked in agriculture a minimum of 
150 work days, or 880 work hours, whichever is less, during the year 
preceding introduction of the legislation, can adjust to temporary 
resident status and undertake a process to become permanent resident 
aliens. These temporary resident aliens would be permitted to work in 
agricultural employment in the United States for up to 10 months in 
each of 5 of the 7 years following their application for temporary 
resience. They would be required to remain outside the United States 
for a minimum of 2 months a year. An exception to the 10 month maximum 
stay is provided for temporary residents with a U.S. born child, who 
would be permitted to remain in the United States year round.
    Persons granted temporary residence under this program would only 
be permitted to work in agricultural employment, but could do so for 
any employer anywhere in the United States. They would be protected by 
all U.S. labor laws on the same basis as domestic farmworkers. No 
special obligations would attach to employing them, except that their 
employers would be required to provide records of their employment both 
to the workers and to the government. The aliens would be required to 
enter the United States legally, and report their departure. They would 
be provided with special counterfeit resistant identification that 
would be used to record entry and exit, and would provide evidence of 
employment authorization.
    To maintain their status, the adjusted temporary resident alien 
farmworkers would be required to work a minimum of 180 workdays, or 
1040 work hours, in agricultural employment for 5 of the 7 years 
following application for adjustment of status. Aliens with a U.S. born 
child who elected to remain in the United States for the full year 
would be required to work a minimum of 240 work days in that year. 
Temporary resident aliens who met the bill's 5-year agricultural work 
requirement, were law abiding, and were otherwise admissible under 
current law, would be eligible to apply for permanent resident alien 
status. Upon qualifying and applying for permanent resident status, the 
aliens would be permitted to remain in the United States year 'round if 
they chose, and would be permitted to work in any employment on the 
same basis as any other permanent resident alien. Temporary resident 
aliens who did not meet the minimum work requirement during the 
qualifying period, or who did not apply for permanent resident alien 
status within 6 months of meeting the qualifications, would loose their 
temporary resident aliens status, and would not be permitted to legally 
remain and work in the United States.
    Aliens who do not qualify for adjustment to temporary resident 
status, or who do not choose to participate in the adjustment program, 
would be provided a one-time waiver of the bar on admission to the 
United States by reason of illegal presence in the United States 
enacted in the Illegal Immigration Reform and Immigrant Responsibility 
Act (IRRIRA) to become an H-2A worker. However, if subsequent to this 
one-time waiver the alien again accumulated sufficient illegal presence 
in the United States to be barred from admission under IRRIRA, the 
alien would not be admissible during the period of debarment. Thus, all 
aliens currently or previously employed illegally in agriculture in the 
United States would have one opportunity to begin engaging in such 
employment legally, either through the adjustment of status program in 
S. 1814 or as an H-2A worker.
    NCAE believes that provision for adjustment of status for 
fraudulently documented aliens with a substantial commitment to the 
U.S. agricultural industry, and a one-time waiver of the bar on 
immigration benefits for persons who have been illegally present in the 
United States, are absolutely essential elements of a workable and 
humane solution to the current agricultural labor problem in the United 
States. Without these provisions, a substantial portion of the current 
agricultural work force would be disenfranchised and unable to continue 
working in agriculture. Employers would be forced to seek a new and 
inexperienced alien work force while the experienced former workers 
would be unemployable. Such an outcome would make no sense at all; 
either for workers or employers. Adjustment of status is also necessary 
because some key workers and/or their jobs would not be eligible for 
the H-2A program, either in its current form or as reformed by S. 1814 
retains the requirement of the current H-2A program that jobs be 
temporary or seasonal with a maximum duration of 12 months.
    It is worth noting that even now, the INS rarely removes illegal 
workers when they conduct an I-9 audit and identify workers with 
fraudulent documents. The INS merely requires the employer to dismiss 
the workers. The result is that workers whom the employer knows and has 
trained are sent down the road to work for a competing employer. This 
is a system that makes absolutely no sense. No one proposes, nor would 
the Nation tolerate, an attempt to round up and remove the millions of 
illegal aliens presently working in the United States. The only logical 
thing to do is to provide them with an opportunity to earn legal 
status, while putting in place a program that will prevent recurrence 
of the same problem in the future.
    We estimate based on a variety of government data sources that the 
number of non-casual workers in the U.S. hired farm work force (person 
who do 25 days or more of hired farm work per year) is about 1.6 
million persons. Of that number, about half work 150 days or more per 
year in hired farm work. The most recent U.S. Department of Labor 
surveys report that about half of seasonal farmworkers admit they are 
not legally entitled to work in the United States. While we believe 
that the actual number of farmworkers who are not legally entitled to 
work is probably larger than those who admit this in a government-
sponsored survey, not all aliens who are eligible will avail themselves 
of the adjustment program. Assuming about half of those persons working 
150 days or more will apply, we estimate that the number of workers who 
will adjust under the provisions of S. 1814 will be about 400,000.
  reform of the h-2a temporary alien worker program--titles ii and iii
    S. 1814 addressed both of the current obstacles to the use of the 
H-2A temporary alien worker program. It reforms and streamlines the 
administrative procedures for gaining access to the H-2A program, and 
it rationalizes the terms and conditions for employment of H-2A 
workers.
                   the agricultural worker registries
    S. 1814 replaces the archaic, labor intensive and time consuming 
labor certification process currently used to determine the 
availability of U.S. workers with a computer-based agricultural worker 
registry administered by the Secretary of Labor. Workers legally 
entitled to work in the United States who are interested in undertaking 
seasonal agricultural work could register with the registry. They would 
indicate the kinds of agricultural work experience they had and the 
kinds of jobs they were interested in as well as the geographic areas 
they were willing to consider, the time of year they wanted work and 
any other specific requirements. The Secretary of Labor would determine 
that the applicant was eligible to work in the United States and put 
the worker's information in a computerized data bank. Employers seeking 
seasonal agricultural workers would list the specifications of their 
jobs with the registry. All agricultural employers would be entitled to 
list their job opportunities with the registry. However, employers 
seeking permission to employ H-2A aliens if sufficient U.S. workers 
could not be found would be required to list their jobs with the 
registry, and the jobs would be required to meet the specific terms and 
conditions of employment required for H-2A occupations by S. 1814.
    When an employer's job was accepted by the registry, the data bank 
would be searched to identify registered workers who meet the 
specifications of the job. The registry would contact registered 
workers who met the specifications of the job and inform the registrant 
of the specific job opportunity. The registrant would, of course, be 
free to accept or decline the job opportunity. The employer would be 
provided with the names, social security numbers and contact 
information of the workers who accepted the employer's job opportunity, 
and the workers would be provided with the information about when and 
where to report for the job.
    If an employer seeking workers from the registry indicates on the 
application that the employer desires to employ H-2A aliens in job 
opportunities that could not be filled with U.S. workers, and the 
employer's job opportunities meet the terms of the H-2A program 
required by S. 1814, then if sufficient qualified workers can not be 
found on the registry who accept the employer's job offer, the registry 
will issue a ``shortage report'' which authorizes the employer to 
employ up to the number of H-2A aliens for which sufficient U.S. 
workers could not be found. Based on the shortage report, the employer 
could either seek admission of H-2A workers from outside the United 
States, or employ H-2A workers already in the United States who had 
completed their work contracts and were eligible to undertake 
additional employment. H-2A aliens would be limited to a maximum of 10 
months of employment in the United States in any 12 month period.
    The registry mechanism offers significant improvements over the 
current labor certification system. One of the most important of these 
is timeliness. Currently, employers seeking H-2A workers are required 
to file a labor certification application a minimum of 45 days in 
advance of the date workers are needed. After the application is 
reviewed and approved a cumbersome process of sending job orders 
containing the employer's job offer to job service offices throughout 
the state, and then to other states, is set in motion. The employer is 
also required to place lengthy and complex employment advertisements 
that look more like legal notices than help wanted ads, and often 
appear a month or more before the actual job opportunity is available. 
As a result, typically neither the circulation of job orders nor the 
advertising produces many, if any, qualified applicants. The Labor 
Department is currently required by statute to issue the labor 
certification 30 days in advance of the date workers are needed, but 
this rarely occurs. Even when certification was required only 20 days 
before the date of need, a GAO study showed that the DOL was late 
issuing certifications at least 40 percent of the time.
    The registry mechanism is based on searching a computerized data 
bank of workers who have already indicate their interest in 
agricultural employment. S. 1814 requires the Secretary of Labor to 
advertise the availability of the registry widely to prospective 
agricultural workers to maximize the number of registrants. Employers 
are required to list their job opportunities with the registry only 28 
days before the date workers are needed. The shortage report must be 
issued a minimum of 7 days before the workers are needed; and is 
transmitted directly to the consulate where the employer's workers will 
apply for their visas if the employer is seeking newly admitted aliens. 
S. 1814 also provides for emergency applications after the 28-day 
application deadline in cases of unforeseen need, and authority for the 
admission of aliens if the DOL fails to act on an application within 
the statutory time frames.
    The registry also assures that the workers referred to the employer 
are, in fact, legally entitled to work in the United States. One of the 
ironies of the current H-2A program is that employers have no assurance 
that the ``U.S.'' workers referred by the Department of Labor are 
legally entitled to work in the United States, and experience has shown 
that a high proportion of them are fraudulently documented. Thus the 
current program provides no assurance of legal workers even after the 
employer has met all of the H-2A program requirements. Since the 
employment eligibility of all workers referredthrough the registry 
would be assured, the employer is guaranteed a legal work force by 
using the registry.
         terms and conditions for the employment of h-2a aliens
    S. 1814 requires terms and conditions of employment that 
substantially exceed those required of non-H-2A employers and 
substantially exceed the terms and conditions of employment required by 
all other alien employment programs, whether for temporary or permanent 
employment. These terms and conditions of employment also substantially 
exceed those actually provided to most domestic and alien farmworkers 
at the present time. Furthermore, the required terms and conditions of 
employment apply to all workers in the occupation for which the 
employer applies to employ H-2A aliens, and apply even if all the 
employers' job opportunities are filled with U.S. workers. Thus, if 
improvements for farmworkers generally, not just for H-2A farmworkers.
    To quality to employ H-2A workers, S. 1814 requires that the 
employer offer the higher of the prevailing wage for the occupation and 
area of intended employment, or the applicable federal, state or local 
statutory minimum wage, in any occupation for which H-2A workers are 
sought. This is the same wage standard used in the H-1B and H-2B 
programs as well as for employment-based permanent immigrants. It is 
also the wage standard used in the Davis-Bacon Act and the Service 
contract Act. S. 1814 also includes a provision that goes beyond the 
prevailing wage standards in other legislation, and assures that 
prevailing wages do not stagnate. The bill provides that if the 
prevailing wage in an agricultural occupation is below the average wage 
for all field and livestock workers in the state or groups of states, 
the wage offered must be at least 5 percent above the prevailing wage, 
or such lesser amount as would make the wage equal to the average field 
and livestock worker wage rate for the state or group of states.
    Critics of the H-2A program are fond of dismissing agricultural 
work as minimum wage work, though they almost never cite actual wage 
rates. That is because agricultural work is not minimum wage work. The 
average hourly cash wages of non-supervisory field and livestock 
workers in 1999 were $7.22 per hour, and for all hired farm workers 
were $7.77 per hour. This is higher than the wages for many unskilled 
and low skill occupations in the same labor markets. Critics also 
charge that agricultural wages have declined in recent years in real 
terms. This is also a very misleading criticism. The fact is that 
agricultural wages have risen more rapidly than non-agricultural wages. 
Using the current CPI wage deflators, now widely conceded by economists 
to overstate inflation, all wages have declined in real terms in recent 
years. However, agricultural wages have risen more in dollar terms, and 
declined less in real terms, than non-agricultural wages.
    Critics of S. 1814 also claim that the bill would result in a 
reduction in wages. This is patently untrue. If the prevailing wage in 
any given year becomes the minimum wage for the next year, wages cannot 
possibly decline, and will always rise. Furthermore, since the 
prevailing wage is defined in S. 1814 as the 51st percentile of wages 
in the occupation in the area of intended employment, this means that 
wages at the bottom end of the wage distribution will always be above 
the previous year's prevailing wage for those occupations, and the 
average wage will always rise. To the extent that there is a legitimate 
concern about this wage standard, it is that it is inflationary, not 
that it would result in wage declines. While agricultural employers are 
concerned about the potentially inflationary impact of S. 1814's wage 
standard, the NCAE is willing to accept this wage standard if 
employer's can be assured an adequate supply of legal labor at a total 
employment cost that is acceptable. We think the provisions of S. 1814, 
taken as a whole, meet this criterion.
    Current law merely provides that the wages and working conditions 
offered by applicants for H-2A workers may not ``adversely affect'' 
United States workers similarly employed. The current ``adverse effect 
wage rate'' (AEWR) requirements of the H-2A program are a regulatory 
construct of the Department of Labor, not a statutory requirement. As 
with so many of the existing H-2A regulations, the adverse effect wage 
rate regulations prevent workers from obtaining real wage protections 
rather than providing such protections.
    The current AEWR regulation set the average wage for all 
agricultural occupations in a state or region as the minimum wage for 
all H-2A employment. If the prevailing wage in the occupation and area 
of employment is higher than this average wage, then the prevailing 
wage in the occupation and area of employment becomes the minimum. 
Thus, in occupations where the prevailing wage in the occupation is 
above the average wage for all occupations (roughly half of all 
agricultural employment), the current AEWR has no effect at all, and 
the prevailing wage is the minimum wage for H-2A employment. But in 
occupations in which the prevailing wage is below the average wage for 
all agricultural workers (again, by definition, roughly half of all 
agricultural employment), the current AEWR sets a wage standard that 
can make use of the H-2A program uneconomical and preclude employers 
from using it in that occupation.
    That is what has happened in the current H-2A program. The AEWR 
regulations offer purely cosmetic ``protection'', because where the 
AEWR sets a wage standard appreciable above the prevailing competitive 
wage employers cannot afford to use the program. Currently there are 
between 30 and 40 thousand H-2A certified job opportunities, yet the 
U.S. Census of Agriculture shows that there are well over 3 million 
``hires'' by agricultural employers in the United States each year. 
About 2.5 million people are employed at some time during the year in 
hired agricultural employment. The more than 98 percent of agricultural 
workers working outside the H-2A program are protected only by the 
statutory minimum wage. Virtually all of the miniscule amount of 
agricultural employment current in the H-2A program and covered by the 
AEWR standard is in occupations where the prevailing wage is near, at, 
or above the average wage, and therefore the AEWR has no effect on such 
employment. By creating a program that, in its totality, creates an 
administrative structure and terms and conditions of employment that 
employers can actually use, S. 1814 creates wage and other protections 
that are real rather than cosmetic, and that will actually protect 
workers.
    The housing provisions of S. 1814 also represent a significant 
reform of the current H-2A regulations that have been mischaracterized 
by critics of the bill. S. 1814 requires that workers recruited from 
outside the local area be provided with housing or, under controlled, 
circumstances, a monetary housing allowance. If the employer provides 
housing, it must meet applicable federal farmworker labor camp 
standards or, if it is public accommodation housing such as a hotel, 
motel or apartment, the applicable standards for such public 
accommodation housing. In order for the monetary housing allowance to 
be an option (after a 3-year initial transition period), the state must 
certify that there is sufficient in-season housing available in the 
area of intended employment. The amount of the monetary allowance is 
set on a state-by-state basis based on the allowances for non-
metropolitan counties in the Department of Housing and Urban 
Development's section 8 housing voucher program.
    At present most farmworkers are not provided with housing by their 
employers and must find their own housing. The requirement to provide 
housing imposes substantial costs and management burdens on employers. 
It also takes time to obtain the necessary approvals, financing and 
undertake the construction. Although the public seems to favor 
employers providing housing for their migrant workers, when specific 
projects are proposed the ``not-in-my-backyard'' scenario is frequently 
triggered. Agricultural employers are reluctant to confront the 
formidable expenses and other obstacles to employer-provided housing 
without reasonable assurance that there is an adequate source of legal 
workers available through a reformed H-2A program. In an attempt to end 
this ``chicken-egg'' standoff, S. 1814 provides a 3-year transition 
period during which employers can provide a monetary housing allowance 
in lieu of housing in H-2A occupations. We believe this is a reasonable 
provision that will ultimately result in more and better housing for 
farmworkers.
    Critics of S. 1814 have claimed that the bill eliminates the 
requirement to provide housing. The bill, of course, does no such 
thing. What S. 1814 does is provide the flexibility to utilize housing 
in the community when an independent determination is made that 
sufficient housing exists in the community. Many farmworkers prefer to 
live in the community rather than in employer-provided housing. Under 
other circumstances farmworker advocates claim that they prefer that 
option too. The current H-2A requirement that the employer provide 
housing for each certified job opportunity, whether the worker opts to 
live in it or not, leads to the absurd outcome that some workers, at 
their own expense, live in the community while the employer-provided 
housing sits vacant to satisfy a regulatory requirement.
    S. 1814 requires that employers reimburse the in-bound 
transportation of migrant workers who complete at least half of the 
period of employment of the job opportunity, and provide or pay for 
return transportation of workers who complete the period of employment. 
This requirement applies to all trips of more than 100 miles. They must 
also be reimbursed for subsistence costs enroute. This requirement is 
similar to the current H-2A regulations.
    Job opportunities for which an employer applies to employ H-2A 
workers must also be covered by workers' compensation.
    S. 1814 also provides other important protections for U.S. and 
alien workers employed in occupations approved for H-2A employment. No 
qualified U.S. worker may be refused employment for other than a lawful 
job-related reason, and no worker may be terminated prior to the end of 
the job except for lawful job-related reason. An H-2A alien may not be 
employed in a job opportunity which is vacant because the previous 
occupant of the job is on strike or involved in a labor dispute. 
Employers must comply with all employment-related laws, and the 
provisions of the federal Migrant and Seasonal Agricultural Worker 
Protection Act (MSPA) are extended to H-2A aliens who are provided only 
limited coverage under current law. To effectuate the preference for 
U.S. workers, employers must advertise the job opportunities available 
through the registry and must inform workers and prospective workers of 
the availability of the registry. The employer must also make 
reasonable efforts to contact workers employed in the occupation in the 
previous season and make them aware of the availability of the job 
opportunities. The bill also provides for enhanced worker protections 
and labor standards enforcement, including back wages, civil money 
penalties, and program disqualification for repeated violators. 
Finally, both the registry and the H-2A admission program are funded by 
employer-paid user fees.
                               conclusion
    S. 1814 will assure that domestic farmworkers will have first 
access to all agricultural jobs before they are filled by legal alien 
labor. It will assure that this access is real, by assuring that there 
is widespread and easy assess to information about the available jobs. 
It will protect the wages in jobs approved for the employment of aliens 
by making the prevailing wage the minimum wage. It will assure housing 
or a housing allowance and transportation benefits to migrant 
farmworkers who have no such assurance at present. In short, it will 
raise the standards for domestic farmworkers in all H-2A-approved 
occupations. Moreover these benefits will be real benefits--not the 
cosmetic benefit offered by the current program--because employers will 
be able to use the H-2A program.
    S. 1814 will also provide benefits for currently illegal 
farmworkers, the majority of the seasonal agricultural work force who 
do not work in H-2A occupations. It will free them from the fear, 
indignity and economic costs of apprehension and removal, or of being 
thrown out of work on a moment's notice. It will also free them from 
dependence on ``coyotes'' and the costs and physical dangers of illegal 
entry.
    For domestic workers in the upstream and downstream jobs that are 
created and sustained by U.S. agricultural production, it will assure 
the continuation and growth in these employment opportunities.
    For agricultural employers, it will assure them an adequate, legal 
work force if they are willing and able to meet the requirements of the 
program. It will give employers the certainty that will enable them to 
plan their businesses and make investments more effectively.
    We strongly urge this subcommittee and the full Judiciary Committee 
to quickly approve S. 1814 and send it to the full Senate.
    Thank you.

    Senator Abraham. Mr. Holt, thank you very much.
    Mr. Camacho, welcome.

                  STATEMENT OF MARCOS CAMACHO

    Mr. Camacho. Thank you. I also have a lengthy statement we 
would like to submit.
    Senator Abraham. It will be entered into the record.
    Mr. Camacho. I, first, would like to thank you for letting 
us appear before the committee, and I also would like to thank 
Senator Smith and Senator Graham. And I would also like to 
voice that our organization is an organization that is very 
interested in this issue, and we are willing to meet with you 
and try to look at possible ways of resolving this issue.
    I know it is a very critical issue, I know it is a hard 
issue. But I would like to point to the fact that I think the 
issue here is not whether there is a shortage of workers in 
this country. The issue here is how do we eliminate the poverty 
that exists among these farmworkers. That is the United 
Farmworkers' goal: how do we eliminate this poverty that exists 
with these workers? If we focus on that issue, I think that is 
how we begin to structure some type of legislation that deals 
with it.
    We have examined the bill, and again we would oppose the 
bill, and we do not feel the bill addresses those issues in the 
sense. And specifically, in terms of one of the things that the 
bill does, it takes out the what we refer to as the prevailing 
wage. And to remove that section of the bill, what it, in fact, 
would mean would be that the prevailing wage would become the 
existing wage in those areas, where the wage is already 
depressed by the fact that undocumented workers have set that 
wage. And you are also creating it so that that prevailing wage 
will be frozen forever. So you are not improving anything. In 
fact, workers will be losing money by removing that protection 
that exists presently in the H-2A bill.
    The bill also takes away a lot of the housing protections. 
It provides for a voucher. For example, in Washington, we have 
farmworkers that come in for the apple harvest, and they 
literally live next to a river in cardboard huts out there 
because there is no housing. Offering $50 to these workers to 
find housing is no solution. All it does is simply take the 
responsibility away from the employer for trying to solve the 
issue. And I think we have to deal with those type of issues up 
front and not simply try to figure out how do we take 
responsibility from one party and give it to somebody else. I 
mean, these workers do need housing. How do we go in there and 
provide housing for them? I think some of the other panelists 
have, especially Ms. Munoz, talked about some of the things 
that the bill takes away.
    I would like to focus my talk on what we think should be 
some of the things that this panel and this committee should be 
looking at. We strongly oppose any attempt to change the H-2A 
program. And we think, in fact, that there are certain things 
that should be done to improve it. But most importantly, what 
we believe is that a regular legal immigration is better than 
uregulated illegal immigration. And for that reason, we support 
a generous farmworker adjustment program similar to the one 
that was enacted in Congress in 1986.
    And we also support immigration reform this year that would 
address the following priorities: We are asking that 
Salvadorans, Guatemalans, Hondurans, Haitians to apply for 
adjustment of status in the same terms as already allowed for 
Cubans and the Nicaraguans in 1997, to allow adjustment of 
status for all persons of good character who have resided in 
the United States since 1994; to restore the provision 
permitting those who are out of status or otherwise ineligible 
for permanent residence, to be able to adjust the status in the 
United States; reunite families by establishing a program that 
provides additional visas for family members of citizens and 
permanent residents so to reduce the unacceptable backlogs and 
help stabilize workforce. These measures, although they are not 
farmworker-specific, would allow farmworkers to obtain legal 
residency.
    As was alluded to earlier, we need the strength and the 
protections that are presently found in the H-2A Program to 
protect both H-2A workers and U.S. workers. We think, first, 
there should not be an incentive to employers to hire H-2A 
workers simply because they are cheaper. Presently, employers 
do not pay FICA or FUTA taxes on H-2A employees, and therefore 
U.S. workers have an automatic disadvantage because they are at 
a 13.8-percent less cost than H-2A workers. We think this 
should be eliminated.
    We also think that H-2A workers should be given complete 
protection under all U.S. laws. And that includes protection 
under the Migrant Seasonal Agricultural Protection Act, which 
they are presently excluded from.
    Thirdly, we think that there should be incentives for 
employers to improve working conditions and wages. It has been 
the UFW's experience that where farmworkers have been able to 
organize, there has developed a stable, structured, productive 
workforce, and we see this as a long-term solution to the 
agricultural labor problems in the United States. We want to 
break the cycle of an unstable labor market, which constantly 
needs to be replenished with new foreign workers, which should 
encourage the emergence of a stable labor market through 
organizing and collective bargaining.
    The UFW has been actively involved in trying to develop 
such a model. In December 1994, a company by the name of Bear 
Creek, their workers voted for the UFW to be their collective 
bargaining representative. This company, instead of taking the 
traditional anti-union approach to us, decided that they would 
honor the election victory and sit down and bargain with us for 
a collective bargaining agreement. We got a collective 
bargaining agreement with the company and began to form a 
partnership with the company where some of the issues that the 
company started looking at, along with workers and the union, 
were the growth and difficulties inherent in the agricultural 
industry, the physical demands that seasonal work places on 
farmworkers, the virtual absence of standard employee benefits 
for farmworkers, the overall reliance of inexpensive labor 
rather than development of a skilled workforce.
    And working together with the company and trying to resolve 
these issues, for the first time, in 1998, after the union had 
begun this partnership, the company recorded a profit, where, 
in prior years, prior to the union coming in, they had been 
simply breaking even. But most importantly, we were able in 
this partnership to do, we were able to reduce the hourly labor 
costs in terms of percentage to total overall spending by 3 
percent in 1996 and by 2 percent in 1998, while at the same 
time we were able to increase the wages and benefits of 
farmworkers.
    So there is another way to do it. It is not simply 
stripping away at worker rights and figuring out how we reduce 
that wage lower, and lower and lower. We think that there are 
other models out there that can be beneficial to all of the 
parties.
    I would like to thank the committee for letting me share my 
views with you.
    [The prepared statement of Mr. Camacho follows:]

   Prepared Statement of Marcos Camacho on Behalf of the United Farm 
                      Workers of America, AFL-CIO

    My name is Marcos Camacho. I am General Counsel of the United Farm 
Workers of America, AFL-CIO. Cesar Chavez founded the United Farm 
Workers of America, AFL-CIO in 1962. Since its inception the UFW has 
been strongly involved in the immigration policies that affect farm 
workers in this country. The UFW was actively involved in the 
legislative process that resulted in the enactment of the Immigration 
Reform and Control Act of 1986 (IRCA). The UFW represents and organizes 
farm workers in several states, including California, Washington, 
Arizona, Texas, and Florida. The Farm Workers that our organization 
works with include workers that work in wine grapes, table grapes, 
raisin grapes, citrus, row crops such as broccoli, lettuce, celery, 
tomato and other vegetables, mushroom plants, nurseries, tree fruit, 
and roses. The UFW representation of and day-to-day work with farm 
workers in various states and in various crops for the last 38 years 
gives it a unique background and experience to provide meaningful 
comments and insight into the issues concerning immigration policy and 
how it affects farm workers in this country.
    Mr. Chairman, thank you for the opportunity to appear before the 
Subcommittee today.
    The UFW has examined Senate Bill 1814 and concluded that if 
enacted, it will have a devastating impact on the two million farm 
workers who work in America's fields and groves. This legislation would 
allow employers to bring in hundreds of thousands of foreign workers as 
non-immigrant guestworkers tied to agricultural jobs under a system 
that would guarantee their economic poverty and political 
powerlessness. Furthermore, neither Senate Bill 1814 nor the current H-
2A program address the underlying problems which have created an 
unstable agricultural labor market.
      the real problem is farm worker poverty not labor shortages
    What are the economic realities facing America's farm workers at 
the beginning of the 21st Century?
    The most recent and reliable information we have from the National 
Agricultural Workers Survey shows that the situation of farm workers 
has continued to decline: wages have stagnated, annual earnings remain 
beneath the poverty level, and farm workers face chronic unemployment.
    In 1997-98, most farm workers held only one farm job per year and 
were employed in agriculture for less than half a year.
    Even in July, when demand for farm labor peaks in many parts of the 
country, just over half of the total farm workforce held agricultural 
jobs.
    Since 1990-1992, the average work year in agriculture has decreased 
from 26 to 24 weeks while the number of weeks in nonagricultural 
employment has fallen from eight to five. Another month of unemployment 
has been added to the farm worker misery index.
    At the same time despite a strong economy and record prosperity, 
farm worker wages have lost ground relative to those of workers in the 
private, nonfarm sector. Adjusted for inflation, the average real 
hourly wage of farm workers has dropped from $6.89 to $6.18. 
Consequently, farm workers have lost 11 percent of their purchasing 
power over the last decade.
    The result is that farm workers are increasingly disadvantaged. 
Today fewer farm workers own a vehicle. More workers now rely on 
contractors and raiteros for transportation to work often in unsafe and 
uninsured vehicles. Another large change is in home ownership. In 1994-
95, one third of all farm workers owned or were buying a home. By 1997-
98, only half as many farm workers were buying their home.
    All of these facts--low wages, underemployment, and low annual 
wages--point to a national oversupply of labor. It is the continued low 
income of farm workers which has destablized the agricultural labor 
market by causing farm workers to seek jobs paying higher wages and 
offering more hours of work.
    This is the economic reality that Agricultural Employers do not 
want to discuss in this hearing. For them, the only problem is how to 
secure access to another pool of low-wage workers, not what to do about 
the desperate plight of the two million farm workers already here.
    We believe that the current labor practices in U.S. agriculture are 
unsustainable in the long term and, unless fundamentally changed, will 
continue the socially destructive economic hardshipsfaced each day by 
the farm workers throughout this country while at the same time doing 
severe damage to U.S. agriculture's global competitiveness.
    Unfortunately, Senate Bill 1814 is not a step forward into the 21st 
century, but a step backward to an era of indentured servitude.
                  why the ufw opposes the graham bill
    The Graham bill actually contains two programs of indentured 
servitude. First, it holds out a false hope of legalization to the many 
farm workers who are working in this country without proper 
authorization. Unauthorized workers who could prove that they did at 
least 150 days of farm work in the previous year could apply for a new 
probationary non-immigrant status. Many farm workers will not be able 
to prove that they have met this threshold requirement. Those workers 
who do, will have to work 180 days of farm work each year for five of 
the next seven years before they can begin to apply for residency and 
reunite their families. During this time, they will be non-immigrants 
and will have to leave the United States for 65 days each year. In 
other words, the unauthorized workers will be converted into 
guestworkers without any safeguards for them or the current legal 
workforce.
    The future work requirements imposed on these workers are likely to 
lead to both exploitation and fraud. Workers desperate to satisfy the 
five-year work requirement to avoid deportation are unlikely to 
complain about workplace violations, risk firing and to an even lesser 
extent seek out their right to organize. At the same time, we can 
expect that farm labor contractors will develop a lucrative business 
selling real and false letters of employment to their workers.
    Second, the Graham bill would greatly expand the current H-2A 
program which ties the worker to a particular employer by eliminating 
many of the protections for workers contained in the current law. It is 
no exaggeration to say that the Graham bill offers fewer protections 
for workers than the Bracero program. (A copy of the official Bracero 
Agreement is attached to my testimony).
    Senator Graham and his supporters have repeatedly made the claim 
that his bill ensures better wages, housing, and transportation for 
domestic workers. This is simply not true. There are no enhanced worker 
protections for domestic workers or adjusted workers. Under the Graham 
bill, H-2A employers must offer to provide U.S. workers the same 
benefits and protections which are to be provided to the H-2A workers. 
This has been a longstanding requirement of the current program; 
however, very few U.S. workers benefit, because H-2A employers 
generally do not employ U.S. workers in the jobs for which they have H-
2A certification. Moreover, contrary to what the Senator has said, 
under his legislation all labor protections included in the current 
program are not preserved.
    Under the current program, before H-2A workers may be employed, the 
Secretary of Labor must certify that ``the employment of the alien in 
such service or labor will not adversely affect the wages and working 
conditions of workers in the United States similarly employed.'' In 
order to protect U.S. workers from adverse effect, the Secretary has 
promulgated regulations containing the minimum benefit, wage and 
working conditions that must be contained in the employer's job office. 
These are the labor protections that Agricultural Employers wants 
eliminated.
    Under the Graham bill, the Secretary of Labor would no longer have 
to certify that the use of H-2A workers would not adversely affect U.S. 
workers; the Secretary's role is limited to approving the employer's 
application. If the employer's application contains the employment 
requirements as found at Section 304 of the Graham bill, the Secretary 
must approve the application; she has no authority to require that 
other labor protections be provided.
    Section 304 sets forth employment requirements with respect to 
wages, housing, and transportation. In each instance, they provide 
workers with less protection than under the current law:
Wages
    Under current law, H-2A employers are required to pay their workers 
the so-called adverse effect wage rate (``AEWR''). The AEWR is the 
annual average hourly wage rate for field and livestock workers in the 
state where the H-2A workers are employed. The current AEWR for 
California is $7.27 per hour; the AEWR for Florida is $7.25 per hour.
    Under the Graham bill, the current AEWR requirement would be 
eliminated. H-2A employs would only have to pay the prevailing wage in 
a particular area and crop; often this will be a prevailing piece rate 
rather than an hourly rate. Where wages have been depressed by the use 
of undocumented aliens, this method ``locks in'' the depressed wage 
rate forever. Under the Graham bill, a 5% ``premium'' would be added to 
the required wage only if the prevailing rate resulted in average 
earnings below the average hourly wage for field and livestock workers 
in the state.
    To better understand what the Graham bill would mean, consider the 
raisin growers in Fresno. Today, they would have to pay their workers 
at least $7.27 per hour if they wanted to use the H-2A program. The 
prevailing piece rate for raisins is 20 cents per tray and many workers 
are barely able to earn the minimum wage. Under the Graham bill, all 
they would have to do is pay 21 cents per tray, no matter what the 
workers were able to earn. Moreover, once the use of H-2A workers 
became established in the raisin industry, there would never be any 
need to raise wages or make any other improvements in working 
conditions.
    The Bracero Agreement required that wages to be paid the worker 
shall be the same as those paid for similar work to other agricultural 
laborers under the same conditions within the same area, in respective 
regions of destination.
Housing
    Under current law, H-2A employers are required to provide housing 
``without charge to the worker'' to those workers who are not 
reasonably able to return to their residence within the same day. If 
provided by the employer, the housing must comply fully with federal 
standards. Employers cannot charge workers for security deposits.
    Under the Graham bill, employers could substitute a housing voucher 
($40-$50 per week) for free housing whether or not housing was actually 
available to workers in the area of the job. Growers who failed to 
provide their workers with the required housing would only be liable 
for the cost of the housing. For example, if a worker died from 
exposure from sleeping under a bridge, under the Graham bill, his 
family could sue for $50. The housing would no longer have to meet 
federal standards. Employers would be able to charge workers for 
security deposits, maintenance, and utilities.
    The Bracero Agreement provided that the Mexican workers will be 
furnished without cost to them with hygienic lodgings, adequate to the 
physical conditions of the region of a type used by a common laborer of 
the region and the medical and sanitary services enjoyed also without 
cost to them will be identical with those furnished to other 
agricultural workers in the regions where they may lend their services.
Transportation
    Current law requires employers to advance transportation expenses 
to U.S. workers if it is a prevailing practice among area employers to 
do so, or if transportation is being provided or advanced to the H-2A 
workers. After the worker has completed 50% of the contract period, the 
employer is required to reimburse transportation from ``the place from 
which the worker has come to work for the employer to the place of 
employment''. DOL has taken the position that workers must be 
reimbursed for travel from the actual place where the worker was 
recruited, not a location that the employer ``deems'' to be the place 
of recruitment.
    Under the Graham bill, there is no obligation for the employer ever 
to advance transportation. Thus, an H-2A employer will be free to 
provide transportation to H-2A workers without having to offer the same 
benefit to U.S. workers. Reimbursement of transportation is limited to 
distances greater than 100 miles and is only available to individuals 
living in grower provided housing or housing provided through vouchers. 
The place where the alien is issued the H-2A visa is deemed to be the 
alien's place of residence.
    Under the Graham bill, a worker can be recruited in his home in 
southern Mexico, told to report to the U.S. consulate in Calexico to be 
issued his visa and then travel to the Imperial Valley, a journey of 
hundreds of miles and not receive any transportation reimbursement (the 
Imperial Valley is less than 100 miles from Calexico). Moreover, there 
is nothing in the Graham bill that prevents the employer from actually 
charging the worker for this transportation.
    The Bracero Agreement required that transportation and subsistence 
expenses for the worker, and his family, if such is the case, and all 
other expenses which originate from point of origin to border points 
and compliance of immigration requirements, or for any other similar 
concept, shall be paid exclusively by the employer or the contractual 
parties.
    While the Graham bill weakens existing wage, housing, and 
transportation protections, it totally eliminates many other worker 
protections found in the DOL regulations. These protections exist 
because under current law, the Secretary of Labor must certify that the 
employment of the H-2A workers will not adversely affect the wages and 
working conditions of U.S. workers similarly employed, Among the 
protections that would be eliminated are the following:
No preferential treatment of H-2A workers
    Under current law, the employer's job offer to U.S workers must 
offer the U.S. workers no less than the same benefits, wages and 
working conditions which the employer offers H-2A workers. Conversely, 
no job offer may impose on U.S. workers any restrictions or obligations 
which will not be imposed on the employer's H-2A workers.
    This critical protection for U.S. workers is nowhere to be found in 
the Graham bill.
Guarantee of employment
    Current regulations require that the employer guarantee to offer 
the worker employment for at least three-fourths of the workdays of the 
total periods during which the work contract and all extensions thereof 
are in effect.
    Under the Graham bill, the three-quarter guarantee is eliminated.
    The Bracero Agreement provided that for such time as they are 
unemployed under a period equal to 75% of the period (exclusive of 
Sundays) for which the workers have been contracted they shall receive 
a subsistence allowance at the rate of $3.00 per day.
Limitations on productivity requirements
    Given that an H-2A worker has no choice but to work for the 
employer who was issued his visa. H-2A employers are in a position to 
speed up production requirements to the limit of human endurance. 
Current regulations provide that employers cannot requireminimum 
productivity standards higher than those normally required by other 
employers for the activity in the area of intended employment, unless 
DOL approves a higher minimum.
    The Bracero Agreement provided that piece rates shall be so set as 
to enable the worker of average ability to earn the prevailing wage.
Provision for contract impossibility
    The current regulations provide that an employer may terminate the 
worker's contract because a hurricane or other Act of God makes the 
workers services unnecessary. However, the employer is required to 
either transfer the worker to other comparable employment or return the 
worker to his home at the employer's expense and reimburse the worker 
for the cost of transportation to the job site.
    The Graham bill provides no such protection; the worker bears all 
the risk.
Written contract required
    Under the current regulations, workers must be provided with a copy 
of the work contract, no later than on the day the work commences.
    Under the Graham bill, there is no requirement that a worker be 
provided with a contract of employment.
    The Bracero Agreement provided that contracts will be made between 
the employer and the worker under the supervision of the Mexican 
Government (contracts were required to be written in Spanish).
    In short, the Graham bill offers workers fewer protections than 
Mexican workers were given under the 1942 Bracero program.
    The Graham bill would also create a new bureaucracy dedicated more 
to ``proving'' there is a labor shortage than to actually helping farm 
workers find employment. Each state employment service would be 
required to create a farm worker ``registry.'' H-2A employers would not 
be obligated to hire any U.S. worker who was not registered and would 
not be expected to undertake any real efforts to recruit U.S. workers 
before turning to the H-2A program. The registry concept has already 
been piloted in Senator Graham's own state where it was an abysmal 
failure.
    What would be the impact of the NCAE-Graham bill on farm workers?
    For the one million legal farm workers and their family members, 
the Graham bill would push them even deeper into poverty. Currently 
able to find work only about 135 days per year, they would now find 
themselves in a desperate competition for jobs with hundreds of 
thousands of newly legalized farm workers required under the Graham 
bill to work at least 180 days per year or face deportation.
    Both the current legal workers and the newly legalized workers 
would soon face even more competition in the labor market as growers 
sought to take advantage of the revised H-2A program. Without the 
protections of the current H-2A program, growers would find the 
prospect of not having to pay employment taxes on their H-2A workers 
irresistible. U.S. workers would face not only competition for jobs but 
for scarce housing. Further declines in wages would be inevitable as 
one crop after another became dominated by H-2A workers.
    For the current H-2A workers, the Graham bill is simply a pay cut 
as growers switch from the AEWR to the lower prevailing wage. They will 
also lose their transportation reimbursement from their homes to the 
border. They will lose their guarantee of employment. Their employers 
who provide housing will now be able to charge them for security 
deposits, maintenance, and utilities. Their employer may decide not to 
provide housing at all, and they will have to try to find someplace to 
live in a strange country with only a $40 or $50 voucher. If they are 
successful, they will probably have to pay a contractor or raitero $3 
to $5 per day to take them to work since the Graham bill eliminates the 
current requirement that the employer provide free transportation from 
the employee's living quarters and the worksite. Workers may also find 
themselves subjected to excessive meal charges and charges for tools 
and equipment.
    For the currently illegal workforce, many will be unable to 
demonstrate that they worked 150 days in the prior year and will 
therefore not qualify for the adjustment program. Those that do qualify 
will have legal status for a time, but many will never be able to 
obtain permanent resident status in the United States. These workers 
will remain trapped in the underground economy where they will surely 
be joined by new unauthorized workers for there is nothing in the 
Graham bill directed at halting the activities of the farm labor 
contractors and coyotes who profit from illegal migration.
                          what should be done
    The UFW strongly opposes any attempt to expand the current H-2A 
program by reducing the protections for U.S. workers or the H-2A 
workers as the Graham bill does. Furthermore, the UFW opposes any 
further changes to the H-2A program's current labor certification 
process. Replacing the existing certification process with a labor 
attestation process would weaken the minimal protections worker 
protections found in the current program, and would essentially remove 
DOL from having to certify that the employment of the foreign workers 
will not adversely affect the wages and working conditions of the 
hundreds of thousands of farm workers who are legal residents of the 
United States.
    Rather than allowing agriculture to revert to a 20th century 
``Harvest of Shame'' past, we need to push it toward a sustainable 21st 
century future where there is a real partnership between agribusiness 
and its workforce.
    We believe that regulated legal immigration is better than 
unregulated illegal immigration. For that reason, we support a generous 
farm worker adjustment program similar to the one enacted by Congress 
in 1986. We also support immigration reform this year which would 
address the following priorities:
    Allow Salvadoreans, Guatemalans, Hondurans and Haitians to apply 
for adjustment of status on the same terms as already provided to 
Cubans and Nicaraguans in 1997;
    Allow adjustment of status to all persons of good character who 
have resided in the United States prior to 1994;
    Restore the provision permitting those who are out of status but 
otherwise eligible for permanent residence to adjust their status in 
the United States;
    Reunite families by establishing a program to provide additional 
visas for family members of citizens and permanent residents so as to 
reduce unacceptable backlogs and help stabilize the workforce.
    These measures, while not farm worker specific, would allow 
thousands of farm workers to obtain legal residency.
    We also support new approaches to reducing undocumented immigration 
and employer abuse including the enactment of whistleblower protections 
for undocumented workers who report violations of workers protection 
laws or cooperate with federal agencies during investigations of 
employment, labor and discrimination violations. Such workers should be 
given protected immigration status and accorded full remedies, 
including reinstatement and backpay. Furthermore, undocumented workers 
who exercise their rights to organize and bargain collectively should 
also be provided protected immigration status.
    With respect to the existing H-2A program, we believe that labor 
and business should work together to design cooperative mechanisms that 
allow law-abiding employers to satisfy legitimate needs for new workers 
in a timely manner without compromising the rights of and opportunities 
of workers already here. It is critical that immigrant workers should 
have full workplace rights in order to protect their own interests as 
well as the labor rights of all American workers. The current program 
does not meet this standard.
    We need to strengthen the protections under the current H-2A 
program to better protect both H-2A and U.S. workers. In doing so, we 
believe that the Committee needs to focus on three broad principles 
which we believe both side of this debate should be able to agree upon.
    First, it should not be cheaper to hire an H-2A worker than to hire 
a U.S. worker. Currently, employers of H-2A workers are not required to 
pay FICA and FUTA taxes on their H-2A employees. This means that an H-
2A employer saves 13.85% by hiring a foreign worker instead of a legal 
U.S. resident. Congress needs to remove this economic incentive to 
discriminate against U.S. citizens and legal residents. In 1995, the 
National Council of Agricultural Employers proposed that H-2A employers 
be required to pay an amount comparable to what they pay for FICA and 
FUTA taxes on domestic workers into a trust fund to be used to fund the 
administrative costs of the program. We think trust fund is a good 
idea; however, we propose that the funds be used for the purpose of 
improving labor management practices in agriculture by stabilizing the 
labor force, improving productivity, and increasing earnings for farm 
workers through longer periods of employment.
    The second principle is really a corollary of the first principle:
    All temporary guestworkers should be afforded the same workplace 
protections available to U.S. workers.
    Otherwise, unscrupulous employers gain an advantage by employing 
foreign workers. Furthermore, we are committed to this principle with 
respect to foreign workers from Mexico by the NAFTA Labor Side Accords 
in the United States agreed to ``providing migrant workers in a Party's 
territory with the same legal protection as the Party's nations in 
respect of working conditions.'' The most important federal statutory 
protection for farm workers in the United States is the Migrant and 
Seasonal Agricultural Worker Protection Act, 29 U.S.C. Sec. 1801 et 
seq. (``AWPA''). However, H-2A workers are specifically excluded from 
the protections of the Act. They need to be covered by AWPA.
    Third, employers must have a continued incentive to improve wages 
and working conditions.
    In 1993, the National Commission on Agricultural Workers concluded 
its report to Congress by noting that--``The response of the United 
States to competition from countries that pay even lower wages should 
be the development of a more structured and stable domestic labor 
market with increasingly productive workers. Industries must modernize 
to remain successful in the increasingly competitive international 
market place. Agriculture is no exception. * * * To assure its long-
term competitive position, agriculture must improve its labor 
management practices.''
    In reaching its conclusions,the Commission specifically noted that 
farm workers face special problems if they attempt to organize and 
bargain collectively in order to improve their working conditions: 
``effective organizing is made more difficult by the fact that 
farmworkers are essentially powerless, both in objective terms and 
relative to the agricultural employer who oppose organizing.'' However, 
it has been the UFW's experience that where farm workers have been able 
to organize, there has developed the more structured, stable and 
productive work force which the Commission recommended as the long-term 
solution to the agricultural labor problem in the United States. If we 
want to break the cycle of an unstable labor market which constantly 
needs to be replenished with new foreign workers, we should encourage 
the emergence of a stable labor market through organization and 
collective bargaining.
    The UFW is actively working on such a model today. On December 17, 
1994, Bear Creek workers voted to have the UFW be their collective 
bargaining representative. Bear Creek chose to not fight the UFW's 
election victory and instead chose to sit down and bargain a contract. 
In three months a model contract was signed between the UFW and Bear 
Creek. A new partnership was established that was based on six 
principles: (1) Commitment by both leadership levels to making the 
partnership work. (2) the development of continuous learning and skill 
building, (3) the open sharing of technical and financial information, 
(4) the joint development of the partnership plan, (5) the continuous 
integration of leading-edge technology, and (6) recognizing the 
continual need for trust and open communications. The workers, Bear 
Creek and the UFW decided that the major issues that the partnership 
should address, were (1) the growth of the difficulties inherent in the 
agricultural industry, (2) the physical demands and seasonality of the 
work, (3) the virtual absence of standard employee benefits, and (4) 
over-reliance on inexpensive labor rather than development of a skilled 
workforce. With this new partnership Bear Creek in 1998 set record 
profits and prior to that had only been breaking even. But most 
notable, however is the fact that hourly labor costs, as a percentage 
of total overall spending, was reduced by 3% since 1996 and reduced by 
2% since 1998, while at the same time wages have been increased and 
benefits improved.
    It is only through these type of models that we will address the 
real issue of poverty that confronts farm workers today and upon which 
we can create a stable market that benefits all interested parties.
    We thank the Subcommittee for its consideration of our views.
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    Senator Abraham. Thank you for being here. We appreciate 
the participation of your organization. In that I do have an 
amendment on the floor, I am not going to ask a lot of 
questions of this panel. I want to just get a couple of quick 
ones though.
    This issue of whether or not there is a shortage, Ms. Munoz 
argues that the wage issues argue that there may not be a 
shortage. Mr. Holt, Mr. Wunsch, you certainly would argue 
presumably on the other side. If anybody would like to expand 
on their earlier remarks, I would like to hear them.
    Mr. Camacho, you said that we should not be debating or 
that this issue of shortages was not----
    Mr. Camacho. Not the real issue.
    Senator Abraham. Not the real issue. Does that imply that 
you agree that there are shortages or that there are not?
    Mr. Camacho. No, I do not think there is a shortage. I 
think that the issue is if agriculture employers are willing to 
pay wages that are a living wage to farm workers, then you are 
going to have a lot of people working in those areas.
    What is happening now is that they are not willing to do 
that, so like anybody else, workers are finding other jobs that 
pay better.
    Senator Abraham. Mr. Holt?
    Mr. Holt. Mr. Chairman, I think we need to sort of hit over 
the head this notion that the wages in agriculture are 
stagnated. That statement is based on--well, usually the way it 
is articulated is that real wages in agriculture are stagnated, 
that they in fact have declined. And that is true as far as it 
goes. The fact of the matter is, that real wages in the economy 
in general have stagnated, have declined based on the current 
CPI wage deflator that the Bureau of Labor Statistics is still 
using, but what they and the entire community has pretty much 
determined is out of date.
    If you look at agricultural wages compared to non-
agricultural wages, they have risen more in money term--
agricultural wages have risen more in money terms and have 
declined less in real terms than non-agricultural wages. So, 
you know, I think you would have to argue--if you are going to 
argue that there is a surplus of labor in agriculture, that 
there is an even greater surplus of labor outside of 
agriculture, and I think we know that that is not the case.
    If you have a labor force in which 52 percent of the world 
force self-identifies as being illegal, it seems to me that is 
prima facie evidence that there is a shortage of legal workers 
in agriculture. Now, we might debate how big that shortage is, 
but I do not think we can debate its existence.
    Senator Abraham. Ms. Munoz.
    Ms. Munoz. I would just refer you to page 2 of my written 
statement. There are two studies which are cited which 
demonstrate. The hourly wage for agricultural workers has risen 
only about half the rate as for non-agricultural workers, and 
in real terms that is a stagnant wage. This study that we cited 
from, the Department of Labor, as well as the Congressional 
Research Service, which did a report for Congress.
    Senator Abraham. Mr. Wunsch, did you want to comment?
    Mr. Wunsch. Well, responding to the question from the Chair 
on the shortage, if I relate that to personal experience, I am 
short of workers when I have more work than I have available 
workers. When the job is done, I have a surplus of workers.
    In response to the wage question, I can honestly say I have 
told my workers I will never be able to pay them what they 
deserve to make, whether they are seasonal workers, year-round 
workers, Anglos, Hispanics, insufficiently documents, valid 
green cards, old, young, because the value of my activity as an 
agricultural producer does not generate the revenues necessary 
to make such wages available. So we do the best we can.
    Now, I know there are certainly situations where wage abuse 
may occur. I do not think there is any argument there. But what 
I see between the agricultural employer and the agricultural 
employee is a situation where we have a shortage, not so much 
of workers, but of legal workers, and a great weariness on the 
part of all living with this criminal status as employers who 
are subject to fines for employing folks that are not 
sufficiently documented, but most particularly, the workers and 
the worker families, who for years have been subject to the 
life of fugitives on the run, who now have kids that are 
getting ready to graduate from high school that were born in 
the U.S.
    So we have got a worker shortage. We have got an economic 
situation that some consider intolerable as far as the wage and 
living conditions, but most particularly we have an incredible 
paradoxical situation as far as the legal situation we have 
inadvertently created for ourselves, and an opportunity to fix 
it.
    Ms. Munoz. And that is the place where in broad principle 
there is agreement. I do not think there is disagreement on the 
panel that legalizing the existing work force which is 
undocumented, would be a useful thing for all concerned. The 
question is how to do it.
    Senator Abraham. I am just going to ask both of my 
colleagues from the Senate if they want to comment on this 
issue as well.
    Senator Smith. Just briefly, Mr. Chairman. I would like to 
stipulate it is my opinion, for the record, there is no 
agricultural labor shortage as long as you are willing to 
accept an illegal system. That is what the GAO said. There is 
no problem, because we have all of these illegal workers here, 
and that is the problem.
    Housing, Mr. Camacho, in my state it is illegal to build 
housing on farmland, so I am trying to figure--my motive in the 
way we structure this is to create some capital to create some 
housing someplace where it is legal. Every state has different 
land use laws. Mine are very restricted.
    The bill I am looking at has the prevailing wage plus 5 
percent. You made the comment that we get rid of the prevailing 
wage. Are we reading the same bill? I just do not understand 
that.
    The Agricultural Worker Protection Act. We specifically 
include that, and there has been testimony today that said that 
we have not. We are really, really trying to include everything 
we can to provide financially to correct the problems and to 
provide the safety that the workers deserve, and to provide the 
legality, believing legality will result in a living wage, but 
as long as they are kept illegal, they are going to be kept 
victims, andthat is what I am trying to fix. I am so frustrated 
that we cannot seem to read the same words on the same piece of paper.
    Senator Abraham. Mr. Camacho, do you want to comment on 
those two provisions?
    Mr. Camacho. Yes. The housing issue, I mean I think there 
is a lot of ways to look at it. Do you give workers in the 
states where there is available housing? Maybe a voucher 
concept would work. In states where there is no housing for 
farm workers, a voucher concept is not going to work. So you 
have to figure out--you have to provide housing for those 
workers.
    In terms of the prevailing wage, maybe I did not explain it 
correctly, but right now the prevailing wage is based on not 
the industry, not the particular industry they are working, but 
what state average workers make.
    Senator Smith. It is Davis-Bacon.
    Mr. Camacho. No, it is not. The prevailing wage in the bill 
would be, for example, if raising growers are paying 20 cents a 
tray, then that would become the prevailing wage. And all you 
are going to do is 5 percent above 20 cents. It comes up to 21 
cents. So all they are raising it is 1 penny on that tray. It 
is not the prevailing wage for the state, as it is now on the 
H-2A program.
    Senator Smith. Jim, can you comment on that?
    Mr. Holt. Yes. I think there is a little bit of terminology 
confusion here between ``prevailing wage'' and ``adverse effect 
wage rate.'' I think with all due respect, what you were 
meaning when you said ``prevailing wage'' was ``adverse effect 
wage rate.''
    Mr. Camacho. That is correct.
    Senator Abraham. Senator Graham, would you like to comment?
    Senator Graham. Well, I would like to just put some numbers 
on the table and see if there is agreement or disagreement, 
because I think they go to the question of is there a shortage 
of a legal work force? According to the survey that was done in 
1999 by the U.S. Department of Agriculture and the U.S. 
Department of Labor, there are 1.6 million persons who worked 
in American field agriculture, of which 50 percent were 
undocumented. They self-described themselves as undocumented.
    In 1999 the Department of labor issued 41,000 certificates 
for H-2A workers, which was almost double the number of 
certificates they had issued two years earlier, which I think 
has some commentary on the domestic labor market.
    If you accept all of those numbers, that would indicate 
that the total work force in field labor broke down into 
800,000 undocumented aliens, 759,000 legal domestic workers, 
and 41,000 H-2A workers, assuming all of the certificates that 
were issued were in fact utilized.
    Now, is there any strong disagreement with those numbers as 
to what is the current status and distribution of American 
field farm workers?
    Ms. Munoz. We do know that the H-2A program has been 
expanding. It is being applied to new crops and it is being 
used in new parts of the country. There is some language in my 
written statement about the State of Georgia, for example, 
which did not tend to use H-2A workers, and now there has been 
a dramatic expansion in the H-2A program in that state.
    We also know that among domestic farm workers there are 
very--and I spoke about it earlier--there is high rates of 
unemployment, but we have specific evidence with respect to 
California in a study done by the California Rural Legal 
Assistance Foundation, which is attached to my testimony, which 
found even during peak harvest months there were domestic, 
legally-authorized-to-work farm workers who were not being 
recruited by employers. And Mr. Camacho's statement, I think, 
illustrates that the way the H-2A program is structured, the 
domestic work force becomes less desirable, and that I think is 
reflected in the number of days people are working, as well as 
the unemployment rates in various sectors of the economy where 
these workers are located.
    So, clearly the numbers can be used to prove a variety of 
points of view. I think ultimately the broader point here is 
that nobody accepts and is comfortable with the proportion of 
undocumented workers in this work force. I think that is a 
place where there is agreement. I would hope that nobody is 
comfortable with the wages and the working conditions that we 
see in this industry. Ultimately, the broad point that we are 
trying to make is whether or not legislation can be advanced 
which makes substantial improvements towards both of those 
ends.
    Senator Graham. In terms of the circumstances of legal 
domestic workers, how much of those conditions are a function, 
in your opinion, of the 800,000 undocumented? That is, how much 
does that 800,000 work force contribute to depression of wages 
and working conditions for the legal domestic workers?
    Ms. Munoz. We think there is a relationship. We do believe 
there is a relationship. Again, that is why ultimately we have 
taken the position for a long time, and the AFL-CIO has 
recently taken the position, that it is ultimately in the best 
interest of all workers for the domestic work force, not just 
in agriculture but across the country, to be legalized. We do 
not dispute that question at all. The question is whether or 
not tying people to agriculture and creating a set of steps 
that are going to be difficult for folks to climb is the best 
way to achieve that goal.
    Senator Graham. I would like to ask, if I could, a follow-
up question, but if Mr. Holt or Mr. Camacho or any other 
members of the panel would like to comment on what is the 
relationship between the 800,000 undocumented agricultural 
field workers and the working conditions of the 759,000 legal 
domestic workers?
    Mr. Holt. Well, I would like to say--I would like to 
disagree with my colleague here on the panel. I think the 
evidence--I do not think there is evidence to support that 
agricultural wages are depressed. And I think the fact that--
notwithstanding the substantial proportion of the agricultural 
work force which is undocumented, the fact that agricultural 
wage rates are increasing more rapidly than non-agricultural 
wage rates is indicative of this, and the figure that I am 
working from at least are the Department of Agriculture's 
figures that go into the national income accounts and into the 
BLS national income accounting figures. These are the standard 
agricultural hourly wage statistics.
    Now, there is a difference between hourly wage rates and 
workers' earnings, workers' average earnings. This is,after 
all, a seasonal industry, and in particular, the NAWS data, the 
National Agricultural Worker Survey that Ms. Munoz is citing from, is a 
survey of the seasonal agricultural work force. It excludes everybody 
who is not seasonal. So annual earnings are a function of how many 
weeks a person works, and I would say in a highly--in a work force 
highly populated with illegal aliens, where there is the kind of rapid 
changes in identity that, for example, Polo Garcia referred to, talking 
about trying to deduce statistics on average annual earnings of 
individuals is, frankly, a fruitless undertaking. But the hourly 
earnings in agriculture are in fact increasing at a more rapid rate 
than non-agriculture. You know, there is probably nobody in this room 
that could cite what the average hourly earnings of agricultural 
workers are. We would probably all guess something close to the minimum 
wage. The fact of the matter is that in 1999 it was $7.77, which is a 
higher hourly rate than many unskilled and low-skilled non-agricultural 
occupations generate in rural areas. The problem is, it is a seasonal 
industry. That is why workers' earnings are low, their annual earnings 
are low, and it is why workers move out of that industry into year-
round work when it become available. And that has been happening for 
the last century, and it is going to happen for the next century.
    Mr. Camacho. I think Mr. Holt sort of supports the--his 
statement supports that in fact the 800 do suppress wages, 
because if you have two people waiting for one job, then that 
automatically is going to suppress wages. And the fact that 
wages have been increasing so rapidly has been because they 
were so low to begin with. So, yes, they are going to increase. 
And in California the reason wages increased was because 
minimum wage was increased. It was a legislative act that 
created that race. So, again, my feeling is that, yes, there is 
a depression of wages.
    Senator Abraham. Mr. Wunsch, you want to comment?
    Mr. Wunsch. Yes, I do. I think there is a fundamental 
fallacy here that needs clarification. At the level of the 
agricultural employer, the undocumented worker is virtually 
indistinguishable from the properly documented worker. In other 
words, of that 759,000 workers, you have within that some 
subgroups. You have the ones that came through in the 1985 
Amnesty Program. You have the blue-eyed, blond-haired Norwegian 
farm boy from next door that comes over and does the milking. 
You have got a very diverse group that are included in that. 
But let us just say that we are going to specify migrant-
Hispanic-alien-registration-card-bearing workers.
    From the standpoint of the employer, you are looking at a 
card, whether it is fraudulent or genuine, it is virtually 
identical. You do not know who is illegal and who is legal. You 
are going to afford to each one of those individuals the same 
protections under the law that you as an employer are obligated 
to provide. You cannot make a distinction between legal or 
illegal. You cannot knowingly infringe upon somebody's rights 
or exploit them, knowing that one person is not legally 
documented and the other one is. From the standpoint of being a 
legal employer, everyone must be treated the same. From the 
standpoint of worker protection, wages, insurance, there are no 
glowing signs on their foreheads that say ``I am legal'', ``I 
am illegal.'' They all have, from what appears to us as non-
professional document experts, the same criteria for working. 
Actually, we know in our heart of hearts that those great-
looking fraudulent documents are provided for us and only for 
us as employers to protect us from the $10,000 fine that we are 
subject to if we knowingly employ an undocumented worker.
    So there is no really clear way to distinguish one subset 
from another. We have to treat them equally.
    Senator Abraham. Well, I appreciate this panel's, in 
several cases repeat appearances, but all of your appearances 
here today. We do not always envision these hearings producing 
a consensus. Today has not produced consensus. It has maybe 
opened a few more opportunities for dialogue in the 
deliberations on this legislation.
    I would only say that I am hopeful that we can address this 
issue this year. I hope that the various sides can do more 
deliberating and try to make some progress.
    At the same time, I would just say that from the 
perspective of our Michigan agriculture community, it is an 
ever more significant problem, and I think that we do have 
regional differences here that should not go overlooked in 
these panels. One of the reasons that I asked Mr. Wunsch to be 
here again was because we don't have quite the same labor 
situation that you might have in Florida or Oregon or certainly 
in California. But I hope that we can try to address it 
together, and we will even consider additional hearings in the 
future if that is of any further benefit, although hopefully 
now we ventilated a lot of these issues enough, and can move 
forward.
    I will just leave the record open for the other 
Subcommittee members who are not here if they wish to include 
statements or to submit questions to you within the next day or 
so. And as I mentioned, all of you who had longer statements, 
that we will include those in their entirety in the record.
    We thank you all for being here. Thank you very much. The 
hearing is adjourned.
    [Whereupon, at 4:07 p.m. the subcommittee was adjourned.]
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